38 A.2d 434 | Conn. | 1944
The defendant has appealed from a judgment entered on a verdict finding him guilty of an aggravated assault. The information charged him with "making an assault upon Roger Birmingham with a deadly or dangerous weapon" in violation of 6195 of the General Statutes. He requested the trial court to charge the jury that under the information they might find him guilty as charged or guilty of simple assault, but the court refused to do so, instructing them that they must find him guilty of aggravated assault or not guilty.
The state claimed to have proved that the defendant struck Birmingham on the head with a heavy club, rendering him unconscious, while the defendant claimed to have proved that he merely pushed Birmingham, with the result that he fell and his head was injured by striking the bumper of an automobile. The trial court in its charge submitted to the jury as an issue of fact for their determination the question whether the club was a deadly or dangerous weapon. See State v. Litman,
In State v. Thomas,
The request to charge filed by the defendant cited no authority to support it as required by 156 of the Practice Book, and when, before charging the jury, the court asked his counsel to cite such authority he replied that he was unable to do so. While the requirement that authority should be cited is undoubtedly salutary, we have never held that a failure to cite it is ground for refusing a request to charge. Indeed, we have repeatedly held that, in the absence of any request, a court is bound to submit to the jury matters which are necessarily involved in the disposition of a case or essential to a full and fair consideration of it. Conn. App. Proc., 65. With certain exceptions stated in 156 of the Practice Book as amended, "If no request be made that the court charge upon a certain point, and its attention be not called to that point in any way, and its failure to give instructions on that point occur through inadvertence, still the omission will he an error if the omitted matter was essential to a legal consideration and disposition of the case by the jury." Pietrycka v. *138
Simolan,
There is no occasion to consider the defendant's other assignments of error or the application to rectify the appeal.
There is error, the judgment is set aside and a new trial is ordered.
In this opinion the other judges concurred.