Dortch v. State

• Decision Date: 21 December 1954
• Citation: Dortch v. State, 110 A.2d 471, 142 Conn. 18 (Conn. 1954)
• Court: Connecticut Supreme Court
• Parties: George M. DORTCH, Jr. v. STATE of Connecticut. Supreme Court of Errors of Connecticut

Page 471

110 A.2d 471

142 Conn. 18

George M. DORTCH, Jr. v. STATE of Connecticut.

Supreme Court of Errors of Connecticut.

Dec. 21, 1954.

Francis F. McGuire, New London, with whom were John F. Gallagher, Pawcatuck and, on the brief, Morgan K. McGuire, New London, for appellant (plaintiff).

Allyn L. Brown, Jr., State's Atty., Norwich, for appellee (state).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

BALDWIN, Justice.

The plaintiff was convicted of murder in the first degree after a jury trial, and judgment was rendered upon the verdict on February 23, 1950. He appealed from this judgment. He also petitioned for a new trial on the ground of newly discovered evidence. A demurrer to his petition was sustained (King, J.), and he appealed from the judgment entered on the demurrer. On December 9, 1952, this court found no error on either appeal. State v. Dortch (Dortch v. State), 139 Cum.Supp.1953, § 2463c, which gives to the brought this petition on June 12, 1953. He alleges, in a first count, newly discovered evidence, and, in a second count, that the provisions of General Statutes, Cum.Supp.1953, § 2463c, which gives to the jury before whom any prosecution for a murder is tried the power to recommend imprisonment for life, are retroactive and retrospective, and that he has been deprived of the benefit of this statute and thereby has been denied the equal protection of the laws and due process of law in violation of the state and federal constitutions. The state demurred to the first count on the ground that the newly discovered evidence was merely cumulative, that it was not probable that it would produce a different result and that no injustice had been done the plaintiff. It demurred to the second count on the ground that § 2463c was enacted in 1951, after the plaintiff's trial and conviction, and had no retroactive effect. The state further demurred to the entire petition because it was not brought within the three-year limitation imposed by General Statutes, § 8322, but the court overruled the demurrer on this ground. We can dismiss any further consideration of it because the state has taken no appeal. The court sustained the demurrers to the first and second counts for the reasons stated in them. The issues presented by this appeal are whether the court erred in so ruling.

Upon his trial, the plaintiff made two claims in his defense: The first was that he suffered from an alcoholic psychosis or pathological intoxication which made it impossible for him to distinguish between right and wrong and that therefore he was not guilty. His second claim was that he was intoxicated to the point where the elements of deliberation and premeditation were eliminated so that his offense was, at most, murder in the second degree. In brief and argument on his previous appeal to this court, he abandoned the first claim and relied upon the second. See State v. Dortch, 139 Conn. 317, 321, 93 A.2d 490. The newly discovered evidence is offered in support of the second defense.

When a petition for a new trial on the ground of newly discovered evidence is presented in a capital case, the state, by filing a demurrer, may admit the accuracy of the newly discovered evidence and raise the question whether it is legally sufficient to warrant a new trial. Gannon v. State, 75 Conn. 576, 578, 54 A. 199; Krooner v. State, 137 Conn. 58, 62, 75 A.2d 51. Under such circumstances, the court compares the evidence taken at the trial with that newly discovered and decides, in the exercise of a sound discretion, whether it is probable that the newly discovered evidence would change the result and whether an injustice has been done. Smith v. State, 139 Conn. 249, 253, 93 A.2d 296; Krooner v. State, supra; Pradlik v. State, 131 Conn. 682, 686, 41 A.2d 906; Levine v. Union & New Haven Trust Co., 127 Conn. 435, 440, 17 A.2d 500; Kliarsky v. Eastern Greyhound Lines, Inc., 116 Conn. 649, 651, 166 A. 65. The demurrer concedes that the evidence is, as alleged, newly discovered. Miner v. Miner, 137 Conn. 642, 645, 80 A.2d 512. It casts upon the state the burden of establishing that the trial court, upon a hearing of the petition, could not in the exercise of a sound discretion grant it. Link v. State, 114 Conn. 102, 107, 157 A. 867; Krooner v. State, supra, 137 Conn. 63, 75 A.2d 54.

The facts which the jury could reasonably have found are set forth in our opinion in State v. Dortch, 139 Conn. 317, 318, 93 A.2d 490. We shall state again, however, the substance of the evidence necessary to a discussion of the relationship between the newly discovered evidence and that produced at the trial. In February, 1948, the plaintiff and Mrs. Sebastian, his victim, entered upon an adulterous relationship while she was living with her husband and three children in a tenement in Stonington. This caused the husband to leave in April, 1948. The plaintiff thereupon moved into the tenement with Mrs. Sebastian and her children. On August 26, 1949, she compelled him to leave because of his drinking habits and his quarrelsome nature. The plaintiff resented this, particularly because Mrs. Sebastian continued to allow a sailor named Porter, who was keeping company with her daughter Laura, and another sailor named Jones, who was a friend of both Mrs. Sebastian and the plaintiff, to visit her home. The plaintiff went to live at a hotel in Westerly, Rhode Island.

On September 3, 1949, the day of the murder, the plaintiff, at about 1:30 in the afternoon, went to a restaurant, where he had a sandwich and four or five glasses of beer. Later he bought a pint of whiskey, went to his room in the hotel, made himself a highball and listened to the radio broadcast of a ball game. He consumed the contents of the bottle except for one drink, which he gave to a Mrs. Gertrude Taylor who was staying at the hotel. He and Mrs. Taylor and a Mrs. Benjamin Holmes then consumed a quart bottle of beer. After this, the plaintiff purchased another pint of whiskey, which he drank along with some more beer. Mrs. Sebastian had promised to meet him at the hotel that afternoon between 4 and 5 o'clock, but she did not come. Having consumed the second pint of whiskey, he procured a third. He then decided to take a taxi to the Sebastian home. He put his hunting knife in the pocket of his trousers and went to Fiore's taxi stand. Finding no taxi there, he returned to his room. According to his own testimony, he consumed the third pint of whiskey and from that time remembered nothing until he came to his senses behind a stone wall across the street from where Mrs. Sebastian lived. The evidence was that he had gone to Mrs. Sebastian's home to look for her. When he found her in the yard back of the tenement, he stabbed her to death.

Two empty pint whiskey bottles and a third partially consumed were found by the police in the plaintiff's room after the murder, together with an empty quart beer bottle. Mr. and Mrs. Benjamin Holmes, who also lived at the hotel, corroborated the plaintiff's testimony that he had been drinking to excess and that he was drunk. At the time of the trial, Mrs. Taylor was living in Alabama. Both the state and the defense attempted to produce her as a witness but failed. It was thereupon agreed that no inference, either for or against the prosecution or the defense, was to be drawn from her failure to testify.

There was evidence that the plaintiff had procured a taxi driven by Kenneth Shea. Shea was called by the state and testified that the plaintiff had come running to the taxi stand with loud and profane demands for a taxi. While in the cab, however, he had appeared normal during the ride, something over a mile, to Mrs. Sebastian's home. Upon cross-examination, Shea testified that when he saw the plaintiff coming for the taxi his impression was that the plaintiff had been drinking and was intoxicated.

After the plaintiff had attacked and stabbed Mrs. Sebastian, he fled and hid behind a stone wall. He attempted to kill himself. Over an hour later, he went to the home of Albert Szymanski, a short distance from the Sebastian tenement, and gave himself up. He had blood on his shirt and shoes and appeared to be in a weakened condition. A telephone call was made to the police. While waiting for them to come, the plaintiff took three drinks of whiskey, each about a third of a medium-sized glass. Chief Travis of the Stonington police arrived with Officers Gabriel and DeFanti. They took the plaintiff to police headquarters in Groton. Szymanski testified that the plaintiff 'talked very clearly, and he seemed to know what he was talking about * * *. He seemed sober to me.' DeFanti gave testimony to the same effect. Lieutenant Murphy of the Stonington police saw the plaintiff at police headquarters and testified that 'he showed the effects of having been drinking. I wouldn't say he was intoxicated.' Dr. Louis A. Morrone, who was called to police headquarters to treat Dortch for his self-inflicted wounds, testified that at that time, 9:45 in the evening, the plaintiff was, in his opinion, 'definitely intoxicated.' The doctor advised that he be sent to the hospital. The hospital records contained a notation that the plaintiff had consumed a large amount of alcohol and that there was an odor of alcohol upon him.

Dr. Charles M. Krinsky, a qualified neuropsychiatrist who examined the plaintiff twice in November, 1949, and again in January, 1950, testified for the defense. His diagnosis was, as he described it, 'alcoholic psychosis, pathological intoxication.' He stated that the twenty-three stab wounds inflicted upon Mrs. Sebastian were a reaction to rage and fury and were consistent with his diagnosis. The defense also produced Dr. Louis H. Cohen, a qualified psychiatrist. He had examined the plaintiff in January, 1950. He stated it to be his opinion that at the time of the commission of the crime the plaintiff's condition was one called alcoholic psychosis or...