149 A.2d 698 (Conn. 1959), State v. Reid

Citation:149 A.2d 698, 146 Conn. 227
Opinion Judge:KING, J.
Party Name:STATE of Connecticut v. Benjamin REID.
Attorney:James D. Cosgrove, Public Defender, and William D. Graham, Sp. Asst. Public Defender, Hartford, for appellant (defendant)., Douglass B. Wright, Asst. State's Atty., Hartford, with whom, on the brief, was Albert S. Bill, State's Atty., Hartford, for appellee (state). James D. Cosgrove, public def...
Judge Panel:In this opinion the other Judges concurred. Before BALDWIN, KING, MURPHY and MELLITZ, JJ, and SHEA, Superior court judge
Case Date:March 04, 1959
Court:Supreme Court of Connecticut
 
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Page 698

149 A.2d 698 (Conn. 1959)

146 Conn. 227

STATE of Connecticut

v.

Benjamin REID.

Supreme Court of Errors of Connecticut.

March 4, 1959.

Page 699

James D. Cosgrove, Public Defender, and William D. Graham, Sp. Asst. Public Defender, Hartford, for appellant (defendant).

Douglass B. Wright, Asst. State's Atty., Hartford, with whom, on the brief, was Albert S. Bill, State's Atty., Hartford, for appellee (state).

Before BALDWIN, KING, MURPHY and MELLITZ, JJ., and SHEA, Superior court judge.

[146 Conn. 228] KING, Associate Justice.

The indictment returned by the grand jury charged the defendant with the first degree murder of Florine McCluney 'in attempting to perpetrate a robbery.' The claims of proof material to the consideration of the defendant's assignments of error will be summarized. Mrs. McCluney was a neighbor who had known the defendant from infancy. She was an especial friend of his mother and had always been friendly with him. She owned a Buick car which she kept in a parking lot near her home in Hartford. At about 4 o'clock in the afternoon[146 Conn. 229] of January 15, 1957, the defendant, who was unemployed, left his house, with a hammer in his belt, to go out on the street. About 9 o'clock in the evening, while in a restaurant, he saw Mrs. McCluney, who he thought had some money, walking down the street. Thereupon he left the restaurant, crossed the street, cut through an alley and went to the lot where she parked her car. He hid there. When she passed, he felled her with a blow on the head from the hammer. When she moaned, he struck her some more. After breaking a window on the driver's side of her car, he placed her in the car, first removing her fur coat so that he could more easily carry her. Death directly resulted from the blows, which caused a depressed, comminuted fracture of the skull. The body of Mrs. McCluney was found the next morning, frozen solid, in her car. More than $2,000 was concealed under her clothing, but the defendant had not found it. At about 11 o'clock the night she was killed, a paper bag with her pocketbook in it was discovered on a sidewalk nearby.

The defendant chose to, and did, take the stand. There was no real dispute as to most of the basic facts, and his version of the crime was virtually the same as that of the state except that he denied that in beating Mrs. McCluney on the head with a hammer, breaking in her skull and causing injuries from which she soon died, he had any idea or intention of killing her. He also denied that he had had any intention of robbing her and claimed to have no explanation of the hammer attack. He claimed, in effect, that he had had too much to drink that afternoon and evening. Although he said that he had put the deceased in her car so that she would not freeze, he had not replaced her coat. His later movements[146 Conn. 230] were unimportant except that they showed a consciousness of guilt and a desire to escape arrest, and except that he did nothing to assist the deceased although she was probably not dead when he first put her in her car.

The defendant assigns error in the court's refusal to include in its charge his request to the effect that if he committed the crime of assault with intent to rob, 1 'a homicide arising out of * * * [it] is not murder in the first degree.' Section 53-9 of the 1958 Revision provides: 'All murder [not all homicide] perpetrated * * * by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or committed in perpetrating, or in attempting to perpetrate, any * * * robbery * * * shall be murder in the first degree; and all other kinds of murder shall be murder in the second degree; and the degree of the

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crime charged shall be alleged in the indictment; but the jury Before which any...

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