State v. Edwards

Decision Date27 July 1972
Citation316 A.2d 387,163 Conn. 527
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Joseph EDWARDS, Jr.

Dominick J. Galluzzo, Asst. Public Defender, for appellant (defendant).

Joseph T. Gormley, Jr., State's Atty., for appellee (state).

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and MacDONALD, JJ.

LOISELLE, Associate Justice.

The defendant Joseph Edwards, Jr., was indicted by a grand jury for the crime of murder in the first degree in that he 'wilfully, deliberately with premeditation and malice aforethought and while in the perpetration of a robbery, did assault, stab and kill one Wilbert Nails in violation of Section 53-9 of the Connecticut General Statutes.' A jury returned a verdict of guilty of murder in the first degree. After a hearing in accordance with the provisions of General Statutes § 53-10, the jury recommended a sentence of life imprisonment which the court imposed. 1 The defendant has appealed, assigning error in the court's charge to the jury and in the court's refusal to charge as requested. These assignments of error are tested by the claims of proof as they appear in the finding. Practice Book §§ 609, 635; Southington v. Francis, 159 Conn. 64, 68, 266 A.2d 387; Intelisano v. Greenwell, 155 Conn. 436, 444, 232 A.2d 490.

The defendant offered no evidence and does not claim to have proved any facts. The state's claims of proof may be summarized as follows: At approximately 8:30 p.m. on the evening of December 3, 1969, Wilbert Nails entered the New Breed Restaurant on Day Street in the city of Norwalk and remained there until about 11:30 p.m. That evening the defendant, William Jacobs and Raymond Conner stopped at the New Breed Restaurant for about fifteen minutes. The defendant left the restaurant with Nails and then came back into the restaurant and called for Conner and Jacobs. The defendant, Conner, Jacobs and Nails crossed Concord Street, passed in front of a factory and proceeded into the alley next to the factory. The defendant preceded Nails, whom Conner and Jacobs followed. The defendant then struck Nails, jumped on him and demanded his money. Nails said he had no money. Jacobs tried to pull the defendant from Nails, but the defendant pulled a knife out of a zippered pocket on the sleeve of his coat and began swinging it. While Conner was trying to pick up Nails, Jacobs left the scene. Both Jacobs and Conner saw the defendant swinging the knife at Nails. Conner saw the defendant hitting and stabbing Nails. After the stabbing the defendant took some money in coins from Nails and gave it to Conner. Conner and the defendant then left the area to go to the home of the defendant's sister. At his sister's home, the defendant took out the knife, held it up and said that he had tried to kill Nails, describing Nails by an obscenity rather than by his name. The defendant gave the knife to Conner and told him to wash the blood from it. Nails was found dead in the alley next to the factory at approximately 12:36 a.m. on December 4, 1969. The cause of death was multiple stab wounds of the chest, one of which penetrated the chest wall and the heart. On the following day, Conner delivered the knife used to kill Nails to the Norwalk police department. At the Norwalk police department on the evening of December 6, 1969, after being advised of his rights, the defendant admitted being in the New Breed Restaurant on the evening of December 3, 1969, getting into an argument with a man, going outside and hitting him, and then taking a knife from a zippered pocket in the sleeve of his coat and stabbing him.

In its charge, the court read verbatim the indictment as it had been received from the grand jury. After the preliminary instructions usual to a criminal proceeding it detailed the four elements essential to the proof of murder. It then charged the jury that, to find the defendant guilty of murder in the first degree they must find that the state had proved fifth element. The court specified two circumstances which would constitute that fifth element: If the state established the four elements comprising murder and 'also that the killing was wilful, deliberate and premeditated . . . then the crime would be murder in the first degree'; 'if in addition to those four elements the state also proves a fifth element, namely, that the murder was committed in the perpetration of robbery as alleged in the indictment, it becomes by force of law murder in the first degree. The fact that the murder is committed in the commission of a robbery makes it murder in the first degree by statutory definition. A further specific finding that it was done wilfully, deliberately and with premeditation is not required under this phase of the statute which I have read to you.' The court also stated: '(I)n reviewing up to this point, if the State has failed to prove beyond a reasonable doubt any of the five elements in each instance that I have described and thus has failed to prove that the murder was a wilful, deliberate and premeditated killing or has failed to prove that a murder was committed in the perpetration of a robbery, then your conclusion is that the State has failed to make out a case of murder in the first degree.'

Near the end of the charge, the court again emphasized that, if the jury found that the state had proved the four essential elements comprising murder, and found either that the murder was willful, deliberate and premeditated or that it occurred while in the perpetration of a robbery, the defendant would be guilty of murder in the first degree. The court substantially repeated these directions when the jury returned for further instructions.

The defendant claims that the court's instruction was in effect an amendment or alteration of the grand jury indictment; that the jury charge was erroneous because it charged two distinct and separate offenses in one count; that the indictment and jury charge failed to inform the accused with sufficient certainty of the crime for which he was convicted; and that the jury charge failed to give the jury sufficiently clear instructions with which to weigh the evidence and reach a verdict.

At common law, an indictment could be amended only by the grand jury. Merriam v. Langdon, 10 Conn. 460, 471; note, 17 A.L.R.3d 1181, 1201; see also Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849; Dodge v. United States, 258 F. 300 (2d Cir.), for the same rule in federal cases. The defendant has briefed innumerable cases on the subject and all support this principle. They are not applicable, however, to this case because the court read the indictment returned by the grand jury verbatim to the jury and the jury had the unaltered indictment with them during their deliberations. While the defendant admits that the indictment was not physically amended, he claims that the charge of the court effectively altered the indictment. This claim runs through the remaining assignments of error and will be discussed as applicable to each.

The defendant's claim that the indictment charges two distinct and separate offenses in one count is not well-founded. General Statutes § 53-9 defines murder committed in specific, enumerated ways as murder in the first degree and provides that murder committed in all other ways shall be murder in the second degree. Committing a single murder in one or all of the ways enumerated constitutes no more than a single offense of murder in the first degree. To say that one may commit a particular crime in any of several ways is certainly not to say that he has committed several crimes.

There is, therefore, no merit in the defendant's claim that first-degree murder, committed during the perpetration of a robbery, constitutes on offense which is different from first-degree murder committed in a willful, deliberate and premeditated fashion. At common law, murder the unlawful killing of one human being another with malice aforethought; State v. McGuire, 84 Conn. 470, 481, 80 a. 761; and includes homicide which is committed without an intent to kill, if it occurs in the McGuire, 84 Conn. 470, 481, 80 A. 761; Swift, Digest, p. 278. Thus, by our common law, an unlawful killing which is either willful, deliberate and premeditated or perpetrated in the commission of a felony is murder. See State v. Gross, 72 Conn. 722, 729, 46 A. 148. Prior to 1846, Connecticut did not distinguish among the various ways of committing murder for the purpose of imposing varying punishments. See State v. Dowd, 19 Conn. 388, 391. The pre-1846 common law demonstrates that the courts viewed these alternative ways of committing murder as constituting a single crime, calling for a single punishment.

Chapter 16 of the Public Acts of 1846 provided that the punishment for murder should differ according to the atrociousness of the manner in which it was committed. Smith v. State, 50 Conn. 193, 196; State v. Dowd, supra, 19 Conn. 392. It did not, however, alter or expand the conduct which constituted murder at common law. State v. Walters, 145 Conn. 60, 71, 138 A.2d 786, cert. denied, 358 U.S. 46, 79 S.Ct. 70, 3 L.Ed.2d 45; State v. Kurz, 131 Conn. 54, 61, 37 A.2d 808; State v. Jacowitz, 128 Conn. 40, 44, 20 A.2d 470. Killing willfully, deliberately and with premeditation, and killing in the perpetration of a robbery, are among the ways of committing murder which were designated first-degree murder and subject to more stringent punishment than other methods. There is, therefore, no basis to the defendant's claim that he was indicated for two distinct and separate offenses in one count. He was indicated only for the single offense of first-degree murder. The state offered evidence of a robbery, as well as evidence of willfulness, deliverateness and premeditation, only to support its claim that the murder committed was first-degree murder. People v. Jackson, 20 N.Y.2d 440, 450, 285 N.Y.S.2d 8, 231 N.E.2d 722; People v. Lytton, 257 N.Y. 310, 178 N.E. 290; ...

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