State v. McLaughlin

• Decision Date: 14 December 1939
• Citation: 10 A.2d 758,126 Conn. 257
• Court: Connecticut Supreme Court
• Parties: STATE v. McLAUGHLIN et al.

10 A.2d 758

126 Conn. 257

STATE v. McLAUGHLIN et al.

Supreme Court of Errors of Connecticut.

December 14, 1939

Reargument Denied Feb. 7, 1940.

Appeal from Superior Court, Fairfield County; Frank P. McEvoy Judge.

James McLaughlin and others were charged by information with the crime of an attempt to commit robbery with violence. Verdict and judgment of guilty, and defendants appeal.

No error.

Louis Feinmark, of New Haven, and Salvatore P Genuario, of Bridgeport, for defendants-appellants.

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

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.

BROWN Judge.

The state offered evidence and claimed to have proved that these three accused had agreed together to hold up the night watchman on the dock of the Thames River Line in Bridgeport; that pursuant thereto they met as prearranged with Kenneth Smith, who was familiar with the location and knew that on that night there was a valuable cargo of tobacco and cigarettes there; that these four and two other unidentified men shortly after midnight on June 24, 1938, proceeded to the vicinity in two automobiles; that there, Smith and the two strangers, one of whom carried a gun, entered the dock to overpower the watchman; that the latter effectively resisted and the three fled to the waiting automobiles and were driven rapidly away to the garage of Alex Gordon, who had agreed to provide a truck to transport the tobacco and cigarettes; and that they told him they would have to wait until later and asked him to hide the gun, which he did. The defendants did not dispute that an attempted holdup of the dock watchman occurred, but the defendants McLaughlin and Scattareggia claimed that they were not in Bridgeport that night but were in New York City, and that they were the victims of mistaken identity, and the defendant Viola, while he admitted driving Smith, a self-confessed participant in the crime, to a point near the scene, claimed he had done so innocently without either any guilty knowledge or intent of participating in the crime. The jury found each defendant guilty as charged of attempting to rob with violence the watchman Ladd on June 20, 1938, in Bridgeport. The defendants assign error in the court's denial of a motion for a continuance, in improper argument by the state's attorney, in rulings upon evidence, and in the court's charge to the jury.

At the conclusion of the testimony presented by the defense, an hour and a half prior to the usual time for adjournment for the day, defense counsel moved for a continuance for one day to permit offering as a witness the defendant McLaughlin's wife, who was stated to have been with her husband at a dinner he claimed to have attended on the night of the robbery, concerning which there had been some testimony. She had been injured a week before by a fall, and though she knew this trial was in progress and that defense witnesses would be heard on that day, arranged to have X-ray pictures taken that day. There was no evidence that these could not have been taken at a later date or that she was incapacitated. The state's attorney objected to the postponement for this reason, and the court refused to grant it. The defense rested without having offered her testimony. It is claimed that the court erred in this ruling. Upon the above facts, particularly in the absence of any finding that Mrs. McLaughlin would probably be present on the following day if the continuance were granted, the court was within its legal discretion in denying the motion. Gaul v. Baker, 108 Conn. 173, 179, 143 A. 51; Allen v. Chase, 81 Conn. 474, 477, 71 A. 367; 6 R.C.L. 544.

It is also alleged that the court erred in allowing the state's attorney, in his closing argument, to urge upon the jury the failure of McLaughlin's wife to appear and testify that he was in Brooklyn with her on the night of the attempted robbery as strong reason for believing his story untrue, and in charging that ‘ if there was evidence known only to one side, and in the control of that side, and that evidence was not offered,’ that was a fact to be considered by the jury ‘ in connection with the weight and credibility to be attached to all of the evidence.’ These claims are predicated solely upon the ground that the facts above recited relating to the requested continuance existed. That the court's ruling upon the continuance was correct is determinative of these further claims. The propriety of the state's attorney's argument and the correctness of the court's charge upon this point must be tested, not by the contention that if given another day McLaughlin might have produced his wife to furnish the missing evidence, but by the evidence properly before the jury as determined by the lawful rulings of the court. That the application of the instruction complained of was not restricted by the court to the case of McLaughlin alone constituted no error, for it does not appear from the record that it related only to the case of one defendant.

Kenneth J. Smith testified on direct for the state that since June 20, 1938, he had been in jail as a prisoner on the charge of attempted robbery, and that he was testifying freely with the knowledge of his counsel, and that he had been neither threatened nor promised anything by the state's attorney, either directly or indirectly in connection with his testimony. The defendants claim that the court erred in permitting this evidence to come in prior to any attack by them upon the credibility of the witness. The questions were admissible to bring to the attention of the jury at the very beginning of his testimony the...