State v. Dell ( 1963 )

The defendant, age forty-eight, pleaded guilty to one count of breaking and entering with criminal intent and was sentenced to a term totaling not less than two nor more than four years in the state prison. The maximum penalty for breaking and entering with criminal intent is not more than four years. General Statutes § 53-76.

On December 15, 1962, at approximately 10:20 p.m., an officer of the Bridgeport police department observed the defendant forcing a door of a restaurant at 2910 Fairfield Avenue, Bridgeport. Several minutes later, as the defendant was about to leave, the officer apprehended him. A search of the defendant revealed a cigar box containing $70. Defendant stated that he had removed the cigar box from beneath the counter, having previously observed the owner place it there.

On February 1, 1933, defendant was committed to the Connecticut reformatory for nineteen months on a charge of robbery with violence. On March 30, 1938, he was again committed to the reformatory on a charge of breaking and entering. On June 11, 1941, he was sentenced to the state prison for a term totaling not less than two nor more than four years.

At the hearing, defendant's counsel conceded that ordinarily such a sentence as here imposed would not be unreasonable. However, in this case counsel contended that a jail rather than a prison sentence would have been imposed had the court had before it additional information concerning defendant's war record. The alleged additional information concerned defendant's receipt of the bronze star and purple heart medals for risking his life for a fellow soldier. Page 5 of the presentence report reads as follows: "Service record very good. Was inducted into the U.S. Army in April 8, 1943.... Honorably discharged as a private first-class on April 23, 1947. Awarded the Bronze Star, Purple Heart and Good Conduct Medal. Served in the European, Middle East and African Theatres. Was wounded by shrapnel on April 28, 1945 at Medina, Italy. No permanent injuries which were recognized by the U.S. Veterans Administration." It is thus evident that defendant's war record was before the court at the time of sentencing.

It may be noted in passing that defendant could have been presented as a second offender but was not.

Under the circumstances, the sentence must stand.

MEYERS, LOISELLE and BOGDANSKI, JS., participated in this decision.