State v. SampsonState v. Sampson
- Reporters:
- , ,
- Before:
- King
Following a hearing on defendant’s motions to quash and dismiss certain indictments, the Superior Court
(Batchelder,
J.) referred the questions raised by defendant’s motions to this court by interlocutory transfer, without ruling, pursuant to
The defendant, George Sampson, has been indicted on seven counts of theft in violation of
The indictments were issued according to the statute in effect when the defendant allegedly committed the illegal acts. Subsequent to their commission, however, and prior to the return of the indictments, the legislature amended
Defendant contends that the law in effect at the time of the indictments, rather than the law in effect at the time of the allegedly illegal acts, determines whether those acts are properly classified as felonies or misdemeanors. Relying on this
The defendant bases his contention that the applicable law is that in effect at the time of the indictments on the presumption of law that a statutory amendment has retroactive application to offenses committed prior to its effective date if the purpose of the amendment is either to reduce the maximum penalty for such an offense or to alter sentencing procedures in a manner beneficial to the defendant.
State v. Breest,
116 N.H. 734, 754-55, 367 A.2d 1320, 1336 (1976);
State v. Gobin,
96 N.H. 220, 223, 73 A.2d 430, 432 (1950). The application of this legal principle is inapposite in the context of this case, however, because the maximum punishment for a class B felony has not been reduced or amended.
See
The subsequent amendment did not indicate an intent to reduce the punishment of a class B felony or to apply the legislation retrospectively. Absent such an indication, substantive amendments to criminal statutes operate prospectively. State v. Banks, 108 N.H. 350, 236 A.2d 110 (1967). Though a newly-amended criminal statute applies to offenses committed after its enactment, the prior statute remains applicable to all offenses committed prior to the amendment’s effective date. Id., accord McMichaels v. Hancock, 110 N.H. 168, 269 A.2d 30 (1970). “This conclusion is reasonable, logical and constitutional.” State v. Banks, supra at 352, 236 A.2d at 111.
Moreover, if defendant’s theory were adopted, this court would be holding that the legislature intended not just to retroactively impose a less severe punishment for acts still criminal but, as in this case, to excuse the conduct altogether. If the law is applied retroactively to reduce felony offenses to misdemeanors committed prior to its enactment, the one-year
Because at the time the defendant is alleged to have stolen property of a value in excess of $100, the statute declared such acts to be class B felonies, the indictments properly allege the commission of class B felonies, not misdemeanors. Because the indictments in this case properly allege the commission of felony offenses, and because prosecution has begun within the applicable six-year statute of limitations, there is no statutory bar.
The defendant next argues that the indictments do not set forth any scheme or course of conduct as a matter of fact or law that can be the basis for aggregating separate, allegedly stolen small amounts to one larger amount for the purpose of establishing a basis for the more serious grade of offense being charged.
An indictment is sufficient if it clearly sets out the necessary elements of the offense. State v. Bussiere, 118 N.H. 659, 392 A.2d 151 (1978); State v. Inselburg, 114 N.H. 824, 330 A.2d 457 (1974). In the instant case, each’ indictment sets forth the crime charged, the date, the place, the amount stolen, the particular county credit card used, the date of payment by the county of the resulting bill, and the defendant’s intent to deprive the county of funds rightfully belonging to it.
Defendant argues that there must also be a factual allegation describing a “scheme” or “course of conduct” to justify aggregation of the various itemized charges. Each indictment specifically alleges that the defendant made the unauthorized purchases “in a course of conduct.”
Amounts involved in thefts committed pursuant to one scheme or course of conduct, whether from the sameperson or several persons, may be aggregated in determining the grade of the offense.
(Emphasis added.)
[W]hen it appears that the successive takings are actuated by a single, continuing, criminal impulse or intent or are pursuant to the execution of a general larcenous scheme, it has been held or stated that such successive takings constitute a single larceny, regardless of the extent of the time which may have elapsed between each taking.
Anderson, 2 Wharton’s Criminal Law & Procedure § 450 at 76 (1957); Annot., 136 A.L.R. 948, 950 (1942). A determination of the defendant’s intent, however, is a question of fact for the jury. Annot., 53 A.L.R.3d 398, § 6 (1973). Whether or not the State can prove to the jury beyond a reasonable doubt that such a continuing intent existed is not before us.
Each indictment alleges a separate series of takings during one course of conduct encompassing a period of days or weeks on separate long trips, each larceny within a series involving property of less than $100 in value but amounting in the aggregate for each long trip to more than $100. The defendant is fully and fairly apprised by the indictments that the series of lesser takings has been charged as one aggregate offense because they were allegedly carried out “in a course of conduct.” Accordingly, we hold that the indictments are sufficient to allow aggregation of value under
Remanded.
All concurred.