148 A. 350 | Conn. | 1930
The defendant appeals from the refusal of the trial court to set aside the verdict. As to this, we cannot find that the verdict is so palpably against the evidence as to warrant us in setting it aside. The question is not whether this court, upon *406
the evidence as it appears in the record, would come to the same conclusion as did the jury, but whether that conclusion is manifestly unreasonable under all the circumstances — one which no jury, acting fairly and reasonably, could reach on the evidence before it.State v. Chin Lung,
Notwithstanding objection and exception, the State was permitted to introduce as an exhibit (C) a roll made up of a genuine $20 bill and a $1 bill, on the outside, and numerous pieces of paper bearing superficial resemblance to paper money, which was found on the person of the accused upon his arrest on March 25th, and this ruling is assigned as error. The purpose of the offer was stated, variously, as constituting part of the plan of the fraudulent transaction, as tending to corroborate the testimony that the defendant engaged in it, as showing his character, to show the business he was engaged in, and to corroborate the testimony of Mrs. Spivak as to conversations with the accused and as to his conduct. The exhibit appears to have been admitted on the ground last mentioned. *407
Our determination as to the correctness of the ruling must be based upon Part III of the finding, which relates thereto; we cannot resort to the printed record of the testimony for this purpose. Rules of Supreme Court, § 6, Practice Book, p. 307; Friedler v. Hekeler,
Evidence as to articles found in the possession of an accused person subsequent to the time of the commission of a crime for which he is being tried is admissible only if it tends to establish a fact in issue or to corroborate other direct evidence in the case; otherwise the law does not sanction the admission of evidence that the defendant possessed even instruments or articles adapted to the commission of other crimes.State v. Chapman,
The distinction between evidence of this kind which is admissible and that which is not may be illustrated from the cases above cited. In People v. Smilie, a prosecution for grand larceny, it was held prejudicial error to admit in evidence rolls of false money found in defendant's trunks some three months after the commission of the crime, on the ground that there was no evidence that these rolls had any connection with the crime charged, although the victim testified that, at the time of the theft, the defendant had a roll, perhaps of money, but gave no description of its contents or appearance. In the Sorenson case, evidence that a revolver and other articles were found on the defendant upon his arrest, eighteen days after the burglary in question, was held inadmissible because there was nothing to connect the employment of the revolver and other articles with this burglary. In Commonwealth *409 v. Williams, a prosecution for breaking and entering the Charlestown city hall, a new trial was granted because of the admission of evidence that the ward of a key found in the defendant's possession was made and fitted by him to open the door of the Lancaster Bank building. In People v. Martin (Cal. 1912), evidence of possession by the defendant, at the time of his arrest for dynamiting, of various poisons having no connection with the crime charged, was held inadmissible; while in People v. Gilman (Cal. 1919), certain surgical implements were held admissible, the circumstances being sufficient to justify an inference that they were used by the defendant in committing the abortion charged.
In our own case of State v. Chapman, evidence of the ownership and possession of various articles by the defendant was held admissible as tending to corroborate the evidence of Shean, an accomplice, as to the relations and association of the defendant with him and as relevant and material evidence to establish the fact that the accused was at the locus of the homicide on the morning it was committed. In Nicholas v.Commonwealth, a prosecution for causing drowning by boring holes in a boat, proof was permitted that the defendant possessed an auger of the size of the holes in question. On a trial for burglary involving the blowing of a safe, evidence that drills fitting the holes in the safe were found in the defendant's house was held admissible in Starchman v. State,
In the present case the finding affords no justification, consistent with this rule, for the admission of the roll, Exhibit C. We may add that even if we might *410
supplement this finding by resort to the transcript of all of the evidence in the case which we have been required to examine in our consideration of the ruling on the motion to set aside the verdict, such justification still would be lacking. For like reasons the admission of Exhibit D, consisting of a quantity of obsolete Polish money, found in the possession of the accused, was erroneous. These rulings were so obviously adapted to work prejudice and harm to the defendant that they must be held to constitute reversible error. People v. Smilie,
Since, in consequence of these rulings, a new trial must be ordered, discussion of claimed errors pertaining to the charge may be limited to suggestions of probable utility on a second trial. The cautionary statement as to evidence in support of an alibi was warranted by the circumstances and within the trial court's privilege of proper comment. The charge as to the effect, upon the credibility of the accused, of records of former convictions was a sufficient statement of the law on the subject, but might well have been supplemented by the customary instruction as to the general considerations affecting the credibility of an accused person as a witness. There was no occasion, on the facts, for an instruction, which the appellant claims should have been given, as to the constituents of a loan or the distinction between it and theft by deception, artifice or fraud. A further exposition should have been given of the elements necessary to constitute an accessory than is afforded by a mere reading of the statute, § 6716. State v. Enanno,
After the verdict of guilty of theft, the defendant *411 pleaded guilty to the further charge of being a third offender by reason of having twice before been convicted, sentenced to and imprisoned in a State prison, and was sentenced, under the applicable provision of § 6660 of the General Statutes, to confinement in State prison for not less than twenty nor more than thirty years. Error is assigned in the imposition of the minimum sentence of twenty years, it being contended that the minimum term cannot exceed five years, that being the maximum penalty provided by the statute governing the offense of which the accused was convicted (§ 6255), in cases where the value of the property stolen exceeds $50 but does not exceed $2000.
Section 6660 is a portion of our Indeterminate Sentence Act and prescribes that in cases where a sentence to a State prison is imposed, except in certain instances not here involved, the court shall not fix a definite term of imprisonment but shall establish a maximum and a minimum term for which the convict may be held in prison, the maximum term so fixed not to exceed the maximum prescribed by law for the offense of which he has been convicted, and the minimum to be not less than one year; "provided, when any person . . . shall have twice before been convicted, sentenced and imprisoned in a state prison or penitentiary, the court shall sentence said person to a maximum of thirty years." The proviso quoted creates no new crime but recognizes and provides for different degrees of criminality with reference to the same offense, and relates solely to the penalty deemed appropriate thereto. State v. Reilly,
In the exercise of this discretion, the fundamental principle and purpose of the indeterminate sentence law is to be observed. The minimum sentence represents the time which, in view of all the circumstances of the crime, the record and character of the accused, and the effect of punishment to deter others from the commission of crime, the trial court thinks the accused ought, in any event, to be imprisoned. The purpose of the maximum sentence is to prescribe a further term during which the criminal may be confined, but subject to the power of the board of parole to modulate the punishment in such a way and to such an extent as best to bring about the protection of society and the rehabilitation of the offender, in view of the more extended examination the board can give to the circumstances of the criminal, environmental and hereditary, the closer study they can make of his true character, and the effect of incarceration upon him and of his liberation upon society.
There is error and a new trial is ordered.
In this opinion the other judges concurred.
