State v. Carroll.

• Decision Date: 20 July 1944
• Citation: 38 A.2d 798,131 Conn. 224
• Court: Connecticut Supreme Court
• Parties: STATE v. CARROLL.

131 Conn. 224

38 A.2d 798

STATE

v.CARROLL.

Supreme Court of Errors of Connecticut.

July 20, 1944.

Appeal from Superior Court, Fairfield County; Shea, Judge.

Frank J. Carroll was charged by information with manslaughter, and, from a verdict and judgment of not guilty after trial to a jury, the State appeals.

Error, judgment set aside, and new trial ordered.

Lorin W. Willis, State's Atty., of Bridgeport (Otto J. Saur, Asst. State's Atty., of Bridgeport, on the brief), for appellant (State).

David Goldstein, of Bridgeport, for appellee (defendant).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

ELLS, Judge.

The information charged the defendant with manslaughter and alleged that he committed an assault and battery upon Charles Kelly by striking him and forcibly throwing him to the ground, thereby causing his death. The defense was that the deceased sustained his fatal injuries while the defendant, a police officer of the city of Bridgeport, was attempting to arrest him, without a warrant but upon the speedy information of others, within the terms of General Statutes, § 239. The jury returned a verdict of not guilty, and the state, with the permission of the trial court, has appealed.

Many of the basic facts are not in dispute. Kelly was a resident of Bridgeport, lived with his wife on Sherwood Avenue and was employed by a large manufacturing plant as assistant traffic, manager. At about 10:30 o'clock on the night of July 6, 1943, he left his house, carrying a small suitcase, intending to go to the home of his grandmother on Norman Street. After proceeding south on the west sidewalk of that highway, he stopped and sat down on the steps of a store doorway. Because of dimout regulations the street lights were shaded so that no light was cast upon the place where he was sitting. The defendant and officer Murphy were patrolling the locality in plain clothes. They observed a man sitting on these steps in the dark and decided to ask him what he was doing there. As they approached, Kelly picked up his suitcase and started diagonally across Norman Street, whereupon the defendant called out to him to stop, and said he wanted to speak to him. Kelly stopped in a dark place on the easterly sidewalk, and the officers produced police badges from their pockets, showed them to Kelly and told him that they were policemen. There was evidence from which the jury reasonably could have found that the defendant then said, ‘I would like to have you step up to the street light. I would like to ask you some questions'; that Kelly said, ‘I haven't done anything’; that the defendant replied, ‘You are not being accused of doing anything, but I must ask you some questions'; and that Kelly started to run back across the street and the defendant pursued him, tackled him and went down on top of him, causing injuries which unfortunately resulted in death.

The defendant claims that under the circumstances, especially because of Kelly's suspicious conduct, he was justified in attempting to arrest Kelly because he had reasonable grounds to believe that he had speedy information to the effect that Kelly had committed a crime, and particularly that he had committed assaults on two women. For the purpose of proving that he was acting upon speedy information, the defendant offered evidence that the superintendent of police had received information of two attacks upon women made by unknown assailants, one on July 1, 1943, at the place where Kelly was arrested, the other on June 28, 1943, at a point about three blocks away. As a result of these attacks, the superintendent caused, officers to be detailed to patrol the area in plain clothes. On the evening of July 6 the defendant and officer Murphy were assigned for this patrol, and the defendant was instructed to go ‘to do his best to see that the women were protected.’ The state objected to the evidence on the ground that it did not tend to prove justification, there being no evidence that he had speedy information from others of the offenses, or that Kelly was implicated in them or in any other crime or misdemeanor. The court admitted the testimony and charged at some length upon the claims of proof based upon that evidence. Error is assigned in the rulings and in the charge on this situation, but it is not particularly claimed that the charge misstated the law, if the evidence was properly before the jury.

Section 239 reads as follows: ‘Arrest without warrant. * * * police officers * * * shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the offender shall be taken or apprehended in the act or on the speedy information of others; and all persons so arrested shall be immediately presented before proper authority.’ The common law on this subject and the history of the statute were reviewed in Sims v. Smith, 115 Conn. 279, 161 A. 239. We said (115 Conn. at page 281, 161 A. at page 240): ‘It is generally held * * * that at common law a peace officer could arrest without a warrant one whom he had reasonable ground to believe had committed a felony, though no felony had in fact been committed, and that there was no requirement that information of the crime must have been received speedily after its commission. The rule is otherwise in this state by statute.’ The burden of the defendant's brief is that the common-law rule must be read into the statute. The claim is unsound. We further said in the Sims case that our statute makes no distinction between misdemeanors and felonies, but defines and prescribes the limitation upon peace officers in making arrests without a warrant for any offense; that it was the intention of the legislature to limit the common-law right of arrest without a warrant; that an arrest, except as authorized by the statute is illegal; and that the statute requires a warrant except when the offender is apprehended in the act or upon speedy information. The precise holding was (115 Conn. at page 284, 161 A. at page 241) that under the circumstances of the case ‘the court charged the jury with sufficient accuracy’ when it said that the defendant had no right to arrest Sims for adultery without a warrant unless he had reasonable ground to believe that he had received speedy information of the commission of that crime. In McKenna v. Whipple, 97 Conn. 695, 701, 118...