49 A.2d 594 | Conn. | 1946
The defendants, James J. McCarthy, Arthur Tommaselli and Raymond Lewie, were tried to the jury on an indictment charging them with murder in the first degree and were found guilty as charged. They have appealed from the denial of their motion to set aside the verdict and from the judgment.
The jury could reasonably have found the following facts: The defendants were inmates of the state prison at Wethersfield. They planned to escape. The plan involved the "knocking out" of a guard they expected to find in the shop through which they intended to pass. In attempting to carry out their purpose, each of the defendants beat the guard with blunt instruments, and as a result of one or more of the blows thus dealt the guard was killed. Their plan failed of success because the guard was not subdued as easily as they expected and the other inmates at work in the shop came to his assistance.
It is not essential to determine which of the three struck the blow that killed the guard. "All who join in a common design to commit an unlawful act, the natural and probable consequence of the execution of which involves the contingency of taking human life, are responsible for a homicide committed by one of them while acting in pursuance of, or in furtherance of, the common design. . . ." 29 C.J. 1073, *174
cited in State v. Rossi,
McCarthy and Tommaselli joined in an appeal from the judgment and Lewie filed a separate appeal. The appeals of McCarthy and Tommaselli will be considered first. They made an oral motion for separate trials which was denied. During the argument on the motion the court was to!d that one of the defendants had made a confession and that this had been read to and discussed with the other two. The state further claimed that it would prove a conspiracy between all three defendants to escape from prison and that all three conspirators must necessarily be tried together. In this situation the trial court did not abuse its discretion in denying the motion. The primary test is the knowledge of the court of the relevant circumstances at the time the motion is made. State v. Cianflone,
The mittimuses under which McCarthy and Tommaselli *176
were held at the state prison were properly admitted in evidence to establish their status as inmates. State v. Allen, supra. At the time and in the charge the jury were cautioned as to the purpose for which this evidence was admitted. In view of the limited authority of counsel to make admissions for their clients in open court in a capital case, the court was justified in admitting the documents in spite of the statement of counsel for the defendants that they were legally confined. State v. Marx,
An inmate of the prison described the blows struck by Tommaselli as follows: "He was really getting right down on him (illustrating) hitting him as hard as he could really hit him." The answer was objected to on the ground that the witness did not "know how hard." The phrase objected to was highly descriptive and falls within the class of statements of conclusions by a witness as regards a condition which he cannot describe in detail in such a way that the jury will get a true picture. MacLaren v. Bishop,
McCarthy and Tommaselli also objected to the *177
examination of a state police officer in the presence of the jury as to the voluntary character of admissions claimed to have been made by these two defendants. The decision whether a confession is so far voluntary as to make it admissible in evidence is for the court. State v. Wakefield,
The charge adequately covered the written requests to charge and no question as to them is raised in assignments of error. McCarthy and Tommaselli claim in their assignments of error that the trial court erred in failing to charge that there was no evidence in Lewie's confession or otherwise to connect them with the details of the conspiracy as set forth in the confession. The assignment of error necessarily refers to the details of the confession *178 because both testified that they were planning to escape and had talked with Lewie and others about it. It appears from the brief that the part of this long and rambling statement which the defendants McCarthy and Tommaselli claim should have been explained to the jury is the rather lurid account of the plans of the accused after their escape from the prison inclosure.
The situation on the record is this: The confession is made a part of the finding. At the time the confession was admitted in evidence, the trial court instructed the jury that it was evidence against Lewie only and not evidence against the other two defendants. Apparently content with this, the defendants did not request the trial court to repeat that caution in the charge, nor do they now complain in general of its failure to do so. The error of which the defendants now complain is not a failure to charge generally but a failure to charge as to a lack of evidence to prove their participation in certain details of the plan related in the confession. A special claim of this kind should be supported by a request to charge. A charge in a murder case is necessarily long and the charge in this case appears to have been prepared with particular care. The omission to give the charge now claimed was not error in the absence of a request. State v. Williams,
In addition to complaints of failure to charge, all of the defendants claim that the charge as delivered failed to define correctly the responsibility of each for the crime. The statement in the charge that all who conspire or combine to commit an illegal act the performance of which involves the contingency of taking human life are guilty of a homicide committed in pursuance of the conspiracy conforms to our law. State v. Rossi, supra. The trial court explained to the jury carefully and at length the meaning of the words "wilful, deliberate and premeditated" as used in the statutory definition of murder in the first degree, and it finally charged them that, if they found that the three defendants made up their minds in concert to escape from the prison, that they wilfully, deliberately and premeditatedly determined to arm themselves or one or more of them with dangerous weapons, that the execution of the common design naturally and probably would involve the contingency of taking human life, and that while they were engaged in the effort of escape the guard was wilfully killed by one or more of them, the jury would be justified in finding such of them as entered into the common design guilty of first degree murder, even though the guard died from wounds inflicted by only one or two of them. This charge was, if anything, too favorable to the defendants. State v. Allen, supra, 138; Suhay v. United States,
The only assignments of error pressed in Lewie's brief are the denial of his motion to set aside the verdict and a ruling on evidence. The first has been discussed. During his direct examination he testified that he struck the guard with a Stillson wrench. This was contrary to any previous statement made by him. Thereupon his counsel offered in evidence a transcript of Lewie's testimony before the coroner. Nothing appears in the record as to its contents. *181
In view of Lewie's confession and other evidence, it is a reasonable assumption that it contained statements inconsistent with the testimony now given by him. The court then conducted the following examination: "The court: You said you wanted to tell the truth, Lewie? The witness: I told him I wanted to burn. The court: Didn't you tell the truth here today? The witness: Yes sir." The offer was rejected. His counsel expressly disavowed any purpose of impeaching the credit of the witness. The testimony before the coroner could, therefore, be nothing more than a self-serving declaration made out of court and, as such, clearly inadmissible. State v. Goldberger,
There is no error.
In this opinion the other judges concurred.