State v. Clark

• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Writing for the Court: JACOBS; In this opinion DEARINGTON; DiCENZO
• Citation: State v. Clark, 261 A.2d 294, 5 Conn.Cir.Ct. 699 (Conn. Cir. App. Div. 1969)
• Decision Date: 29 May 1969
• Docket Number: No. CR,CR
• Parties: STATE of Connecticut v. Imogene CLARK. 14-66038.

Page 294

261 A.2d 294

5 Conn.Cir.Ct. 699

STATE of Connecticut v. Imogene CLARK.

No. CR 14-66038.

Circuit Court of Connecticut, Appellate Division.

Argued March 24, 1969.

Decided May 29, 1969.

Brian L. Hollander, Hartford, for appellant (defendant).

Edward R. Smoragiewicz, Asst. Pros. Atty., for appellee (state).

JACOBS, Judge.

The information charged the defendant with the crime of cruelty to persons in violation of § 53-20 of the General Statutes. The jury having returned a verdict of guilty, judgment was rendered on the verdict.

We shall first consider the denial of the motion to set aside the verdict as against the law and the evidence. 'The only question which can be raised by such a motion is the legal sufficiency of the evidence to support the verdict.' King v. Travelers Ins. Co., 123 Conn. 1, 3, 192 A. 311, 312. The defendant has filed the evidence to support the assignment. Practice Book § 960.

The jury could reasonably have found from the evidence the following facts: The defendant and her husband lived together as husband and wife at 26 Kensington Street, in the city of Hartford. She was the mother of a child who was nineteen months old at the time of the trial. On June 8, 1966, she gave birth prematurely to twin girls, named Karen and Sharon. The twins remained in the hospital for 'about a month,' at which time they were discharged and entrusted to the care of the defendant. On October 27, 1966, Karen was pronounced dead on arrival at Mt. Sinai Hospital. An autopsy was performed at the request of the coroner. It disclosed that the baby died from a combination of factors: severe malnutrition, severe dehydration, fecal impaction of the intestine and interstitial pneumonia. The child had been in grave condition for at least a few days, but the defendant failed to supply her with any medical aid or treatment, though aware that the case was of great gravity. On the same date, Sharon, very acutely ill, was admitted to Mt. Sinai Hospital. The medical evidence was that the baby suffered from severe malnutrition, dehydration, vomiting, and distention of the abdomen; she had developed constipation which was said to be of long duration. It was shown that Sharon gained five to six ounces within a matter of a few days after she was hospitalized. Her life was saved by the efforts of the doctors at Mt. Sinai Hospital. The defendant was not at any time a 'working mother'; she remained at home with her children during this entire period. She testified that she had no difficulty in 'buying enough food for the babies or preparing (their) formula.' Moreover, she had access to a telephone in case she wished to summon a doctor, or call the hospital, or reach the Visiting Nurse Association. She failed to avail herself of any of these services. There was evidence in the record that she 'broke an appointment on September 23, 1966, to have the twins weighed and have their first immunization at the Parker Street Center.' Three doctors testified. We express no opinion as to whether their testimony was overborne by other testimony in the case. That was the function of the triers of fact. With the care and custody of the infants in her hands, with the power to change the situation, and with the duty of knowing that it ought to have been changed, she suffered it to go on. The offense in a case such as this does not necessarily consist of a single act or omission. From its nature, it is made up of a continuity of acts or omissions, none of which may be enough by itself, but each of which comes in with all the rest to constitute the harm and make the offense.

The evidence supports a finding that the infants were sick and feeble and in a helpless condition; that they were in dire need of medical attention; and that the defendant had sufficient means at her command to obtain medical services for the infants in their then sick and feeble condition. There can be no doubt that the defendant abstained from calling in assistance, though she was aware for some considerable time that the infants were in a state of imminent danger. 'The most cursory examination by an experienced parent would have revealed the sickly condition of the * * * (children); and if appellant failed to observe the obvious, it could only have resulted from * * * (her) own negligence.' Eaglen v. State, 231 N.E.2d 147, 150 (Ind.). 'The penal law does not require that a person actually know he is under a legal duty to act * * *; it requires only that there be such a duty.' Hall, General Principles of Criminal Law (2d Ed.), p. 205. In our view of the record, the defendant showed supine inaction in breach of her duty.

' The offense of cruelty to children is a modern creation. It was probably unknown to the law until 1802 when R. v. Friend, ((1802) Russ. & Ry. 20), a case in which a girl pauper had been 'apprenticed' to the defendants, who had failed to provide her with sufficient food and clothing, gave rise to the ruling that it was an indicatable offence at common law to neglect or refuse to provide food, clothing, bedding, etc. for any infant of tender years unable to provide for himself.' Phelan, 'If Parents Do Not Call the Doctor,' 110 L.J. 744 (Eng.1960); See 1 Russell, Crime (12th Ed.), p. 402. 'In England in the nineteenth century, the courts became very ready to fix liability for death on a parent who neglected to supply necessaries for his child.' Hughes, 'Criminal Omissions,' 67 Yale L.J. 590, 621; see Regina v. Wagstaffe, 10 Cox Crim. Cas. 530; The Queen v. Senior, (1899) 1 Q.B. 283. This was so because the common law imposed certain duties by reason of the legal relation of the parties. The legal relation of the parties may have a very limited application as the source of such a duty; it certainly extended to the parent of a child of tender years. See Perkins, Criminal Law, p. 517. The common-law duty of parents and guardians to care for children who were of tender age or otherwise found to be helpless soon found statutory recognition. See Kirchheimer, 'Criminal Omissions,' 55 Harv.L.Rev. 615, 621.

In 1868, the first English statute on the subject was enacted. By § 37 of 31 & 32 Vict., c. 122, which is a statute dealing with the relief of the poor, it was enacted that any parent who wilfully neglected to provide adequate food, clothing, medical aid, or lodging for his child, being in his custody, under the age of fourteen years, whereby the health of such child was seriously injured, was guilty of an offense. Therefore, it became under that statute the duty of a parent to provide medical aid for his children. The Queen v. Senior, supra, 289; see State v. Chenoweth, 163 Ind. 94, 100, 71 N.E. 197; People v. Pierson, 176 N.Y. 201, 209, 68 N.E. 243, 63 L.R.A. 187. In 1894, this act was amended by 57 & 58 Vict., c. 41, so as to provide, among other things, that '(i)f any person over the age of sixteen years * * * wilfully * * * neglects * * * such child * * * in a manner likely to cause such child unnecessary suffering, or injury to its health * * * that person shall be guilty of a misdemeanor.' 'It would be an odd result if we were obliged to come to the conclusion that * * * the Legislature had meant to take * * * a retrograde step (in dropping the words 'medical aid'); for the course of legislation * * * (shows) an increased anxiety * * * for the protection of infants.' The Queen v. Senior, supra, 290; see note, 100 A.L.R.2d 483, 499; Archbold, Criminal Pleading, Evidence and Practice § 2739.

The statute upon which the charge was framed in the case at bar was first enacted in 1897. Public Acts 1897, c. 124 § 1. ² In 1902, the act was amended by substituting the word 'or' for the word 'and' between the words 'wilfully' and 'negligently' in the first part of it. Rev. 1902, § 1160. We regard the change in the statute as purely a matter of language conformity and as not affecting the substantive scope of the statute. See State v. Fahy, 149 Conn. 577, 581, 183 A.2d 256, rev'd on other grounds, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171; Castagnola v. Fatool, 136 Conn. 462, 468, 72 A.2d 479; cf. State v. Dennis, 150 Conn. 245, 248, 188 A.2d 65; State v. Sul, 146 Conn. 78, 88, 147 A.2d 686; 82 C.J.S. 675 Statutes § 335. For nearly seventy years, the 1902 act, except for alterations in the penalty provisions, has remained substantially unchanged. ³

The charge preferred here is under the part of the statute which provides that 'any person who, having the control and custody of any child under the age of sixteen years, in any capacity whatsoever, maltreats, * * * or wilfully or negligently deprives such child of necessary food, clothing, or shelter shall be' punished. While the statute does not mention the words 'medical aid' in specific terms, we have no hesitancy in holding that such aid is embraced within the scope of its broad language. ⁴ See Craig v. State,220 Md. 590, 596, 155 A.2d 684. 'Schouler, in his work on Domestic Relations, at page 318, speaking upon the subject of parental duty in the maintenance of children, says: 'It is a plain precept of universal law that young and tender beings should be nurtured and brought up by their parents; and this precept have all nations enforced.' And again, at page 548, speaking upon the subject of what constitutes necessary maintenance, he says: 'Food, lodging, clothes, medical attendance, and education, to use concise words, constitute the five leading elements in the doctrine of the infant's necessaries." People v. Pierson, 176 N.Y. 201, 208, 68 N.E. 243, 245-246. 'Giving the statute a reasonable construction, by applying the rule of necessity, it is apparent that it means the necessary food, clothing, shelter, or medical attendance required for the preservation of the health and life of the child. We quite agree that the Code does not contemplate the necessity of calling a physician for every trifling complaint with which the child may be afflicted, which in most instances may be overcome by the...