49 Conn. 376 (Conn. 1881), State v. Smith

Citation:49 Conn. 376
Opinion Judge:Culver, J.
Party Name:The State v. James Smith.
Attorney:L. N. Blydenburgh and T. J. Fox, in support of the motion. T. E. Doolittle and V. Munger, contra.
Judge Panel:except Park, C. J.
Court:Supreme Court of Connecticut

Page 376

49 Conn. 376 (Conn. 1881)

The State


James Smith.

Supreme Court of Errors of Connecticut.

December, 1881

A juror in a criminal case who, though having formed some opinion as to the prisoner's guilt from what he has heard, has yet formed none that it would require evidence to remove or which would prevent him from trying the case without bias, is not disqualified from sitting.

Where a prisoner has failed to exhaust his right of peremptory challenge, it is no ground for granting him a new trial that a challenge for cause was improperly overruled.

It is not a rule to be laid down for the action of a jury, that each juror should be governed by his own independent conclusions, without being influenced by the judgment or opinions of the others.

A party has no right to cross-examine a witness except as to facts and circumstances connected with matters stated in his direct examination, and if he wishes to examine him as to other matters he must do so by making the witness his own and calling him as such at the proper time.

A question put to a witness must not assume a fact which does not exist.

It is the duty of the judge presiding at a criminal trial to be present during the whole time that the trial is in actual progress, so that he can see and hear all that is done and said.

Where however the judge for a few moments during the argument of a case went into the retiring room immediately behind the bench, but was all the time where he could hear all that was said, and so far as appeared the door was open through which he could see what was done, it was held not to be sufficient ground for granting the prisoner a new trial.

Upon a trial for murder in the first degree, which requires a mental condition that allows premeditation and wilful intent, it was claimed that the prisoner was intoxicated at the time and incapable of those mental acts. Held to be no error not to allow a medical expert, who had made a personal examination of the prisoner and who was called by him, to be asked by the prisoner whether in his opinion he was not easily affected by intoxicating liquors; the question for the jury being wholly as to his actual condition, as to which direct evidence was offered.

It is no error to refuse to charge that in murder in the first degree the jury must find that the act was done while the prisoner was in full possession of his reasoning powers, unimpaired by anything affecting his mental condition. A lower condition of the mental faculties would be sufficient.

It is wholly a question of fact for the jury whether intoxication existed to such a degree as to incapacitate the prisoner for conceiving and executing a wilful, deliberate and premeditated intent to kill.

And held to be no error for the court, having instructed the jury that intoxication might destroy the mental capacity to form a specific intent to kill, to refuse to instruct them that if the prisoner was so intoxicated that his drunken condition was observable, it was a matter of " extreme importance" on the question of his capacity to form such an intent.

It is no error for the court to refuse to charge that threats made by an intoxicated person are entitled to very little consideration in determining the question of his intent. It is wholly a matter for the jury, and the court is not bound to say anything about it.

A judge is never bound to charge upon a supposed state of facts, which has no evidence to support it.

In murder in the first degree, the question of the time that may have passed between the conception of the intent to kill and the execution of the intent, is important only as there must have been time enough for the prisoner to form the wilful, deliberate and premeditated intent to kill. If there was enough for this it is all that is needed; and this is wholly a question for the jury.

It being a question whether the fatal shot was fired from the prisoner's pistol or from one in the hands of the deceased, both of which were before the court as exhibits, it was held to be no error for the judge to refuse to allow an expert to take away the pistols for the purpose of experimenting with them with a view to ascertaining from which the bullet came. It was a matter wholly within the discretion of the court.

The statute (Gen. Statutes, tit. 20, chap 13, sec. 8,) provides that " no person shall be convicted of any crime punishable by death, without the testimony of at least two witnesses, or that which is equivalent thereto." Held not necessary that each important fact be proved by the testimony of two witnesses or its equivalent. It is enough if the evidence as a whole is equivalent to that of two witnesses.

And held that it was no error for the judge to refuse to instruct the jury that the evidence must be that, or equivalent to that, of two " reliable" witnesses. It was proper for the judge, having called their attention to the statute, to leave them to judge entirely for themselves as to how far they were to accept the testimony, whatever might be the character of the witnesses, and as to what constituted the equivalent of the testimony of two witnesses, whether the evidence was direct or circumstantial, or made up of both.

Declarations as to facts attending a murder, made by the victim in the expectation of death, are admissible upon the trial for the murder.

Indictment for murder in the first degree, in killing Daniel I. Hayes; in the Superior Court for New Haven County; tried to the jury on the plea of not guilty, before Park, C. J. Verdict guilty of murder in the first degree and motion by the prisoner for a new trial for errors in the rulings and charge of the court. The case is sufficiently stated in the opinion.

L. N. Blydenburgh and T. J. Fox, in support of the motion.

T. E. Doolittle and V. Munger, contra.

Culver, J.[*]

The accused asks for a new trial on various grounds, which will be considered in their order.

1. Because the court below overruled his challenges for cause, to the two jurors, Pickett and Dibble.

We think the rulings were justified by the cases of Wilson v. The State, 38 Conn. 126, and Hoyt v. The State, 47 Conn. 530, and cases there cited. Both jurors stated, as the record shows, that though they had formed some opinion from what they had heard, yet...

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