State v. Leopold

• Decision Date: 25 July 1929
• Citation: 147 A. 118,110 Conn. 55
• Court: Connecticut Supreme Court
• Parties: STATE v. LEOPOLD.

147 A. 118

110 Conn. 55

STATE v. LEOPOLD.

Supreme Court of Errors of Connecticut.

July 25, 1929

Appeal from Superior Court, New Haven County; Allyn L. Brown and Carl Foster, Judges.

Louis Leopold was convicted of murder in the second degree, and he appeals. No error.

John H Cassidy and W. T. Keavney, Jr., both of Waterbury, for appellant.

Lawrence L. Lewis, State's Atty., of Waterbury, for the State.

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

BANKS J.

In the early morning of February 5, 1928, an explosion followed by a fire occurred in a building on Baldwin street in Waterbury and two boys, the sons of a tenant of the building, were burned to death. The fee of the property was in the name of the wife of the accused, and a portion of the building was used for the storage of furniture by the Waterbury Furniture Company, a corporation of which the accused was a majority stockholder. The accused, jointly with one Shellnitz, was indicted upon a charge of murder in the first degree, and of having caused the death of the two boys by willfully burning the building. The charge against the accused was that he employed Weiss to set fire to the building, for the purpose of collecting insurance upon the building and the furniture stored in it. Weiss was burned to death in the fire.

Preceding the trial on the merits the accused moved for a change of venue, alleging that he could not have a fair trial in Waterbury because of prejudice aroused by the publication of stories of the crime in local newspapers. The court made a finding of facts upon the evidence offered in support of the motion, and reached the conclusion that no facts were established which indicated that there could not be a fair and impartial trial of the accused in Waterbury. The facts found support this conclusion. The power to grant a change of venue rests in the sound discretion of the court, and its decision is final, unless it clearly appears that the discretion has been abused. State v. Chapman, 103 Conn. 453, 470, 130 A. 899. The court did not err in denying the motion.

Error is predicated upon the denial by the trial court of a motion made to it by the accused for a new trial. The accused moved for a new trial on the ground that his trial was unfair, because of certain references to other fires with which he might have been connected, made in the testimony of the witness Johnson and in a question asked of the witness Feinburg, and because of a statement made in the closing argument of the state's attorney. The exceptions taken to references to other fires in connection with the evidence given by Johnson and Feinburg were made the basis of motions for a mistrial and will be considered in treating of those motions. The motion states that the state's attorney in his closing argument said that he had made no promise of leniency to Shellnitz, who was jointly indicted with the accused, and who had testified on behalf of the state, and promised the jury that he would be dealt with as the crimes with which he was charged demanded.

There is no finding as to the exact language used by the state's attorney, nor does it appear that the attention of the trial court was called to it, or any objection made or exception taken at the time. Ordinarily, unless such action is taken, such utterances afford no ground for an appeal, or for an application for a new trial. State v. Laudano, 74 Conn. 638, 644, 51 A. 860. The claimed remark of the state's attorney seems unobjectionable, and certainly was not of such a character as to warrant a new trial, in the absence of an exception taken at the time. State v. Kirschenbaum, 109 Conn. 394, 146 A. 837.

The accused also assigns as error the failure of the court to grant motions for a mistrial, made by him on different occasions during the trial of the case. It was the claim of the state that one Weiss was employed by the accused to set the fire. Shellnitz, a witness for the state, was asked upon his direct examination whether Weiss was at a certain place, and replied, " No; he is going away to see Leopold." On two subsequent occasions the witness volunteered the information that Weiss " was going to see Leopold." No objection was made to the first statement, and the last two were stricken out on objection, and the court told the jury to disregard them, but denied the motion made at the time for a mistrial. Johnson, a witness for the state, was inquired of as to a conversation he had with the accused after the fire, and answered, " I told him I thought he made his last fire." This answer was stricken from the record, and the jury told to disregard it. Later the same witness was asked as to another conversation he had with the accused, and said that he had asked the accused whether or not he had a fire about a year ago in Naugatuck. Upon objection the answer was stricken out. The court denied a motion for a mistrial made at the time, but refused to permit the state's attorney to interrogate the witness further as to his conversation with the accused, and in its charge told the jury to disregard matter stricken from the record. Feinberg, a witness called by the accused, testified that he had known Weiss for two years, and characterized him as a bootlegger, and was then asked on cross-examination if he knew that Weiss was wanted in New Jersey for setting fires, and answered in the negative. The state did not at any time offer evidence that Weiss was wanted in New Jersey for setting fires. The state's attorney asked the accused upon cross-examination if he had not made numerous settlements with insurance companies. An objection to the question was sustained, but a motion for a mistrial upon the ground that the question was an improper one was denied. A witness, Alice Babbitt, identified a picture of Weiss, and, being asked to fix the time when she talked with him, said it was after the fire. She was then asked if she meant the fire that occurred in Waterbury. An objection to the question was overruled, and a motion for a mistrial denied.

None of these matters were of sufficient importance to have justified the court in declaring a mistrial. They were scattered through a trial lasting many days, and would not have the cumulative effect which might appear from bringing them into juxtaposition. A mistrial should be granted as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it the accused cannot have a fair trial and the whole proceedings are vitiated. It clearly appears from the record that the rights of the accused were fully protected by the rulings and action of the trial court.

Error is predicated upon the refusal of the court to charge as requested, upon the charge as given, and upon numerous rulings upon evidence. The accused claimed that the two boys who were burned to death were awake after the fire, and were on their way out of the building, and would not have met their death if they had continued on their way, but that of their own will they remained in the building, or were sent back into a room of the building by their father to recover some money or other property there deposited, and requested the court to charge that, if they had a reasonable opportunity to escape from the burning building, and would have escaped but for their own conduct, or the act of their father in directing them to return, the accused could not be found guilty of causing their death. The court did not so charge, but told the jury that the negligence of the victims of a crime did not diminish or nullify the crime, and that, even if they found the claim as to the conduct of these boys to be true, the accused would not thereby be excused. This was a correct statement of the law.

In a prosecution for manslaughter by the culpable negligence of the accused, the state is not obliged to prove that the deceased exercised due care to avoid the consequences of the unlawful act, and his failure to do so is not a defense available to the accused. State v. Campbell, 82 Conn. 671, 675, 74 A. 927, 135 Am.St.Rep. 293, 18 Ann.Cas. 236. If it be said that the conduct of these boys was not negligent, but intentional, still the accused was not harmed by this portion of the charge.

Every person is held to be responsible for the natural consequences of his acts, and if he commits a felonious act and death follows, it does not alter its nature or diminish its criminality to prove that other causes cooperated to produce that result. State v. Block, 87 Conn. 573, 89 A. 167, 49 L.R.A. (N. S.) 913; 13 Ruling Case Law, 748, 751. The act of the accused need not be the immediate cause of the death; he is responsible, though the direct cause is an act of the deceased, if such act, not being itself an independent and efficient cause, results naturally from, and is reasonably due to, the unlawful act of the accused. 29 Corpus Juris, 1079; State v Badgett, 87 S.C. 543, 70 S.E. 301. If the death of these boys resulted in a natural sequence from the setting of the building on fire, even though their conduct contributed to, or was the immediate cause of, it, the accused would be responsible, and the effort of a person to save property of value which is liable to destruction by fire is...