State v. Calogero Costa

Although nothing in prejudice of the defendant's rights is claimed to have resulted from the acceptance of a general verdict, the situation has been somewhat pointedly brought to our attention, and perhaps calls for a word of comment. As the information is drawn, all that substantially differentiates the two distinct offenses charged, is the element in the graver of them of a specific intent to maim or disfigure the victim of the attack. The State's claims of proof, as detailed in the finding, are equally consistent with guilt on either count. It was readily within the right of the jury to find that the weapon involved was a deadly or dangerous one in its adapted use, and that its active presence in the case made the assault an aggravated one (§ 6344); while the character and location of Clark's wound, inflicted as it was without chance for his resistance and where his assailant deliberately chose to place it, satisfies the precise requirements of the statute and justifies the inference of the necessary "intent to maim or disfigure." § 6194. While the offenses charged are separate, therefore, and brought under different statutes, they present alternative aspects of a single transaction, and their only essential difference is one of degree. The court fully recognized this fact and properly acted upon it by the imposition of a single penalty which was appropriate to a conviction upon either count.

Neither of the two main objections to the evidence of Costa's relations with Williams is sound. The fallacy of the first lies in the defendant's assumption that the evidence brought before the jury another and distinct offense wholly disconnected with the charge covered by the information, and in violation of the familiar rule of exclusion voiced by the cases upon which he relies.

This is not true, and the cases referred to (State v.Gilligan, 92 Conn. 526, 530, 103 A. 649, and People v. Molineux, 168 N.Y. 264, 273, 61 N.E. 286) are without pertinence to the situation presented by the record. There is but one offense involved here, and that is the actual attack upon Clark. As having a possible tendency to weaken or offset the identification of Costa as the man who perpetrated it, were Clark's concurrent statement that he had never seen the man before the assault, and the further fact — suggestive when considered in connection with all that Clark's disavowal perhaps implied — that every intelligible motive but that of personal hatred or revenge was practically eliminated from the case by its attendant circumstances. In this situation it was not only the State's right, but its manifest duty, to harmonize if it could the apparent inconsistency of Costa's identity as the assailant, with an assault which if committed by him was in the absence of further explanation seemingly without meaning or purpose.

The question of identity was thus made to depend vitally upon the disclosure of a motive, and, as meeting this requirement, it was pertinent for the State to show that while there was on the surface no discoverable purpose in Costa's assaulting Clark, there was ground for inferring his purpose to assault another man, for whom, by a chain of confusing coincidences, he had momentarily mistaken Clark. When for these reasons Costa's claimed concurrent hostility toward Williams became a legitimate element of the State's case, its recognition as such opened the door for the reception of any evidence competent to establish it, and proof of recent quarrels and resulting bad blood was very plainly of this character. That it was possible for the jury to misconceive its legitimate purpose and give it an unwarranted significance in support of the State's charge, is not important, if true. It is never a sufficient reason for the exclusion of pertinent evidence that it may be also susceptible of a wrong and prejudicial use by the trier. One of the important functions of the court is to safeguard an accused person against such possibilities by sufficient instructions to the jury. The record warrants no suggestion that the duty was not amply and satisfactorily performed in this case.

The second objection urged by the defendant is that evidence of a purpose to assault Williams has no legitimate tendency to establish the express charge laid in the information, of an intent to assault Clark.

We cannot sustain this contention. The information accurately presented a charge which the evidence tended directly to substantiate. It in no sense negatived or qualified the immediate purpose and legal intent of Clark's assailant to assault Clark, that the act may have rested wholly upon a mistaken belief as to Clark's identity. The purpose of the assailant was to accomplish the end immediately in view, and the actual victim was no less the intended direct physical object of the attack, because at the time he may have been taken for someone else. Whatever lack of entire accord the cases may show, we think by far the better rule and reason are succinctly given in the illustration used by Wharton, who says: "A third contingency arises when A, looking out for B, sees C, whom he mistakes for B, and whom he kills. This is murder, because his intent to kill, however mistaken his reasoning, was really pointed at C." 1 Wharton, Criminal Law (11th Ed.) p. 204. See alsoDunaway v. The People, 110 Ill. 333, 337. No requirement of criminal pleading compels the prosecutor to embody in his formal charge the details of a confused mental process by which the accused reached the alleged result.

The demurrer to the information was properly overruled. With the charge unequivocally laid in the information, its formal presentation to the court implied its purpose as unmistakably as though the perfunctory request which it omitted had been included.

There is no error.

In this opinion the other judges concurred.