State v. McNally

• Decision Date: 25 May 1965
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Edward McNALLY (two cases). STATE of Connecticut v. Richard McALISTER (two cases). Supreme Court of Errors of Connecticut

Page 162

211 A.2d 162

152 Conn. 598

STATE of Connecticut v. Edward McNALLY (two cases).

STATE of Connecticut v. Richard McALISTER (two cases).

Supreme Court of Errors of Connecticut.

May 25, 1965.

Harry H. Hefferan, Jr., Norwalk, for appellant (defendant McNally) and Warren A. Luedecker, Bridgeport, for appellant (defendant McAlister), with them, on the brief, was Harold H. Dean, Darien.

Otto J. Saur, State's Atty., with whom, on the brief, were John F. McGowan and Joseph T. Gormley, Jr., Asst. State's Attys., for appellee (state) in each case.

Before KING, C. J., and MURPHY, ALCORN, COMLEY and SHANNON, JJ.

MURPHY, Associate Justice.

Each of the defendants was charged in separate indictments with the crimes of murder in the first degree in the fatal shooting and stabbing of Richard McAlister's father on August 28, 1963, and for the fatal shooting of John Shinners on February 23, 1964, while the defendants were perpetrating a robbery. Since each defendant was seventeen years old at the time of arraignment, guardians ad litem were appointed for each of them, and, with the acquiescence of the state, a plea of guilty to murder in the second degree to each of the crimes was accepted by the court. Each was then sentenced to life imprisonment in the state prison for each of the murders, the sentences to run consecutively. The defendants have appealed. Although they have stated their claims of error in several ways, the basic contention is that the court did not have the legal right to impose consecutive life sentences.

General Statutes § 53-11 provides that '[a]ny person who commits murder in the second degree * * * shall be imprisoned in the State Prison during his life.' The use of this language presupposes a life sentence for each second-degree murder. In these cases, that penalty was imposed. The statutes are devoid of any language prohibiting the imposition of consecutive life sentences or of language requiring two life sentences to be served concurrently. 'In the absence of statute, the determination whether two sentences to the same penal institution shall run concurrently or consecutively is an incident to the judicial function of imposing sentences upon a convict and is a matter for the determination of the court.' Redway v. Walker, 132 Conn. 300, 306, 43 A.2d 748, 751. The same principle applies to life sentences in murder cases. State v. Maxey, 42 N.J. 62, 69, 198 A.2d 768. In the case, the defendant was convicted by the jury of two separate and distinct murders in the first degree. The jury recommended life imprisonment instead of the death penalty. The court sentenced the defendant to life imprisonment on each count, the sentence on the second count to be served consecutively to that imposed under the first count. The defendant, upon appeal, advanced claims of illegality which bear striking similarity to those of the defendants in our cases. The New Jersey Supreme Court affirmed the action of the sentencing judge and held (p. 69, 198 A.2d p. 773): 'In the absence of a statute expressly prohibiting the sentencing judge from exercising such discretion, we find that the power to impose consecutive life sentences resides in the trial judge.' Life sentences consecutive to other sentences have been upheld in In re Pedrini, 33 Cal.2d 876, 882, 206 P.2d 699, and McCoy v. Severson, 118 Utah 502, 515, 222 P.2d 1058. The court had the authority to impose the sentences which it did in these cases, and there was no abuse of discretion in so doing.

At the time of sentencing the defendants, the court made some observations about the nature of the crimes, the personalities of the defendants and the doubt entertained by the court that the defendants would respond to medical and psychiatric treatment to the extent that they might be proper subjects in twenty years for parole under the provisions of General Statutes § 54-125. This statute permits the board of parole to release on parole an inmate of the state prison serving a life sentence after twenty-five years confinement or after twenty years with maximum good conduct credits in prison. In other words, the court intended to and did put into the record its belief that neither defendant would merit parole in twenty years and therefore deemed it advisable to impose the consecutive sentences. The court went on to state that it did not necessarily feel that the defendants should be confined for forty years. Although it was not mentioned specifically, the court probably had in mind the jurisdiction of the board of pardons under General Statutes § 18-26.

Whether a sentencing judge, in determining the proper sentence to be imposed, should take into account the possibilities of release on parole is a subject upon which there are conflicting views. It was approved in New Jersey in State v. Maxey, supra, 69, 198 A.2d 768, 772, in which it was stated that the court could 'conceive of no reason why a man who has been found guilty of two murders should necessarily receive the benefit of the same parole eligibility as a man who has committed on one murder' and affirmed the action of the trial court as reported in State v. Maxey, 77 N.J.Super. 397, 406...