State v. Yochelman
| Decision Date | 12 December 1927 |
| Citation | 139 A. 632,107 Conn. 148 |
| Court | Connecticut Supreme Court |
| Parties | STATE v. YOCHELMAN. |
Appeal from Superior Court, Fairfield County; Isaac Wolfe, Judge.
Isadore Yochelman was convicted of manslaughter, and he appeals. No error.
Finding of judge on character of statement as dying declaration held conclusive.
John B. Dillon, 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 WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.
The state offered evidence to prove, and claimed to have proved that the accused, who maintained an office as a medical practitioner at Bridgeport, was consulted October 28, 1926 by one Mabel A. Derry, who was pregnant, and, upon the advice of the accused, consented to an operation for abortion, which the accused agreed to perform for $100; that between that date and November 23, 1926, the accused made several unsuccessful attempts to procure an abortion upon her, and on the latter date employed surgical instruments for that purpose; that in the use of these instruments he perforated an intestine, from which a violent peritonitis was set up, which caused her death on November 29, 1926. The accused was tried upon an information for manslaughter, and, upon the trial, the state offered in evidence a paper, which was admitted over the objection of the accused. Upon this is based the first of the two assignments of error upon this appeal.
The state called one Arnolsky, a sergeant of police in Bridgeport, who testified that on November 23, 1926, he was called to the office of the accused about 9 o'clock in the evening, where he found Lieut. Larney of the Bridgeport police force, together with the accused, a woman named Rabinowitz, and her husband. He then testified, without objection, that the latter complained that his wife had come to the office of the accused to have an abortion performed upon her; that, while the witness was inquiring about this matter, he heard a girl call from the upper rooms of the doctor's apartments, and, upon ascending the stairs, found Mabel A. Derry lying on a cot, and in great pain; that he instructed Lieut. Larney to take a statement from her, and the latter wrote down what she said to him in her own words. None of the evidence thus testified to without objection was admissible; so far as appears, the accused was not then present. An ambulance was sent for, and, upon its arrival, and in the presence and hearing of the accused, this written statement was read to the girl, and she was asked whether it was true, upon which she affirmed that it was, and signed it. Neither during the reading, nor at any time before the girl was removed in the ambulance, did the accused make any denial or explanation of her statements so read in his presence and hearing. It was further testified that at no time during, or prior to, the reading of this statement, was the accused under arrest, nor was he accused by the officers of any illegal act, nor had any warrant been issued for his arrest.
This written statement was offered by the state for the declared purpose of characterizing the conduct of the accused upon that occasion, and was admitted over the objection of the accused that it was hearsay evidence, the court saying to the jury:
" Of course, this paper, gentlemen, is admitted, not for the purpose of proving the truth of the statements contained in the paper, but as simply showing the attitude of this defendant and his conduct when the paper was read to him upon the occasion in question, and is limited to that purpose."
The paper purports to give the circumstances attending the several visits of Mabel A. Derry to the office and apartments of the accused, and the attempts made by him upon her to procure an abortion. It was dated November 23, 1926, signed Mabel A. Derry, and witnessed by the ambulance physician, the ambulance driver, and the two officers named.
The statements made by her had the effect of a direct charge against the accused of responsibility for her then condition. The circumstances surrounding her presence and condition in the apartments of the accused manifestly called for explanation from him. It is clear that he knew and appreciated the significance of the statements. All the facts were known to him, and he had a fair opportunity to explain without restraint. He made no statement or explanation whatsoever. The conduct of an accused person under such circumstances, when he is in a position to deny the charges, and under no compulsion, as in this case, is always relevant to the issue of guilt. State v. Ferrone, 97 Conn. 258, 265, 116 A. 336; State v. Wakefield, 88 Conn. 164, 90 A. 230; Commonwealth v. Dewhirst, 190 Mass. 293, 76 N.E. 1052; Wharton on Criminal Evidence (8th Ed.) § 679; 1 Wigmore on Evidence, § 273.
In the first of the cases above cited we said:
" Statements made in his [the accused's] hearing which are relevant and material, to which he makes no reply, may be given in evidence as indicative of conduct on his part, when the circumstances show that he heard, understood, and comprehended the statement, and the facts are known to him and he had an opportunity to speak, and the circumstances naturally called for a reply from him."
We do not overlook the fact that in brief and argument the accused now claims that this paper should not have been admitted, because the heading was not a statement by the girl herself, but was put on by the officer of his own volition. This heading is as follows:
An examination of the record shows that the sole objection made to the admission of the paper when it...
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Connecticut: Post Casey and White
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