State v. Braunets

• Decision Date: 08 March 1911
• Citation: 79 A. 70,84 Conn. 222
• Parties: STATE v. BRAUNETS.
• Court: Connecticut Supreme Court

79 A. 70

84 Conn. 222

STATE

v. BRAUNETS.

Supreme Court of Errors of Connecticut.

March 8, 1911.

[Copyrighted material omitted.]

Appeal from Superior Court, Fairfield County; Howard J. Curtis, Judge.

Peter F. Brauneis was convicted of assault with intent to commit rape, and he appeals. Error, and new trial ordered.

Homer S. Cummings, for appellant.

Stiles Judson, State's Atty., for the State.

THAYER, J. The defendant and one Keating were jointly informed against for attempted rape upon Mrs. Meath in the town of Danbury. The assault occurred at about half past one in the morning. For about two hours prior to 1 o'clock the complainant had been on the premises where the defendant kept a saloon. At about 1 o'clock she left to go home, and he accompanied her. They went through South street to Main street, on the corner of which one Dougherty kept a saloon. Here Mrs. Meath left the defendant to visit, as she said, Mrs. Dougherty. She went to the front door and found it fastened, and then went around to the rear door. These facts were undisputed. The state claimed to have proved that, finding the rear door at Dougherty's fastened, she turned to leave, when she was seized by the defendant and Keating and carried into another street, where the assault was made upon her. The defendant testified that when Mrs. Meath left him at the corner of Main street, he went immediately to his room, where he was found and arrested at 3 o'clock. He also testified that in going through South street to Main street he and Mrs. Meath did not sit down or stop. The complainant, when assaulted, made outcry and raised the neighbors, who went to her assistance, when her assailants ran away. She at once named the defendant as one of her assailants, and has been constant in her accusation. She was corroborated as to this fact by Dougherty, who testified that he saw her seized on his premises by the two accused persons and borne away. Keating's defense was that he was too drunk on the night in question to know what he did or to form the criminal intent alleged, and that the complainant was too much intoxicated to know who her assailants were, and was mistaken in her identification of him as one of them.

The defendant asked for a separate trial, which was refused. The parties were tried together, and both were convicted. The court's denial of the defendant's motion for a separate trial is assigned as error.

Whether a separate trial shall be allowed to parties jointly indicted is within the discretion of the court. Ordinarily justice is better subserved where the parties are tried together. But cases arise where the defenses of the different parties are antagonistic, or where evidence will be introduced against one which will not be admissible against others. Where from the nature of the case it appears that a joint trial will probably be prejudicial to the rights of one or more of the parties, a separate trial should be granted when properly requested.

It does not appear that the defendant, when moving for a separate trial, presented any reasons why a joint trial would be prejudicial to him. The only respect in which he now claims to have been injured by it is that the testimony of one Eagan, which was introduced in behalf of Keating, tended to contradict in one particular the testimony of the defendant. It is claimed that by reason of this contradiction the jury may have discredited his entire evidence. The point of difference between his testimony and that of Mrs. Eagan was that she stated that in passing from his place through South street to Main street the defendant and Mrs. Meath sat down upon some stone steps. The state made no claim that the parties stopped or sat down in South street, and the fact was immaterial to the state's case or the defendant's defense. Besides, in receiving the Eagan testimony, the jury were cautioned that they were not to consider it as evidence against the defendant. It is apparent that he could not have been injured by its reception. There is nothing in the record to indicate that he was in any way injured by the court's refusal of his motion for a separate trial. So far as appears, the court's discretion was properly exercised in denying his motion. Mrs. Eagan had testified upon the preliminary hearing in the city court, but was ill at the time of the trial in the superior court and unable to be present. Keating's counsel in his behalf offered her testimony as given in the city court. The state did not object to this, but Brauneis objected to its being read upon the ground that it contradicted his testimony, and that he was entitled to be confronted by the witnesses against him. The court admitted the evidence in behalf of Keating, but instructed the jury at the time of its reception, and again in the charge, that it must not he taken or considered by them as evidence against Brauneis. The admission of the testimony under these circumstances is made the ground of an exception by the defendant.

Had the evidence been offered by the state against Brauneis, or against both defendants, the objection to it would have been properly taken. The witness being alive, the state would have been required to produce her in court to testify, so that the defendant might be confronted by her and given an opportunity to cross-examine her. But the state did not offer the testimony, and was not permitted to use it against the defendant. And Keating did not offer the testimony against the defendant. Mrs. Eagan was in no sense a witness against the defendant, and his constitutional right to be confronted by the witnesses against him was not invaded by the court's reception of the evidence in behalf of his codefendant. The facts testified to by Mrs. Eagan were admissible in favor of Keating, and, as the state did not object to her testimony as given in the city court being read to the jury, it was properly admitted.

The defendant requested an instruction that "it is the settled law of this state that rape is an accusation easily to be made, hard to be proved, and harder to be defended by the party accused, though ever so innocent." This language, found in Swift's Digest, vol. 2, p. 294, and in other authorities, is a statement of fact, rather than of law, and is doubtless true in most cases where rape is charged. The language is sometimes used in charges in such cases and very properly, to preface a caution to the jury to guard themselves against prejudice toward the accused arising from the detestable nature of the crime, and to weigh the evidence on both sides with a view to the difficulties of the proof. The requested instruction, unless coupled with some such caution (which was not requested), would have been worse than useless, because it would state no proposition of law which could aid the jury. In the present case there was no need of such a caution, even if the request can be taken to have suggested one. The charge here is not rape. It does not appear to have been disputed on the trial that the complainant was assaulted by some one with intent to ravish her. The question of consent frequently present in rape cases was absent here, and the complainant was corroborated in her testimony by eyewitnesses of the assault. The jury were fully instructed as to the nature of the intent to be proved by the state to warrant a conviction.

The defendant offered evidence tending to prove that his character for chastity was good. He requested the court to instruct the jury that: "Evidence of the defendant's character for chastity is admitted with great propriety in all cases where that precise characteristic is questioned, and when the witnesses called in support of defendant's reputation are respectable, and strongly in his favor, it fortifies the presumption of innocence, and in doubtful cases should turn the scale in favor of...