Krooner v. State

• Decision Date: 03 July 1950
• Citation: 137 Conn. 58,75 A.2d 51
• Court: Connecticut Supreme Court
• Parties: KROONER v. STATE. Supreme Court of Errors of Connecticut

Page 51

75 A.2d 51

137 Conn. 58

KROONER v. STATE.

Supreme Court of Errors of Connecticut.

July 3, 1950.

Reinhart L. Gideon, Public Defender, and Leon A. Bradbury, of Hartford, for appellant.

John S. Murtha, Asst. State's Atty., of Hartford, Albert S. Bill, State's Atty., and Joseph V. Fay, Jr., Asst. State's Atty., Hartford, for appellee.

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

JENNINGS, Judge.

The plaintiff was convicted of murder in the first degree after a trial to a court of three judges. He sought a new trial on the grounds of newly discovered evidence and the denial of his rights under the federal constitution. A demurrer to the complaint was sustained and judgment was entered for the defendant. The plaintiff appealed.

One of the allegations of the complaint was to the effect that the reception in evidence of the admissions and confessions, written and oral, made by the plaintiff before he was presented before any court or magistrate was forbidden under the federal rule barring evidence obtained in disregard of liberties declared fundamental by the constitution of the United States. McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 87 L.Ed. 819. The demurrer attacked this allegation as improper in a petition for a new trial.

The claim that the plaintiff's admissions and confessions were improperly admitted was a proper ground of appeal and, indeed, is one of the most common in criminal cases. General Statutes, § 8013, provides that a new trial may be granted for mispleading, the discovery of new evidence or 'for other reasonable cause, according to the usual rules in such cases.' The procedure is not intended to reach errors available on appeal of which the party should have been aware at the time when an appeal might have been taken. State v. Brockhaus, 72 Conn. 109, 111, 43 A. 850; Andersen v. State, 43 Conn. 514, 516, 21 Am.Rep. 669. It is an additional safeguard to prevent injustice in cases where the usual remedy by appeal does not lie or where, if there is an adequate remedy by appeal, the party has been prevented from pursuing it by fraud, mistake or accident. Dudley v. Hull, 105 Conn. 710, 718, 136 A. 575. 'The salutary purpose of the statute is that if a party has a meritorious defense and has been deprived of reasonable opportunity to present it, he ought to be permitted to make it upon another trial.' Bellonio v. V. R. Thomas Mortgage Co., 111 Conn. 103, 105, 149 A. 218. There is no claim that the plaintiff was prevented from taking advantage of the ruling. As a matter of fact, the plaintiff's attorney withdrew his objection to the admission of the confession. The action of the trial court in sustaining the demurrer as to this claim of the plaintiff was correct.

The ruling is somewhat technical and this is a capital case. The record has been examined to determine whether the ruling caused any real injustice to the plaintiff. The killing took place about 2 a. m. The killer was taken almost red-handed, was brought to the scene of the crime and gave a circumstantial account of his movements during the evening and of the method and motive of the killing. He was then taken to the detective bureau in the Hartford police station where he signed a written confession in substantially the same terms. The time noted on the confession was 5:05 a. m. The only reason for even this short delay was the insistence of the plaintiff that the written statement should be exactly as he wanted it. He has often talked about the crime since that time. He took the stand in his own defense and repeated his statement except that he claimed not to remember the actual stabbing.

The plaintiff cites and relies on the federal case of McNabb v. United States, supra, and cases of that type. They have no factual similarity to the case at bar. In the McNabb case, for example, the accused and his alleged accomplices were arrested between 1 and 2 o'clock Thursday morning and were questioned almost continuously until 2 o'clock Saturday morning under circumstances which amounted to coercion. A similar claim was recently made in the Connecticut case of State v. Buteau, 136 Conn. 113, 116, 68 A.2d 681; CCH U.S.Sup.Ct.Bull. Oct.Term, 1949-1950, Docket No 509. Certiorari was denied Buteau v. Connecticut, 339 U.S. 903, 70 S.Ct. 516, 94 L.Ed. ----. The plaintiff suffered no deprivation of due process or of his fundamental constitutional rights.

The allegation of the complaint that another accused, in a different case, was permitted to plead to second degree murder is manifestly irrelevant and vulnerable to the demurrer.

The only remaining claim is that the plaintiff is entitled to a new trial because of newly discovered evidence. Both parties have followed the correct procedure. The plaintiff filed in court a transcript of the evidence and exhibits received on the former trial together with affidavits summarizing the evidence claimed to be newly discovered.

The course of the state is charted in the often quoted statement in the leading case of Gannon v. State, 75 Conn. 576, 578, 54 A. 199: 'If the adverse party desires to controvert the accuracy of the statement of the former testimony or of the new testimony set forth, or to produce other testimony to be considered with that alleged, he may do so, and for this purpose no pleadings are essential. 1 Swift's Digest, 788. Or he may admit the accuracy of the statement of the testimony, both old and new, and for this purpose a demurrer is used. In either case, whether upon the testimony old and new--as found by the court after hearing witnesses--or upon such testimony as set forth in the application and admitted, the court decides in the exercise of a sound discretion whether a new trial should be granted or denied.' In the case at bar, the state chose to demur to the complaint. The duty of the trial court is thus described in Kliarsky v. Eastern Greyhound Lines, Inc., 116 Conn. 649, 651, 166 A. 65, 66: 'Where, as is the usual practice, exhibits attached to the petition set forth the evidence taken upon the trial and that newly discovered, and the accuracy of both is admitted by demurrer, the court to which the petition is addressed compares the old testimony with the new, and decides, in the exercise of a sound discretion, whether injustice has probably has been done, and whether the newly discovered evidence is likely to change the result.' The rule on appeal is stated in Link v. State, 114 Conn. 102, 157 A. 867, a case since cited with approval. It appears in 114 Conn. on page 107, 157 A. on page 868: 'Upon a petition such as this, the plaintiff must assume the burden of proving that the newly discovered evidence if offered would probably bring about a different result, and in determining this issue upon a hearing of the petition upon its merits, the trial court would exercise a discretion which could be reviewed only if unreasonably, illegally, or illogically exercised. Widman v. Kearns, 96 Conn. 254, 258, 114 A. 77. But when the matter is presented, as here, upon a demurrer to the petition, the defendant assumes the burden of showing that the trial court upon a hearing of the petition could not in the exercise of a sound discretion grant it.'

In accordance with these rules, the trial court compared the evidence offered on the trial with the proposed new evidence and reached the following conclusions: (1) No injustice was done the plaintiff on his trial, and the finding that the plaintiff was guilty as charged was clearly warranted by the evidence there offered; (2) the newly discovered evidence would not, in all probability, bring about a different result; (3) much of the evidence is cumulative, irrelevant or immaterial; (4) the complaint was in effect an appeal for clemency which should be addressed to the board of pardons. Our duty is to determine whether the defendant sustained 'the burden of showing that the trial court, upon the hearing of the petition could not in the exercise of a sound discretion grant it.' Link v. State, supra.

The only defense to the charge was inability on the part of the plaintiff to entertain a specific intent to kill because of drunkenness and because of his mental condition due to his war experience. The killing was admitted. The statement of the evidence offered at the trial will be made with that in mind.

After an uneventful childhood and youth, the plaintiff graduated from high school and soon enlisted in the navy at the age of seventeen. He was transferred to the submarine service and was an able, resourceful and competent member of the force. After Pearl Harbor, he made twelve submarine missions into enemy waters, took part in many engagements and was subjected to enemy attacks of the most violent nature, both by depth bombing and bombing from the air. On at least one occasion he was hospitalized because of battle fatigue. He had more or less trouble on shore during the war due to drink and overstaying his leave. When the war ended he was stationed in New London. His difficulties during shore leave increased and he was finally sent to jail for three months as a result of one of these incidents. They followed a pattern--drink, sexual intercourse and then beating up the woman. When he returned to his ship after his release from jail, he was examined by a naval medical officer, a psychiatrist, and...