State v. Palko

CourtSupreme Court of Connecticut
Writing for the CourtAVERY, Judge.
Citation191 A. 320,122 Conn. 529
PartiesSTATE v. PALKO.
Decision Date04 March 1937

191 A. 320

122 Conn. 529

STATE
v.
PALKO.

Supreme Court of Errors of Connecticut.

March 4, 1937


Appeal from Superior Court, Fairfield County; Arthur F. Ells, Judge.

Frank Palko was convicted of murder in the first degree after his motion for a change of venue was denied, and the issues had been tried to a jury, and he appeals.

No error. [191 A. 322]

David Goldstein and Johnson Stoddard, both of Bridgeport, for appellant.

William H. Comley, State's Atty., and Lorin W. Willis, Asst. State's Atty., both of Bridgeport, for the State.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN, JJ.

AVERY, Judge.

The accused was indicted by a grand jury of the county of Fairfield, charged with murder in the first degree in the willful, deliberate, and premeditated killing of Thomas Kearney, at Bridgeport, September 30, 1935. Subsequently, at the January term of the superior court in Fairfield county, he was brought to trial before the court and a jury which resulted in a verdict of guilty of murder in the second degree. The verdict was returned on January 24, 1936, [122 Conn. 531] and on January 28th the court sentenced the prisoner, as provided by law, to confinement in the Connecticut state prison at Wethersfield for the term of his natural life. On the same day, pursuant to a notice of intention to appeal, filed by the State, the trial judge granted in writing permission to the State to appeal; and, thereafter, on July 30, 1936, this court rendered its judgment finding error in the instructions of the trial court to the jury upon the question of premeditation and also on certain rulings upon evidence, and a new trial was ordered. State v. Palko, 121 Conn. 669, 670, 186 A. 657. The case then came to the September term of the superior court in Fairfield county and was tried before the court and a jury; and, on October 15, 1936, the jury returned a verdict of guilty of murder in the first degree; and the court thereupon imposed upon the accused a sentence of death, as provided by law. From this judgment, the defendant has appealed.

In the assignments of error, it is claimed that the trial court erred in refusing to set aside the verdict; in its instructions to the jury; in certain rulings upon evidence; in refusing to grant a change of venue; and, finally, that the second trial placed him twice in jeopardy for the same offense in violation of his constitutional rights under the State and Federal Constitutions. (Const.Conn. art. 1, § 9; Const.U.S. Amend. 14). The last two assignments are the only ones which are seriously pressed upon this appeal either in brief or in argument. As the case, however, is a capital one, we have examined the entire record under all the assignments.

The denial of the motion to set aside the verdict is to be decided by determining whether the jury might reasonably have found that the evidence established beyond a reasonable doubt the guilt of the accused as charged with the commission of the crime of murder [122 Conn. 532] in the first degree by evidence equivalent to that of two witnesses. There was evidence from which the jury might have found beyond a reasonable doubt that late in the evening of September 29, 1935, accompanied by Frank Burke, the accused took with him a revolver which he had possessed for several months, left his apartment at 590 Fairfield avenue in Bridgeport and went to Gilman's Music Store at 243 Fairfield avenue; and, just after midnight, broke into a show window. Each took a radio and carried it away, departing by different routes. In breaking the plate glass window with the revolver, the grips were broken and were found there shortly after. Stamped upon these grips were the letters " U. S." which was the trade-name of the 32 caliber revolver possessed by the accused. The accused proceeded east on Fairfield avenue to Broad street, thence northerly to Elm street, thence west to Flarrison street, thence north to Golden Hill street, and west along the south sidewalk of that street. As he was so proceeding on Golden Hill street, a police radio car, occupied by Sergeant Kearney and a patrolman, drew up at the south curb. One of the officers stepped out of the car on the left-hand side and laying his hand on the shoulder of the accused, inquired where he was going with the radio. The other officer stepped out of the right-hand side of the car and proceeded to where the defendant was standing. As the first officer accosted the accused, he was shot by the latter, who then turned to the other officer and shot him. The accused stated in a confession in evidence that if he had not been on parole he would not have shot the officers. Thereafter, the accused ran west on Golden Hill street, about 50 feet, when another police car approached and as the officer therein started to alight, the accused fired a shot, the bullet lodging in the cushion of the rear seat of the car. The [122 Conn. 533] accused dropped the radio onto a rampway leading to a garage on the south side of Golden Hill Street, then ran west to Courtland street, thence among several buildings and backyards to Fairfield avenue, and walked west to the rear entrance [191 A. 323] of the apartment from whence he had started. As the result of the wounds inflicted, Sergeant Kearney died the following day.

These facts were abundantly supported by the testimony in the amount required under our law. The statutory requirement for conviction in a capital case that there shall be the testimony of at least two witnesses or its equivalent. General Statutes, § 6479, does not mean that there must be two or more witnesses testifying to the same fact or to each fact. " If there be two or more witnesses each testifying to different parts of the same transaction, or to different circumstances attending it, and all concur to prove the crime alleged, this may be sufficient to warrant a conviction, though there should not be two witnesses to any one fact." State v. Schutte, 97 Conn. 462, 467, 117 A. 508, 511. The evidence justified the inference that the accused had the revolver in his possession and intended to shoot and to kill, if necessary, to prevent his capture. The jury could reasonably have found a design on the part of the accused to effect the death of any person, if necessary, to prevent his capture and effect his escape, and that the shooting of the officer was willful, deliberate, and premeditated. State v. Simborski, 120 Conn. 624, 629, 182 A. 221; State v. Chapman, 103 Conn. 453, 468, 130 A. 899. The trial court did not err in denying the accused's motion to set aside the verdict.

In his brief, the accused has selected isolated parts of the charge and claims that the jury may have been prejudiced thereby. It is sufficient to dispose of the [122 Conn. 534] claims of the accused in reference to the charge by the fact that the assignments of error in no way comply with the rules. The rules (Practice Book 1934, p. 107, § 362) require that all assignments of error shall be specific. The assignment of error in this case alleges that the court erred " in failing to charge the jury in an adequate and sufficient manner to fully present the issues and questions of law involved so that the jury could *** return a verdict in accordance with the law." Such a general assignment does not comply with our rule and does not merit consideration. " It should be distinctly and specifically stated in what respects and how these general objections apply." Beitler v. Rudkin, 104 Conn. 404, 405, 133 A. 214; State v. Tripp, 84 Conn. 640, 643, 81 A. 247.

In the brief, a sentence and a part of a sentence are taken from the charge, without reference to the context or the remainder of the court's instructions, and claimed to have been erroneous. The trial court, in informing the jury that they were not...

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50 practice notes
  • Snyder v. Town of Newtown
    • United States
    • Supreme Court of Connecticut
    • 31 Mayo 1960
    ...binding on the state courts. Hempstead v. Reed, 6 Conn. 480, 488; Trustees of Bishop's Fund v. Rider, 13 Conn. 87, 93 ; State v. Palko, 122 Conn. 529, 539, 191 A. 320, 113 A.L.R. 628; Wojculewicz v. Cummings, 143 Conn. 624, 629, 124 A.2d 886. Its decision in the Everson case, supra, dispose......
  • State v. Medrano, SC18895
    • United States
    • Supreme Court of Connecticut
    • 21 Mayo 2013
    ...Guthridge, 164 Conn. 145, 151, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973); State v. Palko, 122 Conn. 529, 534, 191 A. 320, aff'd, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937); State v. Schleifer, 102 Conn. 708, 725, 130 A. 184 (1925); State ......
  • State v. Avcollie
    • United States
    • Supreme Court of Connecticut
    • 14 Diciembre 1982
    ...164 Conn. 145, 151, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S.Ct. 1519, 36 L.Ed.2d[188 Conn. 638] 186 (1973); State v. Palko, 122 Conn. 529, 534, 191 A. 320, aff'd, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937); State v. Schleifer, 102 Conn. 708, 725, 130 A. 184 (1925); State v......
  • State v. Medrano, No. 18895.
    • United States
    • Supreme Court of Connecticut
    • 21 Mayo 2013
    ...v. Guthridge, 164 Conn. 145, 151, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S.Ct. 1519, 36 L.Ed.2d 186 (1973); State v. Palko, 122 Conn. 529, 534, 191 A. 320, aff'd, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937); State v. Schleifer, 102 Conn. 708, 725, 130 A. 184 (1925); State v.......
  • Request a trial to view additional results
50 cases
  • Snyder v. Town of Newtown
    • United States
    • Supreme Court of Connecticut
    • 31 Mayo 1960
    ...binding on the state courts. Hempstead v. Reed, 6 Conn. 480, 488; Trustees of Bishop's Fund v. Rider, 13 Conn. 87, 93 ; State v. Palko, 122 Conn. 529, 539, 191 A. 320, 113 A.L.R. 628; Wojculewicz v. Cummings, 143 Conn. 624, 629, 124 A.2d 886. Its decision in the Everson case, supra, dispose......
  • State v. Medrano, SC18895
    • United States
    • Supreme Court of Connecticut
    • 21 Mayo 2013
    ...Guthridge, 164 Conn. 145, 151, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973); State v. Palko, 122 Conn. 529, 534, 191 A. 320, aff'd, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937); State v. Schleifer, 102 Conn. 708, 725, 130 A. 184 (1925); State ......
  • State v. Avcollie
    • United States
    • Supreme Court of Connecticut
    • 14 Diciembre 1982
    ...164 Conn. 145, 151, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S.Ct. 1519, 36 L.Ed.2d[188 Conn. 638] 186 (1973); State v. Palko, 122 Conn. 529, 534, 191 A. 320, aff'd, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937); State v. Schleifer, 102 Conn. 708, 725, 130 A. 184 (1925); State v......
  • State v. Medrano, No. 18895.
    • United States
    • Supreme Court of Connecticut
    • 21 Mayo 2013
    ...v. Guthridge, 164 Conn. 145, 151, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S.Ct. 1519, 36 L.Ed.2d 186 (1973); State v. Palko, 122 Conn. 529, 534, 191 A. 320, aff'd, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937); State v. Schleifer, 102 Conn. 708, 725, 130 A. 184 (1925); State v.......
  • Request a trial to view additional results

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