State v. Rossi

• Decision Date: 05 April 1945
• Citation: 42 A.2d 354,132 Conn. 39
• Court: Connecticut Supreme Court
• Parties: STATE v. ROSSI et al.

132 Conn. 39

42 A.2d 354

STATE

v.ROSSI et al.

Supreme Court of Errors of Connecticut.

April 5, 1945.

Appeal from Superior Court, Hartford County; Daly, Inglis and Quinlan, Judges.

Indictment charging Nicholas A. Rossi and Robert Rossi with murder in the first degree committed in the perpetration of a robbery, tried to the Court, Daly, Inglis and Quinlan, JJ. Defendant Nicholas A. Rossi was found guilty of murder in the first degree as charged and defendant Robert Rossi of robbery and the State appeals from the latter judgment.

Error and new trial ordered.

Hugh M. Alcorn, Jr., State's Atty., John P. Hodgson and Charles S. House, Asst. State's Atty., all of Hartford, for the State.

Reinhart L. Gideon, Public Defender, of Hartford, and Thomas S. Whitman, Sp. Asst. to Public Defender, of Simsburg, for appellee Robert Rossi.

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

JENNINGS, Judge.

Nicholas and Robert Rossi planned and executed a robbery against Hedwig Wegner. While she was being robbed, both being present, Nicholas killed her. They were indicted for murder in the first degree in that they ‘did, in perpetrating a robbery, beat and bludgeon to death with their fists and with a blunt instrument, to wit: an iron pipe, one Hedwig Wegner of said Plainville, all in violation of Section 6043 of the Connecticut General Statutes, as amended.’ They were tried to a statutory court consisting of three judges without a jury. Nicholas was found guilty of murder in the first degree as charged and Robert of robbery. The state, with the permission of the court, appealed from the judgment as to Robert.

The state claims that a conviction of robbery under this indictment is not permissible under General Statutes, Cum.Supp.1935, § 1685c. It admits that the defendant could be convicted of a lesser degree of homicide than that charged. Ibid.; State v. Dowd, 19 Conn. 388, 392; Wilson v. State, 24 Conn. 57, 64; Warren v. State, 79 Neb. 526, 528, 113 N.W. 143; 1 Wharton, Criminal Law, 12th Ed., § 676; note, 21 L.R.A.,N.S., 1. In the early case of State v. Nichols, 8 Conn. 496, 498, we said that manslaughter differed from murder ‘only in degree,’ and ‘only in the degree of malignity’; and we stated that an act (Public Acts, May Session, 1830, Chap. 1, § 137) which had then been recently passed and which provided that, under an indictment for murder, an accused could be convicted of manslaughter was ‘in conformity with this principle of the common law, and declaratory of it.’ The statute of 1846, defining the degrees of murder, provided that the jury should, under an indictment for murder, ‘ascertain in their verdict whether it be murder of the first or second degree.’ Public Acts, 1846, Chap. 16, § 1. The act of 1830 and that of 1846 continued in force until, in the Revision of 1875, the act specially permitting a verdict of manslaughter was dropped and the portion of the statute defining degrees of murder, above quoted, was changed to read, as it now does, ‘the jury before which any person indicted for murder shall be tried may find him guilty of homicide in a less degree than that charged.’ General Statutes, Rev. 1875, p. 498, tit. 20, c. 2, § 1. The plain intent of this change in language was to permit a verdict of manslaughter under an indictment for murder; and we have repeatedly so held. State v. Bailey, 79 Conn. 589, 599, note, 65 A. 951; State v. Buonomo, 87 Conn. 285, 288, 87 A. 977; State v. Rosa, 87 Conn. 585, 590, 89 A. 163; State v. Castelli, 92 Conn. 58, 71, 101 A. 476; and see State v. Trent, 122 Or. 444, 453, 252 P. 975, 259 P. 893.

An accused indicted for murder cannot, however, under the terms of the statute be found guilty of any crime except murder in the first or second degree or manslaughter. The defendant concedes in his brief that, if this case had been tried to a jury, they could not have found him guilty of robbery. He claims, however, that the court by which he was tried had power to find him guilty of that crime under § 6477.

The action of the trial court was apparently based on § 6477, for among the conclusions reached the following appears: ‘193. In concluding that Robert Rossi is guilty of robbery on the first count, the court, in accordance with the provisions of section 6477 of the General Statutes, 1930 Revision, exercised its power to decide all questions of law and fact arising upon the trial and rendered judgment accordingly. 194. Upon the evidence Robert Rossi could properly be found guilty of robbery, a lesser offense than that charged.’ The section referred to provides for the statutory court for the trial of murder cases and contains this statement: ‘Such judges, or a majority of them, shall have power to decide all questions of law and fact arising upon the trial and render judgment accordingly.’

No case and no practice have been found making any such distinction between a trial of a criminal case to the jury and to the court. Under the statute, the court is merely given power to decide the facts in addition to its customary power to decide questions of law. ‘Fulfilling the function of the jury, the court determines the guilt or innocence of the accused and is governed in that decision by the same principles as would have governed the jury in passing upon that question. Fulfilling the function of the court, it determines, as in all cases, all interlocutory rulings made prior to or during the trial, and in its final decision applies the law to the facts found proven.’ State v. Frost, 105 Conn. 326, 329, 135 A. 446, 449. Except that the jury verdict must be unanimous, while a majority of the court suffices, the statutory court has neither more nor less power than a court sitting with a jury. Ibid.

In the case of State v. Cots, 126 Conn. 48, 9 A.2d 138, the defendant occupied a position similar to that of Robert Rossi in this case; that is, his associate did the actual killing and he was present, aiding in the robbery. It was claimed that he was guilty of robbery only. The last sentence of the opinion, 126 Conn. at page 60, 9 A.2d at page 143, reads: ‘The court did not err in refusing to confine its conviction of Cots to robbery.’ The defendant here claims that this statement, by inference, indicates that the court had the power to convict of robbery under the indictment for murder. That is not what was said and, for the reasons there stated, no such inference is to be drawn from that statement.

The trial court further concluded that Robert joined with Nicholas in a common design to rob Mrs. Wegner but that he ‘did not know and could not reasonably be presumed to know from the plans disclosed to him by Nicholas that as a natural and probable consequence of carrying out the robbery as planned the contingency of taking of human life would be involved.’ It was undisputed that the actual killing was done by Nicholas during the course of the robbery for which both prepared and in which both were engaged at the time of the killing. Under these circumstances, it was unnecessary for the state to prove, as claimed by the defense, that the robbery involved the contingency of taking human life.

The crime of murder was first divided into degrees in 1846. Public Acts, 1846, Chap. 16. The preamble to the act reads: ‘Whereas,...