Precodification Connecticut precedent supports the view that a lodger has a duty to retreat from common areas of the dwelling as against his resident landlord. State v. Johnson, 139 Conn. 89, 90 A.2d 905 (1952). In State v. Johnson, the defendant was living in the basement of the house of his landlord, the victim.
Lesser degree homicides constituted lesser included offenses of murder even prior to the enactment in 1969 of C.G.S. § 53a-45(c), under its predecessor, C.G.S. § 53-9 (Rev. to 1958). In fact, "[o]n a trial on an indictment for murder, it was felt desirable, as far back as 1830, to make sure that the petit jury, in accordance with the common-law rule, could return a verdict of guilty of manslaughter if the proof warranted even though only murder would have been charged in the indictment." McBrien v. Warden, 153 Conn. 320, 329, 216 A.2d 432, 435 (1966); see also State v. Johnson, 139 Conn. 89, 90 A.2d 905 (1952) (the court may give a manslaughter charge where defendant was indicted on murder); State v. Tomassi, 137 Conn. 113, 75 A.2d 67 (1950) (the jury may find defendant indicted for murder guilty of a homicide of a lesser degree). Therefore, when indicted for murder, any defendant could anticipate a conviction for one of the lesser degrees of homicide.
In State v. Smith, supra, 222 Conn. 18, we held that "the deceased's violent character may not be established by evidence of specific violent acts, other than convictions." In State v. Johnson, 139 Conn. 89, 91, 90 A.2d 905 (1952), we noted the presence of alcohol in the victim's blood and the defendant's testimony that the victim was quarrelsome when under the influence of alcohol. This decision antedates State v. Miranda, supra, 176 Conn. 114, wherein we first articulated our adoption of the rule that the victim's violent character may be proved by reputation evidence regardless of whether the defendant was aware of that reputation.
" State v. Mullings, supra, 275; see State v. Rose, supra, 687-88; Siladi v. McNamara, supra, 515. "The main charge and supplemental instructions are to be read and considered as a whole." State v. Edwards, 163 Conn. 527, 537, 316 A.2d 387 (1972); see State v. Johnson, 139 Conn. 89, 93, 90 A.2d 905 (1952). Individual instructions are, of course, not to be judged in artificial isolation from the overall charge.
That definition focused on the presence of malice in murder and its absence in manslaughter. See State v. Johnson, 139 Conn. 89, 91-96, 90 A.2d 905 (1952). Thus, under the homicide statutes in effect prior to 1969, a person indicted for murder could be found guilty of a "wilful, deliberate and premeditated killing," or a killing perpetrated in the course of committing certain enumerated crimes (murder in the first degree, 53-9); "homicide committed with malice aforethought" (murder in the second degree, 53-9); see, e.g., State v. Shelton, 160 Conn. 360, 363, 278 A.2d 782 (1971); homicide without malice aforethought (manslaughter, 53-13); State v. Johnson, supra, 91-92; or, where applicable, homicide committed under circumstances set forth in 53-17 (Rev. to 1958) (wilful misconduct or gross negligence).
"The basic charge and the supplemental instructions are to be read and considered as a whole." Hanken v. Buckley Bros., Inc., 159 Conn. 438, 442, 270 A.2d 556 (1970); State v. Johnson, 139 Conn. 89, 93, 90 A.2d 905 (1952). The court was compelled to return the jury for further deliberations so that the verdict rendered would be clear and unambiguous.
This view was considered and rejected in State v. Padula, supra, 459. See also State v. Johnson, 139 Conn. 89, 93, 90 A.2d 905. We have not had occasion to reconsider the matter since.
Szela v. Johnson Motor Lines, Inc., 145 Conn. 714, 146 A.2d 910. "`[A]n appellate court ought not to be expected to create substance out of shadows, to conjure up errors out of trifles, or to seek for judicial irregularity by microscopic processes, speculative imaginings, or refined reasoning.' [Citations omitted]." State v. Johnson, 139 Conn. 89, 93, 90 A.2d 905; DePaola v. Seamour, 163 Conn. 246, 303 A.2d 737. BOGDANSKI, J. (dissenting).
DePaola v. Seamour, 163 Conn. 246, 253, 303 A.2d 737. "The basic charge and the supplemental instructions are to be road and considered as a whole. State v. Johnson, 139 Conn. 89, 93, 90 A.2d 905." Hanken v. Buckley Bros., Inc., 159 Conn. 438, 442, 270 A.2d 556.
See Szela v. Johnson Motor Lines, Inc., 145 Conn. 714, 720, 146 A.2d 910. Although that portion of the charge relating to the presence of the ice cream truck being a proximate cause would be erroneous if taken by itself, the charge must be considered as a whole. State v. Raffone, 161 Conn. 117, 127, 285 A.2d 323; State v. Johnson, 139 Conn. 89, 93, 90 A.2d 905. In the context of the whole charge and its specific reference to paragraphs 6 (c) and 6 (e) of the complaint, it is clear that the jury could only construe this instruction to mean that if they believed the defendants' version that the truck did not stop at the area in question, then there could be no award of damages to the plaintiffs.