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               STATE v. SMITH—CONCURRENCE

   SHELDON, J., concurring. Although I agree with and
join in the well reasoned opinion of the court, I write
separately to address what might appear to be an incon-
sistency between the rule upon which we rely in decid-
ing this case and the public policy of this state
disfavoring the use of violent self-help to resolve private
disputes over property. We hold, on the undisputed
facts before us, that when the defendant, Tremaine S.
Smith, used force and violence to compel the complain-
ant to return the $294 he had given her to hire him a
lawyer or to post his bail, he did not commit attempted
robbery in the first degree because he lacked the mental
state required for commission of that offense. The men-
tal state so required, which is identical to that required
for commission of the completed offense of robbery
and its included offense of larceny, is now, as it was
at common law, the felonious intent to deprive an owner
permanently of her property. Consistent with that
requirement, our courts have long held that a person
who takes, obtains or withholds property from another
with the good faith belief that he is the true owner of
the property lacks felonious intent to deprive an owner
permanently of her property. See, e.g., State v. Main,
75 Conn. 55, 59, 52 A. 257 (1902). Here, then, because
the evidence indisputably shows that the defendant
acted with the good faith belief that the property he
sought to recover from the complainant was his own,
we have held that the essential element of felonious
intent to deprive an owner permanently of her property
has not been proved.
  At the same time as the drafters of our Penal Code
sought to preserve the common-law requirement of felo-
nious intent as an essential element of larceny, however,
they enacted two other statutes that bear upon the
legality of a theft victim’s efforts to recover his stolen
property from a thief. It is appropriate to consider the
impact, if any, of those statutes on the conclusion we
have reached today. The first such statute is General
Statutes § 53a-118 (b), which provides that ‘‘[a] person
who has obtained possession of property by theft or
other illegal means shall be deemed to have a right
of possession superior to that of a person who takes,
obtains or withholds it from him by larcenous means.’’
The potential significance of this provision arises from
the parallel between its language and that of § 53a-118
(a) (5), which defines the term ‘‘owner,’’ for purposes
of our larceny statutes, as ‘‘any person who has a right
to possession superior to that of the taker, obtainer or
withholder.’’ In light of that definition, § 53a-118 (b)
establishes that a person who takes, obtains or with-
holds stolen property from a thief commits larceny with
respect to such property if he does so ‘‘by larcenous
means.’’ The statute thus enforces the rule that he who
steals from a thief is a thief, and thus may be prosecuted
for larceny or any other offenses requiring proof of
larceny on the basis of his conduct.
   As the court points out, however, § 53a-118 (b) does
not state precisely when the taking, obtaining or with-
holding of stolen property from a thief is accomplished
‘‘by larcenous means.’’ It, therefore, does not distinguish
between the use of larcenous means to take, obtain or
withhold property from a thief in possession of stolen
property and an attempt to commit larceny with respect
to such property, and certainly does not create a statu-
tory presumption that any unconsented-to taking,
obtaining or withholding of stolen property from the
thief—in short, a common-law trespass—constitutes
stealing such property from an owner. The statute thus
leaves the related questions of the taker’s, obtainer’s
or withholder’s use of larcenous means and of the thief’s
resulting statutory ownership of the stolen property at
the time of the taking, obtaining or withholding to be
resolved under the established law of larceny. Under
that law, to reiterate, the essential distinction between
a larceny and a mere trespass is that the former can
only be committed by one acting with the felonious
intent to deprive an owner permanently of her property.
The statute, therefore, does not affect the right of a
title owner of stolen property to defend himself against
a charge of larceny or robbery that is based upon the
taking, obtaining or withholding of such property from
a thief in possession of it on the ground that he lacked
the felonious intent to deprive an owner permanently
of her property because he believed in good faith that
the recovered property was his own.
   The second statute enacted as part of our Penal Code
that bears directly upon the right of a theft victim to
recover his stolen property from a thief in possession
of it is General Statutes § 53a-21, which provides in
relevant part: ‘‘A person is justified in using reasonable
physical force upon another person . . . when and to
the extent he reasonably believes such to be necessary
to regain property which he reasonably believes to have
been acquired by larceny within a reasonable time prior
to the use of such force; but he may use deadly physical
force under such circumstances only in defense of per-
son as prescribed in section 53a-19.’’ So written, § 53a-
21 does not purport to modify the statutory definitions
of or proof requirements for any substantive criminal
offense. Instead, it establishes a defense of justification
that a theft victim may raise to any charge brought
against him that is based upon his use of force to recover
stolen property from a thief, provided that his use of
force is of the kind, and is made in the manner and
under the circumstances, described in the statute. The
conduct so justified, as to which the statute affords a
complete defense unless the state can disprove it
beyond a reasonable doubt when the defendant raises
it at trial, is of two types: (1) the use of reasonable
physical force to regain property which the defendant
reasonably believes to have been acquired from him by
larceny within a reasonable time prior to the use of
such force; and (2) the use of deadly physical force in
the above-specified circumstances if, but only if, such
force is independently justified in defense of person
under General Statutes § 53a-19. A claim that the defen-
dant used physical force against another person, of
the kind, in the manner, and under the circumstances
described in § 53a-21, is a defense to any offense requir-
ing proof of his use or threatened use of force to recover
stolen property from a thief in possession of it.
   In this case, where the defendant was charged with
attempt to commit robbery in the first degree in viola-
tion of General Statutes § 53-134 (a) (3), it is undisputed
that the defendant could not appropriately have
asserted a defense of justification under § 53a-21. The
defense was concededly unavailable to the defendant
as a matter of law because the kind of force he used
against the complainant to compel her to surrender the
$294 he had given her to hire him a lawyer or post his
bail was deadly physical force, involving, as it did, the
use or threatened use of a knife, wielded as a dangerous
instrument, for which he had no independent justifica-
tion in defense of person under § 53a-19. The very differ-
ent reason why the defendant did not raise the defense,
however, as previously discussed, is that his alleged
conduct assertedly did not require legal justification
because, in the absence of felonious intent, it did not
constitute attempted larceny, or thus attempted rob-
bery of any grade or degree.
   At first blush it might be seen that the defendant’s
reading of the larceny statutes, with which we have
agreed, is inconsistent with the public policy of this
state disfavoring the use of violent self-help to resolve
private disputes over property, as embodied in § 53a-
21. If the defendant’s unjustifiable use or threatened
use of force and violence to compel the complainant to
return his stolen $294 is not to be punished as attempted
robbery in the first degree in this case, it might be
asked, what is the purpose of the carefully delineated
limitations over the permissible use of force for the
retaking of stolen property set forth in § 53a-21? If the
effect of the court’s interpretation of the larceny stat-
utes is to render § 53a-21 a nullity, should that interpre-
tation be revised by reading § 53a-21 to abrogate the
common-law claim of right defense as a basis for dis-
proving the felonious intent element of larceny, at least
as applied to larcenies committed by the use or threat-
ened immediate use of physical force—that is, to rob-
beries? Such an interpretation would make any conduct
involving the taking, obtaining or withholding of prop-
erty from another by the use or threatened immediate
use of physical force punishable as robbery unless it
was justified under the requirements of § 53a-21.
   There are two important reasons why the foregoing
approach, as advocated by the state, would be unwise
and inappropriate. First, it is not our function to rewrite
our state’s criminal statutes for any purpose, even to
accord with what we might find to have been the legisla-
ture’s pronouncement of public policy in a closely
related context, if the legislature has not seen fit to do
so itself. Here, the legislature expressly provided that
the defense of justification set forth in § 53a-21 would
not be available to any person who used deadly physical
force to recover his stolen property from a thief in
possession of it in the absence of an independent justifi-
cation for using such force in defense of person under
§ 53a-19. It did not, however, in § 53a-21, as a statute
establishing a defense of justification as to conduct
that might otherwise be prosecuted and punished under
several different criminal statutes, address itself to the
proof requirements of any such statutes, most of which
were enacted as parts of the same public act, Public
Acts 1969, No. 69-828, by which § 53a-21 and the rest
of our Penal Code became law. It therefore cannot be
read to have modified the proof requirements of the
larceny and robbery statutes even if it is found to be
inconsistent with them. Because it is the role and
responsibility of the legislature, not the courts, to define
crimes and prescribe punishments for them, we must
refrain from attempting to resolve any apparent incon-
sistency between the proof requirements of larceny and
robbery and the defense of justification under § 53a-
21 by adopting a creative interpretation of the larceny
statutes that deprives the defendant, retroactively, of
what is still a viable claim of right defense.
   My second reason for declining the state’s invitation
to reinterpret our larceny statutes to enforce the public
policy embodied in § 53a-21 is my belief that the court’s
reading of the larceny statutes is fully consistent with
the purposes of § 53a-21, when that statute is properly
understood. If, as the drafters of the Penal Code
expressly stated, it was their purpose to enforce the
common-law felonious intent requirement as part of
our larceny statutes, then they doubtless knew that
situations would arise in which theft victims would
attempt to recover their stolen property from thieves in
possession of it. Although an owner’s efforts to recover
what he believes in good faith to be his own property
from a thief would never constitute larceny, or thus
be punishable as robbery or attempted robbery, the
circumstances in which retakings might be attempted
would predictably be fraught with tension, anger or
hostility, risking escalation into violent encounters
potentially involving the use or threatened use of physi-
cal force. There was thus a need to regulate the amount
of force that could permissibly be used in such encoun-
ters and to limit the circumstances in which the use of
such force would be justified. The careful articulation
of the defense of justification, as set forth in § 53a-21,
was obviously designed to establish these limitations
on the use of force to accomplish the lawful purpose
of retaking stolen property from a thief, not to deter-
mine the lawfulness, as a threshold matter, of the under-
lying retaking, which was unquestioned in light of the
owner’s lack of felonious intent. Against this back-
ground, the true purpose of § 53a-21 was therefore not
to afford a defense to the crime of robbery, for which
it was not necessary, but to afford a defense to other
crimes with which a theft victim might be charged on
the basis of his predictable use or attempted use of
force in an effort to recover his stolen property. Here,
then, where the defendant was convicted only of
attempted robbery in the first degree, of which he could
not be convicted despite the unavailability to him of
the defense of justification under § 53a-21, he could
appropriately have been charged with and convicted of
other offenses involving the use or threatened use of
physical force, such as assault, threatening or unlawful
restraint, if and to the extent that his proven use of
force was not justified under § 53a-21. The statute thus
performs its proper and expected purpose by distin-
guishing between theft victims’ justifiable uses of force
to recover stolen property, in connection with which
they enjoy a complete defense, and other uses of force
not justified for that purpose under the statute, on the
basis of which they may be prosecuted for and con-
victed of offenses other than robbery and larceny.
  For the foregoing reasons I agree that the defendant’s
conviction of attempted robbery in the first degree must
be reversed and that this case must be remanded with
direction to render judgment of acquittal on that charge.
