State v. Ferrone
| Citation | 97 Conn. 258,116 A. 336 |
| Court | Supreme Court of Connecticut |
| Decision Date | 21 February 1922 |
| Parties | STATE v. FERRONE. |
Appeal from Superior Court, Hartford County; William M. Maltbie Judge.
Lawrence Ferrone was found guilty of having in his possession in the night season, without lawful excuse, two instruments of housebreaking, in violation of Gen. St. 1918, § 6238 and he appeals. Error, and new trial ordered.
Benjamin Slade, of New Haven, for appellant.
Hugh M. Alcorn, State's Atty., of Hartford, and Newell Jennings, Asst. State's Atty., of Bristol, for the State.
The assignments of error concern two rulings on evidence, the failure of the court to charge as requested, to the charge as made, and to portions of the argument of the state's attorney. We shall take up these assignments in this order and first briefly outline the nature of the charge and what its proof involved, with a short summary of the essential facts upon which the state relied. In this way the claimed errors in the rulings made and in the charge as given and as refused will be more clearly understood.
The case was before us in 96 Conn. 170, 113 A. 452. The information is based on General Statutes, § 6238, and reads as follows:
" Every person who *** by night has in his possession, without lawful excuse, the proof of which excuse shall be upon him, any key, picklock, jimmy, jack, bit or other instrument of housebreaking *** shall be" punished.
The instruments of housebreaking which the accused was charged with having in his possession were two iron bars. The court instructed the jury that the three indispensable elements in the state's case were: Whether these bars were instruments of housebreaking? Whether they were in the possession of the accused at the time charged, which was admittedly the night season? Whether they were then in the possession of the accused without lawful excuse?
" An instrument of housebreaking," said the court, " may be such from its essential nature, that is, it may be one which is made and designed for the express purpose of housebreaking." Or, it " may be one which is such temporarily and for a particular purpose," and whether such or not would depend upon two considerations: " First, is it one that is reasonably adapted for use in housebreaking; and, second, was it at the time intended or actually used for that purpose?" The state claimed to have proved that these bars were in their essential nature instruments of housebreaking, and that if the jury did not so find that they must find that they were instruments of housebreaking because they were adapted to such use and that the surrounding circumstances disclosed that they were intended for housebreaking on this occasion.
The court further instructed the jury that " possession," as used in the statute, means having an article or instrument " under one's control and dominion," and that this may be " that of the individual, or it may be a joint possession of several" ; so, here, " it might be that you could find that they were in the possession of the entire group of men, because at that time they were animated by a common purpose."
Upon the third question, as to the possession of the instrument of housebreaking without lawful excuse, the proof of which shall be upon the accused, the court instructed the jury:
This construction of the statute was clear and accurate, and no error is predicated upon it.
The state offered evidence to prove that the accused with four other men, between midnight of February 15th and 1 o'clock in the morning of the 16th, were riding in an automobile which was owned and kept in Boston, Mass., and when they arrived in Warehouse Point, the automobile was backed up to a Socony gasoline supply pump near the highway, the door of which was forcibly broken open and gasoline pumped from the pump to the tank of the automobile; the lights upon the automobile were turned out, and when the owner of the pump appeared the occupants of the car boarded it and drove off without paying for the gasoline. After the car had gone 150 feet, the lights were turned on. The marks on the pump indicated that it had been opened by means of an instrument such as the iron bars hereinafter described and which the State claimed to be instruments of housebreaking.
When the automobile reached the Hartford Bridge, it was stopped by police officers and the accused with the other occupants taken to the police station in Hartford. The accused sat upon the front seat of the automobile. On the floor in front of the front seat of the automobile were found two metal bars directly under the feet of the accused at the time the accused was arrested, and these bars the state claimed were instruments of housebreaking, or by reason of the purpose for which they were being carried upon the occasion in question and the use to which it was intended to put them. The state also offered as a witness Lieut. Weltner of the police department of Hartford, who testified that all of the occupants of the car were searched in the presence of the accused. What was done in making the search as to occupants of the car other than the accused was objected to by counsel for the accused and admitted against his objection. To the ruling he duly excepted. The witness then testified that a loaded revolver was taken from Allen, one of the occupants of this car, and a loaded revolver taken from Ryan, another occupant of the car, and two other revolvers found on the two other occupants, and a loaded cartridge case found on one of these. Everything found in the car or upon the person of any occupant of the car was relevant and competent evidence. For the state's claim was that " from all the facts and circumstances in evidence it was a proper inference that the accused and his companions were on the occasion in question engaged jointly in an expedition for the purpose of committing a burglary or other serious crime of like nature, and that the bars, if not technically implements of housebreaking, still were implements reasonably adapted for use in housebreaking, and on the occasion in question were intended to be used for such a purpose," and this offer directly tended to prove this claim.
The state also inquired of this witness if he gave instructions as to the search of the automobile, and he replied he did. He was then inquired of whether his orders were obeyed, and replied, they were. This inquiry was plainly objectionable. So far as appears of record, the witness had no knowledge of this subject; all that he could testify to was what the officers detailed to make the search told him they had done. He was then inquired of, " And whether later another pistol was brought to you," and against the objection and exception of the accused, replied, " There was." He then was permitted to testify that certain officers brought to him a pistol, and a package of bullets taken from the pistol was laid in evidence. None of this evidence except as to the fact that instructions were given was admissible. The officers who made the search should have been required to testify as to the search, as to the articles taken from the car, and as to what was done with them, and if these were handed to Lieut. Weltner he could identify them and they might then have been properly laid in evidence.
It may be that subsequent testimony made these erroneous rulings harmless; the record is too indefinite upon this subject to enable us to reach a conclusion as to this.
Another ruling excepted to by the accused was that admitting the conversation of Higgins, a detective sergeant of the New York police department, with the accused after his arrest in New York City. Higgins testified:
’
Counsel for the accused renewed his objection, and the court said: " Under the rule, I don't think there is much question about its admissibility." After further argument by counsel, the court ruled that the conversation did not constitute an admission on the part of the accused and was therefore inadmissible, and ordered this evidence stricken out, and stated that the explanation of the court's ruling was for the benefit of the jury more than for counsel.
In the charge the court instructed the jury:
" You certainly would not be justified, and I am sure you will not consider any testimony which, once offered, the...
To continue reading
Request your trial
-
State v. Moye
...96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and by this court in State v. Cook, 174 Conn. 73, 76, 381 A.2d 563 (1977), and State v. Ferrone, 97 Conn. 258, 266, 116 A. 336 (1922). As with several of the other claims made in this appeal, the defendant did not raise this issue at trial, but has asser......
-
State v. Ralls
...the defendant's silence in the face of in-custody accusations or interrogation. State v. Bates, 140 Conn. 326, 99 A.2d 133; State v. Ferrone, 97 Conn. 258, 116 A. 336; see Miranda v. Arizona, supra, 384 U.S. 468 n. 37, 86 S.Ct. The cases which the defendant cites in support of his claim and......
-
State v. Morrill
...naturally called for a reply from him.' " State v. Harris, 182 Conn. 220, 228, 438 A.2d 38 (1980), quoting State v. Ferrone, 97 Conn. 258, 265-66, 116 A. 336 (1922). "Where, however, the accused is in custody, 'our law accords him the right to reply to question or statement, or to remain si......
-
State v. Ubaldi
...a new trial. See State v. Santello, 120 Conn. 486, 181 A. 335 (1935); State v. Moran, 99 Conn. 115, 121 A. 277 (1923); State v. Ferrone, 97 Conn. 258, 116 A. 336 (1922); State v. Ferrone, 96 Conn. 160, 113 A. 452 (1921). We have not previously addressed the issue of to what extent deliberat......