State v. Kallaher

Hall, J. The oMy objection to the admissibility of the evidence offered by the State in proof of the tMeats of the accused to burn the house of the Munsons, which seems to be urged by counsel for the accused in their brief submitted to us, is that it should not have been received “ unless the threat to burn was expected to be carried out immediately.” The record shows that evidence was offered by the State to prove that these threats, made by the accused when he was somewhat intoxicated, to Mr. and Mrs. Munson in their own house between 9 and 12 o’clock at night, when both they and their cMldren were ill, Mrs. Munson being too ill to leave the house, were that if they did not pay over the money to Mm immediately he would burn and destroy their house, and that there would be no one left to tell the tale, and that he meant to burn them up in it; that he refused to consent to any delay, but insisted that he must have the money then, that night; and that finally Mr. Munson, through fear that the accused would burn and destroy life as he had tMeatened, paid Mm the $800. To constitute the crime of larceny the taking must not only be felonious, but without the consent of the owner. But a felonious taMng with the consent of the owner, when the givmg of such consent is not a voluntary act, but is the result of actual fear induced by tMeats calculated to excite a reasonable apprehension of bodily Mjury, is, in the eye of the law, a taking without the owner’s consent. 1 Wharton’s Crim. Law, §§ 850, 851, 852 and note 5; 2 Bishop on Crim. Law, § 1169; 2 Greenleaf on Evidence (13th ed.), 193. Whether such apprehension of danger existed, and, if so, whether it was a reasonable apprehension, are questions of fact, and must be determined M each particular case by the language of the menaces of the accused, his actions, and the circumstances surrounding the person who thus parts with his property. Morris v. Platt, 32 Conn. 75-83. Clearly, the evidence offered by the State of the threats made by the [408] accused in the present ease tended to prove that Munson parted with his $800 because of a reasonable fear of immediate injury to himself and to his family. It was for that reason admissible. The jury were instructed by the court that if the fear was not that the threats to do great bodily injury to the Munsons would be speedily or immediately executed, the accused should be acquitted. The threat of the accused that he would bring a civil suit and attach all the property of the Munsons, was a part of-the statement in which he threatened to burn the building and its inmates. It was admissible as a part of that conversation, and is introductory to the proof of a more serious threat. It nowhere appears upon the record that the court held that the obtaining money by threats to commence a civil action and to attach property, could constitute larceny. On the contrary, the court distinctly charged the jury that if they found that “ Kallaher secured this money by a threat to bring a civil suit, or by representations that the papers had been placed in the hands of the sheriff, and this was the only threat, no matter whether he (Kallaher), believed in his claim or not, he should be acquitted.” It is claimed by counsel for the accused that the following statement made by the court in its charge to the jury, was irrelevant and harmful to the defendant: “ If the possession of property of another to which the taker has no claim, be obtained openly, but by deception, artifice, or fraud, designed by the taker to secure the possession of the goods of another to which he has no claim, and no honest belief in such a claim, and they be subsequently converted to the use of the taker, the jury would be justified in finding that the taking was with felonious intent and the crime of larceny committed.” The court in this part of its charge was instructing the jury how a criminal intent might be proved, and not as to what constituted a taking without the owner’s consent. The State was required not only to prove that the accused obtained this money by threats of personal violence, but with a felonious intent which existed at the time of the unlawful [409] taking. The language quoted must be read in connection with that which precedes and follows it, and when so read it will be seen that the court was pointing out to the jury that when the taking was without the consent of the owner, the jury would be justified in finding that it was with felonious intent, even though it was not secret, but open, if the accused without having any claim to the property had thus openly obtained possession of it by deception, artifice or fraud. In this case there was no claim that the owner had by deception or fraud been induced to part with the mere possession of the money, independently of the ownership, as was claimed regarding the note in the case of State v. Fenn, 41 Conn. 590. When Munson parted with the $800 he did so not because he supposed he was asked to part with the possession of the bills only. He understood fully that the accused demanded not the mere possession of the money, but the money itself. The portion of the charge complained of, when considered by itself, is open to the criticism that the jury might have understood from this language that if they found that the accused had no just claim to this money, nor an honest belief in the claim which he made to it, and that Munson parted not with the possession only but with the ownership of the $800, because of the false and fraudulent representations of the accused that he had commenced a civil action against Munson and that the papers were in the hands of the sheriff to attach all his property, they might upon those facts not only find a taking with felonious intent, but a taking without the consent of the owner, and convict the accused of the crime of larceny. But when we regard the entire charge of the court, we think the jury could have placed no such construction upon this language. In the two sentences immediately preceding the one under discussion, the court said to the jury: “If the title to the property as well as the possession of the property be obtained by deception, artifice, or fraud, this will not be larceny, because the owner parted with the title as well as the possession. The crime may be obtaining goods under [410] false pretences, but it is not larceny.” Again, in its final summary to tlie jury of the questions of law involved in the case, the court, as has been before observed, said: “ If the jury find that Kallaher secured this money by a threat to bring a civil suit, or by representations that the papers had been placed in the hands of the sheriff, and this was the only threat, no matter whether he believed in his claim or not, he should be acquitted.” The court concludes its discussion of the questions of law, by stating upon what facts the jury might convict the accused of larceny, namely, upon proof that Kallaher secured the money “ without a right to it and without believing he had a right to it, and by a threat to endanger the lives of the Munsons or to do them great bodily harm, which threats the Munsons believed would be speedily executed, and induced fear on their part, and under the influence of that fear that the threat would be speedily executed during that night, they paid over the money as charged.” It seems to us clear that no jury of ordinary intelligence could have understood from the charge of the court that they might convict the accused of larceny upon finding that he obtained the money in question by false and fraudulent representations, and without finding it proved that he made the alleged threat of great bodily injury to the Munsons; and that therefore the accused was not prejudiced by the language of the court in this part of the charge. The last claim made in the brief of counsel for the accused is, that the court erred in stating to the jury that the crime of larceny was included in the crime of robbery, but that in the opinion of the court the proof in this case would not admit of a conviction of the crime of robbery. The ground of the defendant’s complaint seems to be the remark of the court that the evidence would not warrant a conviction of robbery. The court correctly stated to the jury the elements of the crime of larceny, which was the only charge in the information, and what facts were required to be proved to support a conviction of that offense. The duty of the jury to convict or acquit depended upon the proof or the failure to prove these facts, and not upon the question [411] of whether such facts, if proved, were sufficient to sustain the charge of robbery. That inquiry was irrelevant. We have only noticed those reasons of appeal which are discussed by counsel for the accused in their brief. There is no error. In this opinion the other judges concurred, Baldwin and Hamersley, Js., with hesitation.