State v. Jacowitz

• Decision Date: 08 May 1941
• Citation: 20 A.2d 470,128 Conn. 40
• Court: Connecticut Supreme Court
• Parties: STATE v. JACOWITZ.

20 A.2d 470

128 Conn. 40

STATE

v. JACOWITZ.

Supreme Court of Errors of Connecticut.

May 8, 1941.

Appeal from Superior Court, Hartford County; Frank P. McEvoy, Kenneth Wynne, and John H. King, Judges.

Micheal Jacowitz, Jr, was indicted for the crime of murder in the first degree, and pleaded not guilty, and the issues were tried to the court. From a judgment of conviction of second degree murder, defendant appeals.

No error.

Argued before MALTBIE, C. J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

Reinhart L. Gideon and Charles E. Mahoney, both of Hartford, for appellant.

Hugh M. Alcorn, Jr., and John P. Hodgson, Asst. State's Attys., both of Hartford (Hugh M. Alcorn, State's Atty., of Hartford, on the brief), for the State.

JENNINGS, Judge.

The defendant shot and killed Frank Saltus at New Britain on January 14, 1938. He appeals from a judgment of guilty of murder in the second degree on the principal ground that, upon all of the evidence, he was not proven guilty of this crime beyond a reasonable doubt. He also attacks the finding and assigns as error certain rulings on evidence.

The trial court, at the request of the defendant, made a finding of facts. In its assignments of error the defendant seeks to have the finding corrected by striking out several paragraphs and adding others. The finding, however, contains no statement of conclusions reached by the trial court and consequently no error could be, or was, assigned as to them. It is, however, assigned as error that the court erred in finding upon all the evidence that the defendant was proven guilty beyond a reasonable doubt. In such a situation we must reach our conclusion from the evidence and a finding serves no purpose except to show conclusions reached by the trial court as to matters where there might be a reasonable difference of opinion. State v. Dodez, 120 Conn. 216, 219, 179 A. 65.3; State v. Simborski, 120 Conn. 624, 626, 182 A. 221.

There was evidence from which the trial court could reasonably have found, as it did, the following facts: The defendant lived in a second floor tenement in New Britain with his father, mother, sister Helen, the latter's husband Charles Abuciewicz, and a younger brother. At about 9 p.m. on January 14, 1938, all of these persons except the last were at home. At that time Saltus rapped on the door to what is referred to as the middle room of the tenement and it was opened by Charles. Saltus was drunk and engaged in an argument with Charles relative to a quarrel, which had occurred earlier, between the younger brother of the defendant and his, Saltus', daughter. Attracted by this, the defendant and Helen entered the middle room from the adjoining kitchen. The defendant had some words with Saltus and ordered him from the house. Saltus refused to leave. The defendant turned around, went into the kitchen, took a loaded revolver from a shelf and, with the revolver in his hand, started toward the middle room where Saltus was standing. As the defendant reached the doorway he fired one shot at Saltus who stood in the middle room facing him and only three or four feet away. Saltus was hit in the abdomen. He placed his hands on the wound, turned, left the tenement and walked a short distance to a store where he collapsed. He died soon afterward. The defendant fled, was apprehended about two years later in Montana, and had a small arsenal in his possession at that time.

There was evidence which, the defendant claims, would establish the following facts: Saltus was armed with a knife; the defendant's sister, seeing it, called to look out because he had it; he cut her slightly with it on the arm; the defendant saw Saltus coming toward him with the knife in his hand, raised above his shoulder, threatening to strike him or his sister; he instinctively seized the gun which was near at hand and shot Saltus; he did not intend to kill him; and he acted in self-defense and in defense of his home and sister. All the witnesses who saw the occurrence and upon whose testimony he relies were members of the household where he lived and nearly related to him by blood or marriage; the testimony of the various witnesses differed in important respects; some of it was highly improbable; there was other evidence which seriously controverted it in certain matters; and there was testimony that when the police officers interviewed the members of the household immediately after the shooting, no one stated that Saltus was armed. The trial court found that Saltus was unarmed, that no one in the tenement was in danger of suffering any substantial injury from him, and that Saltus neither threatened nor attacked anyone there....