State v. Kaplan , 72 Conn. 635 ( 1900 )

The real question presented by the record is this: Does misconduct upon the part of the jury in reaching their verdict so plainly appear from the evidence certified, that the refusal of the trial court to set aside the verdict exceeds its lawful discretion, and constitutes under our practice and the law of 1897 (Public Acts of 1897, p. 892, § 17, p. 895, § 29) an error in law? Brooks' Appeal, 68 Conn. 294,296; Loomis v. Perkins, 70 id. 444, 447.

The working rule or test we have applied in determining such a question, requires the injustice of the verdict to be manifest, and the wrong to be so palpable as to justify the suspicion that the jury or some of them were influenced by corruption, prejudice or partiality. Johnson v. Norton,64 Conn. 134, 135.

Upon a careful examination of the testimony we find no reason for imputing such misconduct to the jury. The counsel for the prisoner has apparently been misled by the erroneous belief that the jury could not lawfully accept as true the testimony of the State's witness Fontaine, so far as it tended to prove the ownership of the stolen property, and reject other portions of his testimony as untrue or unreliable. Such discrimination is within the power of the jury in respect to every witness; and when the witness is an accomplice, or one whose credit is clearly impeached by facts disclosed on the trial, it may be the duty of the jury to act upon those parts of his testimony so related to and confirmed by other evidence as to command their credence, and to reject the rest as unreliable. Such weighing of the credit of a witness can never be reviewed by this court; the error it can review consists in a misconception of all the evidence so apparent as to compel the inference of misconduct in law.

But the accused further claims that, upon any permissible state of facts which the jury might have found, their general verdict of guilty is as matter of law so manifestly against the weight of the evidence as to entitle him to a new trial. He claims that, at the very most, the evidence in the case shows (1) that Fontaine alone stole the copper in question; (2) that he did this by several separate and distinct thefts of portions of it, each portion stolen, by any one theft at any one time, being of a value not exceeding fifteen dollars; and (3) that the accused received, at one time and as a single transaction, all of said copper from Fontaine, and then concealed it.

Upon these facts he contends, (1) that Fontaine was not guilty of a state's prison offense, and could not be punished for such an offense; and (2) that under our statute relating to receivers of stolen goods the accused could not be found guilty of nor punished for a state's prison offense. This last claim is based upon § 1450 of the General Statutes, which reads as follows: "Every person who shall receive and conceal any stolen goods or articles, knowing them to be stolen, shall be proceeded against as a principal, although the person who committed the theft be not convicted thereof; and shall be prosecuted and tried before the same court, and punished in the same manner as if he had been the principal." The contention is that under this law, and upon the assumed facts proved in the case, Kaplan cannot be convicted of nor punished for a state's prison offense, because Fontaine could not be so convicted nor punished. In short, the claim is that because the statute says that the receiver shall be "punished in the same manner as if he had been the principal," the guilt of the receiver is in all cases to be measured by the guilt of the thief who stole the goods received. If this is the true construction of the statute, and the evidence is as the accused claims it to be, then his claim that the verdict was against the weight of the evidence would be entitled to serious consideration; but we are of opinion that this is not the true construction of the statute, and that this being so the verdict was not against the weight of the evidence.

This statute appears as early as the Revision of 1702. It then provided that the person who should knowingly receive any stolen goods "shall be punished, as he, or they that commit the theft." Rev. 1702 (ed. 1718), p. 11. In the Revision of 1784, the words "shall be punished, as he, or they that commit the theft," were left out, and the following words substituted therefor: "shall and may be proceeded against as principals, although the person or persons who committed the theft be not thereof convicted; any law, usage or custom to the contrary notwithstanding." Rev. 1784, p. 245. In substantially this last form the Act appears in the Revisions of 1808, p. 648, and of 1821, p. 159. In 1830 the law was made to read as follows: "If any person shall receive and conceal any stolen goods, articles, or things, knowing them to be such, he may and shall be proceeded against as a principal, although the person or persons who committed the theft be not thereof convicted, and shall be tried before the same court, and punished in the same manner, as if he had been the principal, and shall also be liable to the owner or owners of said stolen goods, as the principal would be liable." Public Acts of 1830, Chap. 1, § 47. This Act remained substantially in this last form until 1875, when it was changed into the form in which it now appears in § 1450 of the General Statutes.

We think the plain intent of the legislature as manifested in this law is that one who knowingly receives and conceals stolen goods shall, as to prosecution and punishment, be treated just the same as if he had stolen goods of the value of those received and concealed; that he is to be regarded, for purposes of prosecution and punishment, as having stolen only that which he guiltily receives, neither more nor less. He may be charged with the theft of such goods, and may be tried, convicted and punished as for stealing goods of the value of those received. In other words, the degree of his crime and the consequent extent of his punishment are to be measured by the value of the goods received, and not necessarily by the degree of guilt attaching to the actual thief who stole them.

Under our statute relating to mere theft, the value of the thing stolen measures the degree of the crime, and, under our statute relating to the guilty reception of stolen goods, we see no good reason why the value of the goods received should not ordinarily measure the guilt and fix the punishment of the receiver. Such a construction is a fair and reasonable one. It puts the State to no inconvenience or unnecessary expense, and it is just and fair to the accused. He is punished for his own act, and according to the degree of his own guilt, measured by the value of the goods he receives, just as the thief is punished according to the value of the property he steals; and no good reason can be given why the guilt of the receiver must necessarily, and under all circumstances, be the same as that of the thief. This statute has heretofore been under consideration in this court in the two cases of State v. Weston, 9 Conn. 527, and State v. Ward, 49 id. 429; but the point made by the accused here was not raised in either of them. The construction here given to the statute is not inconsistent with those two decisions.

The construction contended for by the accused would or might lead to some singular results. Under it if A by a number of petty thefts accumulates in his possession one hundred dollars worth of stolen property, and then B, at one time and as one transaction, knowingly receives and conceals the whole of the stolen property, B can only be prosecuted and punished as for a number of petty thefts, each as to its degree of guilt being dependent on the precise amount stolen by A at some one time. This is the precise claim made in the present case. Again, under such construction, if A steals one hundred dollars worth of goods at one time and as one theft, and B knowingly receives and conceals one dollars worth of the stolen goods, B is to be prosecuted and punished as if he had stolen one hundred dollars worth of goods. A construction that leads or may lead to such results ought not to be adopted if the statute is capable of any other.

On the whole we are satisfied that the construction we have put upon the statute is the correct one; and upon such a construction the verdict rendered in this case, even if we concede that the facts are as claimed by the accused, is not clearly nor manifestly against the weight of the evidence.

There is no error and a new trial is denied.

In this opinion the other judges concurred, except HAMERSLEY, J.