State v. Donahue

• Decision Date: 09 November 1954
• Citation: 141 Conn. 656,109 A.2d 364
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. John B. DONAHUE. Supreme Court of Errors of Connecticut

Page 364

109 A.2d 364

141 Conn. 656

STATE of Connecticut v. John B. DONAHUE.

Supreme Court of Errors of Connecticut.

Nov. 9, 1954.

Albert L. Coles and Philip H. Smith, Bridgeport, for appellant (defendant).

Lorin W. Willis, State's Atty., Bridgeport, with whom, on the brief, was Otto J. Saur, Asst. State's Atty., Bridgeport, for appellee (State).

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

BALDWIN, Associate Justice.

The defendant has appealed, after a trial to a jury, from his conviction on a charge of murder in the first degree. He assigns error in the refusal of the trial court to set aside the verdict, in the charge, in the finding, and in rulings made during the trial.

We shall consider first the denial of the motion to set aside the verdict. The jury could reasonably have found the following facts: On Friday, February 13, 1953, about 9 o'clock in the evening, Officer Ernest Morse of the Connecticut State Police was found lying in the westbound lane of the Merritt Parkway in the town of Trumbull. He was suffering from a wound inflicted by a bullet fired from a revolver. He died shortly thereafter.

The defendant, age twenty, was living with his parents in Arlington, Massachusetts. He was on parole from the Concord reformatory in that state. About 5 o'clock in the afternoon preceding the shooting, he stole an Oldsmobile sedan in Brookline, Massachusetts, and set out for New York City, where he had arranged to meet a young woman at 9:30 that evening. He placed on the seat beside him a revolver which he had previously stolen, loaded with bullets he had also stolen. About twenty-two minutes before nine the defendant stopped at a gasoline station on the Wilbur Cross Parkway in North Haven. After he left the station he drove at a high rate of speed. Officer Morse saw him and gave chase. He overtook and stopped the defendant in the town of Trumbull near the Stratford line. The officer parked his car off the pavement in front of the Oldsmobile. He alighted and approached the Oldsmobile on the driver's side. He asked for the defendant's license and registration. The defendant, having no license, handed the officer his wallet. While the officer was looking at the wallet the defendant picked up the gun from the seat beside him, took the safety catch off and leaned over and released the hand brake of the car. At this point the officer said, 'Hey.' The defendant pulled the gun and shot him. The officer fell to the ground. The defendant replaced his gun on the seat and sped away. He left the parkway in Trumbull, abandoned the Oldsmobile, stole a Mercury and proceeded toward New York on the Post Road. Recognized and pursued by the police, who had been alerted, he quit the Mercury in Greenwich after a burst of machine gun fire and ran and hid in the loft of a garage. Discovered, he surrendered. The revolver with which he had shot Officer Morse was found in the garage where he had been hiding.

To constitute murder in the first degree, the killing must be wilful, deliberate and premeditated. General Statutes § 8350; State v. Dortch, 139 Conn. 317, 323, 93 A.2d 490. The defendant, at the time he shot Officer Morse, was on parole from a penal institution. To be apprehended with a stolen automobile would mean the termination of his parole. He had placed a loaded revolver on the seat beside him when he left Brookline in the stolen automobile. While the officer was questioning him, he released the safety catch on the gun and freed the hand brake, preparatory to dashing off in the car to escape arrest. Such conduct spells wilfulness, premeditation and deliberation. State v Dortch, supra; State v. Smith, 138 Conn. 196, 202, 82 A.2d 816; State v. Palko, 121 Conn. 669, 676, 186 A. 657; State v. Simborski, 120 Conn. 624, 629, 182 A. 221. If the jury refused to find that the defendant was mentally incapable of committing a wilful, deliberate and premediated killing, and if they had been properly instructed regarding the consideration of the testimony offered to establish that fact, and its legal effect on their verdict, a verdict of guilty of murder in the first degree was inevitable. The motion to set aside the verdict as against the evidence was properly denied.

We now consider the assignments of error addressed to the charge. The defendant did not testify in his own behalf. He offered evidence to prove the following facts: He is the oldest of three children born of respectable parents. His father has continuously held a responsible executive position. His mother, a schoolteacher before her marriage, has been a good homemaker and housewife. His brother and sister have grown up as good and obedient children. The family has always had a comfortable home in good surroundings. In his childhood, the defendant was unusually active and energetic but was irresponsible and impulsive in his conduct. He had no affection for his parents in spite of their efforts to win his confidence and love. At times he showed deep hostility toward them. His conduct in nursery and grade school was not good. When he applied himself he did well, but he did not choose to apply himself. He took no part in sports because he was a poor loser. He gave up piano lessons because he would not practice. In his early teens he undertook the hobby of constructing model airplanes. He later turned to radio, working alone in the attic of his home, where a place was provided for him. It was thought that he was showing real interest and some aptitude in this field until it was discovered that a television set he represented as having been made by him was in fact stolen.

His criminal career began with the theft of a jukebox from a hotel. This precipitated a police investigation which disclosed that he had stolen the materials for the radios he had constructed. He was presented in several town courts and placed on probation. Arrested in connection with the theft of an automobile, he was subjected to a further period of probation. On recommendation of the probation officer, the parents consulted Dr. Philip Quinn, a qualified psychiatrist, who examined and treated the defendant. While under treatment, he was arrested for kidnapping and attempting to rape a young girl. In April, 1952, after two years' confinement at the Concord reformatory, he was released. His family had moved the previous December to a new home some distance from the old one in order to give him a fresh start. The defendant went to work where his father was employed. During this period his father discovered a revolver in his possession. After some difficulty he surrendered it to his parents. The defendant was later admitted to college, having completed high school studies while in the reformatory. In college he did very well for a time but ceased to apply himself. His grades became poor. While at college he made the acquaintance of a young man and they went out together socially. This young man observed him as retiring, overly mature, a boy who did not enjoy sports or mix with the college crowd.

Shortly after the first of January, 1953, the defendant obtained employment at a pharmacy in Boston where he worked evenings and week ends. On February 11, he made an appointment to meet a young woman in New York the following Friday night at 9:30. He had met her previously while in the company of his college friend. On Friday, February 13, he left home, presumably for work in the pharmacy. He later called his mother to say that he was going to a party that evening. Instead, he stole the Oldsmobile in Brookline and started for New York City.

Dr. Quinn, who treated the defendant from November, 1949, to February, 1950, diagnosed his condition then as 'primary behavior disorders with neurotic traits.' The defendant showed signs of nervousness tension, anxiety concerning himself, concern over his appearance and a feeling of insecurity. The troubles he got into were impulsive acts and in retrospect he knew the difference between right and wrong. Dr. Quinn again examined the defendant in the county jail in Bridgeport on May 13, 1953. He diagnosed his condition as a character disorder called 'psychopathic personality.' This is a term applied to a group of reactions characterized by a lack of insight and judgment, hostility, aggressive behavior, egocentricity and lack of emotional concern. A psychopath may know what he is doing and yet, simultaneously, act impulsively. Dr. Quinn could not say whether at the time of the shooting the defendant knew what he was doing or whether he was acting impulsively and without deliberate premeditation or judgment. Dr. Larry Hemmendinger, a qualified clinical psychologist, also conducted a series of psychological esaminations of the defendant at the county jail. He found that the defendant had an intelligence quotient of 130, which is superior. In simple situations the defendant was able to do exceptionally well. When the test became more difficult he acted impulsively, his ability to use his intelligence was lost and he acted under emotional forces without rational control. Dr. Hemmendinger stated that the defendant's condition affected his ability to reason, or to think out a course of conduct. At the time he shot the officer, the defendant knew the difference between right and wrong in an abstract sense but was unable to apply, or to act upon, this knowledge. In Dr. Hemmendinger's opinion, the defendant is an impulsive, egocentric person who does not learn from experience or react with the normal, expected, emotional reactions. His behavior is characterized by...