One ground of error in Vetere's appeal, and one in Castelli's, in my judgment, entitles each to a new trial. Vetere seasonably moved for a separate trial. The granting of such a motion is ordinarily a matter of discretion. But if the defenses of the accused are antagonistic, or the evidence to be introduced against one is not admissible against the other, separate trials may be ordered.
Where a joint trial will probably be prejudicial to one or more of the accused the motion should be granted. State v. Brauneis, 84 Conn. 222, 226,79 A. 70. *Page 75
I agree with the majority opinion, that the mere fact that evidence will be admissible against one accused which will not be admissible against another, will not necessarily furnish a ground for granting a separate trial; for the court, by limiting its admission and pointing out to the jury at the time of its admission and in its charge the precise use to be made of the testimony, may make it reasonably certain that the jury did not reach its conclusions by the improper use of this evidence. So that in a given case the test for the trial court is, will the joint trial probably result in substantial injustice, that is, will the jury be unable to separate the evidence and be likely to use the evidence admissible against one accused, against another against whom it is not admissible?
1. I agree with the majority, that the ground of the motion for a separate trial should develop the existence and effect of such evidence, so that the court will be placed in a position to determine the probability that substantial injustice will be done to the moving party. The majority hold that "it does not appear from the record that the trial court was so advised in this case." I think this conclusion does not accord with the facts of record. At the beginning of the trial Mr. Hoyt, counsel for Vetere, thus addressed the court: "Before we proceed to draw the jurors, I should like to make a motion in this case. I should like to make a motion that the accused be tried separately, first, upon the ground that there is evidence in this case, as is apparent from the coroner's finding and notes, which is admissible against one and not admissible against the other, in the nature of statements and other evidence decidedly of a character that is not admissible against both. As I understand the law in State v. Brauneis in the 84th Conn., it is of course a matter of discretion for the court. Our Supreme Court has said that where *Page 76 it would be prejudicial to the interests of the accused to try them together, then they should be tried separately. Now, I therefore move that they be tried separately, on behalf of Vetere at least." Replying, the State's Attorney conceded that the two accused "did make separate statements in writing . . . and other statements by signs to the authorities in New York during the coroner's inquest." Mr. Hoyt replied: "I cannot add anything, your Honor, to what I have already said, except this: the State's Attorney has suggested that in the event of admissions or conversations of one being admitted which would not be admissible against the other, that the caution of the court would take care of it. Now, it does not seem to me that while your Honor in the caution is doing everything you can do to prevent it being used against the other man, it certainly does get to the ears of the jury, and it is pretty hard for any human being to dismiss that from their minds; provided of course such statements are admissible." The ruling of the court upon the motion shows that it fully appreciated the ground of the motion, viz.: to prevent the State introducing statements and evidence which were admissible against one accused and not against the other.
The State's Attorney has argued this point as wholly within the discretion of the court. He had not claimed that the trial court was not apprised of the ground of the motion or the character of the evidence to be offered. Mr. Hoyt expressly called the court's attention to the coroner's finding and notes, and we may assume that the court — a learned and experienced judge, and for a long period a distinguished State's Attorney — had these before it. The court then knew that there were different statements in the nature of written confessions and oral statements claimed by the State to have been made by these accused, some of which might be *Page 77 admissible against one accused and not against the other, and others of which might be admissible against one and not against the other; and the court knew that the State intended to offer evidence that Castelli had been taken to the scene of the tragedy and had there re-enacted all that was done by him and by Vetere at and about the time of the killing.
I have never known a case where it was more apparent at the inception of the trial that it would probably be difficult, if not impossible, to disassociate the evidence thus offered against one accused from the evidence offered against the other. It was the duty of the court when this condition appeared, to grant separate trials to these accused.
Upon an examination of the evidence it appears that during its taking, in at least twenty-one instances, the court instructed the jury that certain evidence admitted was admissible against Castelli and not against Vetere, and in at least ten instances the court instructed the jury that certain evidence admitted was admissible against Vetere and not against Castelli. And these were not the only occasions when such instruction would have been pertinent.
The amended finding recites: "1. Upon the trial much evidence was admitted against the defendant, Joseph Castelli, only. This was done against the objection of counsel for the defendant Frank Vetere, made upon the ground that such evidence was prejudicial to the defendant, Frank Vetere, and that the mere fact that such evidence was admitted only against the defendant Joseph Castelli, did not properly protect the defendant Frank Vetere's rights, because the jury having heard such evidence and considered it against the defendant Joseph Castelli, would be unable wholly to dismiss it from their minds in a consideration of the evidence against the defendant Frank Vetere." *Page 78 The court states that under its ruling about half of the 596 pages of the printed testimony was admitted. The finding further states: "The substance of this evidence which is claimed to have been harmful to the defendant Frank Vetere, is as follows: `That the defendant Joseph Castelli had killed his wife, of whose murder he and the defendant Frank Vetere were jointly charged, because he was mad at her for telling the deaf people about him, and because she had given him a disease. . . . That he had admitted this was the reason. That said Joseph Castelli had treated his wife very badly, and had been arrested at her instigation for nonsupport and had been sent to the workhouse as a result thereof. That Joseph Castelli had struck his wife on occasions. That said Joseph Castelli had been taken by the police authorities of New Haven over the route the State claimed was taken by him in going to the scene of the crime, and that he had acted out the tragedy by showing how he struck his wife from behind on the head several times with an instrument. That thereupon he and the defendant Frank Vetere left the scene of the crime together and went to New York together. That the defendant Joseph Castelli had stated that he had planned to have Frank Vetere take Joseph Castelli's wife to New Haven on the day of the killing, and that he told defendant Frank Vetere that he was going to kill her at that place, and had told Frank Vetere to find a room in New Haven where the killing could be accomplished, and that defendant Frank Vetere came to him while his wife was at dinner and gave him the key to the room so that he could get into it, and that after Joseph Castelli had killed his wife, he took all her money and jewelry and he and Frank Vetere went to New York together, and that on the way there he gave the jewelry to defendant Frank Vetere. That said defendant *Page 79 Joseph Castelli had stated that he had paid for Frank Vetere's ticket to New Haven on the day of the killing and also for the meal Frank Vetere had with Joseph Castelli's wife in New Haven, and that defendant Frank Vetere wrote Exhibit 40, which is made a part of this finding, at the direction of said Joseph Castelli, addressing the postal to Joseph Castelli and signing it as coming from Joseph Castelli's wife.'"
All of this evidence was vitally prejudicial to Vetere, and it is unreasonable to expect that the jury could have heard this evidence and kept it wholly separate. No matter how carefully the trial court cautioned the jury as to its duty to do this, the jury could not have kept wholly separated in its mind the evidence admissible solely against Castelli, and that solely against Vetere. It could not do it because the human mind cannot even read this record and do it, and the printed page is cold and dull compared with the same testimony given in open court. I think the record shows that the court was fully advised, preceding and during the trial, of the nature and character of this evidence, and was in a position to determine that substantial injustice would be done to Vetere on a joint trial.
The majority opinion concedes that "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 it excludes Vetere from the benefit of this rule because "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 *Page 80 him." If this means that because each confession covered the same facts it was immaterial if both were received in evidence, since the jury had before it the admissible confession which, if corroborated, was sufficient to convict, it would seem to assume that the jury found the admissible confession proven and corroborated without reference to the inadmissible confession. Unfortunately, we cannot know what the jury found proven, and we cannot tell what part the inadmissible confessions played in helping them reach their conclusion. The evidence of this character excepted to not only covered written confessions, but written statements of facts and acts, and a pantomime of the entire tragedy. It cannot be found that all of this inadmissible evidence was contained in Vetere's confession, nor can it be found that his confession was not illustrated, explained and corroborated by this inadmissible evidence, some of it intensive in kind and dramatic in quality.
The logic of this argument is somewhat disturbed as we read the questions asked Castelli by the coroner: "Didn't you make up your mind to kill her before that, and didn't you tell Frank Vetere that you were going to do it? No. Yes. Did you plan to have Frank Vetere take her to New Haven for you last Sunday? Yes, by me. Did Frank know that he was to take her to New Haven and you were to kill her there? Yes." And throughout the route which the coroner took Castelli over in enacting the pantomime of the killing and what preceded and followed it, the coroner constantly asked about Vetere, where he was, what he did and his part in the tragedy.
These references are simply illustrative of this entire record. How can it be said that its introduction was not prejudicial to Vetere?
Castelli did not move for a separate trial; he must be *Page 81 held to have waived any prejudice to his rights form the joint trial.
2. Vetere and Castelli were taken in custody in New York, and while in custody but not under arrest, Coroner Mix of New Haven, on April 26th, took their statements in New York, first stating to them that he was the coroner for New Haven county, Connecticut, and engaged in inquiring as to the death of Annie Castelli; that he could not compel them to, and they were not obliged to, say anything about it, unless they wished to, and he inquired if they were willing to tell what they knew about it. Subsequently, by extradition proceedings, the accused were brought to New Haven and Castelli was taken, on May 3d, to the office of the coroner, who wrote on a piece of paper for Castelli: "I am going to take you the way you took when you came to New Haven and to Crown Street. Will you show me?" And Castelli nodded his assent, and shortly thereafter the coroner, with others, accompanied Castelli over the said route and questioned Castelli in detail as to what he and Vetere did, where they went, etc.; in short, he caused Castelli to enact the pantomime of the tragedy and what took place while they were in New Haven. All of this evidence was duly objected to and exceptions noted. The court found that Castelli did all of this voluntarily.
This is an instance where a quasi-judicial officer of the State procures an accused to incriminate himself without warning him that his acts and words would be used against him. It cannot in fairness be held that the caution given by Coroner Mix in the police station in New York, about his giving his statement, must have been in the mind of this deaf and dumb man when, seven days after, the coroner, in New Haven, said to him: "I am going to take you the way you took when you came to New Haven and Crown *Page 82 Street." He was then entitled to a warning that he did not need to enact the tragedy of his crime in order to furnish the State evidence of his guilt. A statement made to a coroner by an accused under arrest, without a warning from him that he need not make it, cannot be held to be legally voluntary. So acts, conduct and statements explanatory thereof, made at the solicitation, persuasion, or command of a coroner, cannot be held to be legally voluntary if made without such warning. The only evidence before the trial court as to the voluntary character of this evidence was the statement that no promises or inducements were held out to Castelli to do or say what he then did. This evidence, I think, procured by the coroner without warning, was insufficient and inadmissible because in derogation of our rule as to involuntary confessions. It was a violation of the rights guaranteed to Castelli by Article First of our Constitution.