State v. Ferrone

• Decision Date: 27 April 1921
• Citation: 96 Conn. 160,113 A. 452
• Court: Connecticut Supreme Court
• Parties: STATE v. FERRONE.

113 A. 452

96 Conn. 160

STATE v. FERRONE.

Supreme Court of Errors of Connecticut.

April 27, 1921

Appeal from Superior Court, Hartford County; Frank D. Haines, Judge.

Benjamin Slade, of New Haven, for appellant.

Newell Jennings, of Bristol (Hugh M. Alcorn, State's Atty., of Hartford, on the brief), for the State.

BURPEE, J.

When the accused was arrested he was riding in an automobile about 2 o'clock in the morning with three companions. They were all taken to the police station and examined and searched at the same time. Loaded revolvers were found on three of the accused's companions. The automobile was searched, and behind the cushion of the seat in which the accused had been sitting another loaded revolver was found, and on the floor under the same seat two steel bars. The four men were brought before the police court of Hartford, by which the accused was discharged, and his three companions held for trial and afterwards tried by the superior court in Hartford county. They were charged with having in their possession by night without lawful excuse, instruments of housebreaking known as " jimmies." They were found guilty, and sentenced to the state prison. Subsequently the accused was arrested and charged with the same crime, committed with these companions at the same time and in the same manner and circumstances. During his trial all the foregoing facts except the conviction of his companions appeared in evidence and references were frequently made to their trial; but no evidence was offered showing, or tending to show, the result of their trial. During the final argument the state's attorney said to the jury: " If I saw fit to put the other three men away, why let Ferrone go?" Counsel for the accused at once objected, and moved that the case be withdrawn from the jury because of this remark. The court denied the motion, and the accused excepted, and makes this ruling a reason of appeal.

The record discloses that the trial court made its ruling in the belief that the conviction of the companions of the accused, as well as their trial, had been frequently referred to during the trial of the accused. It so stated in the finding originally made, but subsequently, on motion of counsel for the accused, it was convinced of its mistake, and corrected the finding by striking out that statement. Here, then, we have words of the state's attorney which plainly were calculated to inform the jury that the three oher men who were associated with the accused in the same crime for which he was then on trial by them had been convicted of that crime by another jury, and the suggestion or appeal that therefore there was no reason why they should let the accused escape conviction; that is, the state's attorney's remark referred to and argued from a fact which was not in evidence. This the attorney had no right to do, and the court should not have permitted. While it was not necessary, under our practice, to grant the motion to withdraw the case from the jury, the court should have reproved the state's attorney at once, or in its charge should have given such instructions to the jury as would, as far as possible, remove the effect of his words. We presume the court would have done something of this kind if it had not been misled by the belief that the attorney referred to a matter in evidence in this case. But by its action on the motion of the counsel for the accused it confirmed the information implied in the state's attorney's words, and added weight to his argument, which he based upon a fact not in evidence. The objectionable language was intended and adapted to influence the minds of the jurymen against the accused, and the action of the court approved the purpose and increased the effect. Here we have no questions concerning the exercise of its discretionary power by the court, or concerning the influence of the language upon the verdict, which were decisive in State v. Laudano, 74 Conn. 638, 646, 51 A. 860. Considering the circumstances in this case, no reasonable man can doubt that the jury not only may have been, but most probably was, so unfavorably influenced against the accused as to deprive him of a fair trial. This is sufficient reason to grant a new trial. Williams v. United States, 168 U.S. 382, 18 Sup.Ct. 92, 42 L.Ed. 509; People v. Aiken, 66 Mich. 460, 33 N.W. 821, 11 Am.St.Rep. 512; Anderson v. State, 104 Ala. 87, 16 So. 108; McDonald v. People, 126 Ill. 150, 18 N.E. 817, 9 Am.St.Rep. 547; State v. Greenleaf, 71 N.H. 606, 615, 54 A. 38; People v. Fong Sing, 38 Cal.App. 253, 175 P. 911; State v. Martel, 103 Me. 63, 68 A. 454; People v. Fielding, 158 N.Y. 542, 53 N.E. 497, 46 L.R.A. 641, 70 Am.St.Rep. 495.

In Tucker v. Henniker, 41 N.H. 317, 323, the court said:

" It would seem utterly vain, and quite useless, to caution jurors, in the progress of a trial, against listening to conversations out of the courtroom in regard to the merits of a cause, if they are to be permitted to listen in the jury box to statements of facts calculated to have a bearing upon their judgment, enforced and illustrated by all the eloquence and ability of learned, zealous, and interested counsel."

Comments on facts not proved are outside of the cause, are legally irrelevant to the matter in question, and therefore are not pertinent. Whenever such a statement has or probably has had an influence upon a verdict prejudicial to either party, it should be set aside. In the case in hand we cannot construe the language of the state's attorney into a harmless or inoffensive meaning, as was possible in State v. Washelesky, 81 Conn. 22, 28, 70 A. 62. It is apparent, from the nature of the statement itself, that it may have influenced the verdict against the accused. Worden v. Gore-Meenan Co., 83 Conn. 642, 653, 78 A. 422. Without regard to the propriety or impropriety of this conduct, the material fact is that because of it the state may have obtained an advantage over the accused which it is not entitled to retain.

the accused assigns as a reason of appeal the action of the trial court concerning another comment or suggestion made by the state's attorney in his last argument. It was a part of the defense that the steel bars found in the automobile on the floor in front of the seat in which the accused was riding when he and his companions were arrested were not instruments for housebreaking, but tools ordinarily used and carried on automobiles. For this purpose the accused introduced in evidence the depositions of two witnesses residing in Massachusetts, which he had caused to be taken according to the provisions of section 6637, General Statutes. These witnesses stated in these depositions that these steel bars belonged to them; that they had loaned them to the chauffeur who drove the automobile in which the accused was riding when he was arrested; that they had frequently used these bars in prying off tires and repairing automobiles; that they had seen others using similar bars for such work; and that they had seen this chauffeur several times within two months using these bars on automobiles. This was most important evidence in favor of the accused, because, by the express terms of the statute describing the crime for which he was on trial, the proof of the excuse for having in his possession instruments of the kind these bars were alleged to be was upon the accused. By the terms of this statute, the state's attorney had had notice of the taking of these depositions and opportunity to be present to cross-examine the witnesses, or to file cross-interrogatories if he preferred. He had done neither. He offered no objection to the depositions when they were read during the trial. In his closing argument he said to the jury, referring to the deponents, " Why didn't they say in their depositions why they are not here in person?" the accused moved at once to have the case withdrawn from the jury, the court denied the motion, and the accused excepted.

The reason why these deponents were not in court was not material or relevant. It may have been a good one, such as their residence in another state and at considerable distance from the place of trial, or their loss of time and interruption of their business, or the expense, if they had attended the trial in person. Or the reason may have been that they had cause to fear unpleasant consequences to themselves if they came within the jurisdiction of the criminal courts of this state. The latter reason was suggested to the jurors, and thus they may have been prejudiced against the character of the deponents, and consequently may have doubted their credibility. But there was no evidence, nor reasonable inference from any evidence, to support such a suggestion.

In considering these reasons of appeal, we find the following cases pertinent and illuminating.

In Rea v. Harrington, 58 Vt. 190, 2 A. 481, 56 Am.Rep. 561, the court said:

" Legitimate argument elucidates the truth. Its power and usefulness in this behalf are very great. The largest latitude should therefore be allowed to counsel in argument fairly within the scope of the evidence. But it has been repeatedly held in other jurisdictions, and recently in this, that when counsel persistently travel out of the record, basing argument on facts not appearing, and appealing to prejudice, irrelevant to the case and outside of the proof, it not only merits the severe censure of the court, but is valid ground for exception."

In People v. Fong Sing, 38 Cal.App. 253, 266, 175 P 911, it was declared that it was not within the sphere of legitimate argument by the public prosecutor " to prejudice the standing of the accused in the minds of those who are to determine an issue so serious to him by insinuating in the course of his address that some fact...