State v. Palko

Decision Date04 March 1937
Citation191 A. 320,122 Conn. 529
CourtConnecticut Supreme Court
PartiesSTATE v. PALKO.

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.

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, 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 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 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 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 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 exclusive judges of the credibility of witnesses, among others things observed: " Necessarily, gentlemen, if you find that there are any witnesses in this case who might have some motive for testifying as they have testified, either wholly or in part, you should take such a fact into consideration in weighing the testimony of such person, because in so far as it may be affected, of course, in so far as it is affected, it is less reliable." The jury could not have understood the whole sentence as informing them otherwise than if the jury found that any witness had a motive for testifying falsely they had a right to consider that in weighing his testimony, and the fact that the accused appearing as a witness has a vital interest in the result of the trial is not an exception to this rule. State v. Schleifer, 102 Conn. 708, 725, 130 A. 184.

At another point in the course of the charge, the court stated: " There is no evidence in the case which would excuse, justify, mitigate, or extenuate the shooting or slaying of Sergeant Kearney, so that if you find the accused not guilty of murder in the first degree, if you find that it was he who shot and killed Sergeant Kearney, he will be guilty of murder in the second degree, unless you also find that he was in such a condition of intoxication at the time he shot Sergeant Kearney that his mind could not conceive or entertain malice aforethought, as I have explained the meaning of that term to you, in which case he would be guilty of manslaughter." The brief of the accused seeks to take the first part out of this sentence, but it must be considered with reference to what immediately followed and to the charge as a whole, and it is evident that the jury could not have understood it as meaning otherwise than that there was no evidence in the case of a justifiable or excusable homicide to take from the killing of the officer the condemnation of an unlawful homicide; and the court then proceeded to instruct the jury with regard to three possible verdicts which they might return in case they found that the...

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