State v. Marzbanian

• Decision Date: 16 October 1963
• Docket Number: No. CR,CR
• Citation: 2 Conn.Cir.Ct. 312,198 A.2d 721
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. Michael MARZBANIAN. 15-1477.

Page 721

198 A.2d 721

2 Conn.Cir.Ct. 312

STATE of Connecticut v. Michael MARZBANIAN.

No. CR 15-1477.

Circuit Court of Connecticut, Appellate Division.

Argued June 10, 1963.

Decided Oct. 16, 1963.

Charles G. Karanian and John D. Bagdasarian, New Britain, for appellant (defendant).

James R. Burton, Asst. Pros. Atty., for appellee (state).

KOSICKI, Judge.

The information charged the defendant with the crime of breach of the peace by assault in violation of § 53-174 of the General Statutes. ¹ He was acquitted by the jury on the ground of insanity and was thereafter committed by the court to the Connecticut Valley Hospital pursuant to § 54-37. ² In his appeal, the defendant assigns error in the failure to correct the finding as requested; in certain rulings on evidence; in the overruling of an objection by the defendant to certain remarks of the prosecutor in his closing argument; in the denial of the defendant's motion to set aside the verdict 'because the defendant was not proven guilty beyond a reasonable doubt'; in the refusal to instruct the jury as requested by the defendant; and in the charge to the jury on the matter of insanity.

The state has raised the question whether, in view of the nature of the verdict, an appeal lies. No motion to dismiss was filed but, since the objection goes to the jurisdiction of this court to entertain the appeal, we have permitted the appellant and appellee to file supplemental briefs on the sole question whether an accused may avail himself of the process of appeal where the finding on the issues of fact was 'not guilty on the ground of insanity.'

The state maintains that an appeal lies only from a judgment and that, in a criminal case, the sentence is the judgment against the accused. State v. Vaughan, 71 Conn. 457, 458, 42 A. 640. Since the defendant was acquitted of the crime charged by reason of insanity, and his commitment was to a state hospital under a nonpenal statute which provides for enlargement without further court action when, 'in the judgment of the superintendent of such hospital,' the defendant has sufficiently recovered to be released, no reviewable issue, it is argued, can be presented on this appeal. With regard to the first point, it is not correct to say that because no sentence had been pronounced there is no final judgment from which an appeal may be taken. A judgment was rendered in this case, as it must be in every case which terminates in a finding after a trial on the facts; and it was the judgment as finally rendered which served as authority for the issuance of a mittimus for the confinement of the defendant in the state hospital. See Barber v. Barber, 15 Conn.Sup. 271, 273.

This somewhat restricted approach to the question presented does not meet the problem posed by the state. Granting that there was a final judgment, the precise question is whether from that kind of judgment an appeal may be taken. No authority has been cited on either side, in this jurisdiction or elsewhere, and such cases or comments as we have been able to find are spare and inconclusive. See, for example, People ex rel. Peabody v. Chanler, 133 App.Div. 159, 117 N.Y.S. 322, aff'd, 196 N.Y. 525, 89 N.E. 1109; note, 25 L.R.A.,N.S., 946; 14 Am.Jur., Criminal Law, § 41, p. 800, § 55, p. 809. Our statutes and rules of practice are silent on the subject, and the view may be urged that, since our statutory provisions pertaining to the disposition of persons found not guilty of crime because of insanity are remedial and not penal in nature, being designed for the protection of society and the individual alike, and are implemented by adequate means for the care, treatment, improvement and release of persons coming within their purview, an appeal, in the absence of express statutory provisions to that effect, will not lie. This view, as related to the remedy, finds impressive support in the adjudicated cases which hold that statutes such as ours (§§ 54-37 to 54-39), allowing commitment without any further hearing on the question of present insanity and making available sufficient methods for securing release upon a showing of recovered sanity, are not unconstitutional by reason of denying the accused his right to due process of law. See People v. Dubina, 304 Mich. 363, 8 N.W.2d 99, 145 A.L.R. 886, cert. denied, 319 U.S. 766, 63 S.Ct. 1331, 87 L.Ed. 1716; note, 145 A.L.R. 892. An acknowledgment, however, that due process has been observed is not tantamount to saying that the defendant's right of appeal has been taken away. Whether his release can be accomplished under the provisions of the cited statutes or through habeas corpus proceedings will not alter the record of judgment in the criminal case. In a case like this, the shadow of such a judgment, if unjustly reached, may conceivably cause more harm to the defendant's potential employment, social acceptance and future happiness than would a finding of guilt and the imposition of a sentence. We hold, therefore, that the defendant, on the claims of error specifically considered herein, is entitled to pursue his remedy of appeal. It does not follow from this that the defendant had the right to be admitted to bail and to a stay of execution under Circuit Court Rules 7.12.2 and 7.12.3. These provisions apply only to appeals from a sentence. There was no sentence in this case. The statute under which the defendant was committed provides for an alternative to commitment to a state hospital by the furnishing of a bond by some person who undertakes to confine the defendant in such manner as the court may order. This is similar to the provision in § 17-203 pertaining to appeals to the Superior Court after a finding of mental illness by a court of probate. No such bond was offered or proposed in this case.

There is no error in the court's denial of the motion to correct the finding. The motion represents the defendant's version of the facts, which the jury by their verdict evidently rejected. 'A finding in a jury case is not a statement of the facts which have been found proven; it is a statement of facts which, on the evidence, the jury might have found proven and which the parties claim were proven. Quednau v. Langrish, 144 Conn. 706, 708, 137 A.2d 544.' State v. Testa, 147 Conn. 90, 93, 157 A.2d 235, 236. '[O]rdinarily the sole purpose of a finding in a jury case is to state the claims of the parties as to facts proven in order to present upon appeal claims of error on the trial in rulings or as to the charge of the court.' Maltbie, Conn.App.Proc., p. 199. 'In a jury trial, the finding merely sets forth facts claimed to have been proved. It does not establish the truth or existence of the facts stated therein but only that there was evidence tending to prove their existence.' State v. Holota, 2 Conn.Cir. 45, 47, 194 A.2d 69, 70.

The jury could reasonably have found the following facts: On October 8, 1961, a fire broke out in the home of the defendant and his elderly mother. Roger Gaudio, the complaining witness, a newspaper photographer employed by the 'New Britain Herald,' went to the scene of the fire to cover it for his newspaper. At the time of his arrival, a crowd of spectators had gathered and policemen and firemen were already on the scene performing their duties. Donald Skinger, a sophomore at the Connecticut State Central College and an amateur photographer, reached the area of the fire before Gaudio. To get a better view of the burning building, Gaudio went to the rear of the premises. He was followed by Skinger, who wished to observe Gaudio's professional technique in photographing the fire. When Gaudio got to the rear of the Marzbanian house he noticed two women and a man watching the fire. The man was later identified as the defendant. As Gaudio was preparing to use his camera, he was approached by the defendant, who asked him what he was doing there. Gaudio said he was the Herald photographer and was taking pictures. He then glanced up at the second floor to focus his camera and without warning was struck a severe blow in the mouth by the defendant. Thirteen stitches were required to close the cut on Gaudio's lip, and his mouth and teeth were injured. The defendant had been on combat duty during World War II and as a result of his service was discharged with a 100 percent disability. At the time of the above occurrence he was still so disabled because of a condition of schizophrenia of the paranoiac type. Charles Karanian, one of the attorneys for the defense, has been acting as the defendant's conservator for a number of years.

The defendant challenges four rulings on evidence as being erroneous. One of these relates to the admission of a photograph of the defendant taken by Gaudio immediately after the attack on him. The photograph was admissible as part of the res gestae, for the purpose of identifying the assailant and in corroboration of the testimony of Gaudio as to what had happened. The fact that it might have prejudiced the defendant by showing him in a menacing and unflattering attitude does not lessen its testimonial value. See, for example, State v. Hanna, 150 Conn. 457, 191 A.2d 124. This assignment of error is without merit.

On cross-examination of a detective of the New Britain police department, defense counsel sought to elicit information on the law of trespass as bearing on a supposed complaint to the police by the defendant against Gaudio. Clearly, the questions relating to the law of trespass were inadmissible, and there was no evidence of a complaint such as was suggested by counsel. The questions were outside the scope of the direct examination, were not claimed for any legitimate purpose, and were properly excluded. In further cross-examination of the same witness, defense counsel sought to obtain a copy of a purported statement given to the police by the defendant. The statement was part of the prosecutor's file. There was no error in the ruling of the court denying the...