State v. Russo

143 A. 99, 127 Me. 313, 1928 Me. LEXIS 174

• Court: Supreme Judicial Court of Maine
• Decided: September 21, 1928
• Status: Published

Opinion

Pattangall, J.

On exceptions. Respondent was indicted and arraigned on a charge of breaking and entering in the night-time and larceny. He plead not guilty. Trial followed and, after a nolle prosequi had been entered as to the breaking and entering, was found guilty of larceny.

At the close of the State’s case, respondent waived his right to introduce evidence and moved for a directed verdict. The motion was denied and exceptions taken. Exceptions were also taken to certain instructions given to the jury.

Respondent was accused of.having stolen electric clippers from a barber shop. The clippers were hanging, in their usual place, on the wall, when the shop was locked at night and in the morning were missing. There was nothing to indicate the manner in which the building had been-entered and the proprietor had never seen respondent until they met at the police station some two weeks after the clippers were taken.

A police inspector, having been notified of the theft, interviewed respondent who, after some questioning on the officer’s part, asked what would happen if the clippers were returned. Following this conversation, respondent returned to his house accompanied by the inspector and another officer, walked down the cellar stairs, nearly to the last step, reached up under some part of the floor, pulled out the clippers wrapped in a newspaper and gave them to the inspector.

On these facts, uncontroverted and unexplained, the presiding justice very properly submitted the case to the jury. The motion for a directed verdict was rightfully denied.

“In prosecutions for larceny, where the goods are proved to have been stolen, it is a rule of law, that possession by the accused, soon after they were stolen, raises a reasonable presumption of guilt and unless the accused can account for that possession consistently with his innocence, will warrant his conviction. Such evidence is by no means conclusive and it is stronger or weaker as the possession is more or less recent.” State v. Merrick, 19 Me., 400; Beloit v. State, 36 Miss., 96; Garcia v. State, 26 Texas, 209, 17 R. C. L., 72. Possession is not limited to actual custody about the person. It may be of things elsewhere but under the control of the person. It may be in any place where it is manifest that it must have been put by the act of the party or his undoubted concurrence. State v. Johnson (N. C.), 86 Am. Dec., 434, and authorities cited.

The instructions given to the jury were based upon the foregoing. Respondent insists that he was aggrieved in that, in stating the law, no reference was made to the importance of the element of the length of time which elapsed between the theft and the finding of the stolen goods. It is true, as stated above, that the more recent the finding the stronger the presumption but it is difficult to perceive how the respondent could be aggrieved by failure to emphasize that phase of the law when but two weeks had intervened between the theft and the discovery of the goods in respondent’s possession. The time was fixed. It was obviously recent. The less said about it the better if respondent desired to escape punishment for the offence which the evidence submitted sufficiently proved him to have committed.

Exceptions overruled.