State v. Simborski
| Decision Date | 07 January 1936 |
| Citation | 120 Conn. 624,182 A. 221 |
| Court | Connecticut Supreme Court |
| Parties | STATE v. SIMBORSKI. |
Appeal from Superior Court, New Haven County; Arthur F. Ells Earnest C. Simpson, and Frank P. McEvoy, Judges.
John Simborski was indicted for murder on three counts, and convicted under the first count only, and he appeals.
Affirmed.
Michael J. Quinn, Bernard Pellegrino, and Philip Troup, all of New Haven, for appellant.
Abraham S. Ullman, Asst. State's Atty., and Samuel E. Hoyt State's Atty., both of New Haven, for the State.
Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.
The accused shot and killed Walter Koella, a police officer of the city of New Haven, while the latter was attempting to apprehend him for theft and statutory burglary committed by him a short time previous on the same day. The indictment contained three counts, the first charging willful, deliberate, and premeditated murder, the second murder by lying in wait, and the third murder committed in perpetrating the crime of statutory burglary. The accused elected to be tried by the court, and was found guilty under the first count and not guilty under the second and third counts.
During the progress of the state's case, counsel for the accused filed a motion to quash the third count of the indictment claiming that the provision of the statute (Gen.St. § 6043), that murder committed in perpetrating a burglary is murder in the first degree, should be construed as refering only to common-law burglary, and not as including so-called statutory burglary, that is, a breaking and entering in the day, season, as alleged in the third count of the indictment. They also, at the close of the evidence, moved to dismiss the third count of the indictment for the same reason. The court denied both motions, and this action is one of the grounds of appeal. Since the accused was found not guilty under the second and third counts, he could not have been harmed by the denial of these motions. Evidence was admitted as to the acts of the accused while perpetrating a statutory burglary prior to the homicide, and it is the claim of the accused that this evidence was admissible only under the third count, and that he was prejudiced since the court, in its consideration of the first count, must have been influenced by this evidence which was not relevant under that count. It will appear from our subsequent discussion of the rulings of the trial court to which exception was taken that this evidence was admissible and relevant under the first count upon which the accused was found guilty. It follows that he was not prejudiced by the denial of the motions to quash and dismiss.
That the accused shot and killed Officer Koella is not disputed. He assigns error in that, he claims, the evidence did not establish beyond a reasonable doubt that the killing was willful, deliberate, and premeditated. He claims that the trial court has found a number of facts without evidence, and has refused to find admitted and undisputed facts. While the finding serves the purpose of showing the conclusions reached by the trial court upon conflicting evidence, which if reasonably reached must be accepted, it is unnecessary to consider in detail the claimed corrections of the finding, since upon this assignment of error, we go beyond the finding, and, as in the case of an appeal in a trial to the jury from the denial of a motion to set the verdict aside, determine whether upon all the evidence the court could reasonably have reached the conclusion that the accused was guilty as charged. State v. Frost, 105 Conn. 326, 332, 135 A. 446; State v. Dodez, 120 Conn. 216, 219, 179 A. 653. The trial court has found, or could reasonably have found, the following facts: About 9 o'clock on the morning of March 5, 1935, the accused entered a house on Elm street in New Haven, through a bedroom window, and stole some handkerchiefs. Shortly thereafter the police were notified and Officer Kelly and other police officers were on the lookout for him. About 10 o'clock the same morning the accused stole a loaded revolver and holster from the house of Police Officer Jordan on Dixwell avenue, and strapped the holster over his right shoulder so that the revolver and holster rested under his left shoulder and beneath his partly open lumber jacket. Shortly before 11 o'clock the same morning, the accused entered the house of one Moran on Harding Place, and upon being discovered escaped through a window. As Moran started in pursuit, the accused exclaimed, " Oh you will, will you," and drew the revolver from underneath his jacket, but dropped it and Moran retreated into the room. Shortly thereafter Moran saw the accused proceeding towards Sherman avenue and notified the police. In response to his call Officers Kelly and Koella came to the Moran home where they commandeered an automobile and started in pursuit, driving northerly on Sherman Avenue, Officer Koella standing on the right running board, and Officer Kelly on the left running board, both in full uniform. As they proceeded up Sherman avenue, they saw the accused walking ahead of them and called to him and ordered him to stop. He turned around and looked at them, but continued on, and upon reaching the premises known as 963 Sherman Avenue he stopped, turned and looked again at the officers, put his right hand under his jacket, and turned into an alleyway leading to the rear of the premises. Both officers jumped from the automobile before it came to a complete stop, and started into the alleyway after the accused, Koella being in the lead. As the accused approached the rear of the house, he quickened his pace and disappeared around the corner of the house into the yard. As Koella came around the corner of the house he called upon the accused to " Halt," and the latter turned and shot him twice. When Kelly got to the corner of the house Koella was already upon the ground, the accused was standing in the yard with his revolver in his hand pointed at Kelly, and started firing at him. Kelly fired 5 shots at the accused, one of which struck him in the leg, and he fell to the ground. After the shooting Kelly took the revolver from the accused and it was found to contain five empty shells. Koella did not draw his revolver before he was shot, and it was later found to be fully loaded. Koella died within a few hours of the bullet wounds inflicted by the accused, and after having identified the latter as the man who had shot him.
The accused contends that he committed this homicide without malice aforethought, without deliberation and premeditation and without a specific criminal intent, and that therefore it was not first-degree murder. The killing was done with a deadly weapon, and there were present no extenuating or mitigating circumstances. " From the unlawful killing of a human being without legal justification or excuse, when there are present no circumstances attending the killing which mitigate or extenuate it, the law implies malice and that the unlawful homicide is committed with malice aforethought." State v. DiBattista, 110 Conn. 549, 559, 148 A. 664, 667. The crime committed by the accused was at least that of second-degree murder. State v. DiBattista, supra. It was, under our law, that of first-degree murder if the killing was willful, deliberate, and premeditated. " The length of time necessary to deliberate, or to form a specific intent to kill, need only be time enough to form a willful, premeditated, and specific intent to kill before the killing; and, if there be such time, it is sufficient, no matter how long or how short it may be." State v. DiBattista, supra, 110 Conn. 549, page 561, 148 A. 664, 668. The accused...
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