97 A. 340 (Conn. 1916), State v. Mosca

Citation:97 A. 340, 90 Conn. 381
Opinion Judge:THAYER, J.
Party Name:STATE v. MOSCA.
Attorney:Jacob P. Goodhart and Samuel A. Persky, both of New Haven, for appellant. Arnon A. Alling, State's Atty., of New Haven, for the State.
Case Date:April 19, 1916
Court:Supreme Court of Connecticut
 
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Page 340

97 A. 340 (Conn. 1916)

90 Conn. 381

STATE

v.

MOSCA.

Supreme Court of Errors of Connecticut.

April 19, 1916

         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.

Page 341

          Jacob P. Goodhart and Samuel A. Persky, both of New Haven, for appellant.

          [90 Conn. 383] Arnon A. Alling, 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:

Page 342

          " The Clerk: Gentlemen of the jury, have you 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 [90 Conn. 384] 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 [90 Conn. 385] 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,...

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