State v. Davies

• Citation: 146 Conn. 137,148 A.2d 251
• Court: Supreme Court of Connecticut
• Decision Date: 08 January 1959
• Parties: STATE of Connecticut v. George J. DAVIES. Supreme Court of Errors of Connecticut

Page 251

148 A.2d 251

146 Conn. 137

STATE of Connecticut v. George J. DAVIES.

Supreme Court of Errors of Connecticut.

Jan. 8, 1959.

Edward T. Carmody, Public Defender, Waterbury, and G. Bradford Palmer, Spec. Asst. Public Defender, Waterbury, for appellant (defendant).

William B. Fitzgerald, State's Atty., Waterbury, with whom was Walter W. Smyth, Asst. State's Atty., Waterbury, for appellee (state).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.

DALY, Chief Justice.

The defendant has appealed, after a trial to a jury, from his conviction on a charge of murder in the first degree. He assigns error in the sustaining of a demurrer to his plea in abatement and in the charge to the jury.

The defendant filed a plea in abatement alleging that the indictment accusing him of murder in the first degree was found by a grand jury; that seven of the eighteen grand jurors constituting the grand jury were attorneys at law duly qualified and admitted to the practice of law in this state and as such were also officers of the Superior Court; that article first, § 9, of the constitution of Connecticut, the fifth and fourteenth amendments to the federal constitution, and § 8747 of the General Statutes prohibit the holding of a defendant to answer for the crime of murder except upon the indictment of a legally constituted grand jury; that because of the presence of the seven attorneys the grand jury was not legally constituted; and that the indictment was contrary to law. The state demurred to the plea on the ground (1) that it was not alleged therein that the seven attorneys at law referred to were not electors of the county of New Haven and (2) that an attorney at law and officer of the Superior Court is not disqualified from serving as a member of a grand jury by any provision of the constitution of the Unite States or the constitution of Connecticut or by any statute of the state of Connecticut.

The defendant does not claim that any of the attorneys who were members of the grand jury were not electors of the county of New Haven, as required by § 8747, which provides that the Superior Court 'may, when necessary, order a grand jury of eighteen electors of the county where said court is sitting.' The only statutory qualification prescribed for grand jurors is that they be 'electors of the county where said court is sitting.' The disqualification 'must be such as is pronounced by the common law, or by the statute, where the statute prescribes the qualifications, and such as absolutely disqualifies; as alienage, nonresidence, or the want of a freehold, where a freehold qualification is required, or that the person returned is not an elector of the county, and which would be a cause of principal challenge as distinguished from challenge to the favor arising from bias, prejudice, interest or the like.' State v. Hamlin, 47 Conn. 95, 106. The oaths of attorneys and of grand jurors impaneled in court ¹ clearly indicate that the obligations and duties of an attorney at law can in no way conflict with the obligations and duties of a grand juror impaneled in court.

As support for his claim that the court erred in sustaining the demurrer to his plea in abatement, the defendant relies upon three federal cases, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Thiel v. Southern Pac. Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181; and Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181. In each of these cases the court stated the basic rule to be followed in selecting the members of a petit jury in a federal court. In Ballard v. United States, supra, 329 U.S. 192, 67 S.Ct. at page 263, the court said: 'The gist of our ruling is contained * * * in the Thiel case [328 U.S. at page 220, 66 S.Ct. at page 985]: 'The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. * * * This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. * * *" Likewise, there must be no intentional and systematic exclusion of a group or a class from a grand jury. Hernandez v. Texas, 347 U.S. 475, 477, 74 S.Ct. 667, 98 L.Ed. 866.

The defendant does not claim that he alleged in his plea in abatement that there was an intentional and systematic exclusion of any group or class from the grand jury. His position, as stated in his brief, is 'that by the intentional and systematic inclusion of this single professional group on the Grand Jury panel there has been a violation of his rights.' Nothing stated in his so-called position can supplement the facts as they were, and are, set forth in his plea in abatement. Even if we construe the words contained in his plea in abatement as alleging that by the 'inclusion of this single professional group on the Grand Jury panel there has been a violation of his rights,' we have no power or authority to interpolate the words 'intentional and systematic.' The demurrer admitted only the facts alleged in the plea in abatement. The latter did not contain the words 'intentional and systematic' or any other words which could possibly be construed as having a like meaning. 'The [plea in abatement] contains a statement of the facts upon which the [defendant] relies. The [state] challenged by demurrer the sufficiency of the facts thus presented. The question before us is whether or not the trial court erred in [sustaining the demurrer]. Our answer to this question is one which must be controlled entirely by the information afforded by the [plea in abatement]. The information cannot be supplemented by facts which may be within our personal, but not within our judicial, knowledge, nor by facts which the parties stipulate may be accepted as true. The demurrer admits the facts averred [in the plea in abatement], and no others, and there is no way known to the law whereby other facts may be imported into the issue tendered by the demurrer, or whereby that issue can become any other than one as to the sufficiency of the allegations of the [plea in abatement] as they are made.' Ryan v. Knights of Columbus, 82 Conn. 91, 92, 72 A. 574; Dante v. Dante, 93 Conn. 160, 162, 105 A. 353.

The most that can be claimed by the defendant is that by his plea in abatement he alleged that the inclusion of the seven lawyers theoretically worked an indirect exclusion of representation from among other groups or callings. But it is not alleged in his plea that in accomplishing any such theoretical result there was an intent or purpose to discriminate against those other groups or callings. Fairness in selection has never been held to require proportional representation. Akins v. Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 89 L.Ed. 1692; 24 Am.Jur. 852, § 27. The defendant does not claim that he did not have a fair trial. The challenge made by him under the due process clause of the federal constitution must stand or fall on a showing that he had a trial so unfair as to amount to a taking of his liberty without due process of law. Fay v. New York, 332 U.S. 261, 296, 67 S.Ct. 1613, 91 L.Ed. 2043. The court did not err in sustaining the demurrer to the defendant's plea in abatement.

In his second assignment of error the defendant contends that, in charging the jury, the court failed to state correctly the test or definition of insanity or mental capacity needed to absolve one from responsibility or punishment in connection with the commission of a criminal act. The court substantially complied with the defendant's request to charge and charged the jury as follows:

'* * * you may find murder in the first degree here only if you determine that the accused had mind enough and will enough to form a specific intent to choose his course after reflection and consideration, and to form his purpose and put it into action, and mind enough and will power enough and reasoning power enough to kill Brenda Doucette and carry out that plan. If you find that at the time of committing the alleged act of killing Brenda Doucette the accused was incapable of conceiving and carrying into execution a deliberate plan to kill or was mentally incapable of intent or premediation, or was beyond the power of self-control, then you may not find the accused guilty of murder in the first degree. * * * Insanity is a good defense for any act amounting to crime if committed by a sane person. The law humanely absolves from responsibility a man whose mental condition does not reach the legal standard of sanity, and the law as clearly as it can defines this legal standard, and I am going to read it to you. I will read to you the standard of sanity which our law has adopted and defined, and you will note that some of the phrases which have been discussed in the court room in the development of the trial are absent from that definition. For instance, the words insanity, psychopathic, psychiatry and psychology do not appear in this definition I am about to give you. Some of the other words or phrases used by the medical experts, such as personality disorder, emotional instability and sexual perversion also do not appear in this definition. So, we are not making new law. We are applying the law of our State as it is and the legal standard of sanity or capacity to commit crime in our State is this: To be the subject of punishment, an individual must have mind and...