State v. Goldberger

• Decision Date: 05 June 1934
• Citation: State v. Goldberger, 118 Conn. 444, 173 A. 216 (Conn. 1934)
• Court: Connecticut Supreme Court
• Parties: STATE v. GOLDBERGER. GOLDBERGER v. STATE.

173 A. 216

118 Conn. 444

STATE v. GOLDBERGER.

GOLDBERGER v. STATE.

Supreme Court of Errors of Connecticut.

June 5, 1934

Appeal from Superior Court, Fairfield County; John Richards Booth and Newell Jennings, Judges.

Harry Goldberger was convicted of murder in the second degree, and he appeals. He also petitioned for a new trial on the ground of newly discovered evidence, and he appeals from a judgment for the State on such petition.

No error.

In prosecution for murder by automobile of defendant's father, admission of book showing payment by sons to father pursuant to agreement settling litigation, offered to prove motive, if error, in that entries were merely record of conversation, and hearsay, held harmless where other evidence established motive. Gen.St.Supp.1931, § 606a.

Henry Greenstein, Zalmon F. Hirsch, and Sydney P. Simons, all of Bridgeport, for appellant.

Lorin W. Willis, Asst. State's Atty., of Bridgeport, and William H. Comley, State's Atty., of Bridgeport, for the State.

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

AVERY Justice.

The accused was brought to trial in the criminal superior court in Fairfield county on an indictment charging murder in the second degree; and, after a plea of not guilty, was tried to the jury, and a verdict of guilty of murder in the second degree was rendered by the jury. From the judgment and verdict the accused appealed, alleging error in the action of the trial court in denying the accused's motion to set aside the verdict, and also in certain rulings upon evidence. After the judgment, the accused brought a petition for a new trial upon the ground of newly discovered evidence. It was heard by the court and judgment entered denying the petition from which the accused has appealed. To avoid unnecessary repetition, the two cases may best be considered together.

Upon the trial of the indictment to the jury, the state offered evidence from which the jury might reasonably have found these facts: On Sunday, November 20, 1932, the accused, in company with his brother, Michael, drove in a Ford run about from his home, 3321 Main street, Bridgeport, to 441 Water Street in that city where, with his three brothers, he conducted a wholesale produce business. He arrived there at about 8:15 a. m. and parked his car in the street in front of the store. Michael Gintoli conducted a grocery business in a building owned by the accused next door to the Goldberger establishment on Water street. A few minutes after 9 o'clock, the accused went into the store of Gintoli and asked permission to take the latter's truck. This was a Dodge three-quarter ton delivery truck with a panel body, without doors in the rear, and had upon its side yellow lettering upon a blue background, and carried the name " M. Gintoli," and in script underneath the words " Italian Groceries." It was at that time parked on the west curbline of Water street in front of Gintoli's store, facing north. The accused, with the consent of Gintoli, took the automobile and was seen to drive north along Water street. Some time between 9:30 and 9:35 a m., the deceased, Kalman Goldberger, as had been his custom for a number of Sunday mornings prior, was walking north on Beechmont avenue in the direction of the home of Carl Knecht, a former bookkeeper in his business, living at 69 Quarry street, which runs easterly from Beechmont avenue, some distance beyond its intersection with North Main street. This is a little more than two miles from Gintoli's place of business on Water street in a general northerly direction. At about 9:35, the truck was being driven rapidly north on Beechmont avenue, having turned into that street from Main street. At that time, the deceased was walking in a northerly direction a short distance south of Quarry street. There was no sidewalk, only a cinder path, on the east side of Beechmont avenue at that point, and he was walking close to the east curb on the highway which was paved with warranite, 32 feet wide from curb to curb. The automobile truck, as it approached the deceased, turned in to the right, striking him, and throwing his body into the air. It then turned back into the highway and, without diminishing speed, proceeded northerly to Thorme street.

At the northwest corner of Beechmont avenue and Thorme street, there is a combination police station and fire engine house; the latter situated on the corner and the police station in the rear of the building, facing Thorme street. At the time that Kalman Goldberger was struck, there was in the highway nearby a seven year old boy, Kenneth Hawks, who saw the entire occurrence. Bernard J. McKelvey, an adult, lived at 199 Beechmont avenue, almost directly opposite. He was proceeding from his garage in the rear of his house toward the street and heard the noise of the automobile striking some object, and arrived in time to see the cap and shoes of the deceased still in the air, and the deceased lying in the gutter on the east side of the highway with his head upon the curb. The morning was clear, the sun was shining brightly, and the pavement dry. There were no other automobiles on the street at the time. Near the body in the roadway were a number of pieces of glass. Neither witness was able to see the features of the driver, and though McKelvey shouted to him, he did not stop. They saw the car turn from Beechmont avenue into Thorme street; and before it disappeared from sight, the driver was seen to turn and look back to where the deceased lay in the roadway. McKelvey subsequently identified the Gintoli truck as the automobile which struck the deceased.

Between 9:30 and 9:45 that morning, Lieutenant of Police George F. Bendetti was on duty in the fourth precinct station on Thorme street, and was sitting at the window at the right of the entrance. He noticed a truck, which he subsequently identified as that of Gintoli, stop a short distance west of the entrances about 5 or 6 feet from the northerly curb of Thorme street, and watched it back toward Beechmont avenue. Between 9:45 and 10 o'clock on the same morning, two men riding in an automobile westerly on East Washington avenue, while stopping for a traffic light at the intersection of that avenue and Housatonic avenue, saw the truck of Gintoli proceeding southerly on Housatonic avenue at a fast rate of speed. Both witnesses identified the truck and one of them was acquainted with the accused and recognized him as the driver thereof, and observed that he was the only person in it. This intersection of Housatonic and East Washington avenues is about 1 mile North of the Goldberger place of business on Water street and slightly more than a mile south of the place where Kalman Goldberger was killed. At approximately 10 o'clock Gintoli saw the accused return the truck and park it in front of his place of business. Shortly thereafter, the attention of Gintoli was called to the fact that the right front headlight of his car was broken and his right front fender was bent. When the truck was loaned to the accused, the headlight was in good condition and there were no dents or breaks in the fender. Upon seeing the condition of the truck, Gintoli walked into the Goldberger store and demanded to know of the accused, in the presence of his brother Michael, what had happened to the truck, and was told by the accused to have it fixed and that he would pay the bills, and to stop his noise. The pieces of glass picked up on Beechmont avenue, near the place where the deceased was killed, were found to fit with the remaining pieces of glass in the headlight of the car.

Later in the day, about noon, the accused was arrested and interrogated by Lieut Bendetti at the police station on Thorme street. He first denied that he had used Gintoli's truck at all that day, but within a few moments admitted that he had borrowed it about 9 o'clock that morning but claimed that he had only gone to the freight yard near his place of business, and had returned it in about five minutes to Gintoli. The watchman at the freight yard did not see the accused there with the truck between 9 and 10 o'clock but did see him on foot there some time between 11 and 11:30 that day. There were a number of routes in Bridgeport whereby one could conveniently travel from Gintoll's place of business on Water street to the place where Kalman Goldberger was killed on Beechmont avenue. At the same time on a subsequent Sunday, police officers with an automobile driven at an average speed of 20 miles an hour covered the distance in approximately seven minutes by one of these routes. By a different route, at an average speed of 25 miles an hour, the same distance was covered in approximately nine minutes. The time of the commission of the crime was fixed with considerable accuracy at about 9:35 a. m.

The state further claimed to have established a motive for the crime from previous dealings between the deceased and the accused. From the evidence produced by the state, the jury might reasonably have found as bearing upon the question of motive, these additional facts: Prior to 1927, the deceased conducted a wholesale produce business in Water street. He started life with but little and built up a profitable business, accumulating a number of pieces of real estate in Bridgeport. He had taken his three sons into business with him. He could not read or write the English language and was only able to sign his name in a legible fashion. During the year 1927, the sons formed a corporation and the deceased signed documents turning over to it his business and real estate holdings. Some months thereafter when the deceased learned of the effect of the documents which he had signed, a quarrel arose between the father and sons. Friends...