181 A. 335 | Conn. | 1935
On the night of Saturday, November 10th, 1934, a number of young men were engaged in playing games in premises occupied by a club called the Red Wing Athletic Club on the ground floor of a building at the corner of Ely Avenue and Knapp Street in Norwalk. Shortly after midnight two men entered the rooms, one wearing a black mask and carrying two revolvers, and the other having upon his face a white silk muffler and carrying a sawed-off shotgun. The man in the black mask, holding a revolver in each hand and menacing the men who were in the front room, forced them to move through a doorway into a rear room. The other man, holding the shotgun, followed him. In the doorway a scuffle ensued between the man in the black mask and one of the *488 young men in the back room, and the man with the shotgun thereupon shot and killed Patsy DeLuca, who was in the front room and had not immediately put up his hands as commanded.
Upon the trial the State offered evidence to prove and claimed to have proved that the man who fired the shot was the defendant, Dominick Santello, and the other man was John Mazello; that they and Cosmo (generally known as Gus) Scarpello, had been together on Thursday and Friday nights and had discussed and planned certain hold-ups, including this club; that pursuant to a plan already made and agreed to between them they met Saturday night and came to the vicinity of the club in an automobile owned and driven by Scarpello, bringing with them the two revolvers and shotgun, furnished by the defendant, their purpose being to hold up and rob members of the club whom they expected to find assembled at the time; that shortly after midnight Mazello and Santello left Scarpello in the car and proceeded to the club, Scarpello then driving past the building and parking his car a short distance away on Knapp Street ready to receive the other two on their return; that after the occurrences in the club above related culminating in the shooting of DeLuca, Mazello and Santello retreated from the club rooms, rejoined Scarpello and were driven away by him in his car; that both the defendant, who resided in Norwalk with his family, and Mazello then left the city, and the defendant remained absent until arrested in Bridgeport a week later.
The defendant offered evidence and claimed to have proved that he was at home on Thursday and Friday nights, and on Saturday evening left home at about 9.30, went to New Haven and was there at the time of the shooting, and claimed that Scarpello either did *489 the actual killing himself or was associated therein with other persons and not with the accused. His further claim was that his leaving and absence from home was through fear that he might be taken into custody and returned to jail for failure to pay the balance of a fine imposed by the City Court of New Haven some time previous.
The trial resulted in a verdict of guilty of murder in the first degree. The defendant appealed from the denial of his motions to set aside the verdict and in arrest of judgment, and subsequently filed an additional appeal under which error was assigned in refusing to grant certain requests to charge, in the charge, and in rulings made in the course of the trial. As we find one of the latter decisive we proceed to it immediately.
The finding discloses that during the cross-examination of Scarpello, who was called as a witness by the State, the following occurred; Counsel for the accused asked: "Q. Now, by the way, you have told us that you haven't received any promises or inducements for your testimony here. You have never been indicted by the Grand Jury, have you? A. No. Q. And you know you are not going to be, don't you? In return for your testimony? A. I don't know. Q. You don't know? A. I don't know anything. Q. Do you read the newspapers, sir? A. How can I get newspapers in jail? Q. Do you read them? A. I haven't seen a newspaper since I have been in jail. Q. You haven't seen the Norwalk papers? A. I haven't seen them, no. Q. You didn't see the Norfolk paper of January 11, in which it sets forth" — Mr. Comley: "Now I object to any reading from the Norwalk newspapers, Your Honor. If there is any privilege of exemption to be given to this man it comes from me, not from any reporter of the Norwalk newspapers. I can only say *490 that no such promise has been made." Counsel for the defendant thereupon objected to this declaration by the state's attorney and asked to have the jury excused while he argued a motion. The state's attorney responded that he felt the conduct of counsel to be improper and that he was warranted in protecting himself from the insinuation. The jury was excused and counsel for the defendant made and argued a motion for a mistrial on the ground that the statement made by the state's attorney constituted evidence which would influence the jury to the prejudice of the defendant. The court denied the motion, recalled the jury, and the trial proceeded without, so far as the record shows, any further reference to the incident or instruction to the jury to disregard the statement in question. The denial of this motion is assigned as error.
A well established rule is that a statement by counsel, not under oath, of a material fact pertinent to the issues unsupported by evidence, and prejudicial to the opposing party, constitutes reversible error unless it appears that the prejudicial effect has been effectively averted by an instruction to disregard the statement, or otherwise. 2 Rawle C. L. pp. 435, 437; 64 C. J. p. 264; Lowdon v. United States, 149 F. 673, 677. It must, of course, be an unsworn assertion on counsel's own authority of the existence of the fact, as distinguished from an appeal to the jury's recollection of the evidence or inferences claimed therefrom.Keefe v. Sullivan County Railroad,
The situation in the present case as revealed by the record, including all of the evidence, which is before us under the appeal from the verdict and by reference made part of the finding for the purposes of the *492 assignment now under discussion, was such as to render the fact asserted by the statement in question more material and its probable effect more potent than the incident, above quoted, might indicate when considered by itself. Proof of the identity of Santello as a participant in the attempted robbery in the course of which the homicide was committed depended entirely on the testimony of Scarpello, aside from such corroboration as was afforded by testimony of a police officer that Santello and another man were with Scarpello in the latter's car on the Thursday night preceding, and the conduct of Santello in absenting himself from Norwalk after the homicide. The State frankly concedes in its brief that Scarpello was shown, on the State's own evidence, "to be a worthless scamp and a cringing coward," that reliance upon his confessions after being taken into custody and his testimony on the stand "could not be based on any estimate of his probity or integrity," and that it might be assumed that his course would be such as would best serve his interest in the trouble in which he found himself.
He was cross-examined at great length as to the details related by him on the witness stand but it is apparent from the record of the cross-examination that defendant's counsel placed much reliance upon an intended claim that in testifying as he did he was motivated by an expectation of clemency in the consequences of his own part in the affair which, he steadfastly maintained, did not include his personal presence in the club rooms at any time. He was repeatedly inquired of as to whether he had received any promise of immunity or clemency, and although he consistently replied in the negative it yet remained open to the defendant to claim that in these denials Scarpello was not worthy of credit and that in testifying *493
as he did he was actuated by some such inducement. The inquiries which elicited the declaration complained of were obviously another attempt to secure an admission of the existence of such an inducement. The attempted resort to a newspaper statement was flagrantly inadmissible, merited the indignation with which the objection was interposed, and the impulse which prompted the state's attorney to repudiate the insinuation which the inquiry involved is readily understandable. However, the effect and consequences of the statement are not rectified by the fact that it was made impulsively, without deliberation or wrongful purpose, and upon provocation which, the record suggests, was by no means limited to the specific incident which we have quoted. The consequence of this positive declaration that no promise had been made is obvious. "That solemn statements of fact, . . . as of the counsel's own knowledge, are likely to have weight with juries, cannot be doubted. The respectability and standing of counsel only serve to enhance the peril." Gutzman v.Clancy,
Most of the reported cases involving the rule we *494
are considering have concerned statements made in argument instead of in the course of the taking of evidence, but no reason for a distinction is discernible. Indeed it would seem that an evidential statement made under the latter circumstances is more likely to be impressed upon and given effect by the jury than one incidentally included in argument. This it appears would be especially true when, as here, its importance is emphasized not only by objection but by the excusing of the jury for the declared purpose of argument of a motion based upon it and a resumption of the trial without further reference to it, from which an inference of propriety might be drawn.State v. Ferrone, supra, p. 163. "While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence." Op. Cit., p. 169. Where it appears that the verdict has been influenced thereby it should be set aside.Worden v. Gore-Meenan Co.,
Of the many cases in other jurisdictions the facts in the following are most nearly analogous. InLooney v. The People,
In Boswell v. State, 93 Tex. Cr. App. 641,
In Knapp v. Stone,
As we hold that the denial of the motion for a mistrial was error requiring us to order a new trial, there is no occasion to determine the assignments relating to the motions to set aside the verdict and in arrest of judgment. The defendant made requests to charge which it appears, although not as clearly as would have been desirable, were designed to secure an instruction to the effect that even if he failed to prove the alibi upon which he relied, the evidence in support *498
of it should be considered along with the other evidence in the case in determining whether the State had proved its case beyond any reasonable doubt. The court charged that "if upon a full consideration of the entire evidence a reasonable doubt arises as to the presence of the accused at the scene of the crime, it is your duty to acquit such accused, even though you are not satisfied that he was elsewhere." It is claimed that, under this instruction the jury might lose sight of the fact that the evidence in support of the alibi was to be considered, together with all the other evidence, upon the question of reasonable doubt. Here, as in State v. Brauneis,
There is error and a new trial is ordered.
In this opinion the other judges concurred.