State v. Klein

• Decision Date: 29 March 1922
• Citation: 97 Conn. 321,116 A. 596
• Court: Connecticut Supreme Court
• Parties: STATE v. KLEIN et al.

116 A. 596

97 Conn. 321

STATE v. KLEIN et al.

Supreme Court of Errors of Connecticut.

March 29, 1922

Appeal from Superior Court, Hartford County; Donald T. Warner Judge.

Fred Klein and four others were convicted of murder in the second degree, and defendants Klein and Bessler appeal. No error.

See also, 95 Conn. 451, 112 A. 524.

Indictment for murder in the first degree, brought to the superior court in Hartford county and tried to the jury before Warner, J Verdict and judgment of guilty of murder in the second degree, from which the accused Bessler and Klein appealed. No error.

In a prosecution of several persons for murder committed by one in effecting their escape from arrest for stealing, an instruction that if two of them, by their acts or words honestly indicated an intention of abandoning the whole enterprise, and left before the shooting, they would not be guilty of murder in the first degree, was harmless, even if " the whole enterprise" was intended to include not merely the stealing, but the purpose to use their revolvers in effecting their escape, where there was no evidence from which the jury could reasonably have found that the latter purpose had been abandoned.

August Ziegener, of Jersey City, N. J., and John F. Forward, Public Defender, of Hartford, for appellants.

Hugh M. Alcorn, State's Atty., of Hartford, and Newell Jennings, Asst. State's Atty., of Bristol, for the State.

WHEELER, C.J.

The five accused were tried together upon a joint indictment charging them with murder in the first degree. The accused appellants Bessler and Klein duly filed motions for separate trials, and they assign as error the denial of these motions. Our rule is settled. A motion for a separate trial is addressed to the sound discretion of the court and its discretion will not be reversed unless there shall have been an abuse of judicial discretion. A separate trial will be ordered where the defenses of the accused are antagonistic, or where evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused.

The test for the trial court is whether substantial injustice is likely to result unless a separate trial be accorded. The test for this court is whether the denial of the motion for a separate trial has resulted in substantial injustice to the accused. State v. Castelli, 92 Conn. 58, 101 A. 476; State v. Brauneis, 84 Conn. 222, 79 A. 70.

In the exercise of a wise discretion the court should ascertain by inquiry, if counsel do not develop it, the character of the evidence to be offered by the state, affecting one and not the rest of the accused, in order to see whether the introduction of evidence against one accused will be antagonistic to the defenses of the other accused, and whether the joint trial will be prejudicial to the rights of any of the accused. The difficulty of the jury separating evidence as to one and considering it as to that one only, and the especial difficulty where that kind of evidence is varied and affects different accused is apparent.

" Ordinarily the fact that one of the accused has made a confession incriminating the other, would be a good ground for granting a separate trial." State v. Castelli, 92 Conn. 58, 101 A. 476.

In this case two confessions or statements were offered besides other evidence of lesser consequence and admitted against one or two of the accused. None of this evidence except as to one confession was known to the court at the time these motions were heard and decided.

" When the existence of such evidence is relied on as a ground for a motion for separate trials, the character of the evidence and its effect upon the defense intended to be made should be stated, so that the court may be in a position to determine the probability of substantial injustice being done to the moving party from a joint trial." State v. Castelli, supra.

With the fact of the single confession before it, we cannot say that the court abused its discretion in denying these motions. If all the evidence of this character which was offered in evidence had been before the trial court, quite likely the court would have granted the motions. But it would not follow that its refusal to do so would be an abuse of its discretion. " The controlling question," on the appeal, " is whether it appears that a joint trial will probably result in substantial injustice." State v. Castelli, supra. Had all this evidence been before the court, our study of this case would not lead us to the conclusion that these accused had suffered substantial injustice by the denial to them of separate trials; on the contrary they seem to have been accorded a fair trial.

After the accused had exhausted their challenges, one juror, Maude, was selected over the exception of Bessler and Klein. The claim of the accused is that they were compelled to exhaust their challenges in excepting to jurors who were improperly accepted by the court, and so could not exercise their right of challenge as to Maude. This claim is made as to their exception to jurors Potwine, Morton, Roman, and Jester. These jurors testified that they had read an account of the transaction in the newspapers and formed an opinion from such reading of the guilt of the accused, based upon the accuracy of the facts stated in the newspaper, that they had no prejudice against the accused and that they could disregard the opinion so formed and try the case against the accused solely upon the evidence submitted in court. The question of the disqualification of these jurors under these circumstances was a question of fact to be determined upon the exercise of the court's best discretion. The circumstances do not present the exceptional case where there has been an abuse of discretion by the court which this court will review. The rule in this state is too well established to require restatement. State v. Willis, 71 Conn. 293, 41 A. 820; State v. Laudano, 74 Conn. 648, 51 A. 860; State v. Wilson, 38 Conn. 126.

Assignments of error from 23 to 36 inclusive seek to correct the finding by the procedure outlined in General Statutes, § 5832. That form of procedure is adapted to corrections of findings in cases tried to the court and should not be used for the correction of findings in jury cases.

But if the correction of the finding had been asked for under General Statutes, section 5829, or section 5836, it would not have changed the finding so as to effect any ruling or claim of law before the court. In a few particulars we find no justification in the evidence for the facts stated; for instance, the finding that one purpose of the trip to Manchester was to break into cars standing on the siding near the Cheney Bros.' warehouse, was not testified to by any one and is not a fair inference from any facts in evidence. That purpose appears to have been conceived of after the accused reached Manchester.

Again the finding that when all of the accused left the automobile to go to the warehouse each took a loaded revolver with him, does not appear to have been testified to by any witness. Miller testified that he took his revolver with him, but that was as far as the evidence went. Then the finding that when Neuss stood up in the automobile and shouted, " Get off this car or we'll shoot," he was speaking for his companions in the car, is not supported by any testimony and is not a fair inference to be drawn. Many of the findings which the accused most strenuously object to are inferences properly drawn from the evidence. Thus the finding that " the revolvers with which all the accused were armed at the time they left Bessler's saloon were given to them and were received by them for the purpose of shooting any person who might...