State v. Di Battista

• Decision Date: 24 January 1930
• Court: Connecticut Supreme Court
• Parties: STATE v. DI BATTISTA.

148 A. 664

110 Conn. 549

STATE v. DI BATTISTA.

Supreme Court of Errors of Connecticut.

January 24, 1930

Appeal from Superior Court, Hartford County; Christopher L. Avery Isaac Wolfe, and Alfred E. Baldwin, Judges.

Frank Di Battista was convicted of murder in the first degree, and he appeals. No error.

Evidence sustained conviction of first-degree murder.

Augustine Lonergan and John F. Forward, both of Hartford, for appellant.

Hugh M Alcorn, State's Atty., of Hartford, Donald Gaffney, of New Britain, and Harold E. Mitchell, of Hartford, for the State.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

WHEELER, C.J.

The accused elected to be tried under Public Acts of 1927, chapter 107, by the court composed of three judges. We held in State v. Frost, 105 Conn. 326, 329, 135 A. 446, 448: " The court is, by this statute, substituted for the jury and fulfills, in the trial of a criminal cause without a jury, the duties of both court and jury." Fulfilling the function of the jury, it determines upon the evidence the guilt or innocence of the accused. In a case tried to the jury, the only method open to the accused of having that question determined on appeal is by motion to set aside the verdict and assigning the denial of that motion as one of the grounds of the appeal. To make the practice uniform would require the adoption of a like practice in behalf of an accused in the case tried to the court. " This would require the trial court to again pass upon the ground necessarily involved in its judgment and delay the appeal pending the argument and disposition of the motion. In the interest of a simpler and speedier procedure, we think the making of this motion should be dispensed with and that the accused should only be required to assign this reason of appeal among his assignments of error, when the appeal is taken." State v. Frost, supra, at page 331 of 105 Conn., 135 A. 446, 449.

At the suggestion of the trial court, counsel for the accused filed a motion to set aside the verdict, which the court denied, and this is assigned in the appeal as one of the grounds of error. The filing of the motion was contrary to the practice as outlined in State v. Frost. The proper practice was to have assigned as one of the grounds of error that the court erred in adjudging upon the evidence the accused guilty of the crime charged beyond a reasonable doubt. In addition to the error in denying their motion to set aside the verdict, counsel for the accused also assign this error in accordance with the procedure outlined in State v. Frost, although in somewhat unnecessary detail, and we shall now consider this assignment of error. The evidence justifies the finding of these facts: The accused had owned an Iver-Johnson .38 caliber revolver and a box of loaded cartridges for upward of six months. It was a hammerless, double action revolver, which is cocked and discharged by one pressure on the trigger. The accused, by experiment with the unloaded revolver, learned about the operation of the safety catch on the revolver, which was released by the same pressure on the trigger which discharged the revolver, and he knew that it was unlawful to have a revolver in his possession. Early in March, 1929, the accused took up his residence in the home of Crapuli, they occupying the same bedroom where the accused kept his loaded revolver and bullets. During this time the accused asked Crapuli several times to accompany him in the unlawful enterprise of holding up some store in Hartford.

On the evening of April 1, 1929, Crapuli and the accused walked from Crapuli's house to the center of the city, where about 7:30 they separated. Upon leaving the house, the accused wore a brown cap and a brown overcoat, and carried his loaded revolver on his person between the front of his trousers and the front of his shirt. A little after 10 o'clock the accused walked along Seymour, Park, and Cedar streets to find a store in which there would be no people, so that he could go in and steal money, but finding there were people in these stores he passed on and came to 116 Jefferson street, a store owned and operated by Samuel Kamaroff, the deceased. The accused had the specific intention of stealing from some store, and to aid in this purpose he carried his loaded revolver underneath the top part of his trousers. As he approached the Jefferson street store, he took the revolver from this position, and placed it in his right overcoat pocket, because it was easier to draw it from that position.

" The store * * * faces the south and is a small store about seventeen feet, three and one-half inches north and south and about fifteen feet east and west. There are two store windows in front and an entrance door from the street is recessed between them about three feet. The distance between the street door and the rear wall of the store is about fourteen feet, three and one-half inches. There was an open space in the front of said store and another smaller open space in the rear on the west side. This smaller space was about five feet, four inches east and west and about three feet, four inches north and south in its narrowest place. In the west part of this open space three steps lead up to a doorway into a living room in the rear of said store. A cash register was on a show case just east of this open space and about three feet, ten inches from said steps. This open space was reached from the larger open space in the front of the store by a passway about seventeen inches wide between a show case on the west and a low refrigerator about two feet, seven inches high on the east."

In the rear of the store was the apartment in which Kamaroff, his wife, who assisted in the operation of the store, and his two children lived. It consisted of a sitting room adjoining the store, and beyond this a kitchen and bedroom. The distance from the nearest corner of the show case on which the cash register stood to the steps was three feet and ten inches. Various articles of merchandise were piled upon the show case on which the cash register was set, and upon the cash register itself and merchandise filled the shelves on three sides of the store. The store was crowded and cramped for free space.

Shortly after 10 o'clock on the night of April 1, 1929, Kamaroff went from his apartment through the store and outside to the tailor shop next door to ascertain the time. He returned directly to the apartment, and remarked to his wife it was 20 minutes after 10. At about this time the accused entered the store, which was lighted, carrying the loaded revolver in his right hand, and went directly to the cash register with the intention of stealing therefrom and of using his revolver, if necessary, to accomplish this purpose. At about the time the accused was approaching the cash register, Kamaroff started to leave the kitchen in order to close the front door of the store, when there was a heavy and unnatural ring from the cash register. Mrs. Kamaroff rose and started for the store, when she heard a shot, and ran out and found her husband sitting on the first of the three steps to the apartment, shot, and a man running away whom she pursued to the street and saw he wore a brown coat and had a peculiar run. The man turned, threatening her with a revolver, and she ran back, and on the trial identified the accused as this man. As Kamaroff entered the store, the accused, standing near the cash register, commanded him " to stick them up." Kamaroff exclaimed, " What!" thereupon the accused fired at him, the bullet struck Kamaroff on the left side of the head at a point one and one-half inches posterior to the attachment of the upper attachment to the left ear and four and one-quarter inches posterior from the outer angle of the left eye. The bullet, a .38 caliber, was found in the head of Kamaroff. It had fractured the skull on the right side of the head at a point one-half inch forward from its point of entrance on the left side and about one inch or half an inch above the level of the wound on the left side. It had proceeded through the left hemisphere of the brain and the right hemisphere of the brain in a straight line. At a point three-quarters of an inch below the lower edge of the wound, extending down over an area of five inches, there were imbedded in the skin sixty-eight grains of powder. There was no burning of the skin near the entrance wound. The .38 caliber bullet found in the head of Kamaroff was fired from the revolver owned by the accused, and fired by him at Kamaroff. The accused, as he fled from the store, dropped on the floor four .38 caliber loaded cartridges of the same kind as the bullet found in the head of Kamaroff. A few minutes after Kamaroff was removed to the Hartford Hospital he died of this gunshot wound.

The accused, running from this store, circled the vicinity of the crime, and, returning to the neighborhood of Park and Main streets got into an automobile occupied by an acquaintance of his and sat there with him, and saw the ambulance responding to the aid of his victim. At this time the accused carried his revolver on his person between the front of his shirt and the front of his trousers. The accused next sought his friend Crapuli, and later found him in an apartment, and handed him the revolver, which was warm and unloaded. He shortly took the revolver from Crapuli and cleaned it. At this time, in the presence of Crapuli and another, the accused stated that he had shot a guy in the back, and did not know whether he had killed him or not.

On the next evening Crapuli took the revolver from this apartment wrapped it in a towel, drove over the Hartford-East Hartford bridge, stopped near the east side, got out, and threw it in the...