State v. Castelli , 92 Conn. 58 ( 1917 )

At the opening of the trial Vetere moved for a separate trial, on the ground that it would appear from the coroner's finding and notes that there was evidence in the case admissible against one and not admissible against the other of the accused. Castelli made no motion for a separate trial. Vetere's motion was opposed by the State's Attorney on the ground that the crime was committed in carrying out a conspiracy to murder the deceased, and that as to any items of evidence which might be admissible against Castelli only, Vetere could be adequately protected by a proper instruction to the jury. The court overruled the motion and directed the accused to be tried together, and this is assigned as error by both of the accused.

The rule as to granting separate trials to persons jointly indicted is stated in State v. Brauneis, 84 Conn. 222,226, 79 A. 70, as follows: "Whether a separate trial shall be allowed to parties jointly indicted is within the discretion of the court. Ordinarily justice is better subserved where the parties are tried together. But cases arise where the defenses of the different parties are antagonistic, or where evidence will be introduced against one which will not be admissible against others. Where from the nature of the case it appears that a joint trial will probably be prejudicial to the rights of one or more of the parties, a separate trial should be granted when properly requested." The discretion of the court is necessarily exercised before the trial begins, and with reference to the situation as it then appears; and the phrase "prejudicial to the rights of the parties," means something more than that a joint trial will probably be less advantageous to the accused than separate trials. The controlling question is whether it appears that a joint trial will probably result in substantial injustice. It is not necessarily a ground for granting a separate trial that evidence will be admissible against one of the accused which is not admissible against another. Such evidence is received and its limited application pointed out to the jury, in most cases where two or more accused persons are tried together. When the existence of such evidence is relied on as a ground for a motion for separate trials, the character of the evidence and its effect upon the defense intended to be made should be stated, so that the court may be in a position to determine the probability of substantial injustice being done to the moving party from a joint trial. It does not appear from the record that the trial court was so advised in this case, and on that ground alone it is impossible to say that the court abused its discretion in denying Vetere's motion.

Ordinarily the fact that one of the accused has made a confession incriminating the other, would be a good ground for granting a separate trial. But the peculiarity of this case was that each of the accused had made a full written confession of facts which, if legally corroborated, was sufficient to convict either one of them of murder in the first degree. It follows that no material fact incriminating either one of the accused came to the knowledge of the jury because they were tried together, which would not also have come to the knowledge of a jury if each had been separately tried and his own confession admitted against him. This being so, the claim that substantial injustice was done by a joint trial relates rather to the corroborative effect which each of these confessions may be supposed to have had upon the other; and if we assume that the trial court did know all the facts before the trial began, the question presented to it was whether it would order separate trials of two self-confessed conspirators, each of whose acts and declarations, made or done in pursuance of the conspiracy, was admissible against the other, because their respective confessions, being made after the event, were not so admissible. The mere statement of this proposition shows that the question was one fairly within the limits of judicial discretion, and that a denial of Vetere's motion for a separate trial was not an abuse of discretion. In view of the precautions taken in the admission of evidence and again in the charge of the court, we cannot assume that the jury were improperly influenced by any corroborative effect given to evidence not admissible against one of the accused but admitted as against the other only. It may be observed that our attention has been called to but two cases in this country where the action of a trial court in refusing to grant separate trials to persons jointly indicted has been held to be reversible error. In one of them the right to a separate trial was granted by statute, and in the other the effect of the joint trial was to deprive the accused of the benefit of material testimony, under the common-law rule that persons jointly indicted and tried may not be called as witnesses for or against each other.

Generally speaking, the decision of a trial court upon a preliminary and collateral question of fact will not be reversed unless in a case of clear and manifest error. In State v. Willis, 71 Conn. 293, 313, 41 A. 820, this rule was applied to, or quoted as applicable to, the determination of the voluntary character of extra-judicial confessions as affecting their admissibility in evidence; and we see no reason why it is not equally applicable to the determination of the probability or improbability of substantial injustice flowing from a joint trial of persons jointly indicted. If it were not so, there would be grave danger of mistrials from causes which were unknown to the trial court at the time when it was required to decide the question. Moreover, joint trials of persons jointly indicted are the rule, and separate trials the exception resting in the discretion of the court. For the reasons indicated, we are satisfied that in this case the court did not err in denying Vetere's motion for a separate trial, and that no substantial injustice has been suffered by either of the accused in consequence of their joint trial.

The assignments of error next in logical order are those relating to the admission of the several statements and confessions of the accused. Here again, the court had to deal with a preliminary issue, and upon the trial of that issue all of the statements and confessions were abundantly shown by the State to have been given voluntarily and without undue influence of any kind.

We will refer first to the assignments of error relating to this branch of the case pursued on the brief for Castelli. There was no error in admitting the general question addressed to the State's witnesses, whether any threats were made or inducements held out to procure the confessions. The issue was a preliminary one, tried to the court in the absence of the jury, and opportunity was given for cross-examination. Under these circumstances the court might in its discretion shorten the direct-examination of witnesses by admitting leading questions and questions asking for conclusions of fact.

Exhibit 31 was an affidavit for the purpose of extradition, and the evidence of the officer Enright is, not only that Castelli, before signing it, read it over carefully and made a correction in it, but, on cross-examination, that the notary warned Castelli in writing that anything he signed might be used against him. Exhibit 39 is the detailed confession made by Castelli to the coroner of New Haven county, and it is prefaced by a written warning in the form approved by this court in State v. Coffee, 56 Conn. 399, 16 A. 151, and in State v. Willis, 71 Conn. 293, 308, 41 A. 820. Exhibit 28 is a paper written by Castelli admitting the killing and addressed to the coroner after Castelli had been taken to the door of the room where Vetere was, and had seen that Vetere was making a statement to the coroner. The witness DeMartini testified that Castelli asked for a piece of paper on which to write it. No doubt Castelli was influenced by what he had just seen and by the statement of DeMartini, which was true, that Vetere was telling the whole story; but as pointed out in State v. Willis, 71 Conn. 293,41 A. 820, it is difficult to conceive of a confession which is not induced by a sense of self-interest. Moreover, this paper added no material fact to the case made by the State. Castelli made several statements on April 26th, and the State very properly offered all of them in evidence, but so far as the issue of guilt or innocence is concerned they were all merged in or superseded by the final confession, Exhibit 39, which was complete in itself. Exhibits 38 and 30 are statements made by Vetere incriminating Castelli. These were not admitted as against Castelli, and the jury were instructed not to consider them as evidence against him. They were necessarily admissible as against Vetere, and the course which the court took was the only one possible. On their merits the assignments of error relating to these statements of Vetere go back to the denial of the motion for a separate trial, which has already been discussed.

In this connection we take up the alleged error of the court in admitting the story of Castelli's rehearsal of the murder scene at 260 Crown Street on May 3d. The claim is that Castelli was compelled to re-enact the murder and so compelled to give evidence against himself. This again was a preliminary issue and the court so treated it, ruling that the State must show that the actions of Castelli were voluntary. The State fully sustained the affirmative of that issue, but the objection is made that Castelli was not at that time warned that he could not be compelled to rehearse the murder, or that such rehearsal might be used against him. There is, however, no rule of law in this State which requires any such warning. The State must show affirmatively that any confession or performance in the nature of a confession was not procured by duress. The fact that a warning in the usual form has been given is generally accepted as satisfactory evidence that the confession was not procured by duress. But when the voluntary character of the confession is shown, either by proof of a warning or by any other satisfactory evidence, the law and the Constitution are satisfied. In this instance a warning had been given to Castelli the week before, and he had fully confessed after being warned. A week later he was asked, being deaf and dumb, to go to the scene of the crime and repeat the confession in pantomime, and upon the evidence he did so voluntarily. A second warning under such circumstances would have been superfluous.

Castelli testified when on the witness-stand that one of the officers at the police station in New York struck him many times with a piece of hose before his confession was written. This evidence was offered after the State had rested, and of course long after the preliminary issue as to the voluntary character of Castelli's confession had been tried and determined in favor of its admissibility. Under these circumstances the court properly instructed the jury that if they found that the accused were frightened or forced to make their confessions by the conduct or abuse of the officer having them in charge, they should disregard the statements entirely as of no value.

Referring now to the statements and confessions of Vetere: It is assigned as error that the court ruled that Vetere's confessions were voluntary. In support of these assignments of error it is said that Vetere was allowed to see Castelli in the act of making a statement to the coroner, that the two were kept apart and not allowed to communicate with each other, that Vetere was not given anything to eat from 7:30 P. M., when he was brought into the police headquarters, until 11:00 P. M., that his examination was protracted until 3:00 A. M., and that the attempted proof of the voluntary character of his statements failed, because of the generality of the questions asked of the State's witnesses.

Most of these matters have already been sufficiently discussed. The length of time occupied in these examinations by the coroner is accounted for in part by the fact that he took the statements of Castelli and Vetere separately, partly by the mode of communication adopted, which was by writing out the questions and then handing the paper to the accused for him to write his answer, and partly by the fact that Vetere was taken out to supper. As to the alleged deprivation of food, it appears that up to the time when Vetere complained that he was hungry he had made no incriminating statement, that he offered to make a statement in writing, that the coroner wrote out the customary warning, and Vetere wrote in reply: "I want to get food as I nearly choked to death and I got awful headache. I am uneasy without food and if I get food I would be excited to write and tell all the truth." He was immediately taken out to supper, and wrote nothing in the nature of a confession until after he came back. This being so, it cannot be said that his confession was in any degree extorted by starvation. On the contrary, the coroner was careful that no confession should be made until after Vetere's hunger had been satisfied.

It is also assigned as error that the confessions of the accused were admitted as exhibits and allowed to go to the jury-room, the alleged wrong being that undue prominence was thus given to the most damaging portions of the testimony. There was no error in this. Writings made or subscribed by the accused are ordinarily admitted as exhibits. If these writings were harmful it was not because any rule of procedure was violated, but because the accused had furnished harmful evidence against themselves.

We take up next the assignments of error in the admission of evidence. DeMartini testified that he wrote on a piece of paper that Vetere was telling all and showed it to Castelli, who wrote back on a piece of paper, "Me afraid of chair; tell all." This testimony was objected to on the ground that the papers themselves must be produced; and to prove their loss the Assistant State's Attorney was allowed to state to the court that he had been through every scrap of paper the State had and could not find them. The testimony was then admitted. There was no error. The evidence of loss was sufficient to support the admission of secondary evidence, especially as the statement itself was of little importance because followed by a full written confession.

As to the admission of the summons in the suit for nonsupport brought by Annie against Castelli, the objection that it tended to prove a different offense from that with which Castelli was charged, was properly overruled. The paper was admissible, being taken from Castelli's person, as tending to show that Castelli had reason to believe that his wife had complained to the police against him in respect of the matter described in the summons. The probation card, also taken from him, and the testimony of Enright explaining it, were admissible on the same ground, and the exemplified copy of the record of the New York court in the nonsupport proceedings was directly admissible to show the relations between Castelli and his wife.

Vetere's assignments of errors numbers 8 and 9 are not well founded in the record. The claim is that DeMartini was permitted to testify to a conversation carried on in writing, without producing the writings; but the record is that the witness was asked whether any threats or inducements were made to Vetere in writing or otherwise, and that he answered "no."

The court in charging the jury with reference to the statements or confessions made by the accused, used the phrase "they are only admissible as evidence affecting the one who made them"; and this is claimed as error, because in State v. Willis, 71 Conn. 293, 306,41 A. 820, we said that such statements were not "testimony," but facts to be proved by testimony. The distinction drawn in State v. Willis is quite correct, and that distinction was carefully observed by the trial court not only in other parts of the charge but also in the language complained of. The declarations of the accused inconsistent with their respective pleas of not guilty, were not testimony, but when proved they were "evidence affecting the one who made them," in the same sense that any other relevant fact inconsistent with the claims of an accused is evidence affecting him.

On one occasion the court in its charge used the phrase "considerable doubt" instead of "reasonable doubt," but it could not be supposed by the jury that the court intended to mean anything more or less than that reasonable doubt which it had been at great pains to explain and expound to them at great length.

The claim that the court unfavorably commented on evidence seems to us without foundation. It is true that the court apparently failed to remember Castelli's claim that he had bought his ticket for New Haven because he had seen Annie and Vetere talking about going to New Haven; but such a slip as that, in commenting on the evidence after a long trial, is not reversible error. In the first place, it is the duty of the jury, not of the court, to remember the evidence correctly, and in the second place the trial judge was very careful to so inform the jury, and to tell them that he might be mistaken in his recollection of the evidence, and that they must take the evidence not from him but from the witnesses. The court did not err in refusing to charge as requested by Castelli upon the subject of reasonable doubt. The charge of the court upon that point was correct and sufficient, and the court is not bound to use the phraseology of counsel in preference to its own, in stating familiar propositions of law to the jury.

The court did not err in charging the jury that in order to reduce Castelli's crime from murder to manslaughter, the homicide must have taken place under circumstances which would justify a reasonable belief that adultery was being committed. That is the rule expressed in State v. Yanz, 74 Conn. 177, 50 A. 37, and State v. Saxon, 87 Conn. 15, 86 A. 590. It was too favorable to Castelli. A husband who, on his own story, suspects that adultery is going to be committed, follows his wife and her suspected paramour from New York to New Haven, conceals himself in a closet armed with a deadly weapon waiting for the expected provocation to materialize, and then kills his wife, cannot claim the benefit of the rule in State v. Yanz.

As to Vetere's assignments of errors, numbers 39-41, the court correctly charged the jury that Vetere could not be convicted on Castelli's unsupported testimony. This was all that the case called for. Castelli was not a witness for the State. He could not, while jointly indicted, have been compelled to testify. But since he chose to testify in his own defense, his admissible testimony was relevant, though not that of a full witness, so far as it tended to prove or disprove the existence of the conspiracy outlined in Vetere's confession.

We have disposed of all the assignments of error pursued on the briefs, except those relating to the denials of the motions to set the verdicts aside on the ground that they were against the evidence. These motions were properly denied. The rule laid down inState v. Willis, 71 Conn. 293, 41 A. 820, is that an uncorroborated extra-judicial confession will not support a conviction of murder in the first degree. But these confessions were abundantly corroborated. The identity of the victim, and her death from the injuries inflicted by Castelli, are established without resorting to the confessions. Castelli's testimony at the trial, admitting the killing and pleading provocation, left only the degree of the crime to be determined by the jury. Was it a wilful, deliberate and premeditated killing, as his confession admitted, or was it the result of a sudden outburst of uncontrollable fury caused by the sight of his wife in Vetere's arms? The jury could give but one answer to that question; for Castelli himself testified that he concealed himself in the closet armed with a deadly weapon, to await the return of Vetere and his wife; and upon what little testimony was given on the trial as to the situation of the parties, it seems that Vetere was standing by the window at some distance from Annie when she was struck.

Vetere, also, admitted on the witness-stand that he was present at the killing. His testimony amounted to a judicial confession that he was an accessory after the fact, and the only question left for the jury was whether he was an accessory after the fact, in which case he was not guilty of any crime of which he stood indicted, or whether he was a principal under our statute as indicated by his confession to the coroner. All the physical facts were admitted. The determining question was whether the elopement with Annie was a genuine affair of the affections, as Vetere claimed in his testimony, or whether it was a pretense contrived to bring the victim to her place of execution, as Vetere admitted to the coroner.

No reasonable explanation consistent with the theory of a genuine elopement can be given of Vetere's own testimony as to what took place at and after the killing. The crucial scene is hurried over in a few words. He says that he kissed Annie; that she wanted to take a nap in the chair; that he went over to the window seat; that he heard and saw nothing until he looked around and saw Castelli standing beside his wife. Annie was then sitting with a drooping head, and Castelli, pointing to the door, said, "Killed, finished," and then "hurry up." Apparently no further communication passed between them until they reached the train. Could there be stronger corroboration of the confession to the coroner than is unconsciously furnished by Vetere's testimony? Not an indication of surprise, sorrow, anger, or desire for retributive justice; but on the contrary, instant acquiescence, a partition of Annie's jewelry and money, a joint flight from the scene of the crime without stopping to see whether Annie was really dead, and a common attempt to conceal the crime by writing a postal card addressed to Castelli intended to account for Annie's disappearance, and by appearing together at a social entertainment that same evening.

The fact that Vetere left Annie alone in the restaurant at the time when, according to his confession, he met Castelli and told him of the location of the room, and how to open the front door, was also proved. Without going further into details, it seems evident that the motions to set aside the verdicts were properly denied.

There is no error in either appeal.

In this opinion PRENTICE, C. J., RORABACK and SHUMWAY, JS., concurred.