State v. Walters

• Citation: 138 A.2d 786,145 Conn. 60
• Court: Supreme Court of Connecticut
• Decision Date: 28 January 1958
• Parties: STATE of Connecticut v. Wallace M. WALTERS. Supreme Court of Errors of Connecticut

Page 786

138 A.2d 786

145 Conn. 60

STATE of Connecticut v. Wallace M. WALTERS.

Supreme Court of Errors of Connecticut.

Jan. 28, 1958.

Raymond W. Ganim and Samuel S. Freedman, Bridgeport, for appellant (defendant).

Lorin W. Willis, State's Atty., Bridgeport, with whom, on the brief, was Otto J. Saur, Asst. State's Atty., Bridgeport, for appellee (state).

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

KING, Associate Justice.

The accused was convicted of murder in the first degree committed in the perpetration of a robbery upon the decedent, Dorothy E. Cahill. The verdict contained a recommendation, under the provisions of § 3266d of the 1955 Cumulative Supplement to the General Statutes, that the punishment should be imprisonment for life.

The assignments of error pressed in the brief cover certain instructions supplemental to the basic charge, certain rulings on evidence and a claim that the foregoing statute is unconstitutional.

The basic charge, to which no exceptions were taken, was completed about 3 p.m. on June 12, 1956, and the jury deliberated until 10 o'clock that evening, when they were excused to go home for the night. The next morning they resumed deliberations, which were continued, except for the luncheon recess, until 5 o'clock in the afternoon, when the foreman reported that they were 'in hopeless disagreement.' In response to an inquiry from the court as to whether the disagreement was 'of such a nature that you cannot under any circumstances resolve it,' the foreman replied that 'the jury is in the same position right now as we were, roughly, about this time yesterday.' The court stated that it was going to ask them to give the case 'some further consideration,' but that it would excuse them until the next morning.

At 10 o'clock the next morning the court gave the jury, almost verbatim, a portion of the charge approved in State v. Smith, 49 Conn. 376, 386, a charge originally approved by the Supreme Judicial Court of Massachusetts in Commonwealth v. Tuey, 8 Cush. 1, 3, 62 Mass. 1, 3. Thereupon they retired. Counsel for the accused excepted to the court's failure to give the complete charge as approved in State v. Smith and also asked that 'this jury be dismissed' on the ground that the foreman had reported that they were in hopeless disagreement and had not made any progress in more than a day's deliberations. The motion to dismiss was denied, and to this ruling the accused excepted. The court did recall the jury, however, at 10:23 a.m. and not only gave them the omitted portion of the charge approved in State v. Smith but emphasized that the rule enunciated in the charge applied whether the majority were for conviction or for acquittal and that the court was in no way intimating what result the jury should reach. At 10:25 a.m. the jury again retired, and at 12:05 p.m. reported that they had agreed upon a verdict. Whatever we might have thought had the court failed to respond to the accused's request that the entire charge as approved in State v. Smith be given, the court's prompt action in recalling the jury within eight minutes for the sole purpose of correcting the oversight eliminated any possible harm which could have flowed from it. The very fact that the jury were recalled for this single reason favored the accused, if anything, because the importance of the added charge was unduly emphasized. Laffin v. Apalucci, 128 Conn. 654, 658, 25 A.2d 60. It was not until after an hour and a half of further deliberation, subsequent to the correction of the charge, that the jury reached a verdict.

The attack on the charge from State v. Smith on the ground that it amounted to a direction that the verdict be whatever a majority of the jurors thought is without semblence of merit. The accuracy of the charge as a statement of the jurors' duty is not open to question. Its use has been approved by the Supreme Court of the United States. Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528. Better than any other statement which has come to our attention it makes clear the necessity, on the one hand, of unanimity among the jurors in any verdict, and on the other hand the duty of careful consideration by each juror of the views and opinions of each of his fellow jurors, something without which no intelligent body of twelve would be likely to reach a unanimous result in any case where there was any substantial factual dispute. Allen v. United States, supra. For practical reasons only, its use has customarily been deferred until after a disagreement has been reported. State v. Schleifer, 102 Conn. 708, 725, 130 A. 184. But after the foreman reported the disagreement the situation confronting the court practically required the giving of the charge. State v. Wyman, 118 Conn. 501, 506, 173 A. 155, 93 A.L.R. 913; State v. Bradley, 134 Conn. 102, 112, 55 A.2d 114.

The claim that the court should have dismissed the jury without more as soon as the foreman reported the 'hopeless disagreement' was not made, as it should have been, at the time, but was deferred until the following morning after the court had given the first portion of the charge from State v. Smith. However, since this is a capital case, we overlook this technical infirmity in the claim. On the merits it was not an abuse of discretion for the court to give the charge from State v. Smith instead of treating the jury's first report of a failure to reach a verdict as a final disagreement warranting an abandonment of the trial. Dutton v. Tracy, 4 Conn. 79, 93; State v. Mosca, 90 Conn. 381, 385, 97 A. 340.

One other matter, obviously an afterthought on the part of counsel for the accused, we consider only because this is a capital case and we allow no technicality to interfere with the right of an accused to a fair trial in strict conformity with the fundamental requirements of due process of law. It concerns a portion of the supplemental charge given just before the adjournment of court on Wednesday, June 13, 1956, immediately after the foreman had reported that the jury were in hopeless disagreement. This was not at any time excepted to by counsel for the accused, and the court was consequently given no hint that any complaint was to be made about it, nor was the court given any opportunity to modify or correct it. The instruction now complained of was, in effect, that the case had taken a great deal of time and effort on the part of all concerned, including the jury, a verdict would save a tremendous amount of expense and energy in a retrial, and for that reason the court was going to ask the jury to deliberate further but would excuse them until the next morning, since they had had a long day. Of course a jury must not be coerced into unanimous action on the ground of saving money for the state or, indeed, on any ground. However, followed as it was, upon the resumption of deliberations the next morning, by the approved charge from State v. Smith, clearly stating the jurors' duty, we can find no reason to believe that the accused was in any way harmed by the language now complained of.

The accused chose to, and did, take the stand in his own defense. By so doing, he subjected himself to cross-examination as would any other witness. In an attempt to attack his credibility, he was asked whether he had not made statements to his wife contrary to those made by him on the witness stand. His counsel objected, stating that 'any conversation which took place with this man and his wife has nothing to do with this case * * * [a]ny more so than any conversation which took place between Mrs. Cahill [the decedent] and her husband.' The state's attorney started to say, 'Well, because of the fact that under the law I cannot compel her to testify--' and was interrupted by counsel for the accused, who objected to any statements of law in the presence of the jury. The state's attorney then added, 'I was almost through when he interrupted me. I was going to say in view of the law that a wife cannot be compelled to testify against her husband, but I will not press the question.' Counsel for the accused then asked that 'the remark be stricken from the record and the jury be instructed to ignore it.' The court denied the request.

While the request might well have been granted, we fail to see how the accused was in any way harmed by its denial. General Statutes, § 8800 clearly provides that an accused's wife, except in certain cases, such as those where she is the victim of personal violence at his hands, cannot be compelled, although she is permitted, to testify for or against him, and the accused quite properly makes no claim to the contrary. The statement of the state's attorney obviously was an explanation of why he happened to ask the question. It was not a statement of any material fact, as was the statement in State v. Santello, 120 Conn. 486, 490, 181 A. 335. A witness may always be asked about inconsistent statements. Adams v. Herald Publishing Co., 82 Conn. 448, 452, 74 A. 755; Fairbanks v. State, 143 Conn. 653, 657, 124 A.2d 893. Here, because of the privilege accorded the accused's wife under § 8800, the state's attorney could not call her to the stand and ask her about the accused's statements to her. This limitation on the state's attorney had, however, nothing to do with his right to cross-examine the accused as to inconsistent statements. See State v. Hoyt, 47 Conn. 518, 540. This right stemmed solely from the fact that the accused, having taken the stand, subjected himself to cross-examination as to credibility and as to matters relevant to his direct examination, as would any other witness. State v. Fienberg, 105 Conn. 115, 120, 134 A. 228; State v. Palko, 121 Conn. 669, 677, 186 A. 657. The net result of the whole matter was that an indisputably correct and harmless rule of law may have been heard by the jury and that counsel for the accused succeeded in dissuading the state's attorney from pressing...