The defendant on a trial to a jury was convicted on two counts, each charging the crime of larceny. Error is assigned in the finding, in the charge, in rulings made during the course of the trial and in the denial of the defendant’s motion to set aside the verdict. The latter ruling is tested by the evidence contained in the appendices to the briefs. Practice Book §§ 716, 718, 720-722;
State
v.
Keating,
An examination of the evidence as summarized and quoted in the appendices to the briefs indicates that there was evidence either directly or by reasonable inference to support each of the twelve paragraphs of the finding which the defendant attacked. The finding furnished a fair and adequate basis for testing the errors in law claimed to have been made by the court, and no corrections are warranted.
State
v.
Whiteside,
Before considering the factual situation presented by the evidence, we first examine the specific offense with which the defendant was charged and the elements of that offense which the state was required to prove beyond a reasonable doubt. The statute under which the defendant was charged provides that “[a]ny person who steals any money, goods or chattels . . . , if the value of the property stolen exceeds two thousand dollars, shall be imprisoned . . . .” General Statutes § 53-63 (a). This statute embraces the common-law crime of larceny.
State
v.
Benson,
Each count of the information charged that the defendant stole a sum of money from the savings account of Joanna Rockwell. There is no justification for the claim by the defendant that the wrongful taking and carrying away charged in the information was the taking and carrying away of withdrawal orders. The information in the first count expressly charges that the defendant “stole the sum of $8000.00 from the bank account of one Joanna *260 Rockwell.” The second count contains the same allegation except for the different amount of $13,000. The bill of particulars does not change this basic allegation of larceny of the two sums but merely details with greater specificity the manner in which the theft of the money was accomplished by the defendant, i.e., “by his fraudulently obtaining from Mrs. Joanna Rockwell, without her knowledge or consent, withdrawal orders on said bank signed by Mrs. Joanna Rockwell which were thereafter used, by the said accused to unlawfully obtain the sums of money from Mrs. Rockwell’s bank account on the dates and in the amounts as alleged in the information.”
The charge, therefore, in each count was the theft of a sum of money from Mrs. Rockwell’s savings bank account accomplished by a specified set of acts with a specified intention, all of which constituted an allegation of larceny of sums of money by fraud, artifice or trick. “The state was attempting to establish the crime of larceny by trick. This crime is committed when one obtains ‘the possession of personal property of another by deception, artifice, fraud or force, with the intent on the part of the person obtaining it to convert it to his own use and permanently deprive the owner of his property.’
State
v.
Rapsey,
Where the taker is also in the position of an agent of the victim of the taking, the time of the forming of the felonious intent to take is of paramount importance in the determination whether the taking constitutes embezzlement or larceny. A key element in the former offense is the lawful receipt by an agent of the property which is the subject of the subsequent felonious conversion.
State
v.
Serkau,
With respect to the possessory interest retained by a depositor in a mutual savings institution, it is pertinent to note that, although deposits in an ordinary commercial bank create the relation of debtor and creditor between the bank and the depositor, and the money deposited becomes the property of the bank, which holds it not as the agent but as the debtor of the depositor, a different relation is created by a deposit in a mutual savings institution. Like savings banks, savings and loan associations are incorporated agencies without capital stock. Each is organized “to accumulate the savings of its members and invest the same in mortgages, loans and such other securities as are allowed by law.” General Statutes § 36-172 (a). The members of the association are those in whose names savings accounts are established; General Statutes § 36-172 (b); and although the association becomes in a sense the debtor of the depositor, “it is also his agent since the depositor retains the equitable ownership of the deposit while transferring the legal title to the . . . [association] for the purpose of investing and conserving it for him.”
Alexiou
*263
v.
Bridgeport-People’s Savings Bank,
Turning now to the evidence, we can accept the defendant’s assertion that “[t]he basic facts regarding the alleged crimes were not in issue. It was the intention of the parties or their state of mind as they performed these acts which is contested.” “A question of intent is a question of fact, the determination of which is not reviewable unless the conclusion drawn by the trier is one which cannot reasonably be reached.”
International Brotherhood
v.
Commission on Civil Bights,
From the evidence, the jury could find that on January 1, 1962, Mrs. Joanna Eockwell was an elderly widow who resided in New London. She had $22,186.56 in a savings account in the New London Federal Savings and Loan Association, $7216.27 in another savings account in the Savings Bank of New London, and a checking account in another bank. She was pretty careful with her money. With her lived Mrs. Evelyn Hammond, who was hired as a companion and housekeeper by Mrs. Bockwell’s grandchildren. Shortly after her employment started, Mrs. Hammond introduced her son-in-law, the defendant, to Mrs. Eockwell, and he began to help Mrs. Eockwell with her financial transactions. There developed a customary procedure whereby *264 Mrs. Hammond would save or accumulate Mrs. Rockwell’s bills; the defendant, who used to visit Mrs. Rockwell as often as two or three times a week, would fill out checks drawn on Mrs. Rockwell’s checking account to pay these bills, Mrs. Hammond’s salary and the rent; Mrs. Rockwell would then sign the checks and the defendant would mail them. Except for one or two exceptional occasions, Mrs. Rockwell always went to the bank with the defendant. The defendant would ordinarily take Mrs. Rockwell out to go to the bank on Tuesday or Friday of each week, and on these trips he would fill out forms for her signature and help her in making deposits to her checking account and in transferring funds from either of her savings accounts to her checking account. It was his custom to help Mrs. Rockwell into the bank, sit her on a little couch, go to a center table in the lobby, fill out a withdrawal form, take the form to her for her signature and then go himself with the passbook and withdrawal order to the teller’s window to complete the transaction. Mrs. Rockwell was the only owner of each of the savings accounts. They were under her sole control, and under her contract of deposit with each institution she alone possessed the power to draw money from the accounts. To make a withdrawal, it was necessary for her to sign a withdrawal slip or order to pay money, and the bank or savings and loan association in each instance would make payment to anyone who presented such a withdrawal order duly signed by Mrs. Rockwell, together with her passbook for the account involved. On several occasions during this period, the defendant would have Mrs. Rockwell give him possession of the appropriate passbook and sign a withdrawal order, which he would personally present to a teller *265 from whom he would receive payment for Mrs. Rockwell from the savings account involved.
On June 4, 1962, the defendant took Mrs. Rockwell to the office of the New London Federal Savings and Loan Association in New London where he filled out and obtained her signature to a withdrawal order for $400 payable in cash and to a withdrawal order directing payment of $8000 to him by check from her savings account. He then presented the orders to a teller, together with Mrs. Rockwell’s passbook, and received the cash for Mrs. Rockwell and a check payable to himself for $8000 which he, on the same day, deposited to his personal account in a bank in Norwich. Again, on August 27, 1962, he followed the same procedure, and there was a cash withdrawal of $150 and a separate withdrawal by check to his order for $13,000, which he again, on the same day, deposited to his same account in Norwich. Between November 30, 1962, and August 26, 1963, nine other withdrawal slips involving Mrs. Rockwell’s account were presented to the savings bank, each signed by Mrs. Rockwell, and in each case the defendant received the money. The subsequent disposition of these withdrawals is not disclosed by the record. On January 7, 1963, $188.49, the balance then remaining in the savings and loan account, was withdrawn pursuant to a withdrawal order, signed by Mrs. Rockwell, directing that the check be made payable to her. The check issued for this withdrawal bears both her endorsement and that of the defendant.
In August, 1963, Mrs. Rockwell left New London to reside in Stamford. Her two grandchildren discovered that she no longer had possession of the savings and loan passbook, and her grandson called the defendant to inquire about the disappearance *266 of the passbook for this account. The defendant replied that this account had been used up some time ago, but the only explanation he offered for this was that Mrs. Rockwell had given some of it away to the Jehovah’s Witnesses and to others. The defendant did not testify, and the record contains no other explanation whatsoever by the defendant for the transfer of the $21,000 from Mrs. Rockwell’s savings account to his own account. Mrs. Rockwell testified that on no occasion did she ever give any money whatsoever to the defendant, nor did she ever loan him any money.
From this evidence, the continued confidential relationship and course of conduct between Mrs. Rockwell and the defendant in connection with her banking and financial transactions, his customary preparation of checks and withdrawal orders for her, her testimony that she never gave or loaned any money to the defendant, his immediate conversion to his own account and use of the two large withdrawals from Mrs. Rockwell’s account, and the defendant’s only explanation of the depletion of the account as due to gifts which Mrs. Rockwell had made, the jury could reasonably infer and find that the defendant successfully contrived to obtain the two large withdrawals to his order and that, when he received the funds, he then had the felonious intent to convert these funds to his own use rather than to take and use them as the agent of Mrs. Rockwell for her sole use and benefit as she intended any withdrawals from her savings accounts to be used. There is no prescribed set of circumstances which shows the commission of the crime of larceny by trick. The sufficiency of the proof must, in each instance, be left to the jury to determine.
State
v.
Parker,
The defendant has assigned as error a ruling of the court in admitting into evidence testimony and certain records concerning Mrs. Rockwell’s account at the Savings Bank of New London. These records were of nine withdrawals from Mrs. Rockwell’s account at the Savings Bank of New London during the period from November 30, 1962, to August 26, 1963, and in each instance indicated that the withdrawal orders were signed by Mrs. Rockwell but that the money was actually delivered to the defendant. The evidence was offered to show a course of conduct between the defendant and Mrs. Rockwell. It was admitted by the court for this limited purpose, and the jury were properly instructed as to the limitation. In a prosecution for such a crime as larceny by trick, “the range of relevant evidence is wide, especially as it bears on the essential element of an intent to defraud, which involves a state of mind and can generally be proved only by circumstantial evidence.”
State
v.
Harris,
Mrs. Rockwell was called as a witness by the state and extensively examined and cross-examined. Later the same day she was called as a witness for the defendant and again extensively examined and cross-examined. Subsequently, the defendant moved that her testimony be stricken, and, when this motion was denied, he moved for a medical examination to determine her competency as a witness. Both motions were denied, the judge stating that he saw no reason for granting either motion, that mere lapse of memory is not sufficient reason for striking testimony and that in the exercise of his discretion he was denying the motions. We find no error in these rulings. A question as to the competency of a witness “is a matter peculiarly within the discretion of the trial court and its ruling will not be disturbed unless in a clear case of abuse or of some error in law.”
State
v.
Orlando,
The remaining assignments of error are directed to the court’s charge to the jury. With the exception of the instruction concerning the failure of the defendant to testify, which we will later consider, the portions of the charge included in the record appear to be “accurate in law, adapted to the issues and sufficient as a guide to the jury in reaching a correct verdict.”
Lucier
v.
Meriden-Wallingford Sand & Stone Co.,
Although the defendant took several exceptions to the charge, the only exception pressed on this appeal is that the charge contained comments with regard to the question of false pretenses and with regard to the question of larceny by trick or artifice. In light of the specific accusations against the defendant, it was not only proper but necessary that the jury be fully instructed about the crime of larceny by trick. The single reference to the term “false pretenses” in the context of fraudulent devices and tricks could hardly have misled the jury. We find no merit to these limited exceptions.
The defendant did not testify, and the remaining assignment of error is directed to a portion of the charge in which the court instructed the jury on the
*270
effect of the failure of an accused to testify. In
Griffin
v.
California,
In
State
v.
Annunziato,
In the present case, which was tried prior to Malloy v. Hogan, supra, the defendant did not raise this constitutional question in the trial court and did not except to this portion of the charge and therein lies the material distinction between the Annunsiato case and the present appeal.
The express requirement that an exception be taken to any portion of a charge if it is to be assigned as error on an appeal to this court is an implementation of the well-established requirements for appellate judicial review by this court since “[i]t is fundamental that an appellant is not entitled to raise any question of law on appeal unless it was raised in the trial court and passed upon there.
Paley
v.
Connecticut Medical Examining Board,
On November 14, 1966, however, the United States Supreme Court released its opinion in the case of
O’Connor
v.
Ohio,
We regard this decision of the United States Supreme Court as controlling on the present appeal.
Henry
v.
Mississippi,
There is error, the judgment is set aside and a new trial is ordered.
In this opinion the other judges concurred.