State v. Luria

• Citation: 123 A. 378,100 Conn. 207
• Parties: STATE v. LURIA ET AL.
• Decision Date: 17 December 1923
• Court: Supreme Court of Connecticut

123 A. 378

100 Conn. 207

STATE v. LURIA ET AL.

Supreme Court of Errors of Connecticut.

December 17, 1923

Appeal from Superior Court, Litchfield County; William M. Maltbie Judge.

Michael Luria and another were convicted of second degree murder, and they appeal. Error and new trial ordered.

Defendants were indicted for murder in the first degree, committed upon one John Sissere, in the superior court in Litchfield county and tried to the jury.

In prosecution for murder, where there was no evidence which tended to prove that defendants mistook deceased for another and through such mistake killed him, a charge that if defendants, who killed deceased, went to the house with intent to kill another, but mistook deceased for the other such mistake would make the killing of deceased one with malice, was erroneously given.

Thomas F. Ryan, of Litchfield, and Frank B. Bozza, of Newark, N. J for appellants.

Walter Holcomb, State's Atty., of Torrington, and J. Clinton Roraback, of Canaan, for the State.

CURTIS, J.

Upon the trial the following preliminary motions were made by one or both the accused: (1) For a change of venue; (2) for a separate trial of each of the accused; (3) for a dismissal of the jury upon a challenge to the array. The first and second motions were addressed to the sound discretion of the court, and, unless the record discloses that the discretion of the court has been abused by denying the motions, the rulings of the court will be sustained.

A motion for a change of venue in a criminal case is made under authority of General Statutes, § 6630. This statute by its terms clearly denotes that such a motion is addressed to the sound discretion of the court. Upon the record in this case that discretion was not abused by denying the motion.

As to a motion for a separate trial, we reaffirmed in State v. Castelli, 92 Conn. 62, 101 A. 476, the rule laid down in State v. Brauneis, 84 Conn. 226, 79 A. 72, in the following terms:

" Whether a separate trial shall be allowed to parties jointly indicted is within the discretion of the court. Ordinarily justice is better subserved where the parties are tried together. But cases arise where the defenses of the different parties are antagonistic, or where evidence will be introduced against one which will not be admissible against others. Where from the nature of the case it appears that a joint trial will probably be prejudicial to the rights of one or more of the parties, a separate trial should be granted when properly requested."

None of the grounds here stated as a proper basis for the exercise of the discretion of the court in granting a separate trial appear in the instant case.

As to the challenge to the array, it is a challenge to the whole panel, and will only be allowed upon " some ground affecting the validity of the whole panel and growing out of the proceedings in selecting and summoning the jurors composing the panel." State v. Hogan, 67 Conn. 583, 35 A. 508; 20 Cyc. p. 328.

The accused claimed that because of a physical conflict that arose in the Litchfield county jail before the trial between the sheriff of the county and Michael Luria, one of the accused, there was animosity on the part of the sheriff toward the accused Michael Luria, and that, as the sheriff had received the jury warrants for service, he was liable in serving them to have influenced the jurymen summoned against the accused, especially Michael.

It having been proved that the " sheriff received the jury warrants for the term of court at which this case was tried, but immediately handed them to deputies and served none of them himself, nor ever talked with any of the jurymen about the case," the court ruled that there was no sufficient ground to sustain the challenge to the array, and held that, as to the suitability of particular jurymen, and whether they had been influenced by the deputies who served the warrants or otherwise against the accused, that could be determined upon their examination upon voir dire. The finding discloses that--

" Thereafter the selection of the jury was begun, each prospective member being examined upon voir dire and forty-five being examined before the jury was finally chosen. Each member selected was accepted by the accused. Of those rejected, twenty-three were peremptorily challenged by the accused. Only two of those rejected stated that they had any opinion about the case derived from reading newspapers."

The denial by the court of the motion of the accused for the dismissal of the jury was clearly correct, since nothing appears upon the record to indicate that the sheriff acted otherwise in the service of these warrants than the impartial performance of his duty required.

The accused in their reasons of appeal allege that the court erred in charging the jury as follows:

" Of course the application is obvious. The state claims here that these men who have killed John Sissere went to the house with the intent to kill Tony but mistook Sissere for Tony, and this mistake would make the killing of John Sissere one with malice."

And also erred in charging the jury as follows:

" Now, of course, if you are satisfied beyond a reasonable doubt that these men went to this house with the intent to kill Tony this element would be fulfilled. More than that, if you find they went there to kill Tony, but mistook the identity of Tony, this element would be fulfilled."

The question whether the court, in these excerpts, erred in charging upon a condition of facts not before the jury is determined by reference to the facts claimed to have been proved as recited in the finding.

We turn to the finding and discover that among the facts which it states that the state offered evidence to prove were the following:

Paragraph 132. The murder of John Sissere was by the accused Louis Luria and Mike Luria, and was willful, deliberate, premeditated and of their malice aforethought and was either prompted by the motive of revenge against Tony Boscardine in the belief that he had betrayed them and the whereabouts of Louis Luria and that, in the pursuance of the design to murder Tony Boscardine, they shot and killed John Sissere, or was committed while they were engaged in the attempt to rob John Sissere and Marie Boscardine.

The accused claimed that upon the record there was no basis, in the evidence or recited in the finding, for the reference in the excerpts from the charge of a claimed mistake of Sissere for Tony and his having been killed as a result of such mistaken identity.

Paragraph 132 of the finding fails to say specifically that the state offered evidence to prove and claimed to have proved that the accused went to the house (of Tony) with the intent to kill Tony, but mistook Sissere for Tony, and through such mistake killed Sissere. The accused in preparing their appeal evidently deemed that paragraph 132 did not amount to such a finding, otherwise they would have sought to have it corrected under General Statutes, § 5829.

As it might be claimed that the proper interpretation of paragraph 132 would include the finding of mistaken identity, we deem that, since the whole of the evidence is in the record at the appellant's...