State v. Perretta

The first two assignments of error relate to the testimony of Dr. Elcock. It is claimed, first, that the court erroneously admitted this testimony over the objection and exception of the accused; and second, that the court erroneously overruled the motion of the accused to strike out. These objections relate only to part of the testimony set out in the foregoing statement of facts. The objections made with respect to the other testimony printed in the record were sustained by the court in a way which could leave no cause for complaint. In the part of the testimony to which the appeal applies there was a brief running conversation between counsel and the court and no exception then was taken based upon the objection. There was no error on the first reason of appeal, because the alleged fact of an overruled objection and exception did not exist.

The real question, if any, arises upon the second reason of appeal based upon the refusal of the court to strike out, which was excepted to. The motion, referring to testimony of Dr. Elcock, was: "I move to strike out all he said about his testimony." The motion itself is faulty because it does not clearly appear what or how much was meant by "all he said about his testimony," and because no reason is given to the court why the motion should be granted. A granting of the motion as made would have left the court and jury quite in the air as to what remained in and what went out.

Waiving, but by no means sanctioning or approving, these defects, an examination of the record will show that the motion must have been directed to one of two sets of statements; either what the witness said upon the stand about his examination of the deceased, or his statement of the questions put by him to the deceased. As to the former, there are but three; the witness was detailing his repeated questioning of the deceased when the question was put to the witness: "You cross-examined him, did you?" to which the answer was, "Yes, to prove to myself that he knew, and it was true that this man was walking along the street quietly and inoffensively, and all of a sudden was pounced upon by the two men." Neither the question nor the answer were objected to. These facts had already fully appeared in the narration of the statement of the deceased without objection. This statement by the witness was but saying that he was satisfying himself, by repeated examinations, that the deceased knew what he was saying and that the deceased was saying what he really intended. Again, the witness said: "In order to find out surely . . . In order to make sure that there had been some cause for trouble I asked him," etc. Both of these statements meant simply, and could only mean, that the witness was diligently trying to get a complete and accurate statement from the deceased. As a statement of the witness' mental operations in conducting the examination it was unnecessary, but could do no harm, and the witness did not state his own opinion as to the truth of the statements of the deceased. Such an attitude of mind must be assumed as taken and maintained by one examining a deceased for his voluntary statement, if the examination and statements are to be of real probative value.

Bearing in mind that the only question about Dr. Elcock's testimony arises from the motion, and that this refers only to what Dr. Elcock said, we think the real point claimed is that Dr. Elcock should not have been allowed to narrate his questions as put to the deceased. That the motion relates and was intended to relate to these questions, is apparent from the objection and the discussion between the court and counsel, as well as from the portion of Dr. Elcock's testimony quoted in appellants' brief. The following quotation from the statement of facts makes this quite clear: "Dr. Elcock: And then I said to him — Mr. Pierce: I object to the conversation if not in the presence of the accused. Q. That was in the presence of the accused — they both were there? A. Both were there, yes. Mr. Pierce: I object. I don't think what he says is quite admissible. The Court: It is all a part of one conversation, as I understand it, that he had with the deceased in the presence of the accused relating to the affair. Mr. Pierce: It is the statements of the deceased, it seems to me, that are admissible. Evidence cannot be admitted against the accused, in other words, by the statement that this man makes. The Court: What the accused said is what we are trying to find out. He should confine himself to what the accused said. It may be necessary to show what he said in order to make what the accused said understandable. Of course, they will both have to come in. Q. Go ahead. A. Well, in order to find out surely — Mr. Pierce: One moment; I move to strike out all he said about his testimony. The Court: Motion overruled and exception noted in favor of the defense." It appears, also, that the ground of the objection as originally taken was that it was a statement not made in the presence of the accused; but the witness testified that both were present. Further, as it was a case of a dying declaration, it made no difference whether the accused were present or not.

There is no merit in the objection or motion based upon this ground. It is one of the most firmly settled rules in cases of dying declarations, that when the declaration is made by question and answer the entire conversation, question and answer, should be given so far as possible. In Reg. v. Mitchell, 17 Cox C. C. 503, 507, where the declaration was by question and answer, it was said by Cave, J.: "In such circumstances the form of the declaration should be such that it would be possible to see what was the question and what was the answer, so as to discover how much was suggested by the examining magistrate, and how much was the production of the person making the statement." In the often-cited case of Commonwealth v. Casey, 65 Mass. (11 Cush.) 417, Chief Justice Shaw giving the opinion, the syllabus is: "T, being at the point of death, and conscious of her condition, but unable to speak articulately, in consequence of wounds inflicted upon her head, was asked whether it was C who inflicted the wounds; and, if so, she was requested to squeeze the hand of the person asking the question. Thereupon, she squeezed the hand of the person making the inquiry.Held, that under all the circumstances of the case there was proper evidence against C for the consideration of the jury; they being the sole judges of its credibility, and of the effect to be given to it." In Chamberlayne on Evidence (Vol. 4) § 2842, it is said: "It is not regarded as objectionable that the statement, oral or written, is made in response to questions, even those which are leading in their nature. That the declarant is urged to make his statement, does not destroy its voluntary character or have the effect of excluding it. Such an insistence affects, like the use of questions, merely the probative force of what is said." So are the authorities generally. 56 L.R.A. note, pp. 427, 429, e. g.; 2 Wigmore on Evidence, § 1445;21 Cyc. 979; Wharton on Homicide (3d Ed.) p. 1020.

Objection also seems, from appellants' brief, to be taken to the statement of Dr. Elcock, as follows: "I got Dr. Cooley to stand up beside the bed to make positive that the man knew what he was talking about, and I says: ``Did this man ever injure you?' And he looked at him and he says ``No, I don't know him.'" This was entirely proper as showing the mental condition of the deceased at the time of his declarations.Commonwealth v. Casey, 65 Mass. (11 Cush.) 417.

The third ground of error alleged is the admission of McMurray's testimony. It appears that McMurray had been in the neighborhood and heard a shot and screams, and found the deceased lying upon the ground with his face down. McMurray was called as a witness by the State. The record shows the following examination and answers: "Q. Now what did you do? A. I stepped up to him and asked him who shot him. Mr. Pierce: I object to the conversation. Q. You asked that question did you? Now don't tell what was said, but state whether or not he made a reply to you? A. He did. Q. Answer this yes or no. State whether or not he told you who shot him? A. Yes. Q. State whether or not you repeated your question? A. I did. Q. And state whether or not he repeated his answer? A. He did. Q. Now just what did you observe further about the man? Mr. Pierce: I move that all of that be stricken out. The Court: The motion is denied. Mr. Pierce: Exception. The Court: Yes. Q. What then did you do? A. You mean after I spoke to him? Q. Yes, after you talked with him. A. I proceeded to telephone the police. Q. And did you go to telephone? A. I went into a house on Whiting Street."

Here, again, the objection and motion are defective. No reason was given for the objection. There was no ruling on the objection and there was no exception. The objection as taken was evidently intended to shut out the answer, and this was accomplished. No reason was given for the motion, nor is the part desired to be stricken out definitely specified. The objection now raised is that it is not shown that the necessary conditions to justify the statements of the deceased as a dying declaration were shown to exist when this conversation took place, and that this examination was a palpable evasion of the rule as to dying declarations. An answer to this claim of error is that the record does not show that the evidence was offered or claimed as a dying declaration, or that any declaration in fact was asked for or given. If the evidence was admissible for any purpose there was no error in denying the motion, especially in view of the fact that no reason was given. It was admissible on two grounds: it was relevant to show the mental condition of the deceased after the stabbing and shooting and prior to the taking of the dying declaration. It was further admissible as an act of the witness in connection with his procuring information and telephoning the police. The situation is this: The witness asked a specific question of the deceased; the deceased made an answer; what the deceased said was not stated; then the witness did something. The only part as to which any possible question could arise was the detail of the question asked, viz: "I asked him who shot him." Whether this was technically erroneous we need not consider, as no claim is made in this respect and upon the record it was harmless. The information placed before the jury differed in not the slightest degree from what would have been given had the witness simply stated that he made inquiries of the deceased and in consequence he telephoned the police. In Reg. v. Wilkins, 4 Cox C. C. 92, the witness, a constable, having stated that by inquiries he traced the prisoners from place to place, and counsel for the prisoners having objected that this was in effect letting in hearsay evidence, Earle, J., admitting the testimony, said: "Half the transactions of life are done by means of words. There is a distinction, which it appears to me is not sufficiently attended to, between mere statements made by and to witnesses, that are not receivable in evidence, and directions given and acts done by words, which are evidence. The witness, in this case, may say that he made inquiries, and in consequence of directions given him in answer to these inquiries, he followed the prisoners from place to place until he apprehended them." The testimony objected to is simply as to one of the steps taken by the witness leading him to telephone the police. The hearsay rule is not involved, for no statement of the deceased is made; only the fact that an answer was made is given; what the answer was was not called for or given. Reg. v. Wilkins is quoted with apparent approval in Wigmore on Evidence (Vol. 3) § 1789, and in Chamberlayne on Evidence (Vol. 4) § 2666.

There was no error in refusing to correct paragraph 17 of the finding, nor will this court correct it. This paragraph was part of a finding made for appeal from the charge to the jury. Such a finding is a statement of what counsel claimed and offered evidence to prove, and this paragraph is a statement of the State's claim. No suggestion is made that as such it is not correct. Whether or not the statement was true was for the determination of the jury and not the court. Sansona v. Laraia, 88 Conn. 136, 90 A. 28.

The claimed error in the charge appears to be based solely on the idea that the court erroneously assumed as an unquestioned fact a statement of fact not proven, which was harmful to the defendants. The court said: "There is another construction of the evidence to which I must call your attention, but without any suggestion that you are to accept the construction that I have in mind. The doctor had asked the dying man if he had trouble with these men, and he said ``Yes, six months ago,' when one of the accused immediately interrupted, and he said he had trouble with Luigi, the brother of the accused. From that evidence, if you deem it fair and reasonable and think that the conclusion is warranted, you may draw the inference that the accused then and there attempted to divert suspicion from themselves to another person. You are not obliged to draw that inference. I do not say that the court draws that inference. It is within your province to make that inference if you find that it is a reasonable, fair, just, logical inference to draw from those words and that conduct of one of the accused."

Counsel for the defendants say that it was not so; that neither of the accused interrupted Dr. Elcock in his examination of the deceased and said that the deceased had had trouble with Luigi, but that it was the deceased himself who said this, and that consequently no inference of an attempt to divert suspicion should have been suggested to the jury because of this statement. Turning to Dr. Elcock's testimony, all that appears with reference to this matter is the following: "A. I then asked him if he had ever had any trouble with anybody else — this was the latter part of the conversation. While I was doing this one of the accused rather broke in the conversation several times and he said, ``Yes, he had had trouble with Luigi.' Q. With whom? A. Luigi. Q. Luigi? A. It was difficult for me to understand just what he said, whether Luigi or Lewis, but I concluded before I got through that he meant Luigi; and when I asked him when he had trouble with Luigi, he said ``A long time.'" From this record we do not think that it could be said with certainty whether it was one of the accused or the deceased who said this. The use of the pronouns leaves the statement of the witness, Elcock, hopelessly involved. From the manner and accent of the witness as he gave his testimony it may have been perfectly clear, to one listening to the testimony, who was meant. It does not appear that counsel called the attention of the court to this error of fact, if there was one, at the time. This is not only the privilege of counsel, but his duty. However that may be, the court did not instruct the jury that this was the unquestioned fact, but, though commenting on this version of the evidence, explicitly left the question of fact to the jury. The court said: "I ought to say, if perchance somebody might deem it necessary, that you are not bound by the conclusions of the court concerning the evidence and the conclusions you shall reach upon it. You are to consider the evidence for yourselves . . . without being influenced by the court. . . . Now, gentlemen, at the end I wish to say to you that you should pay careful attention to all the evidence in this case. . . . It is for you to recall the evidence. It is for you to give the weight to it which in your judgment you think it should have." In the charge the court called attention to the testimony of Luigi himself that there had been a quarrel between himself and the deceased, but that it had all been made up between them. The controversy was not as to the fact of the quarrel, which appears to have been conceded, but as to whether in Dr. Elcock's testimony it was one of the accused or the deceased who called attention to it. Upon the whole case we do not think that the defendants could have been prejudiced by the portion of the charge complained of, taken with the rest of the charge that has been placed before us, in which the jury are properly instructed as to the determination of matters of fact where the court may have commented on the facts. In any event, this matter was the merest side issue, and at the trial apparently was so considered, for it appears in the finding of defendants' claims: "33. The accused took the witness-stand in their own defense and each denied that he had anything to do with the death of Palmese. Neither of them, however, in their testimony alluded to the events at the hospital as hereinbefore recited nor did they, or either of them, deny or attempt to explain in any way the repeated identification made by Palmese at the hospital, of Erasmo Perretta as the man who fired the fatal shot and of Joseph Perretta as the man who cut and stabbed him."

Although on account of the gravity of the case we have waived any defects in the form of the record in this case, and have endeavored to answer such plausible reasons as might have been given, yet we call special attention to Rule 5 of the Supreme Court of Errors (Practice Book, 1908, p. 266), which requires that "when error is claimed in rulings upon evidence of witnesses, upon a trial either to the court or to the jury, the finding should state in each instance the question, the objection, the exception, and the answer, if any." "Objection" here means, not merely that there is objection, but what the objection is. Section 116, Rules of Superior Court (Practice Book, 1908, p. 236), provides that "whenever an objection to the admission of testimony is made, counsel shall state the ground of the objection succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had thereon. No ruling relating to the reception or rejection of evidence will be reviewed unless the record discloses that an exception to such ruling was duly taken."

We know that these rules are sometimes violated in practice. If counsel, when making an objection or a motion, cannot state any reason on which to base it, and thus fairly inform the court as to the nature of the ruling it is called upon to make, the objection should not be made a ground of appeal for reasons subsequently developed and which were not before the court at the time of the ruling. Zalewski v. Waterbury Mfg.Co., 89 Conn. 46, 92 A. 682; Leahy v. Cheney, 90 Conn. 611,617, 98 A. 132.

There is no error.

In this opinion the other judges concurred, except WHEELER, J., who dissented.