State v. McGuire

• Decision Date: 31 July 1911
• Citation: 80 A. 761,84 Conn. 470
• Parties: STATE v. McGUIRE.
• Court: Connecticut Supreme Court

80 A. 761

84 Conn. 470

STATE

v. McGUIRE.

Supreme Court of Errors of Connecticut.

July 31, 1911.

Appeal from Superior Court, New Haven County; William S. Case, Judge.

Frank McGuire was convicted of assault with intent to murder, and he appeals. Affirmed.

The statute under which the defendant was convicted (General Statutes, § 1146) provides that "every person who shall assault another with intent to commit murder * * * shall be imprisoned in the state prison not less than ten nor more than thirty years." Section 1535 provides that when a person shall be sentenced to the state prison, otherwise than for life, or in connection with a sentence of execution for a capital offense, or for a violation of section 1336, relating to tramps, the court imposing the sentence shall establish a maximum and minimum term for which the convict may be held in said prison, and that the maximum term shall not be longer than the maximum term prescribed by law as the penalty for such offense, and the minimum term shall not be less than one year, except in cases where there has been a former conviction. The defendant claimed that, this being his first conviction, the court bad discretion to fix one year as the minimum term of his sentence. The court overruled this claim, and ruled that it had no authority to name a minimum term of less than 10 years, and in its sentence fixed 10 years as the minimum term of the sentence.

The state claimed to have proved that one Frank Brachwitz, who, since the death of his wife, had lived alone in his house, situated on a country road, was assaulted by the accused with a razor, at between 11 and 12 o'clock at night. Brachwitz was in bed at the time, in an upstairs chamber in his house, and was awakened from sleep by the assault. The intruder in making his escape left his hat, which the state claimed to have proved belonged to the accused. Brachwitz, from such view of his assailant as he obtained in the dark chamber, and from an exclamation made by the latter, claimed to have recognized the voice and person of the defendant. From this testimony and evidence of statements made by the accused subsequent to the assault, the state claimed to have established his identity as the guilty party. The families of Brachwitz and the accused had been acquainted with each other for some time, and had exchanged visits frequently. They lived upon different highways, and the distance between them could be considerably shortened by going across lots by an existing path. The state claimed to have proved that the defendant, who was of intemperate habits, was unwarrantably suspicious of his wife, and that for six months prior to the assault had entertained feelings of ill will toward Brachwitz, and resented any attention or kindness shown by him to her, and was jealous of him, and shortly before the assault had said to two different persons that he would kill Brachwitz. About a month before the assault, the defendant's wife had left him owing to his intemperate habits.

The defendant claimed that he was not at Brachwitz's house on the night of the assault. He testified that, although he disapproved of Brachwitz's conduct, he had no desire to kill or injure him. Upon his direct examination, the defendant, having testified that he "never had any feeling toward Brachwitz, only I thought he did not do right towards moving the furniture from my house," was asked, for the purpose of showing his state of mind, the following questions, which were excluded: "Did you suspect any criminal conduct?" "Did you believe that Brachwitz had been guilty of any wrongful act with your wife?"

A shirt worn by Brachwitz on the night of the assault was produced, and having been identified by him, and a cut therein having been testified by him to have been where he was cut at the time of the assault, was received in evidence, against the defendant's objection.

One Hurley, called by the state, testified that he had gone over the route from Brachwitz's house to the defendant's house, which is the route by which the state claimed the accused must have gone on the night of the assault, and was asked, against the defendant's objection, "How long, in your opinion, would it take a man going at ordinary gait to go over the road which you have just described?" The same witness was permitted, against the objection of the defendant, to testify that the latter stated to him that for the last six months prior to the assault he had considerable feeling against Brachwitz, but prior to that time he considered that they were on friendly terms.

The defendant offered evidence to prove that he had always been a man of peaceful character. In rebuttal the state proved by the record of a justice court that he had been convicted of an assault upon his wife. Of the justice who had been called by the state to produce the record, the defendant, on cross-examination, asked the following question, and it was excluded: "Did the evidence in this case turn largely on intoxication?"

In its charge the court said to the jury: "Evidence has been offered as to the generally peaceable character of the accused. Evidence of this sort is, of course, never pertinent as a defense to a charge of crime clearly established. Its place in the case is more limited. In a close or doubtful case, such evidence may avail one so accused by raising a doubt based upon the improbability of guilt of one of generally peaceable character." As to the question of malice, the court charged as follows: "This malice [malice aforethought] is the characteristic mark of all murder, as distinguished from the lesser offense of manslaughter which lacks it." "It therefore becomes important for you to consider carefully what is meant by malice aforethought, known to the law of homicide. It does not mean simply hatred or specific animosity, * * * but it extends to and embraces generally the spirit or state of mind with which one approaches and commits a given fierce act. It may, of course, be discoverable in a specific deliberate intent to kill, but may also be inferred or implied from circumstances which show a wanton and depraved spirit, a mind bent on mischief and evil, without regard to their consequences. It has been said, and I commend the definition to you as a most comprehensive one, that malice in this sense includes all those states of mind in which a homicide is committed without legal justification, extenuation, or excuse. If I have made this matter clear, you will see that to constitute the crime charged in the information the elements of an assault, with the concurrently existing intent to kill, must have been shown, and in addition to those elements you must be satisfied that he acted with malice aforethought, as I have defined that term to you. * * * To sum up, then, if, on the whole case, you are satisfied, beyond all reasonable doubt, that Brachwitz was assaulted on the night in question, that there was a concurrent intent by his assailant to kill him, and that the attack was with malice, as I have defined that term to you, and are further satisfied beyond all reasonable doubt that the accused, McGuire, was the assailant, your verdict must be, 'Guilty as charged.' If you are so satisfied of all these enumerated elements, save alone malice, but entertain a reasonable doubt that the attack was a malicious one. then your verdict must be, 'Guilty of an assault with intent to kill.'"

George E. Beers and Charles H. Harriman, for appellant.

Arnon A. Ailing, for the State.

THAYER, J. (after stating the facts as above). Section 1535 of the General Statutes is a portion of an act concerning indeterminate sentences, which was passed in 1901. That act excepts certain cases from its operation, and as to all others, where a state prison sentence is provided by then existing laws, it provides that the court shall not fix a definite term of imprisonment, but shall establish a maximum and minimum term for which the convict may be held in the prison; the maximum term so fixed not to exceed the maximum prescribed by law for the offense of which he has been convicted, and the minimum to be not less than one year. The act provides that any person so sentenced, after having been confined in the prison for not less than the minimum term, may be allowed to go at large on parol of the board of parol, if in their judgment he will lead an orderly life, if so set at liberty. The purpose of the act doubtless was to encourage and hold out hope to the convict that by good conduct and reform he may secure his liberty after the expiration of the minimum term, or at most before he has served the maximum sentence. At the time this statute was passed, some of the existing statutes prescribing punishment in the state prison fixed a minimum term only, some fixed the maximum only, and some fixed both the maximum and the minimum. A general law provided that, except in the case of tramps, no sentence to the state prison should be for less than one year. The law providing the penalty for assault with intent to murder (General Statutes, Revision 1888, § 1404) then fixed the minimum only. The sentence was to be imprisonment in the state prison not less than 10 years. The purpose and effect of the indeterminate sentence law was to prevent the fixing of a determinate sentence by the court which sentenced the convict. It was bound to fix a minimum, as well as a maximum, term.

Had there been no change in the statutes existing at the time this act was passed, the court might, by virtue of it, have fixed a minimum term below that established by the existing law. The effect of it would have been to amend the then existing statutes relating to punishment in the state prison. But at the same session of the Legislature at which this act was passed a general revision of the statutes was made known as the Revision of 1902, now in force. In that revision, no minimum term of imprisonment is provided, when the punishment may be in the state...