State v. Huot

365 A.2d 1144, 170 Conn. 463, 1976 Conn. LEXIS 1040
CourtSupreme Court of Connecticut
DecidedMarch 30, 1976
StatusPublished
Cited by20 cases

This text of 365 A.2d 1144 (State v. Huot) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Huot, 365 A.2d 1144, 170 Conn. 463, 1976 Conn. LEXIS 1040 (Colo. 1976).

Opinion

Bogdanski, J.

The defendant was charged in a two-count information with breaking and entering a public school building with intent to commit a crime therein in violation of General Statutes § 53-76 (repealed 1971), and with larceny in violation of General Statutes § 53-63 (a) (repealed 1971). A jury found the defendant not guilty of breaking and entering and not guilty of larceny, but guilty of receiving stolen property. From the judgment rendered on the verdict the defendant has appealed, assigning error in the court’s charge and in its denial of his motions to set aside the verdict and for judgment notwithstanding the verdict.

The defendant first assigns error in the court’s refusal to adopt the following written request to charge: “[R]ecent possession of property known to have been stolen raises a presumption that the *465 possessor was guilty of the theft. . . . This presumption is based upon common experience and inherent probability and therefore exhausts itself when substantial countervailing evidence is produced, leaving the fact of such possession to be considered with the other circumstances proven.” State v. Donnelly, 124 Conn. 661, 663, 2 A.2d 214.

We find no merit to this claim. The court instructed the jury that “the possession of the property recently stolen, if it is unexplained and standing alone or without other facts pointing to a contrary conclusion, would justify you in drawing an inference that the possessor . . . stole the property.” The court went on to explain that the soundness of the inference would be dependent upon the weight which the jurors accorded to all of the evidence presented on the issue. “Error cannot be predicated on a failure to adopt the particular language of a request to charge where the matter is adequately or fairly covered in the charge.” Nally v. Charbonneau, 169 Conn. 50, 55, 362 A.2d 494; Hally v. Hospital of St. Raphael, 162 Conn. 352, 361, 294 A.2d 305. The charge fully covered the substance of the defendant’s written request.

The defendant’s principal claim is that the crime of receiving stolen property should not have been submitted to the jury because (1) that crime was not charged in the information, and (2) it was not a lesser included offense within the count of larceny.

General Statutes § 53-65 (repealed in 1969 by 1969 Public Act No. 828 § 214, effective October 1, 1971) read: “Any person who receives and conceals any stolen goods or articles, knowing them to be stolen, shall be prosecuted and punished as a principal, although the person who committed the theft is not *466 convicted thereof.” Since the statute expressly authorized prosecution of a receiver as a principal in the theft, a person charged with the crime of larceny in violation of § 53-63 of the General Statutes could have been convicted on proof that he was a receiver under § 53-65. State v. Palkimas, 153 Conn. 555, 562, 219 A.2d 220. See State v. Weiner, 84 Conn. 411, 412, 418, 80 A. 198; State v. Fox, 83 Conn. 286, 291, 76 A. 302; State v. Kaplan, 72 Conn. 635, 639, 45 A. 1018. “[Pjroof of guilt under the receiving statute is proof of guilt as a principal thief of the goods received.” State v. Palkimas, supra; State v. Kaplan, supra. There was no need specifically to charge the defendant with a violation of the receiving statute, since that crime was within the purview of the larceny statute. 1

In instructing the jury on the relationship between the statutes concerning larceny and receiving stolen goods, the trial court stated that the statute on larceny included within it the offense of receiving stolen goods and that a violator of the receiving statute was to be treated as though he had actually stolen the goods. Nowhere in its charge, however, did the court state that the crime of receiving stolen goods was a lesser included offense within the crime of larceny.

Upon conclusion of the jury’s deliberations the following transpired: “The Clerk: What say you, is the prisoner at bar guilty or not guilty of the crime ... on the first count of breaking and entering? The Foreman: Not Guilty. The Clerk: What say you, is the prisoner at bar guilty or not guilty of the crime . . . charged in the second *467 count of larceny? The Foreman: Not Guilty. The Clerk: What say you, is the prisoner at bar guilty or not guilty of the crime . . . that is included in the count of larceny, which is receiving stolen goods? The Foreman: Guilty.”

The judgment file in this case, however, recites that after a “full hearing the case was committed to the jury which returned a verdict of ‘not guilty’ on the first count and ‘not guilty’ on the second count, but found the defendant guilty of the lesser included crime of Receiving Stolen Property . . . .”

The established test for determining whether one violation is a lesser included offense within another violation is whether it is possible to commit the greater offense without having first committed the lesser. If it is possible, the lesser offense is not then an included offense. In other words, the lesser offense must not require any element which is not needed to commit the greater offense. State v. Brooks, 167 Conn. 281, 355 A.2d 67; State v. Cari, 163 Conn. 174, 303 A.2d 7; State v. Brown, 163 Conn. 52, 61-62, 301 A.2d 547.

The essential elements of the crime of receiving stolen goods are: “1. The property must have been stolen. 2. It must have been received by the accused with the knowledge that it was stolen. 3. It must have been concealed within the meaning of the law. 4. It must have been received and concealed by the accused with a felonious intent.” State v. Pambianchi, 139 Conn. 543, 546, 95 A.2d 695, quoting from State v. Alderman, 83 Conn. 597, 600, 78 A. 331. The elements of larceny, on the other hand, are: “(1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive *468 the owner of it permanently; and (3) the lack of the consent of the owner.” State v. Banet, 140 Conn. 118, 122,

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Bluebook (online)
365 A.2d 1144, 170 Conn. 463, 1976 Conn. LEXIS 1040, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-huot-conn-1976.