State v. Fasano

• Decision Date: 05 February 1935
• Citation: 177 A. 376,119 Conn. 455
• Court: Connecticut Supreme Court
• Parties: STATE v. FASANO.

177 A. 376

119 Conn. 455

STATE v. FASANO.

Supreme Court of Errors of Connecticut.

February 5, 1935

Appeal from Superior Court, New Haven County; Carl Foster, Judge.

Information charging Alfonse C. Fasano with the crime of forgery, of uttering forged documents, and of perjury, brought to the superior court, where various motions addressed to the information were denied, and the issues were tried to the jury. Verdict and judgment of guilty on each count, from which the accused appealed.

James E. McKnight, of Waterbury, and George G. Di Cenzo, of New Haven, for appellant.

Samuel E. Hoyt, State's Atty., and Abraham S. Ullman, Asst State's Atty., both of New Haven, for the State.

Argued before MALTBIE, C.J., and HAINES, BANKS, AVERY, and JENNINGS JJ.

MALTBIE, Chief Justice.

The information against the defendant was in three counts. In the first, he was charged with forging a replevin bond with the intent to defraud Wanda Pellegrino, Geremain Gabriel, a certain named corporation, and other persons; in the second with uttering the forged document with the same fraudulent intent; and, in the third, with having committed perjury in testifying in a court proceeding brought to enforce the bond. The jury found him guilty upon all three counts, and he was sentenced to state prison, the sentences upon the different counts to run concurrently. To a considerable extent there is no dispute as to the facts.

The defendant, as attorney for Adelaide Pizzorusso, brought an action of replevin against Gabriel and the corporation named in the information. Annexed to the writ, as required by the statutes, was a replevin bond in the usual form in which Adelaide Pizzorusso was named as principal and Wanda Pellegrino as surety, and which purported to have been subscribed by them and taken before the defendant as a commissioner of the superior court. In fact, the defendant wrote the signature purporting to be that of the latter. The writ was given to an officer to serve, and by means of it he replevied the goods described in it. Judgment having ultimately been rendered for the defendants in that action they brought a suit in the court of common pleas against Adelaide Pizzorusso upon the bond. In the trial of that action, the accused, called as a witness by the plaintiff, testified under oath that the bond was executed and subscribed before him by both women. Later, the trial judge having stopped the trial and had a conference with him in chambers, he changed his testimony and stated that in fact he signed the name of Wanda Pellegrino to the bond. His substantial contention as regards the first two counts is that Wanda Pellegrino had signed a bond to be used in the replevin action in blank; that later this was filled in and signed by Adelaide Pizzorusso; that it was this bond which he intended to annex to the writ to be served by the officer and returned to court, but by mistake he did annex a bond which Adelaide Pizzorusso had signed but upon which he had written the name of Wanda Pellegrino and which he intended to have used merely as a copy; and that he had no intent to defraud any one. As regards the count charging perjury, the substantial claims of the defendant upon the facts were that as matter of law the genuineness of the signature of Wanda Pellegrino upon the bond was not material to any issue in the case on trial, and that, as matter of fact, he understood the only issue in the case to be as to the genuineness of the signature of Adelaide Pizzorusso; that, when he was testifying, he did not have the writ before him, did not know that the bond annexed to it was the one upon which he had written the signature of Wanda Pellegrino, and did not examine the signatures carefully, but merely identified the writ as that which had issued from his office, and that he testified in good faith that Wanda Pellegrino had signed it.

One of the assignments of error is that the trial court failed to grant a motion of the defendant to direct a verdict in his favor, but this is not a proper ground of appeal. H. Wales Lines Co. v. Hartford City Gas Light Co., 89 Conn. 117, 125, 93 A. 129; Callahan v. Jursek, 100 Conn. 490, 492, 124 A. 31; Butler v. Hyperion Theatre Co., Inc., 100 Conn. 551, 556, 124 A. 220.

With reference to the count charging perjury, the defendant, by assigning error in the failure of the trial court to give certain requests to charge and error in certain portions of the charge as given, makes the claim that the false testimony he gave was not material to the issues in the case on trial. The first paragraph of the complaint in that action, which was brought against Adelaide Pizzorusso alone, alleged that she, as principal, and Wanda Pellegrino, as surety, had become bound to the plaintiff by reason of the bond given in the replevin suit, and in the answer the defendant denied this paragraph and specifically denied the execution and delivery of the bond. The entry upon the face of the bond, " Subscribed and taken before me," which was signed by the defendant, could only reasonably be taken to mean that both Adelaide Pizzorusso and Wanda Pellegrino executed it in the presence of the defendant. Whether the fact that Wanda Pellegrino did not subscribe the bond would in any way discharge Adelaide Pizzorusso from liability upon it, in view of the terms of the statute requiring as a part of the procedure in replevin a bond or recognizance with one sufficient surety, we have no need to inquire. General Statutes, § 5945. Had the defendant testified truthfully upon the trial that, although the bond purported to have been subscribed and taken before him by both women, this was in fact true only as to Adelaide Pizzorusso, this testimony would in all probability have had very material weight upon his evidence that Adelaide Pizzorusso had executed it. In State v. Greenberg, 92 Conn. 657, 662, 103 A. 897, 898, we quoted from Wharton on Criminal Evidence (10th Ed.) § 89, as follows: " Any testimony in a case that tends of itself, or in connection with other testimony, to influence the result on a direct or a collateral issue is material." And we added: " If the testimony would, if believed, tend to affect the verdict of the jury, it meets the test of materiality. If the testimony affects the credibility of the witness, or if the cross-examination develops circumstances which are subsequently shown to be untrue and these affect the credibility of the witness, the testimony will be held to be material.

In this case the false testimony the defendant gave clearly tended to influence the result upon one of the vital issues arising on the pleadings in the case, and nothing in the finding, by which we must test the charge, in any way indicates that upon the trial this was not in fact a principal issue. The trial court was right in refusing the request to charge that the false testimony of the defendant was not material and in charging that it was. Fields v. State, 94 Fla. 490, 494, 114 So. 317; State v. Fail, 121 Kan. 855, 250 P. 311; Wheeler v....