Herbert J. Bundock, Public Defender, for appellant (defendant).
Joseph T. Gormley, Jr., State's Atty. for appellee (state).
[164 Conn. 163] HOUSE, Chief Justice.
This is an appeal from a judgment of the Superior Court rendered following the acceptance of a jury verdict of guilty of murder in the first degree and, on a recommendation by the jury, setting the penalty at death.
While this case was on appeal to this court, the United States Supreme Court announced its decisions in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, Davis v. Connecticut, 408 U.S.
935, 92 S.Ct. 2856, 33 L.Ed.2d 750, and Delgado v. Connecticut, 408 U.S. 940, 92 S.Ct. 2879, 33 L.Ed. 764. As the defendant in this case was sentenced under § 53-10 of the General Statutes, which, under the holding of those cases, allowed unconstitutionally broad discretion in determining whether the death sentence should be imposed, the case must be remanded for the limited purpose of resentencing the defendant to a term of life imprisonment. See the orders of this court in State v. Delgado, 163 Conn. 641, 297 A.2d 75, State v. Davis, 163 Conn. --, 316 A.2d 512.
The defendant's assignment of error concerning the imposition of the death penalty does not require further discussion.
The defendant claims as error the trial court's denial of his motion to set aside the verdict as contrary to the law and the evidence. In his brief the defendant has narrowed this assignment of error to two claims: that the evidence was insufficient to prove murder committed in the perpetration of a robbery, and that the evidence 'indicates' that the defendant was not of sane mind when the victim was killed. We test these claims by the evidence as printed in the appendices to the briefs. State v. Cari, 163 Conn. 174, 176, 303 A.2d 7; State v. Savage, 161 Conn. 445, 451, 290 A.2d 221; State v. Mortoro, 157 Conn. 392, 393, 254 A.2d 574.
[164 Conn. 164] The jury could have found from the evidence presented to them that on January 7, 1970, the defendant went to the home of Carol Diack in the town of Wilton, asked to use her telephone, threatened her with a 'long handled knife' and told her he wanted her car keys and all her money. When Mrs. Diack ...