GILMANTON — A 4th Circuit Court, Laconia Division judge has dismissed criminal charges for theft filed against a former Gilmanton firefighter for allegedly stealing diesel fuel.
Byron McSharry had been charged with theft by unauthorized taking after a student firefighter said he saw him remove a gas-pump key and later return it to its place without putting gas in any department vehicle last summer
The theft charge was not prosecuted at his trial after attorney Mark Sisti argued that the state agreed that there was insufficient evidence that would survive a motion to dismiss.
The state agreed and brought forth a charge of attempted theft.
Sisti then argued that an attempt to commit a crime must be stopped by an intervening action and in this case there was none, which compromises the defense from proving there was an attempted theft.
In addition, he argued that even if the defense could prove he had the key, an attempt, as defined by Black's law Dictionary, "may be described as an endeavor to do and act, carried beyond mere preparation, but short of execution."
The prosecution was given 10 days to respond to the motion but did not.
Without further evidence, Carroll dismissed the charge.