Harry H. Hefferan, Jr., Norwalk, for appellant (defendant McNally) and Warren A. Luedecker, Bridgeport, for appellant (defendant McAlister), with them, on the brief, was Harold H. Dean, Darien.
Otto J. Saur, State's Atty., with whom, on the brief, were John F. McGowan and Joseph T. Gormley, Jr., Asst. State's Attys., for appellee (state) in each case.
Before KING, C.J., and MURPHY, ALCORN, COMLEY and SHANNON, JJ.
[152 Conn. 599] MURPHY, Associate Justice.
Each of the defendants was charged in separate indictments with the crimes of murder in the first degree in the fatal shooting and stabbing of Richard McAlister's father on August 28, 1963, and for the fatal shooting of John Shinners on February 23, 1964, while the defendants were perpetrating a robbery. Since each defendant was seventeen years old at the time of arraignment, guardians ad litem were appointed for each of them, and, with the acquiescence of the state, a plea of [152 Conn. 600] guilty to murder in the second degree to each of the crimes was accepted by the court. Each was then sentenced to life imprisonment in the state prison for each of the murders, the sentences to run consecutively. The defendants have appealed. Although they have stated their claims of error in several ways, the basic contention is that the court did not have the legal right to impose consecutive life sentences.
General Statutes § 53-11 provides that '[a]ny person who commits murder in the second degree * * * shall be imprisoned in the State Prison during his life.' The use of this language presupposes a life sentence for each second-degree murder. In these cases, that penalty was imposed. The statutes are devoid of any language prohibiting the imposition of consecutive life sentences or of language requiring two life sentences to be served concurrently. 'In the absence of statute, the determination whether two sentences to the same penal institution shall run concurrently or consecutively is an incident to the judicial function of imposing sentences upon a convict and is a matter for the determination of the court.' Redway v. Walker,132 Conn. 300, 306, 43 A.2d 748, 751. The same principle applies to life sentences in murder cases. State v. Maxey, 42 N.J. 62, 69, 198 A.2d 768. In the case, the defendant was convicted by the jury of two separate and distinct murders in the first degree. The jury recommended life imprisonment instead of the death penalty. The court sentenced the defendant to life imprisonment on each count, the sentence on the second count to be served consecutively to that imposed under the first count. The defendant, upon appeal, advanced claims of illegality which bear striking similarity to those of the [152 Conn. 601] defendants in our cases. The New Jersey Supreme Court affirmed the action of the sentencing judge and held (p. 69, 198 A.2d p. 773): 'In the absence of a statute expressly prohibiting the sentencing judge from exercising such ...