State v. Mccarthy.

• Citation: 31 A.2d 921,130 Conn. 101
• Court: Supreme Court of Connecticut
• Decision Date: 20 April 1943
• Parties: STATE v. McCARTHY.

130 Conn. 101

31 A.2d 921

STATE

v.McCARTHY.

Supreme Court of Errors of Connecticut.

April 20, 1943.

Appeal from Superior Court, Fairfield County; Foster, Judge.

Frank McCarthy was convicted of robbery with violence in prosecution brought to the Superior Court in Fairfield County and tried to the court, Foster, Justice, and he appeals.

Error and case remanded.

Charles R. Covert, of Stamford, public defender, and Johnson Stoddard, of Bridgeport, for appellant.

Otto J. Saur, Asst. State's Atty., and Lorin W. Willis, State's Attorney, both of Bridgeport, for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

JENNINGS, Judge.

The defendant was informed against for the robbery with violence of Russell Rotko on October 25, 1941; Gustave Nemeth was informed against on three counts, one for the same robbery of Rotko, the other two for the robbery of Timothy Ahern and the theft of an automobile belonging to Harry Clements, both on October 18, 1941; Lawrence D. Howley was charged on three counts with the robbery of Ahern, the theft of the Clements car, and the kidnapping of Wallace Allen on October 30, 1941; Bruno Lubas was charged with all the foregoing offenses. On January 6, 1942, the defendant Frank McCarthy, Nemeth and Howley, who were represented by the public defender, pleaded not guilty and elected a jury trial. Lubas, represented by private counsel, pleaded guilty. The defendant, Nemeth and Howley, later but seasonably, made motions for separate trials which were denied. They were all tried together and convicted, and the defendant has appealed, claiming, in substance, that he was entitled to a separate trial.

[1] [2] [3] [4] [5] The defendant concedes that the English rule that persons separately indicted (informed against) cannot be tried together (Rex v. Crane, [1920] 3 K.B. 236; Rex v. Dennis, [1924] 1 K.B. 897) does not apply here and that joint indictments and separate indictments which can be consolidated should be treated alike. He claims, however, that the trial of Howley and Nemeth at the same time with him, although charged with different crimes, violated his basic right to a fair trial or was, at least, an abuse of discretion.

The general rule governing separate trial where there is a joint indictment or information is stated as follows in State v. Brauneis, 84 Conn. 222, 226, 79 A. 70, 72: ‘Whether a separate trial shall be allowed to parties jointly indicted is within the discretion of the court. Ordinarily justice is better subserved where the parties are tried together. But cases arise where the defenses of the different parties are antagonistic, or where evidence will be introduced against one which will not be admissible against others. Where from the nature of the case it appears that a joint trial will probably be prejudicial to the rights of one or more of the parties, a separate trial should be granted when properly requested.’ Referring to this statement, in State v. Castelli, 92 Conn. 58, 63, 101 A. 476, 478, it is said that: ‘The discretion of the court is necessarily exercised before the trial begins, and with reference to the situation as it then appears; and the phrase ‘prejudicial to the rights of the parties,’ means something more than that a joint trial will probably be less advantageous to the accused than separate trials. The controlling question is whether it appears that a joint trial will probably result in substantial injustice.' This thought is further developed in State v. Klein, 97 Conn. 321, 323, 116 A. 596, 597: ‘A motion for a separate trial is addressed to the sound discretion of the court and its decision will not be reversed unless there shall have been an abuse of judicial discretion. A separate trial will be ordered where the defenses of the accused are antagonistic, or where evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused.’ These quotations fully accord with the weight of authority. Note, 131 A.L.R. 917, and the previous notes referred to therein as well as the cases to which these notes are appended. These rules apply a fortiori to cases like the present where the state is seeking to try accused, separately informed against, together, for under such circumstances the...