State v. Monte.

• Decision Date: 06 July 1944
• Citation: 131 Conn. 134,38 A.2d 434
• Court: Connecticut Supreme Court
• Parties: STATE v. MONTE.

131 Conn. 134

38 A.2d 434

STATE

v.MONTE.

Supreme Court of Errors of Connecticut.

July 6, 1944.

Appeal from Superior Court, Middlesex County; Daly, Judge.

Mike Monte was charged with assault with a deadly or dangerous weapon and was convicted of an aggravated assault and he appeals.

Error and new trial ordered.

Leonard O. Ryan, of Middletown, for appellant.

Thomas C. Flood, of Middletown, State's Atty., for appellee.

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

MALTBIE, Chief Justice.

The defendant has appealed from a judgment entered on a verdict finding him guilty of an aggravated assault. The information charged him with ‘making an assault upon Roger Birmingham with a deadly or dangerous weapon’ in violation of § 6195 of the General Statutes. He requested the trial court to charge the jury that under the information they might find him guilty as charged or guilty of simple assault, but the court refused to do so, instructing them that they must find him guilty of aggravated assault or not guilty. The state claimed to have proved that the defendant struck Birmingham on the head with a heavy club, rendering him unconscious, while the defendant claimed to have proved that he merely pushed Birmingham, with the result that he fell and his head was injured by striking the bumper of an automobile. The trial court in its charge submitted to the jury as an issue of fact for their determination the question whether the club was a deadly or dangerous weapon. See State v. Litman, 106 Conn. 345, 353, 138 A. 132. Had they held that it was not, they might have found the defendant guilty of simple assault. State v. Wondra, 114 Minn. 457, 459, 131 N.W. 496, Ann.Cas.1912C, 667. The situation falls squarely within the rule, supported by the decisions of many courts, that, if upon the evidence an accused can properly be found guilty of a lesser offense than that charged and the allegations of the information include the elements constituting the lesser offense, he is entitled to have the jury instructed as to it and charged that if they find proven only that offense he is to be found guilty of it. People v. Halliday, 237 App.Div. 302, 261 N.Y.S. 342; People v. Gilday, 351 Ill. 11, 21, 183 N.E. 573; State v. Buchan, 219 Iowa 106, 257 N.W. 586; State v. Johnson, 184 Wash. 493, 494, 52 P.2d 317; 5 C.J. 799, § 349; 6 C.J.S., Assault and Battery, p. 1005, § 128d.

In State v. Thomas, 105 Conn. 757, 765, 136 A. 475, the defendant was informed against for the crime of robbery with violence, and the trial court, while it charged that he might be convicted of a number of lesser offenses, failed to include among them simple or aggravated assault; that was assigned as error; but we held that the omission was not harmful to the defendant because he was found guilty of the crime charged and that necessarily involved the offense of assault. We cited no authority in support of this conclusion and we have found no other case in which a similar decision was made. On the other hand, we have found no satisfactory statement of the reason which supports the rule so unanimously followed in other jurisdictions. From a legalistic standpoint much could be said against its validity. The jury is, however, a very practical means of securing justice. A verdict must in the end speak a conclusion to which each individual juryman gives his conscientious assent. It may not, however, represent the original views of some members, but may be the result of an open-minded discussion and an honest weighing of the opinion of others, in the consciousness that one should not be too sure of a personal judgment in which others who have heard the same evidence and have an equal desire to arrive at the truth do not concur. State v. Smith, 49 Conn. 376, 386; Simmons v. Fish, 210 Mass. 563, 571, 97 N.E. 102, Ann.Cas.1912D, 588. In the effort of a...