State v. Loughlin

• Decision Date: 07 November 1961
• Citation: 149 Conn. 21,175 A.2d 367
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Brendan LOUGHLIN. Supreme Court of Errors of Connecticut

Page 367

175 A.2d 367

149 Conn. 21

STATE of Connecticut v. Brendan LOUGHLIN.

Supreme Court of Errors of Connecticut.

Nov. 7, 1961.

Edward N. Shay, New Haven, with whom, on the brief, was David E. Fitz-Gerald, Jr., New Haven, for appellant (defendant).

Arthur T. Gorman, State's Attorney, New Haven, for appellee (state).

Before BALDWIN, C. J., KING and MURPHY, JJ., and ALCORN and MacDONALD, Superior Court Judges.

ALCORN, Associate Justice.

The defendant was convicted of the crime of statutory arson. He appeals from the judgment rendered on the verdict, claiming error in the charge to the jury. The fact that the crime of arson had been committed was not contested at the trial. The disputed issue before the jury was the defendant's participation in the crime as an accessory under General Statutes § 54-196.

The defendant assigns error in the court's refusal to find facts by judicial notice of the files of another case. The result which we reach in this appeal would not be affected if the material which the defendant seeks to have added to the finding were included. Consequently, the request for a correction of the finding need not be further considered. Herzog v. Cooke, 99 Conn. 366, 367, 121 A. 868.

It appears that in the early evening of September 14, 1958, the defendant, then seventeen years old, met seven other youths, whose ages ranged from sixteen to eighteen, at an eating place in West Haven. The state claimed to have proved that at that time and place the group, including the defendant, planned to burn a barn. This the defendant denied. The eight youths left the eating place in two automobiles, each carrying four of the group. A Volkswagon driven by Charles W. Gebauer, Jr., had Russell J. Sperry as a passenger in the front seat. A Buick driven by Michael W. Bayliss had the defendant as a front seat passenger. The two cars, with Gebauer's in the lead, drove to Orange, Connecticut.

The state claimed to have proved the following: In Orange, the Gebauer car entered Lambert Road and, as it did so, one of the occupants noticed a barn and suggested that it be burned. Everyone in the car agreed. The car was stopped beside the road. The Bayliss car pulled alongside and stopped. The occupants of the two cars thereupon discussed burning the barn. Both cars were then turned around and, the Gebauer car still in the lead, were driven to Orange Center Road, where they were stopped at a point opposite the barn. One youth got out of the Bayliss car, and two others got out of the Gebauer car. These three held a conversation in the road. The defendant overheard parts of the conversation relating to burning the barn. Because someone suggested that the cars be kept moving to avoid suspicion, both cars, with Gebauer's in the lead, were driven down the road, turned around, driven back to the barn and stopped. On being called 'chicken' by one of the three who had previously alighted, another youth got out of the Bayliss car and joined them. The two cars again moved on, with Sperry as the only passenger in the Gebauer car and the defendant as the only passenger in the Bayliss car. The four who had left the cars walked to the barn, and two of them set fire to it. They were picked up after the fire was set, and all eight rode to a vantage point from which to watch the barn burn. Neither Sperry nor the defendant had left the car in which he was riding.

The defendant claimed to have proved the following: The cars did not enter Lambert Road, no conversation took place there, and the first he heard of anything concerning the burning of a barn was when the three youths who had gotten out of the cars were talking in Orange Center Road near the barn. The defendant did nothing to set or aid in setting the fire, said nothing to anyone on the subject, and had no knowledge of any plan to burn the barn until he overheard the conversation just referred to. He did not believe the barn had been set afire until he saw it burning. Sperry's position in the other car and his activity in the episode were substantially the same as the defendant's.

The parties have stipulated that there was no evidence that Sperry had pleaded guilty. The defendant claimed to have proved that there was no evidence that Sperry was charged either with the crime of arson or with being an accessory, and no evidence that he pleaded guilty to any such charge. The state concedes that neither Sperry nor the defendant ever left the right front seat of the car in which he was riding.

The court charged the jury on statutory arson and the statute concerning accessories. General Statutes §§ 53-82, 53-83, 54-196. No exception to this charge was taken. In relating the parties' conflicting claims as to the facts to the statute concerning accessories (§ 54-196), the court referred to the testimony of Frederick A. Altschuler and James E. McCormick, who, the state claimed, actually set the fire, and to the testimony of Sperry, as follows: 'Sperry testified that he heard the matter discussed, McCormick testified that he heard the matter discussed, and Altschuler testified that he heard the matter discussed, and the matter discussed was the burning of the barn. Sperry testified that he did not get out of the car, that he and Loughlin were the two who did not get out of the car. There was also testimony of the fact that Sperry has pleaded guilty.' At the conclusion of the charge, the defendant excepted to the quoted passage as it referred to Sperry.

During their deliberations, the jury requested further instructions concerning accessories. The court complied without exception being taken and then added: 'Well, there is another matter. Counsel has called my attention to the fact that the witness Sperry was on the stand and I told you he did not get out of the car, and I told you that the fact that he had pleaded guilty was a matter that you could take into consideration in this case. Counsel said he did not recall any evidence of the fact that ...