State v. Reid

• Decision Date: 04 March 1959
• Citation: 149 A.2d 698,146 Conn. 227
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Benjamin REID. Supreme Court of Errors of Connecticut

Page 698

149 A.2d 698

146 Conn. 227

STATE of Connecticut v. Benjamin REID.

Supreme Court of Errors of Connecticut.

March 4, 1959.

James D. Cosgrove, Public Defender, and William D. Graham, Sp. Asst. Public Defender, Hartford, for appellant (defendant).

Douglass B. Wright, Asst. State's Atty., Hartford, with whom, on the brief, was Albert S. Bill, State's Atty., Hartford, for appellee (state).

Before BALDWIN, KING, MURPHY and MELLITZ, JJ., and SHEA, Superior court judge.

KING, Associate Justice.

The indictment returned by the grand jury charged the defendant with the first degree murder of Florine McCluney 'in attempting to perpetrate a robbery.' The claims of proof material to the consideration of the defendant's assignments of error will be summarized. Mrs. McCluney was a neighbor who had known the defendant from infancy. She was an especial friend of his mother and had always been friendly with him. She owned a Buick car which she kept in a parking lot near her home in Hartford. At about 4 o'clock in the afternoon of January 15, 1957, the defendant, who was unemployed, left his house, with a hammer in his belt, to go out on the street. About 9 o'clock in the evening, while in a restaurant, he saw Mrs. McCluney, who he thought had some money, walking down the street. Thereupon he left the restaurant, crossed the street, cut through an alley and went to the lot where she parked her car. He hid there. When she passed, he felled her with a blow on the head from the hammer. When she moaned, he struck her some more. After breaking a window on the driver's side of her car, he placed her in the car, first removing her fur coat so that he could more easily carry her. Death directly resulted from the blows, which caused a depressed, comminuted fracture of the skull. The body of Mrs. McCluney was found the next morning, frozen solid, in her car. More than $2,000 was concealed under her clothing, but the defendant had not found it. At about 11 o'clock the night she was killed, a paper bag with her pocketbook in it was discovered on a sidewalk nearby.

The defendant chose to, and did, take the stand. There was no real dispute as to most of the basic facts, and his version of the crime was virtually the same as that of the state except that he denied that in beating Mrs. McCluney on the head with a hammer, breaking in her skull and causing injuries from which she soon died, he had any idea or intention of killing her. He also denied that he had had any intention of robbing her and claimed to have no explanation of the hammer attack. He claimed, in effect, that he had had too much to drink that afternoon and evening. Although he said that he had put the deceased in her car so that she would not freeze, he had not replaced her coat. His later movements were unimportant except that they showed a consciousness of guilt and a desire to escape arrest, and except that he did nothing to assist the deceased although she was probably not dead when he first put her in her car.

The defendant assigns error in the court's refusal to include in its charge his request to the effect that if he committed the crime of assault with intent to rob, ¹ 'a homicide arising out of * * * [it] is not murder in the first degree.' Section 53-9 of the 1958 Revision provides: 'All murder [not all homicide] perpetrated * * * by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or committed in perpetrating, or in attempting to perpetrate, any * * * robbery * * * shall be murder in the first degree; and all other kinds of murder shall be murder in the second degree; and the degree of the crime charged shall be alleged in the indictment; but the jury before which any person indicted for murder is tried may find him guilty of homicide in a less degree than that charged; * * *.' The history of this statute, which divided murder into two degrees, was summarized in State v. Walters, 145 Conn. 60, 71, 138 A.2d 786.

Such a charge as was requested would have been not only misleading but prejudicial to the defendant, since it would have tended to absolve the state from the necessity of proving a murder as distinguished from a homicide. State v. Rossi, 132 Conn. 39, 44, 42 A.2d 354; State v. Tomassi, 137 Conn. 113, 123, 75 A.2d 67. Were this not a capital case, we would give this assignment of error no further consideration. An inspection of the brief of the defendant indicates, however, that in the request to charge he was attempting to make the claim that a violation of the assault with intent to rob statute would not constitute either the perpetration or the attempted perpetration of a robbery. To be certain that the defendant is given every consideration, we have decided to consider this claim even though it was not properly raised. The statutory provision as to murder in the first degree applies to a murder committed in perpetrating or in attempting to perpetrate 'any' robbery. State v. Rogers, 143 Conn. 167, 177, 120 A.2d 409. This would include a murder committed in the course of an assault with intent to rob in violation of § 53-28 of the 1958 Revision, for a violation of this statute necessarily involves an attempt to perpetrate a robbery. To bring the murder within the terms of the statute, the state was not required to prove that it was committed in attempting to perpetrate any particular kind of robbery. The only question with which the jury were concerned on this branch of the case was whether it had been proved that the defendant committed a murder in attempting to perpetrate any robbery. Here there was ample evidence from which the jury could find that the killing of the deceased was murder and that it was committed in attempting to perpetrate a robbery upon her. Indeed, the defendant himself gave no other reason for the attack although he did not, on the stand, admit that he was attempting to rob the deceased. The court correctly refused to give the charge requested, and this is so even if we read, in the request, the word 'murder' for the word 'homicide.' This assignment of error is without merit.

The defendant complains of a single ruling on evidence which occurred during his cross-examination. The assistant state's attorney asked him: 'Whether or not this is a correct statement that you gave to Doctor Bancroft * * *.' The defendant's counsel objected that 'a doctor examining an accused person is in a confidential relationship, and any statements made to him would be' confidential. Thereupon the assistant state's attorney said that he was cross-examining the defendant on his claim that he did not plan the robbery or the murder. The court overruled the objection and the defendant excepted. In Connecticut there is no privilege between physician and patient. Zeiner v. Zeiner, 120 Conn. 161, 167, 179 A. 644. An accused, if he chooses to take the stand, subjects himself to cross-examination as to inconsistent statements, as does any other witness. State v. Walters, 145 Conn. 60, 66, 138 A.2d 786. The objection as made was without merit. In his brief, the defendant now makes an entirely different claim. This claim, however, was not raised or passed upon in the trial court. No error could have been committed by the court as to a claim of this type which it was not asked to rule upon. Johnson v. Rockaway Bus Corporation, 145 Conn. 204, 210, 140 A.2d 708. But apart from all this, the confessions of the defendant, the voluntary character of which was not questioned, and the other evidence rendered the ruling harmless. It could not have affected the outcome of the trial.

Two other claims of error are made and briefed only by the special assistant public defender. The first assigns error in the denial of the request of the defendant to have counsel appointed for him. The language of this assignment is highly misleading. Actually, the defendant does not claim that he was ever refused or denied the services of counsel, even temporarily; nor in fact was he. See cases such as Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167, and especially the annotation at 2 L.Ed.2d 1644; also Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448. His claim is merely that he was not allowed, at the expense of the state, to be defended by the particular attorneys he desired. On April 1, 1957, he wrote from the jail to the judge of the Superior Court then presiding at the criminal session in Hartford County, stating that he had been informed that in a capital case an accused 'may have his choice of lawyers, and does not have to accept the Public Defender' and that he requested the court to appoint a particular attorney to defend him. On April 5, the defendant was...