State v. Mccarthy
| Decision Date | 09 July 1946 |
| Citation | 133 Conn. 171,49 A.2d 594 |
| Court | Connecticut Supreme Court |
| Parties | STATE v. McCARTHY et al. |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Hartford County; Daly, Judge.
James J. McCarthy and others were convicted of murder in the first degree, and they appeal.
No error.
The appellants filed a motion for reargument which was denied.
Reinhart L. Gideon, of Hartford, and Thomas S. Whitman, of Simsbury, for appellants (defendants McCarthy and Tommaselli).
Thomas F. McDonough, of Hartford, for appellant (defendant Lewie).
Hugh M. Alcorn, Jr., State's Atty., and John P. Hodgson and Charles S. House, Asst. State's Attys., all of Hartford, for appellee (state).
Before MALTBIE, C. J., JENNINGS, ELLS, DICKENSON, and WYNNE, JJ. (Judge KENNETH WYNNE of the superior court sat for Judge BROWN.)
The defendants, James J. McCarthy, Arthur Tommaselli and Raymond Lewis, were tried to the jury on an indictment charging them with murder in the first degree and were found guilty as charged. They have appealed from the denial of their motion to set aside the verdict and from the judgment.
The jury could reasonably have found the following facts: The defendants were inmates of the state prison at Wethersfield. They planned to escape. The plan involved the ‘knocking out’ of a guard they expected to find in the shop through which they intended to pass. In attempting to carry out their purpose, each of the defendants beat the guard with blunt instruments, and as a result of one or more of the blows thus dealt the guard was killed. Their plan failed of success because the guard was not subdued as easily as they expected and the other inmates at work in the shop came to his assistance.
It is not essential to determine which of the three struck the blow that killed the guard. ‘All who join in a common design to commit an unlawful act, the natural and probable consequence of the execution of which involves the contingency of taking human life, are responsible for a homicide committed by one of them while acting in pursuance of, or in furtherance of, the common design. * * *’ 29 C.J. 1073, cited in State v. Rossi, 132 Conn. 39, 44, 42 A.2d 354. The jury could reasonably find that the common design of the three accused to make their escape did involve as a natural and probable consequence the taking of human life. State v. Allen, 47 Conn. 121, 138; People v. Udwin, 254 N.Y. 255, 263, 172 N.E. 489; note, 15 A.L.R. 456. All defendants claim that the enterprise was abandoned before the death occurred. This was a question of fact on the evidence and it was submitted to the jury as such in a charge as to which no error is assigned. State v. Klein, 97 Conn. 321, 329, 116 A. 596. There was no error in denying the motion to set aside the verdict.
McCarthy and Tommaselli joined in an appeal from the judgment and Lewie filed a separate appeal. The appeals of McCarthy and Tommaselli will be considered first. They made an oral motion for separate trials which was denied. During the argument on the motion the court was told that one of the defendants had made a confession and that this had been read to and discussed with the other two. The state further claimed that it would prove a conspiracy between all three defendants to escape from prison and that all three conspirators must necessarily be tried together. In this situation the trial court did not abuse its discretion in denying the motion. The primary test is the knowledge of the court of the relevant circumstances at the time the motion is made. State v. Cianflone, 98 Conn. 454, 461, 120 A. 347. ‘* * * joint trials of persons jointly indicted are the rule, and separate trials the exception resting in the discretion of the court.’ State v. Castelli, 92 Conn. 58, 65, 101 A. 476, 479. Even if the question is examined after the event, the decision was clearly correct. All three defendants, according to the evidence, admitted in and out of court that they joined in a plan of escape. The confession was a long statement by Lewie and the only part of it not connected with McCarthy and Tommaselli was that relating to the plans made for the period after the escape from the prison inclosure. The sequence of events rendered this part of the plan academic. They never got out. The confession was claimed and admitted against Lewie only. In addition to the written confession, there was considerable testimony relating to admissions made by Lewie while he was being interrogated by Commissioner Hickey of the state police. The court directed the jury to consider against the others only such parts of it as related to the questioning of all the defendants together. The character of this testimony was not such as to add materially to that otherwise before the jury. The statement in the briefs that the interests of the accused were so antagonistic as to require separate trials is not borne out by the record. The transaction had unity in time, place and circumstance and was best and most clearly developed in one trial. It does not appear on the whole record that the trial court abused its discretion in denying the motion or that any injustice resulted to these defendants. Cases cited from other jurisdictions add nothing to the Connecticut decisions. See also State v. Brauneis, 84 Conn. 222, 226, 79 A. 70; State v. Klein, supra, 97 Conn. at page 323, 116 A. 596; State v. McCarthy, 130 Conn. 101, 31 A.2d 921.
The mittimuses under which McCarthy and Tommaselli were held at the state prison were properly admitted in evidence to establish their status as inmates. State v. Allen, supra. At the time and in the charge the jury were cautioned as to the purpose for which this evidence was admitted. In view of the limited authority of counsel to make admissions for their clients in open court in a capital case, the court was justified in admitting the documents in spite of the statement of counsel for the defendants that they were legally confined. State v. Marx, 78 Conn. 18, 26, 60 A. 690, cited in State v. Chapman, 103 Conn. 453, 478, 130 A. 899; and see Dunning v. Maine Cent. R. Co., 91 Me. 87, 97, 39 A. 352, 64 Am.St.Rep. 208; Hobart v. Cook, 167 Mass. 55, 58, 44 N.E. 1085, 39 L.R.A. 715; Eesley Light & Power Co. v. Commonwealth Power Co., 172 Mich. 78, 82, 137 N.W. 663. Furthermore, these defendants freely admitted on the stand that they were in prison under commitment, McCarthy for murder and Tommaselli for burglary and escape.
An inmate of the prison described the blows struck by Tommaselli as follows: ‘He was really getting right down on him (illustrating), hitting him as hard as he could really hit him.’ The answer was objected to on the ground that the witness did not ‘know how hard.’ The phrase objected to was highly descriptive and falls within the class of statements of conclusions by a witness as regards a condition which he cannot describe in detail in such a way that the jury will get a true picture. MacLaren v. Bishop, 113 Conn. 312, 314, 155 A. 210, and cases cited; 20 Am.Jur. 640 et seq.
McCarthy and Tommaselli also objected to the examination of a state police officer in the presence of the jury as to the voluntary character of admissions claimed to have been made by these two defendants. The decision whether a confession is so far voluntary as to make it admissible in evidence is for the court. State v. Wakefield, 88 Conn. 164, 168, 90 A. 230; State v. DiBattista, 110 Conn. 549, 562, 148 A. 664; State v. Castelli, supra, 92 Conn. at page 65, 101 A. 476. These cases show that the preliminary inquiry is generally conducted in the absence of the jury. It is possible that inquiry in the presence of the jury might prejudice the accused if the confession were ultimately excluded because it would necessarily come to the knowledge of the jury that the state at least claimed an admission of guilt. For that reason it is better practice to excuse the jury during the preliminary examination. When, as in this case, the confessions or admissions are admitted, no injustice is done to the defendants. The truth of the matters testified to is still a question for the jury and the description of the circumstances under which the admissions were made may assist in determining that question. See State v. Orlando, 115 Conn. 672, 677, ...
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