398 A.2d 1204 | Conn. Super. Ct. | 1978
The defendant was charged with reckless endangerment in the first degree and was convicted of the lesser included offense of reckless endangerment in the second degree. The defendant asserts that there was insufficient evidence to support this conviction and that, in any event, the state had not established that his conduct was not justified in the circumstances. We disagree. *572
The evidence, viewed favorably for the state, may be briefly summarized. At about 12:30 a.m. on May 27, 1976, while the defendant was looking out of the window of his third-floor apartment he observed two men beating a third man on the sidewalk below. One of the assailants was kicking the victim about the face and the other was hitting him about the head with what looked like a long thin pipe. The victim was yelling for help and pleading with his assailants not to hurt or kill him. The defendant shouted "What is going on down there?" When that had no effect, the defendant got out his twenty-five caliber automatic revolver and returned to the window. By that time the beating had stopped and the assailants were walking away. The defendant ordered them to stop and when they failed to heed his order he fired a hollow-nosed bullet at the ground in the general vicinity of the assailants as a "warning shot." At that point the assailants ran to a car and sped away.
Early in the morning of that day the Hamden police received a report of a fight which had broken out on Dix Street. Shortly thereafter they received a second call from a gunshot victim. After an investigation the police concluded that the two incidents were related. They returned to the scene with several of the people involved in the altercation and determined that at the time of the injury the "gunshot" victim was standing seven feet north and five feet east of the southeast corner of Dix and George Streets. The house at 70 Dix Street, where the defendant lives, is located at the southwest corner of the intersection. The defendant's apartment faces east.
When confronted by the police the defendant voluntarily signed a statement in which he related that he had observed the beating previously described, noted that the assailants were dressed in *573 White baker-type uniforms, observed them walking away from the victim, ordered them to stop, noticed that they continued to move away and then fired a shot at the ground from his third-floor window in order to prevent the assailants from leaving the scene. He did not know where the bullet hit. He admitted that he should have fired into the air and that it was stupidity on his part to have fired the shot as he did.
The defendant also asserts a citizen's common-law right to effect an arrest or to prevent an escape of one whom he has observed committing a felony or a misdemeanor. We have no quarrel with the defendant's general statement of the right. Malley v. Lane,
Not only was there no justification for the defendant's use of the weapon either to defend the victim of the assault or to effect the arrest of the perpetrators but, from the defendant's own statement that he should have fired into the air and that firing at the ground was an act of stupidity on his part, the court could have concluded that it was unreasonable for the defendant to believe that his shot at the ground in the general vicinity of the assailants was necessary to effect an arrest and could have concluded that it was in fact an exercise in futility.
The trial court filed a finding limited to the issue involved in the sentence. The defendant filed a motion to correct one paragraph of the finding which asserts that the defendant has filed no claim for the *577
return of the weapons. Because the requested correction could have no bearing on the validity of the court's sentence we do not consider it. Kobryn v. Kobryn,
The defendant also assigns error in the court's conclusion that "[t]o permit the defendant the inventoried arsenal of weapons and ammunition would be to restore a ticking time bomb to the Hamden community." The court's conclusion is tested by the subordinate facts found. State v. Battle,
General Statutes
There is no error.
In this opinion A. HEALEY and D. SHEA, JS., concurred.