State v. Pallanck

Citation152 A.2d 633,146 Conn. 527
CourtSupreme Court of Connecticut
Decision Date23 June 1959
PartiesSTATE of Connecticut v. Anna M. PALLANCK. Supreme Court of Errors of Connecticut

Simon S. Cohen, Hartford, with whom was James H. Throwe, Hartford, for appellant (defendant).

Donald B. Caldwell, Asst. Special State's Atty., Rockville, with whom, on the brief, was Donald C. Fisk, Sp. State's Atty., Rockville, for appellee (state).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.

MELLITZ, Associate Justice.

The defendant was convicted, after a trial to the jury, of the crime of assault with a deadly or dangerous weapon. She has appealed from the judgment and assigns error in the court's charge to the jury and in its refusal to set the verdict aside.

The state offered evidence to prove, and claimed to have proved, the following facts: The state highway department, through five of its employees, was endeavoring, preparatory to erecting a fence, to line up the boundary between land of the state and land owned by the defendant in the town of Union. The defendant, without warning, fired three or four short cartridges from a .22 caliber rifle in the general direction of these employees. The cartridges had sufficient force, at a distance of 250 feet, to penetrate from three to five pine boards, seven-eighths of an inch thick, backed up against each other. The highway employees were within striking distance, and when they heard the defendant threaten to harm one of their number, they were frightened by her actions and left the scene. The men were not on the defendant's land. On a prior occasion when the highway department had commenced the erection of a fence, the defendant had threatened to use a gun and shoot if the work continued. The defendant admitted, during the trial, that she had fired the shots, but stated that she fired them into the ground, not at the highway employees, and did so only with the intention of frightening them away and not with the intention of doing them harm.

The principal contention of the defendant is that the court erred in refusing to charge the jury, in accordance with her request, that they could find her guilty of the crime of simple assault if, upon the evidence, they entertained a reasonable doubt as to her guilt of the charge of assault with a deadly or dangerous weapon. In State v. Monte, 131 Conn. 134, 135, 38 A.2d 434, upon a charge of assault with a deadly or dangerous weapon, the proof of the state was that the defendant struck his victim with a heavy club. The defendant claimed that the victim fell on his head and was injured after having been merely pushed by the defendant. The issue whether the club was a dangerous weapon was submitted to the jury, and we said that if the jury found that the club was not a dangerous weapon they might find the defendant guilty of simple assault. We held that the situation fell squarely within the rule that if, upon the evidence, the 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 only the lesser offense proven he is to be found guilty of that offense. So, in State v. Mele, 140 Conn. 398, 402, 100 A.2d 570, we found error in the failure of the court to give recognition to this principle and instruct the jury that conviction was possible, on the evidence presented, of the crime of aggravated assault, where the defendant was charged with assault with intent to murder and was convicted of assault with intent to kill. To warrant the application of this principle, however, we pointed out that two conditions must be satisfied, the first of which is that the evidence must be such as to warrant a finding that the defendant is guilty of the lesser offense. The principle has no application where the evidence does not support a conviction of the lesser offense.

A loaded rifle such as that employed by the defendant here is a deadly or dangerous weapon per se. Although the defendant claimed that her purpose was merely to frighten the highway employees, the jury could...

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22 cases
  • State v. Whistnant
    • United States
    • Supreme Court of Connecticut
    • February 12, 1980
    ...right to a jury instruction on a lesser included offense. State v. Mele, 140 Conn. 398, 402, 100 A.2d 570 (1953); State v. Pallanck, 146 Conn. 527, 529, 152 A.2d 633 (1959); State v. Devine, 149 Conn. 640, 650, 183 A.2d 612 (1962); State v. Brown, 163 Conn. 52, 60-63, 301 A.2d 547 (1972); S......
  • State v. Sawyer, 14650
    • United States
    • Supreme Court of Connecticut
    • August 31, 1993
    ...... "A corequisite of a lesser-included-offense charge .. is that there be a rational basis [227 Conn. 577] for an acquittal on the offense charged and a conviction on the included offense. State v. Pallanck, 146 Conn. 527, 530, 152 A.2d 633 [1959]; see 23A C.J.S., Criminal Law, § 1298; Model Penal Code, Tentative Draft No. 5 (1956), comment § 1.08." (Emphasis added.) State v. Brown, 163 Conn. 52, 61 n. 2, 301 A.2d 547 (1972). .         The Appellate Court nevertheless determined that, ......
  • State v. Parnoff
    • United States
    • Supreme Court of Connecticut
    • July 3, 2018
    ...likely to precipitate an immediate preemptive strike or, in its place, a significant law enforcement response. Cf. State v. Pallanck , 146 Conn. 527, 530, 152 A.2d 633 (1959) ("Even if the highway employees were, at the time, committing a trespass on the property of the defendant, as claime......
  • State v. Brown
    • United States
    • Supreme Court of Connecticut
    • May 3, 1972
    ...is that there be a rational basis for an acquittal on the offense charged and a conviction on the included offense. State v. Pallanck, 146 Conn. 527, 530, 152 A.2d 633; see 23A C.J.S. Criminal Law § 1298; Model Penal Code, Tentative Draft No. 5 (1956), comment § 1.08.3 See United States v. ......
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