Kurtz v. Farrington

• Decision Date: 08 March 1926
• Citation: 104 Conn. 257,132 A. 540
• Court: Connecticut Supreme Court
• Parties: KURTZ v. FARRINGTON.

132 A. 540

104 Conn. 257

KURTZ v. FARRINGTON.

Supreme Court of Errors of Connecticut.

March 8, 1926

Appeal from Superior Court, New Haven County; George E. Hinman Judge.

Action by Anna J. Kurtz against Daniel T. Farrington for damages for fraud and misrepresentation, tried to the court. Judgment for plaintiff for $2,192 damages, and defendant appeals. No error.

William W. Gager, Timothy S. Sullivan, and Edward B. Reiley, all of Waterbury, for appellant.

Nathaniel R. Bronson and Richardson Bronson, both of Waterbury, for appellee.

HAINES, J.

This action was brought on two counts. While the court found the issues for the plaintiff, it is obvious that the damages were assessed on the first count only, for the proof of the allegations of the first count entitled the plaintiff to recover $2,000 damages, plus $192 of interest, which sums comprise the exact amount of the judgment. Since the judgment was rendered on the first count alone, and the defendant has not been prejudiced by the general finding of the trial court, upon both counts, we shall confine our consideration of this appeal to the first count only.

That count alleges, in substance, that in October, 1923, the plaintiff entered into negotiations with the defendant for the purchase of certain real estate in Waterbury, then offered for sale by one Strong, it being then well understood between the plaintiff and the defendant that in making the purchase the defendant was acting as the agent for the plaintiff; that the plaintiff instructed the defendant to pay no more than was absolutely necessary to obtain the title to the property, to which the defendant agreed; that the defendant then purchased the property of Strong for $29,000, and afterward represented to the plaintiff that the price which he had paid was $31,000, and that the plaintiff, not knowing that the defendant had paid but $29,000, paid the defendant the sum of $31,000; that these representations by the defendant were false, and made with the intent to deceive the plaintiff, and did deceive her; and that the resulting damage to her was $2,000.

The defendant asked for the correction of the finding in various particulars, and the refusal of that request is the basis of the first three reasons of appeal. The narrowed limits of our examination make most of these unimportant, for, if made they would not affect the validity of the judgment rendered, and so do not require consideration by us. Herzog v. Cooke, 121 A. 868, 99 Conn. 366, 367; Barber v. Manchester, 45 A. 1014, 72 Conn. 675, 680; Candee v. New York, N.H. & H. R. Co., 49 A. 17, 73 Conn. 667, 669; Gilpatric v. National Surety Co., 110 A. 545, 95 Conn. 10, 18. The appeal having been perfected under General Statutes, § 5832, and all the evidence being before us, we have carefully examined the entire record. Our conclusion is that paragraph 2 of the defendant's proposed finding is supported by evidence which is in fact undisputed and should be allowed. Burns v. Telegram Publishing Co., 94 A. 917, 89 Conn. 549. So far as we find, there is nothing to show whether the defendant asked for or received compensation for his services in the purchase of the property, and paragraphs 51 and 52 of the defendant's proposed finding cannot be allowed as requested in reasons 2 and 3. We may add that, in our view of the case, the fact is not of serious importance. This gives all the consideration necessary to the first three of the defendant's reasons of appeal.

The fourth reason relates to the exclusion of the record of conviction of the witness Kurtz in the United States District Court for violation of the National Prohibition Act (U. S. Comp. St. Ann. Supp. 1923, § 10138 1/4 et seq.), the charge being in two counts; one for possessing certain property designed for the manufacture of intoxicating liquor in violation of this act, and the other for possessing such liquor for beverage purposes.

The penalty for these offenses is not specifically prescribed by the act, but falls within the provisions of section 29, tit. 2 (U. S. Comp. St. Ann. Supp. 1923, § 10138 1/2p): " Any person who * * * violates any of the provisions of this title, for which offense a special penalty is not prescribed, shall be fined for a first offense not more than $500; " for a subsequent offense, a fine of " not less than $500 and be imprisoned not less than three months nor more than two years." Since nothing appears upon this record to indicate that the offense was other than a first offense, we must assume that it was the latter.

The penalty for a first conviction for such offenses cannot be imprisonment. Torrey v. United States (C. C. A.) 278 F. 177. It can only be a fine of " not more than $500." We have heretofore construed General Statutes, § 5705:

" No person shall be disqualified as a witness in any action by reason * * * of his conviction of crime; but such * * * conviction may be shown for the purpose of affecting his credit."

We held in Card v. Foot, 18 A. 713, 57 Conn. 427, that this statute referred to infamous crimes, and that the record of conviction of such crimes might be shown " for the purpose of affecting his [the witness'] credit." We held in the Drazen Case, 111 A. 861, 95 Conn. 500, that crimes whose punishment must be imprisonment in the state prison are infamous crimes, within the meaning of this statute, and also those crimes which may be punished by such imprisonment when the nature of the crime involved moral turpitude, and that " crimes whose penalty must be" imprisonment " in the county jail will be" held to be " infamous when the nature of the crime involves moral turpitude, and the penalty may be six months or more." Drazen v. New Haven Taxicab Co., 111 A. 861, 864, 95 Conn. 500, 508. Since the penalty which could have been imposed for the offenses of which Kurtz was found guilty could not have been imprisonment in any event, they do not come within our classification of infamous crimes covered by the provisions of our statute above referred to.

The evidence was offered upon the theory that the crimes of which Kurtz was convicted involved moral turpitude. Generally speaking, and applicable to the case before us, moral turpitude involves an act of inherent baseness in the private, social, or public duties which one owes to his fellowmen or to society, or to his country, her institutions, and her government. In re Henry, 99 P. 1054, 15 Idaho, 755, 21 L.R.A. (N. S.) 207.

No hard and fast definition of moral turpitude can be given. It must be left to the process of judicial inclusion and exclusion as the cases are reached, and as the standards of society change. Drazen v. New Haven Taxicab Co., supra, page 508 (111 A. 861). Among the recent cases in other jurisdictions we find these which hold that there was moral turpitude. An attorney who defrauded his partner ( In re Cruickshank, 190 P. 1038, 47 Cal.App. 496); the violation of the law forbidding a public officer to retain any reward other than that allowed by law for doing anything appertaining to his duties as such (State v. Anderson, 230 P. 315, 317, 117 Kan. 117); the making of a false charge against a judge, of a misuse of his judicial office and misconduct in office, which was unjustified, and without probable cause (In re Graves, 221 P. 411, 64 Cal.App. 176); the sale by a physician in violation of law, of morphine for other than medicinal purposes, to an habitual user thereof (White v. Andrew, 197 P. 564, 70 Colo. 50); the engaging by an attorney in a conspiracy for the purpose of hindering his country while at war, from procuring by recruiting or enlistment, the military force deemed essential to the carrying on of war, contrary to the statute; in this case the court held " that such conduct on his part would involve moral obliquity and constitute a base offense against his fellowmen and his country entirely regardless of statute prohibiting it, cannot, it seems to us, be seriously questioned" (In re O'Connell, 194 P. 1010, 184 Cal. 584), and the making, by a citizen of the United States, at a time when our country is at war, knowingly and willfully, of false statements with intent to interfere with the success of its military and naval forces, and with intent to promote the success of its enemies, or attempts to cause disloyalty, insubordination, mutiny, and refusal of its duties in its military and naval forces, or willfully obstructs, or attempts to obstruct, its recruiting and enlistment service, is conduct involving moral turpitude ( In re Kerl, 188 P. 40, 32 Idaho, 737, 8 A.L.R. 1259).

The Constitution of the United States is the supreme law of the land. Not alone jurists, but publicists the country over, are in agreement that, as interpreted by our Supreme Court, it has been a mightier influence in maintaining our government and in helping it to meet the problems it has been confronted with, than any other single influence. Our country and our Constitution are inseparable. The Constitution has held our past; it now holds our present; and, if we keep to its defined course, it will sustain our future. The National Prohibition Law and the state laws passed in aid of the enforcement of the Eighteenth Amendment are vitally necessary to the life and strength of this Amendment. Without them it must fail in its purpose. The violation of these laws is a violation of the Constitution of the United States. If one provision can be violated with impunity, another soon will be. If one who gives aid to the enemy of his country in time of war is guilty of moral turpitude, how may we distinguish the man who in time of peace, by his deliberate course, helps to destroy the Constitution. It is indeed true that many do not see or feel that the violation of the liquor law is undermining the most...