State v. Mosca

Citation90 Conn. 381,97 A. 340
CourtSupreme Court of Connecticut
Decision Date19 April 1916
PartiesSTATE v. MOSCA.

Appeal from Superior Court, New Haven County; Howard J. Curtis, Judge.

Guiseppe Mosca was convicted of assault with intent to kill, and he appeals. No error.

Jacob P. Goodhart and Samuel A. Persky, both of New Haven, for appellant. Anion A. Ailing, State's Atty., of New Haven, for the State.

THAYER, J. The information charged an assault with intent to murder. The verdict was guilty of an assault with intent to kill. When the jury returned with their verdict the following occurred:

"The Clerk: Gentlemen of the jury, have yon I agreed upon a verdict? The Foreman: We have. The Clerk: Gentlemen of the jury, look upon the accused, and by your foreman say whether he be guilty of the crime whereof he stands informed against. The Foreman: Not guilty. The Clerk: You and each of you, upon your oaths as jurors, say that the accused is not guilty of the crime whereof he stands informed against, and so say you all? The Foreman: Pardon me; as I understand it, guilty of the charge in the information. Do I understand you right? The Clerk: This is the request. The Foreman: The jury find him guilty on the second count, which is assault with intent to kill. The Court: There isn't any second count, you mean—The Foreman: I didn't understand just what it should be. The Clerk: Gentlemen of the jury, you and each of you, upon your oaths as jurors, say that the accused is guilty of the crime of assault with intent to kill, and so say you all?"

The court finds that in response to the last inquiry of the clerk the jurors assented in the usual manner, and after the jury had so assented the clerk said to them,: "You may be seated, gentlemen." It also finds that the verdict agreed upon and assented to by all the several jurors was guilty of an assault with intent to kill. One of the errors assigned as a reason of appeal is the acceptance by the court of this as a verdict of guilty of an assault with intent to kill.

There was no second count in the information, but under an information charging an assault with intent to murder a verdict of assault with intent to kill can properly be rendered, and it was the duty of the court to so instruct the jury. Such an instruction was doubtless given as no complaint of the charge is made. The foreman made it clear that the jury had not found the accused guilty of an assault with intent to murder, but had found him guilty of an assault with intent to kill. After he had said, "Not guilty," he explained that he understood the clerk's first inquiry to refer to the charge on the information, and at once said that the jury found the accused guilty of an assault with intent to kill. In what he said following that he manifestly meant, not that he did not know what the verdict should be, but that he did not know just the form in which it should be expressed. He was confused only as to whether there was a second count. That the understanding of the court and clerk and of all the jurors was that the verdict as announced by the foreman was guilty of an assault with intent to kill appears from what immediately followed, the clerk saying:

"Gentlemen of the jury, you and each of you, Upon your oaths as jurors, say that the accused is guilty of assault with intent to kill, and so say you all?"

To which the jurors assented. But, however the declarations of the foreman are to be construed, the verdict in the case is that which was repeated to the jurors and to which they each assented. "This last answer by each juror made the verdict." Watertown Eco. Society Appeal, 46 Conn. 230, 233. Until each juror had given his assent to this last question by the clerk, there was an opportunity to recall any previous assent to a different verdict or to correct any mistake made by the foreman in delivering the verdict agreed upon.

The court properly found the fact that the jurors each and all assented to the verdict as finally repeated to them by the clerk. Such assent might be given by physical signs of approval, as by an inclination of the head or by spoken words of assent. In neither case would the stenographer's notes be likely to show the fact of assent, and in the present case they did not show it. It being a fact occurring upon the trial and within the personal knowledge of the court, the judge might properly find the fact; although the same was not recorded by the stenographer. There is therefore no occasion to change the finding.

After the case had been submitted to the jury, and they had had it under consideration for several hours, they returned into court and reported that they had not agreed upon a verdict. In reply to questions by the court as to the possibility of reaching an agreement the foreman said:

"Well, I couldn't say. When we came here before, I thought surely the prospect of our returning a verdict was possible, hut at this time I couldn't say positively what the outcome of further deliberation would be."

Thereupon the court read to the jury an extract from State v. Smith, 49 Conn. 370, at page 386, relative to the duty of jurors during their deliberations in endeavoring to reach a verdict The jury then retired, and ten minutes later returned with the verdict before mentioned. The defendant claims that under the circumstances of the case it was error for the court to read to the jury the extract from the opinion in State v. Smith above referred to. The extract read was a quotation from the charge in State v. Smith which was approved by this court. It has been since repeatedly given by trial courts and approved by this court as a proper instruction in cases where a failure to agree had been reported by juries. It is not claimed by the defendant's counsel to be improper in itself, but they claim that the circumstances of this case made it improper to give it. They have failed to point out any circumstance existing at the time the instruction was given which rendered it improper. The foreman of the jury had not reported that an agreement was impossible. They had considered the case for a long time, and once previously had come into court reporting a failure to agree. It would seem that these circumstances were enough to warrant the court in giving an Instruction calculated to aid the jury in reaching an agreement. The circumstance upon which the defendant's counsel base their argument is the fact that the jury so promptly reached an agreement after the instruction was given. It is insisted that the jury must have misunderstood the purpose of the judge in giving the instruction, and considered it as equivalent to an order to agree upon a verdict, else there would not have been so prompt an agreement. This claim does not support the defendant's assignment of error. The defendant cannot take advantage of a mistake of the jury resulting from their misunderstanding of a proper instruction under his claim that the charge was erroneous. His real complaint in such case relates to the action of the jury, and not to that of the court. We see nothing in the prompt agreement of the jury, however, which indicates any misunderstanding on their part of the instruction given.

The assault charged in the information was the shooting of one Raffone. To exculpate himself the accused upon the trial claimed that the assault was not made by him, but by one Scolo. He offered a witness to prove that Scolo is now in Italy, and several witnesses to prove that Scolo, after the assault was committed, had stated that he had committed it. These statements upon objection were excluded, and their exclusion is assigned for error. There were supporting circumstances testified to by several witnesses in the facts that on the evening of the assault and some time prior thereto Raffone, in a saloon where both were drinking, used an insulting remark about Aversanians, of whom Scolo was one, and that this led to angry words between them, and they were separated by the accused and others. Later they met in another saloon, that of one Nocci, when the controversy was renewed, Scolo then drawing a pistol, when they were again separated, and that shortly thereafter Scolo, who was outside, went to the door of Nocci's...

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  • State v. O'NEIL, (SC 16177)
    • United States
    • Connecticut Supreme Court
    • July 23, 2002
    ...U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983); State v. Wyman, 118 Conn. 501, 507, 173 A. 155 (1934); see also State v. Mosca, 90 Conn. 381, 385, 97 A. 340 (1916) (Chip Smith instruction "has been . . . repeatedly given by trial courts and approved by this court as a proper instruction......
  • State v. Lewis
    • United States
    • Connecticut Supreme Court
    • August 4, 1998
    ...party statements were per se inadmissible as hearsay. State v. Stallings, 154 Conn. 272, 287, 224 A.2d 718 (1966); State v. Mosca, 90 Conn. 381, 387, 97 A. 340 (1916); State v. Beaudet, 53 Conn. 536, 551, 4 A. 237 (1886). In State v. DeFreitas, supra, [179 Conn. at 449, 426 A.2d 799], we in......
  • State v. Lopez
    • United States
    • Connecticut Supreme Court
    • August 20, 1996
    ...party statements were per se inadmissible as hearsay. State v. Stallings, 154 Conn. 272, 287, 224 A.2d 718 (1966); State v. Mosca, 90 Conn. 381, 387, 97 A. 340 (1916); State v. Beaudet, 53 Conn. 536, 551, 4 A. 237 (1886). In State v. DeFreitas, supra, [179 Conn. at 449, 426 A.2d 799], we in......
  • State v. DeFreitas
    • United States
    • Connecticut Supreme Court
    • January 8, 1980
    ...unavailable. State v. Stallings, supra, 154 Conn. 287, 224 A.2d 718 (declarant's whereabouts conceded to be unknown), and State v. Mosca, 90 Conn. 381, 387, 97 A. 340 (declarant known to be in Italy at time of trial). In State of Beaudet, 53 Conn. 536, 539, 549, 4 A. 237, the court did not ......
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