State v. Bissonnette

• Decision Date: 30 April 1910
• Citation: 76 A. 288,83 Conn. 261
• Parties: STATE v. BISSONNETTE.
• Court: Connecticut Supreme Court

76 A. 288

83 Conn. 261

STATE

v. BISSONNETTE.

Supreme Court of Errors of Connecticut.

April Term, 1910.

Appeal from Superior Court, Fairfield County; Ralph Wheeler, Judge.

Napoleon Bissonnette was convicted of murder in the second degree, and, from a judgment refusing to set aside the verdict as against the evidence, he appeals. Reversed, and new trial ordered.

It was not disputed upon the trial that Demery, a brother-in-law of the defendant, was killed by a shot from a pistol in the latter's hands. The state offered evidence to prove that the shooting took place in the defendant's kitchen in the presence of two of his daughters. The eldest of these daughters, when called by the state, testified theft she had always lived with her father until about four weeks prior to the homicide, when he ordered her from his house; that she then went to live with her grandmother and the deceased; that on the evening of the homicide she went to her father's house to see her mother who had given birth to a child the day before; and that her uncle, the deceased, accompanied her, as she was afraid to meet her father because of his speech and conduct towards her when she lived at home. As she and her uncle entered her father's kitchen from the outside, he entered it from an adjoining room, and seated himself in a rocking chair near a table in the kitchen. Neither addressed a word to the other upon meeting. Demery, the uncle, addressed the daughter in presence of the defendant, saying: "You stay here for a couple of days and take care of your mother, and, if there is anything needed or wanted, I will see that you get it." Demery then turned towards the door, when the defendant accosted him saying: "So you are boss here, are you?" At this Demery turned, and, taking off his glasses and placing them on the table, approached the defendant as he sat in the chair, and, seizing him at the throat with one hand, replied, "Yes; I am boss here, and I am going to protect my sister, whom you are trying to starve." At this the daughter cried out, "Don't uncle," and he at once desisted from his attack and dropped his hands to his sides, having had his hand upon the defendant's throat but a few seconds and with but little violence. Demery had no weapon and offered no violence or threats except as above. The defendant then stood up, and, facing Demery, who was standing three or four feet from him, addressed him in the French language, but in so low a tone that the daughter did not understand what he said. Demery twice interrupted him, saying: "Speak English to me." Immediately thereafter, Demery turned partially away with the purpose of taking his departure, his hands still being at his sides. As he turned, the defendant drew a revolver from his pocket, and fired the shot which killed him.

The eldest daughter, having as a witness for the state testified to the foregoing facts, was asked by the attorney for the state the following questions: "Q. Miss Bissonnette, after your father ordered you from the house, state to the jury whether you continued after you went to live with your grandmother to supply your mother with money? A. I did on one occasion. Q. When did you first meet with your uncle that evening before going over? A. At the supper table. Q. What did you say, if anything, about going over there or he to you? A. I had been crying. Q. I don't hear. A. I had been crying, and he asked me why, and I told him I felt sorry for my mother. Q. What else? A. He said I should take care of her, and I told him I was afraid to go."

The other daughter, called as a witness for the state, having testified to the facts which occurred in the kitchen substantially as testified by the other daughter, was asked the following questions: "Q. What did you give your mamma right along when she was sick? A. I gave her toasted bread and tea. Q. What else, anything else? A. No, sir. Q. Whether a little while before this child was born you had for a period of time then anything else to eat in the house? A. We only had bread. Q. Nothing else in the house but bread? A. No, sir; just bread. Q. How long before the baby was born was that the situation? A. I don't know. Q. What? A. A couple of weeks before. Q. How many weeks did you go on just bread alone? A. About three days. Q. Nothing else in the house? A. No, sir. A few times my brother used to buy it for us. Q. When you were having nothing but bread in the house to eat, tell the jury whether your father had something else himself—The Court: Only your own knowledge. Q. Only your own knowledge? A. When we would have bread, he would go out to the corner and buy rolls and steak, and he would come in and eat it right in front of us children—tomatoes and everything."

The defendant claimed and offered evidence to prove that Demery had on several occasions threatened to kill him, and had menaced him with personal violence, and that on the evening of the killing Demery seized him by the neck with both hands and choked him, and, still grasping his neck, lifted him to his feet and continued to choke him; that he almost lost his senses, and believed himself in danger of losing his life, and drew the revolver to defend himself if necessary; and that the revolver was accidentally discharged in the struggle. It was claimed in his behalf that the killing, if intentional, was justifiable in self-defense, and, if not justifiable, that it was done in the heat of passion and without malice.

The court charged the jury as follows: "But it would not, of course, be required that a man should retreat out of his own house. He might withdraw somewhat, perhaps, without leaving the house. A man must do what seems reasonably necessary under the circumstances, and all the circumstances under which an assault is made upon him, to preserve himself from personal danger, with this limitation that he must never take the life of a fellow being who is assaulting him, when such fellow being is no more than committing an ordinary assault and battery or beating upon him, unless in a case of extreme necessity, as the only practicable method of saving his own life, or protecting himself from great bodily harm, and even then he must not have...