State v. Taborsky

• Decision Date: 10 February 1953
• Citation: State v. Taborsky, 139 Conn. 475, 95 A.2d 59 (Conn. 1953)
• Court: Connecticut Supreme Court
• Parties: STATE v. TABORSKY. Supreme Court of Errors of Connecticut

Page 59

95 A.2d 59

139 Conn. 475

STATE v. TABORSKY.

Supreme Court of Errors of Connecticut.

Feb. 10, 1953.

Nathaniel Bergman, Special Public Defender, Hartford, with whom was John W. Joy, Special Assistant Public Defender, Hartford, for appellant (defendant).

Albert S. Bill, State's Attorney, Hartford, with whom were Douglass B. Wright, Hartford and, on the brief, Joseph V. Fay, Jr., Assistant State's Attorneys, Hartford, for the appellee (state).

Before BROWN, C. J., and JENNINGS, INGLIS, BALDWIN, and O'SULLIVAN, JJ.

INGLIS, Associate Justice.

The defendant was convicted of murder in the first degree in that, in the perpetration of a robbery, he killed Louis L. Wolfson. Upon this appeal, he claims error in the denial of his motion to set aside the verdict, in various rulings made upon the trial, and in the charge.

We consider first the refusal of the trial court to set aside the verdict. On March 23, 1950, Wolfson was employed in Cooper's Package Store, located at the northeast corner of New Park Avenue and Layton Street in West Hartford. New Park Avenue runs in a generally east and west direction and Layton Street runs northwesterly from it. Shortly after 9 o'clock in the evening of that day, Wolfson was found lying in a pool of blood on the floor of the store. The police were called and he was taken to the Hartford Hospital. It was there discovered that he had been shot. A bullet had entered his face immediately to the left of the base of the nose and, following an upward course, had lodged in his brain. He died on March 26, 1950, as a result of the wound. The autopsy disclosed that the bullet was one fired from a .22 caliber revolver. The foregoing facts were not seriously disputed.

The principal witness for the state was Albert Taborsky, the younger brother of the defendant Joseph. Albert's testimony may be summarized as follows: He was the owner of a 1936 Ford coupe. Some weeks before March 23, 1950--he was indefinite as to the exact time--he bought a .22 caliber revolver at the request of Joseph and gave it to him. Not more than a week before March 23, he bought two boxes of cartridges for the revolver and handed them to Joseph. In the early evening of March 23, Joseph telephoned Albert at a store on Charter Oak Avenue where he was employed and slept and requested him to come to the home of Jennie Pedemonti on Belden Street. When Albert arrived there about 7 o'clock, he found his brother and saw a birthday cake on the table. Joseph said something about taking a piece of the cake to his mother.

At about a quarter after seven the two brothers left Belden Street in Albert's car. They drove around Hartford discussing what place they could rob. Finally, at about 9 o'clock, with Albert driving, they proceeded west on New Park Avenue and turned north into Layton Street. As they made the turn, Albert extinguished the lights and brought the car to a stop about 100 feet from the corner in the light of a street lamp. Albert got out of the car, took off the black trench coat he was wearing and gave it to Joseph so that the latter could partially hide his face in the turned up collar. Joseph took from his belt the revolver which Albert had bought, put it in the pocket of the trench coat, told Albert not to get scared and 'take off,' and then went toward the package store. Albert then covered the rear license plate with his sheepskin vest. Getting back in the car he sat in the driver's seat and smoked a cigarette. While seated there he saw a boy whom he took to be a newsboy walking in a northerly direction on the other side of Layton Street. After a few moments Joseph returned and got into the car and they drove off at a rapid rate of speed. After going several blocks Albert turned on the car lights and they then proceeded to a parking lot near their sister's home on Charter Oak Terrace where Joseph lived. There Joseph told Albert that while in the package store the man had 'jumped' him and the revolver had gone off accidentally. The car was left in the parking lot over night.

On the following afternoon, Joseph not having returned the car to Albert's place of business, as he had agreed, Albert located him at Mrs. Pedemonti's. Joseph said he had not read anything about the killing in the papers and told Albert that the car was still at their sister's. Albert procured the car and disposed of the black trench coat, which had been left in it, as old rags. About a week later Joseph told Albert that he had thrown the gun into the Connecticut River. Shortly thereafter Albert drove the car to Chicago and there sold it.

On January 17, 1951, while being questioned by the Hartford police concerning other matters, Albert volunteered the information that he had been implicated in the killing of Wolfson. His statement concerning the incident was reduced to writing and later in the same day was read to Joseph in Albert's presence.

Albert was subjected to a lengthy and detailed cross-examination at the trial. So far as the record discloses he answered questions frankly, without any display of animosity and without any material self-contradition. He admitted that he had been the cause of a good deal of trouble to other members of the family but stated that he held no grudge against Joseph. He denied that he had ever made threats against him. Nothing developed on the cross-examination which would necessarily cause a reasonable man to doubt Albert's credibility.

In addition to ample evidence providing the corpus delicti, there was corroboration of Albert's testimony by that of George Forler, a young man who at the time of the killing was eighteen years of age. He testified that shortly after 9 o'clock on the night of the killing, as he was walking easterly on the north side of New Park Avenue, he saw an automobile turn the corner from New Park Avenue into Layton Street. As the car made the turn its lights were extinguished. As he continued on his way, his view of the car was cut off for a time by a garage and gasoline station located on the northwest corner of the intersection, but after passing that building and turning into Layton Street he saw the car at a standstill on the opposite side of Layton Street. He proceeded northerly on the westerly side of Layton Street and when he arrived opposite the car he saw a man seated in the driver's seat whom he later identified as Albert Taborsky. He also saw the head of another man 'pop up' on the other side of the automobile. This man's head was uncovered and his hair was a light brown. Forler walked on. He later heard a noise, looked around and saw a person running from the direction of the package store to the car. This person got into the car and the automobile drove off at a rapid speed with its lights still extinguished.

When, on January 17, 1951, Joseph was faced with Albert's statement in the presence of several police officers, he at first said that he could not recall where he was on the night of the Wolfson shooting but later, after being reminded that the date was March 23, 1950, he said that that was his birthday and that he was at Mrs. Pedemonti's house until midnight. He further said that relations between him and Albert were good and that the latter must be crazy.

For the defense, the mother and two sisters of Albert and Joseph testified that Albert had struck his father on several occasions and his mother and his sister once each. They also said that at one time Joseph had ordered Albert out of the house and that then Albert had threatened to pay him back for that. The date of the making of this threat was fixed variously as being in 1946, when as a matter of fact Joseph was in state's prison, or in 1947. The defendant also introduced statements made by Wolfson on the night of March 23, 1950, and the morning of March 24, 1950, while he was in a critical condition and able to talk only with difficulty. These statements would not have been admissible as dying declarations but were put in evidence with the consent of the state's attorney. In the course of them, Wolfson described his assailant as a young man about five feet eight or ten inches tall, blond and with a baby face. The defendant is over six feet tall and has a dark complexion and a prominent chin. In this connection, however, it is to be borne in mind that when Wolfson gave the description his condition was very poor, that he had seen the man who shot him in light coming from fluorescent lighting and from green neon signs and that possibly the man's coat collar had been turned up to cover his chin.

The defendant's own testimony consisted of a denial of all implication in the killing and the claim that on the evening of March 23, 1950, he had been at Mrs. Pedemonti's house from 7 until 10:30 o'clock and had then gone directly home to his sister's house. He stated that Mrs. Pedemonti had had a birthday cake in honor of his birthday and that when he left he took a piece to his sister. He further testified that Albert had come to Mrs. Pedemonti's house to talk with him on March 4, 1950, while a birthday party was in progress for one of Mrs. Pedemonti's children but that Albert had not been there at all on March 23, 1950. Mrs. Pedemonti supported this alibi. There were introduced in evidence, however, two written statements made by her to the police. In one of these she had said that Joseph had been at her house on March 23 for his birthday cake but had left early and that either that night or the next night Albert had come to get him. In the other she said that either on March 4 or March 23, she did not know which, Joseph had telephoned to Albert.

It was within the province of the jury to determine what credence they would give to Albert's testimony. It is true that he was an accomplice. Whether, because of that fact, corroboration of his testimony was essential was for the jury to determine. State v. Cots, 126 Conn. 48, 56, 9 A.2d 138. In any event, his testimony was corroborated in many...