State v. Tomassi

• Court: Connecticut Supreme Court
• Writing for the Court: Before BROWN; BROWN
• Citation: State v. Tomassi, 137 Conn. 113, 75 A.2d 67 (Conn. 1950)
• Decision Date: 18 July 1950
• Parties: STATE v. TOMASSI. Supreme Court of Errors of Connecticut

Page 67

75 A.2d 67

137 Conn. 113

STATE v. TOMASSI.

Supreme Court of Errors of Connecticut.

July 18, 1950.

V. Fenton Dooley, New Haven, with whom was Thomas R. Robinson, Public Defender, New Haven, for the appellant (defendant).

Arthur T. Gorman, Assistant State's Attorney, New Haven, with whom, on the brief, was Abraham S. Ullman, State's Attorney, New Haven, for the appellee (State).

Before BROWN, C. J., JENNINGS, BALDWIN and O'SULLIVAN, JJ., and DALY, Superior Court Judge.

BROWN, Chief Justice.

The defendant and Joseph Celso were jointly indicted for murder in the first degree for the killing of Samuel S. Kahan during an attempted robbery. The defendant's motion for a separate trial was granted. The jury rendered a verdict of guilty of murder in the first degree and the defendant has appealed, assigning error in the court's charge, rulings upon evidence and denial of his motion to set aside the verdict.

We summarize the facts which the state offered evidence to prove and claimed to have proved and which were uncontroverted by the defendant. Sometime prior to February 2, 1949, the defendant and Celso formulated a plan for robbing Kahan's jewelry store at 65 Congress Street, New Haven. In pursuance of the plan, revolvers and cartridges were procured, and at about 8 o'clock in the morning of February 2 they proceeded to the store. The defendant carried a fully loaded .38 caliber revolver, and Celso a fully loaded .32 caliber revolver as well as two fishline sinkers in a cloth or sock. They entered the store and held up Kahan, who began to shout. Celso struck him with the sinkers and, when he continued to shout, the defendant shot him twice. One bullet penetrated his left arm and the other entered his left chest, passed through the lung and lodged in the lower portion of the spinal cord. About 9 a. m. Kahan was removed to the New Haven Hospital, and the police, who arrived at the store shortly after, found a discharged .38 caliber bullet and two fishline sinkers on the floor. About 5 p. m. the police took the defendant into custody in his room, which was near the store. In his bureau drawer they found the two revolvers mentioned above. They also found in his room forty-eight loaded .38 caliber cartridges, which remained out of a box originally containing fifty. The defendant was identified as the purchaser of the box at Bassett's store in New Haven on the preceding day. The police also found cartridges fitting the .32 caliber revolver and a bottle of cleaning fluid with a wet rag which the defendant had used to clean his gun directly after the shooting. The bullet found on the floor of the store and the one subsequently removed from Kahan's spinal canal had been fired from the .38 caliber revolver found in the defendant's room. They were the two bullets missing from the original fifty the defendant had purchased the day before.

Upon Kahan's arrival at the hospital it was found that his spinal cord was almost entirely severed, with the result that he was completely and permanently paralyzed from the waist down. He could not move his legs and his bladder and bowels did not function normally. Major operations were performed on the spinal cannot for the removal of the bullet and on the chest for the drainage of large quantities of blood which had lodged there. As a result of the bullet wound which necessitated these operations, certain constituent changes occurred in Kahan's blood stream. During the course of his stay at the hospital, in the latter part of February, a thrombophlebitis or blood clot formed in Kahan's right leg. A portion of this clot broke off and entered the blood stream, causing a pulmonary embolism. Kahan's death ensued on March 10, 1949.

The chief controversy upon the evidence presented to the jury was whether the wounds which the defendant inflicted were the cause of death. Upon this issue the state made the following claims of proof. The thrombophlebitis resulted from Kahan's general debility, from his immobility by reason of paralysis, and from certain constituent changes in his blood stream, all of which were caused by the gunshot injuries. The primary cause of death was the wound in the left chest, which resulted from the bullet's traversing the lung and lodging in the lower portion of the spinal cord. The secondary cause of death was the pulmonary embolism. The defendant's claims were these: Thrombophlebitis may be caused by a number of different factors--amongst others, bad nutrition, age and anemia. On or about February 20, 1949, the chest wound traversing the lung was healing well. The thrombophlebitis, from which Kahan was suffering between February 20 and March 10, was not diagnosed by any of the physicians in charge of his care and treatment. On March 10, while he was undergoing massage, a thrombus was dislodged by the manipulation of the physiotherapist. The thrombus upon dislodgment then became an embolus, which traveled through the blood stream until it lodged in the pulmonary artery, causing a pulmonary embolism which resulted in Kahan's death. In summary, the state claimed that the bullet wounds inflicted by the defendant were the cause of death, while he claimed that it was not the wound but the treatment employed by the doctors at the hospital which caused it. He contends that the court's charge upon the issue of the cause of death was insufficient because it failed adequately to instruct the jury as to the effect of what he claimed was the negligent treatment accorded Kahan in the hospital.

The defendant objected to the charge in accordance with § 156 of the Practice Book. Specifically, he has assigned error in this instruction by the court: 'One other thing I must say to you in this connection, and that is that it does not necessarily follow that a wound is not the cause of a death simply because there was negligence in the treatment of the wound or of the wounded man. A dangerous wound, one which is calculated to endanger and destroy life and which naturally leads to a death, is the cause of the death even though it appears that the deceased might have recovered if he had taken proper care of himself, or that unskilled or negligent treatment has aggravated the wound or contributed to the death. As I have said before, it is not essential that the wound be the sole cause of the death. So where a wound, either operating directly or indirectly, by causing some other condition which produces death, has been a substantial factor in causing a death, it is still to be regarded as the cause of the death even though some negligence in the treatment of the wounded man by physicians and others is also a contributing factor.' This part of the charge immediately followed a full and correct statement, as to which no error is assigned, of the relevant legal principles applicable to the determination of the issue of the cause of death. In the course of these instructions, the court sad: '[E]ven though death follows a wound, in point of time, if the death is brought about by some cause independent of the wound, if it would have happened, that is, if there had been no wound, then of course the wound is not the cause of death. * * * [I]t is not essential that the wound be the sole cause of death. It is not essential that it be the immediate cause of death. It is essential that it be a substantial factor in bringing about the death.' After the instruction complained of, the court recited in detail the conflicting claims upon the evidence and explained the application to them of the principles of law which it had stated.

The court's instructions gave the defendant all he was entitled to and were correct. One who has wilfully inflicted upon another a dangerous wound, with a deadly weapon, from which death ensued, is guilty of murder or manslaughter, as the evidence may prove, although, through want of due care or skill, the improper treatment of the wound by surgeons may have contributed to the death. Commonwealth v. Hackett, 2 Allen 136, 84 Mass. 136. We have approved this principle and added: 'From these and other authorities, it is apparent that it is not necessary that the act or omission should be the direct cause of death; it is sufficient if it be a contributory cause.' State v. Block, 87 Conn. 573, 576, 89 A. 167, 169, 49 L.R.A.,N.S., 913. That the foregoing is in accord with overwhelming authority is illustrated by these more recent citations: People v. Kane, 213 N.Y. 260, 270, 107 N.E. 655, L.R.A.1915F, 607, Ann.Cas.1616C, 685 (a mass of supporting authority is reviewed); State v. Richardson, 197 Wash. 157, 164, 84 P.2d 699; Hall v. State, 199 Ind. 592, 607, 159 N.E. 420; Commonwealth v. Williams, 304 Pa. 299, 302, 156 A. 86; note, 126 A.L.R. 916; 26 Am.Jur. 193. The underlying principle is that one who intentionally inflicts a wound calculated to destroy life, and from which death ensues, cannot throw responsibility for the act either upon the carelessness or ignorance of his victim or upon unskillful or improper treatment which aggravated the wound and contributed to his death. State v. Bantley, 44 Conn. 537, 540, 26 Am.Rep. 486.

The defendant did not take the stand during the trial. In its charge the court told the jury that an accused could either testify or not as he saw fit and then continued: 'In considering the question of guilt or innocence of that accused person, however, the jury may take into consideration the fact that the accused did not testify. That is so if the State has made out a prima facie case. That is, if the State by its evidence has made out a case which to you, as reasonable men and women, appears to call for some denial or explanation from the accused himself; and if under those circumstances the accused has failed or refused to testify and has thereby avoided cross-examination, you are then permitted to take his failure to testify into consideration and draw therefrom whatever inference as to his guilt or innocence is reasonable.' ...