State v. Kritchman

Decision Date08 March 1911
Citation79 A. 75,84 Conn. 152
CourtConnecticut Supreme Court
PartiesSTATE v. KRITCHMAN et al.

Appeal from Superior Court, New Haven County; William H. Williams, Judge.

Sophia Kritchman was convicted of manslaughter, and Joseph Pecciulis, alias Joseph Mitchell, was convicted of murder in the second degree, and defendant Pecciulis appeals. No error.

Stoddard. Goodhart & Stoddard, for appellant.

John P. Kellogg, for the State.

RORABACK, J. It appears that the following facts were sworn to by witnesses for the state and admitted by the defendants: About noon on the 18th day of September, 1909, Bronislaw Kulvinskas was found lying upon the ground in a secluded place near Waterbury, covered with blood, in a dying condition from the effects of 12 bullet wounds in different parts of his body, and also a deep gash, or cut, in the neck extending nearly from ear to ear. Kulvinskas was removed to the Waterbury Hospital where he died about 8:30 o'clock in the evening from a shock and hemorrhage occasioned by the bullet wounds and the cut about the throat.

The state offered evidence to prove, and claimed to have proved, the following facts: In consequence of the attentions of Kulvinskas to the defendant Kritchman, Mitchell became very jealous of him and threatened to take his life. On the evening of Thursday, September 16th, because of their jealousy over Sophia Kritchman, Kulvinskas and Mitchell became engaged in a violent quarrel, exchanging blows, in which Mitchell threatened to kill him. After the quarrel it was agreed between the accused Mitchell and Sophia Kritchman that the defendant Sophia should induce Kulvinskas to go with her to the secluded place where Kulvinskas afterwards was found, and that Mitchell would meet them there and take the life of Kulvinskas, or do him some serious bodily harm. The defendant Sophia, in pursuance of this arrangement, induced Kulvinskas to go with her to this place, where Mitchell appeared, and subsequently, upon the 17th and 18th of September, both of the defendants acted together in making no less than three murderous assaults upon Kulvinskas with a revolver and a razor. The first shot caused a temporary paralysis of his lower limbs, so that he was unable to offer any resistance, obtain assistance, or leave the place where he was first wounded; and that some of the wounds made upon his body were made by Mitchell and others by the defendant Sophia. Sophia Kritchman in her defense offered evidence tending to prove that upon Friday afternoon when she was sitting by the side of Kulvinskas in this secluded place Mitchell appeared and fired his revolver several times at him, some of the shots taking effect; that on the following day, Saturday, although she was near at hand when he was again shot and wounded, she took no part in the shooting, and she had no knowledge of the cutting of his throat; and that her conduct subsequent to the first shooting was induced by threats made by Mitchell to take her life. Mitchell claimed to have proven that at no time on Friday, September 17, or Saturday. September 18, 1909, was he within two miles of the place where the shooting occurred, that he had no knowledge of any contemplated injury to Kulvinskas, and was in no way responsible for his death.

Four of the assignments of error complain of the charge because it disregarded Mitchell's claims and defense as to an alibi. The instructions to the jury in a clear and concise manner stated Mitchell's claims upon this subject. The principles of law applicable to the presumption of innocence and of reasonable doubt were fully and carefully explained, and the judge also specifically instructed the jury that: "You will consider this testimony upon this subject called an alibi, this defense called an alibi, and you will remember what I have already said to you, it is not incumbent upon either of the accused to prove his or her innocence. You are to consider all of the testimony in support of any other claim and without prejudice as to the claim in support of which the testimony is offered. If the testimony as to the alibi is sufficient to raise a reasonable doubt in your minds as to his presence down there on either day, or as to his participation in this murder, if it were a murder, of course, he must have the benefit of it and be discharged." The instructions upon this subject were as full and explicit as necessary.

The fifth assignment presents no question for our consideration. It is simply a statement of what the state and the accused Sophia Kritchman offered evidence and claimed to have proven. An assignment of error should distinctly state the special errors complained of. Gen. St. 1902, § 798.

The sixth, seventh, and eighth reasons of appeal object to the charge upon the question of malice especially to that portion of it where the court in explaining to the jury the meaning and application of implied malice said: "As one legal writer puts it, malice includes all those states of the mind in which homicide is committed without legal justification, extenuation, or excuse. It is an evil design in general where the circumstances manifest a wicked, depraved, wanton, and malignant spirit. If an act which produces death is attended by such circumstances as are the ordinary symptoms of a wicked and depraved spirit, malice may be presumed. So malice may be presumed or implied from circumstances or atrocity, barbarity, and cruelty attending the killing, or from the unlawful use of a deadly weapon. In general, it may be said that where an unlawful homicide is shown to have been committed by an accused, and no circumstances of mitigation, extenuation, or excuse appear, malice in the slayer will be presumed. An illustration or two will, perhaps, aid you in the arrival at a clear understanding of what the law means by 'malice.' Take the case of a man who hates another, and desires to be revenged upon him, and for that reason singles him out and intentionally and unlawfully kills him; the assailant is said to kill his victim of his malice. The hatred and intention to unlawfully kill constitutes malice. In such a case the legal and popular meaning of the word 'malice' substantially coincide." It was insisted in argument that "this charge holds up to the jury this cruel and inhuman murder as evidence of malice against Mitchell. The court draws no distinction between Mitchell and Sophia Kritchman in this case. He does not tell the jury that they cannot imply malice against Mitchell if all these cruel acts were without Mitchell's knowledge or consent or co-operation; and, under that charge, the jury would have the right to presume malice against Mitchell, even though he had nothing to do with the killing." The court having stated repeatedly to the jury that the guilt of each of the defendants must be considered separately by them, it was not necessary to repeat this proposition in discussing all the legal questions applicable to the evidence and claims of the parties.

It appears from the record that it was conceded that there was no question about the manner in which the murder was committed. Counsel for the defendant in oral argument and in his brief stated that "beyond all question it was the most cruel, brutal, and inhuman murder conceivable, involving torture and a lingering death, and no reasonable provocation for it." The finding shows that the state claimed and offered evidence to prove that Mitchell was present and participated in the killing, and was only absent at the time when it is claimed by the state that Sophia Kritchman cut the throat of the deceased with a razor. It was also claimed that the evidence showed that Mitchell was present when the first shots were fired upon Friday, and that he came back upon Saturday morning, and, finding that Kulvinskas was still alive, he then fired an additional shot into his head as he lay helpless and...

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