State v. Fenn

41 Conn. 590 | Conn. | 1874

Phelps, J.

The defendant moves for a new trial for a verdict against evidence, and for the admission by the court of certain testimony offered by the State and objected to by him, and also for sundry alleged errors of the court in its instruction to the jury.

1. We are satisfied from the testimony recited in the motion that the verdict is not so manifestly against the weight of the evidence properly admitted in the cause, as to require us on that ground to set aside the verdict.

The State was bound to prove the felonious intent by the defendant at the time of the taking of the property, that it was of some actual and intrinsic value and was the property of the person named as owner in the information, and that it was taken by the defendant either secretly and without the knowledge of the owner, or openly by deception, artifice, fraud or force, and with the design then entertained to deprive the owner of it and secure to himself some personal benefit from the wrongful taking. We think the evidence detailed in the record justified the jury in finding all these propositions proved. The direct proof of the value and ownership of the note was not in itself necessarily conclusive, but we think it was so far corroborated by the circumstances, and especially by the conduct of the defendant, that we cannot properly say the verdict with respect to those allegations was unwarranted.

2. The note was proved on the trial to have been payable with semi-annual interest and all taxes that should be assessed on the amount of money represented by it. The description of it in the information omitted those particulars, and the defendant objected to the evidence descriptive of the note on the ground of a material and fatal variance.

In a prosecution for theft the property alleged to have been stolen must be described with substantial accuracy, so that its identity shall be unquestionable and the defendant thereby protected from another prosecution for the same offence. We think that it was reasonably done, and that the defendant who wrongfully took the note and destroyed it should not be permitted to say it was not described with the7'utmost possible particularity. There is nothing in the circumstances which indicates any danger of his being subjected to- another prosecution by reason of such incomplete description, and the attorney for the State has carefully inserted in one of the counts in the information the usual averment in such cases that a more particular description of the property was to him unknown.

A similar objection was taken to evidence showing the precise form of the indorsements of the note by the payee and indorsee, on the ground that the information did not state the form of the indorsement by the payee, or that the indorsee who was the owner had indorsed it at all. Sufficient was alleged to show that the title passed by indorsement from the payee to the indorsee, and as the latter was alleged to be the owner the question whether he had written his name on it by way of a blank indorsement without delivery could not iii this case be material. The question was one of title, and his placing his name for the purpose of collection on the back of a note payable to his order would not affect that, and as a matter of mere technical form was unimportant.

3. A large number of objections are taken to the instructions given by the court to the jury. Those relating to the question of variance between the information and the proof are sufficiently noticed and disposed of in what has been already said with reference to the admissibility of the evidence on those points. The other questions made relate to the value and ownership of the note, the manner it was taken hy the defendant, and the intent with which it was done. The jury were required to find, under the instruction given them, that the note was of some substantial value, that Warner was the owner of it when it was taken by the defendant, that the taking was either secretly done, or openly by fraud or force, and in either mode with the felonious intent to deprive the owner of his property in it, and convert it to the private advantage of the defendant. On all these points the law was fully, plainly and correctly stated, and the defendant has no just reason for complaint.

We advise the Superior Court that a new trial be not granted.

In this opinion Poster and Pardee, Js., concurred; Carpenter, J., also concurred, but with hesitation. Park, C. J., dissented.