State v. Palko
| Decision Date | 30 July 1936 |
| Citation | 121 Conn. 669,186 A. 657 |
| Court | Connecticut Supreme Court |
| Parties | STATE v. PALKO. |
Appeal from Superior Court, Fairfield County; John A. Cornell Judge.
Frank Palko was indicted for the crime of murder in the first degree. The prosecution was tried to the jury. From a verdict and judgment of guilty of murder in the second degree, the State appeals.
Error and new trial ordered.
William H. Comley, State's Atty., and Lorin W. Willis, both of Bridgeport, for the State.
David Goldstein, Johnson Stoddard, Public Defender, and William Dorkin, all of Bridgeport, for appellee.
Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN JJ.
By its brief the state has limited the errors assigned upon this appeal to six, the first relating to the court's charge to the jury, and the others to rulings upon evidence. Upon the trial the state offered evidence to prove, and claimed to have proved, these facts material to the claimed error in the charge. Late in the evening of September 29, 1935, the accused, taking with him a revolver which he had possessed since obtaining it from Ryan's Tavern several months before, with Frank Burke, left their apartment at No. 590 Fairchild avenue in Bridgeport, and going to Gilman's Music Store at No. 243 Fairfield avenue, just after midnight, broke in the show window thereof, from which each seized and carried away a radio, departing by different routes on return to their apartment. In breaking the plate glass window with the revolver, the grips thereof were broken off and were found there shortly after. When the accused had reached a point on the southerly side of Golden Hill street, an officer stepped out from each side of a police car which had drawn up to him, the one on the left laying his hands on him and asking where he was going with the radio. Thereupon the accused, who was carrying his revolver in the sleeve of his coat, let it drop down into his hand and fired one shot into this officer, and then, turning as the other came near, fired a shot into him. he then ran west some 50 feet, where another police car drew up, and, as an officer started to get out, he fired a shot into it which lodged in the cushions of the rear seat. Dropping the radio, the accused then ran on by streets and backyards toward his apartment, pausing behind a wall to recover his breath and reload his revolver, after which he walked the rest of the way. Upon his arrival, he told Thomas Iwanicki that, as he had approached the apartment, another police car had come up, and that, if either of policemen in it had " made a break‘ for him, he would have shot them too. At this time, shortly after 1 o'clock in the morning, the accused appeared to be sober. Wilfred Walker, one of the officers shot, and Thomas J. Kearney, the other, for whose murder the accused was on trial in this proceeding, each died within a few hours from his wound inflicted by the accused. At the time of the killing the accused was on parole from Elmira Reformatory where he had been sentenced for rape.
The accused offered evidence to prove, and claimed to have proved, these facts material in this connection. On September 29, 1935, the accused, who shared an apartment on Fairfield avenue with Frank Burke and Thomas Evans, knew this avenue to be well illuminated at night and that police headquarters was located thereon. From about 3 o'clock on that afternoon the accused and Burke continued to drink rye whisky in the apartment until 6 o'clock, when they went out and had a sandwich for supper, and then returned for a few minutes, doing more drinking. After visiting two cafes, where the accused drank four glasses of beer, they returned to the apartment at 8 o'clock and started to drink again. Shortly thereafter the accused became intoxicated and does not recall any of the circumstances relating to the breaking and entering into Gilman's Music Store or the shooting of the police officers. And he became so intoxicated by shortly after 9 o'clock that he does not recall seeing Jack Burke, who came to the apartment shortly before 3 o'clock on the morning of September 30, 1935, or have any recollection of anything further that occurred until the police arrived in his room at that hour. The accused first suspected he might be involved in any way in the breaking and entering or in the shooting of the two officers at half past 6 that norning, when Evans told him and Frank Burke that they were involved therein. It was a part of the accused's revolver which had been in his possession prior to September 29, 1935, which was found in the entrance of Gilman's Music Store on the morning of the following day.
The state contends that, upon the situation so disclosed, the court's charge concerning the essential elements of premeditation and deliberation in the crime of first degree murder was inadequate, inaccurate, and misleading to the jury. Its claim is that, while the definitions used by the court in this connection, for the most part at least, may be supported by authority, and are properly applicable to the case of the seemingly law-abiding citizen who for motives difficult to trace and under impulses open to contradictory interpretation kills an enemy or a friend, involving some transition, some traceable mental reaction, from a man to whom murder is an unthought of deed to one intent upon killing, the same does not hold true in such case as this, where the state's evidence discloses a gunman setting out armed with a loaded revolver to commit burglary, prepared in advance to kill if necessary either to accomplish the crime or to make good his escape. Obviously an instruction sufficient in the former case might be entirely inadequate for the latter. The question is whether the court's charge as given was sufficient upon these issues.
The trial court in a general explanation of the elements of first degree murder instructed the jury that to constitute premeditation there must be between the time the perpetrator forms an intention to kill and the instant when he carries out such intention " an interval of time during which he gave thought to and reflected upon his purpose sufficiently to know what he was doing and what the probable effect of his doing it would be upon his victim. It will occur to you that where a man suddenly makes up his mind to kill another and instantly shoots or otherwise fatally injures him, there is no opportunity for such consideration of what he is doing to enable him to comprehend the nature of his act or the result of it to the object of his attack. In such case there can be no premeditation since intent to kill and the performance of the act of killing coincide and practically take place at the same instant.‘ The trial court then repeated the charge as to the necessity of an interval of time elapsing between the formation of the intent and the commission of the crime, adding that the court does not attempt to say that any particular period of time shall have elapsed, provided it is sufficient opportunity for thought as to his purpose, and that in some cases this may be a very short time and in others a longer period.
In view of the claims of the parties, the effect of this charge, particularly in the use of the word " reflection‘ and the emphasis placed by the trial court upon the application of the principle as applied to a sudden killing, would tend to center the attention of the jury upon the brief interval that passed between the time when the officer placed his hand upon the arm of the accused and the shooting. Had the trial court gone on to give to the jury adequate instructions as to the application of the general principles it had stated, to the evidence in this case, this portion of the charge might not have constituted reversible error. Later in the charge the court did refer to the State's claim that the fact that the accused at the time of the shooting was escaping with stolen property afforded ground for the inference that it was not done upon sudden impulse without opportunity for reflection, but rather as the outcome of a formed design to shoot any one who might interfere with his escape, with full opportunity to comprehend the character and probable result of such a purpose, and that the shooting of Kearney was but the result of his alertness in carrying out his plan. But this statement of the claim of the state omitted the vital factor that the defendant had set out armed to commit a crime, nor did it in any way comment on this claim or the bearing which the facts would have if the jury found them proven, upon the issue of premeditation.
Thereafter the trial court stated that it was in evidence that a car stopped beside the defendant, somebody alighted and put his hand on the shoulder of the accused and asked where he was going with the radio; and it then charged the jury as follows: " Now, I have already told you, gentlemen, that the time required to form a specific intent to kill, to premeditate and to deliberate, may be longer, it may be short, but it must be sufficient for the person involved to know what kind of an act he was about to perform, and its probable effect upon his victim. Now, I only suggesting this to you, I am not suggesting any conclusion to you, but I am suggesting to you that you consider the hypothesis that I suggested to you, whether or not, if this statement is true that the accused saw the scout car as it approached him, before it stopped, and as he says: 'Then I let the gun slip from my sleeve into my hand, and I turned aground and fired.' Now, gentlemen, again, I am suggesting no conclusion to you, but if you and the facts established, and whether they are established or not you are to decide, and if you find them established you should consider further...
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