State v. Fahy

Citation149 Conn. 577,183 A.2d 256
CourtSupreme Court of Connecticut
Decision Date26 June 1962
PartiesSTATE of Connecticut v. Harold FAHY. STATE of Connecticut v. William ARNOLD. Supreme Court of Errors of Connecticut

Francis J. McNamara, Jr., Stamford, for appellant (defendant in the first case).

John J. Sullivan, Greenwich, for appellant (defendant in the second case).

John F. McGowan, Asst. State's Atty., with whom, on the brief, was Otto J. Saur, State's Atty., for appellee (state).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

BALDWIN, Chief Justice.

The defendants were tried on separate informations charging wilful injury to public property under General Statutes, § 53-45, as amended by No. 437, § 1, of the 1959 Public Acts. The factual and legal issues in the cases are identical, and the cases were tried together to the court without a jury. The court found the defendants guilty as charged and sentenced each of them to sixty days in jail. They have appealed.

The trial court found the following facts: On February 1, 1960, between the hours of 4 and 5 a. m., swastikas were painted with black paint on the steps and on the casing between two basement windows of the Temple Beth Israel, on Concord Street in Norwalk. About 4:40 a. m., Osborn Lindwall, a Norwalk police officer, saw an automobile, without its headlights on, being operated on a public highway about a block away from this synagogue. He signaled the car to stop but was obliged to pursue it in his police car for about a mile before it was halted. The defendant Fahy was driving the car, and the defendant Arnold was a passenger. Lindwall questioned them about their reason for being out at that hour, and they told him that they had been to a diner for coffee and were going home. Fahy had no license to operate a motor vehicle, and the officer insisted that Arnold drive. The officer checked the car and found a jar of black paint and a two-inch paint brush under the front seat. He followed the car to Fahy's home. Later the same morning, he learned of the painting of the swastikas on the synagogue and reported that he had seen the defendants in that vicinity. Police officers then went to Fahy's home and placed both defendants under arrest. They found the jar of black paint and the brush in the car in which the defendants had been riding when they were stopped earlier in the morning. The two-inch paint brush matched the markings made with black paint on the synagogue. The defendants admitted that they had painted the swastikas on the synagogue and that the paint found in the car had been used for that purpose.

The defendants claim, first, that the informations do not charge an offense under General Statutes § 53-45, as amended by Public Acts 1959, No. 437. 1 They concede that the synagogue is a public building but contend that the painting of the swastikas on it does not constitute a wilful injury within the intent of the statute. Their argument is predicated on the legislative history of this act. As originally enacted in 1832, the pertinent portion provided that, 'if any person shall wilfully and maliciously injure or deface any house of public worship, school-house, or other public building,' he should be subject to penalties. Public Acts 1832, c. 9, § 2; Statutes, 1938, p. 182, § 2. This wording continued without material alteration until the Revision of 1875, when the words 'or deface' were omitted, among other changes. General Statutes, Rev.1875, p. 500, § 3. Since 1875, the wording of the phrase with which we are concerned has remained unchanged. The defendants claim that by the omission of the words 'or deface' the legislature intended to treat the word 'deface' as distinct from the word 'injure.' They argue that although the painting of swastikas on a building may be a defacement, it is not an injury to the building. A contrary holding is to be found in Vaughn v. May, 217 Mo.App. 613, 625, 274 S.W. 969.

In seeking to ascertain the intent of legislation, '[i]t is presumed that changes in the language of a statute made when it is incorporated into a revision are not intended to alter its meaning and effect, and this is particularly true of the Revision of 1875.' Castagnola v. Fatool, 136 Conn. 462, 468, 72 A.2d 479, 482, and cases cited. It is therefore to be assumed that the revisers in 1875 considered that the word 'injure' conveyed the meaning of 'injure or deface.' The words have been judicially interpreted as synonymous. Saffell v. State, 113 Ark. 97, 99, 167 S.W. 483. The 1959 public act (No. 437) by its terms purported to repeal § 53-45 of the 1958 Revision but at the same time again adopted the language of the 1875 Revision which is material to us. Whether a new provision is in the form of a new enactment repealing the old, as in this case, or the form of an amendment of the old is immaterial and depends on the preference of the draftsman. Simborski v. Wheeler, 121 Conn. 195, 200, 183 A. 688. The 1959 public act was, in effect, merely an amendment to § 53-45 of the General Statutes. See Prefatory Statement, Public Acts 1959. An amendatory act is presumed not to change the existing law further than is expressly declared or necessarily implied. Norwalk v. Daniele, 143 Conn. 85, 89, 119 A.2d 732. Nothing in the 1959 act either expressly declares or necessarily implies a change in the meaning of the language under scrutiny. The informations therefore charged an offense under § 53-45 as amended by No. 437, § 1, of the 1959 Public Acts.

The defendants assign error in the alleged refusal of the trial court to allow them to pursue their cross-examination of Officer Lindwall in an effort to establish the unlawful search and seizure of a paint jar and paint brush from Fahy's car when it was in a garage under the house where Fahy resided. After the date of the judgments, June 30, 1960, and while these appeals were pending, the Supreme Court of the United States announced its decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. This decision abrogated our prior law that relevant evidence, though obtained by unreasonable search and seizure in violation of the federal constitution, was admissible in evidence in our state courts. State v. DelVecchio, 149 Conn. ----, 182 A.2d 402; see State v. Carol, 120 Conn. 573, 575, 181 A. 714; Pickett v. Marcucci's Liquors, 112 Conn. 169, 173, 151 A. 526; State v. Reynolds, 101 Conn. 224, 233, 125 A. 636; State v. Magnano, 97 Conn. 543, 117 A. 550; State v. Griswold, 67 Conn. 290, 305, 34 A. 1046, 33 L.R.A. 227. The rule of Mapp v. Ohio, supra, applies to a pending appeal. State v. DelVecchio, supra.

The finding concerning the ruling on evidence assigned as error, as corrected by the trial court subsequent to the decision in Mapp v. Ohio, supra, and before argument before us, discloses the following: Lindwall testified that he went to the Fahy residence before obtaining a search warrant to search the premises and that he entered the garage and removed the paint jar and the paint brush from the car. The defendants sought to examine Lindwall in order to establish that the paint and the brush were unlawfully seized, in violation of their rights under the fourth and fourteenth amendments to the federal constitution and article first, § 8, of the constitution of this state. The court precluded the defendants from pursing this examination, on objection by the state that any illegal seizure of the paint jar and the brush did not prevent their admission in evidence in a state court. In argument before us on April 3, 1962, the question was raised by the state whether the corrected finding was sufficient for us fully to consider the error claimed. After the argument, the defendants moved that a certified transcript of the evidence taken at the trial be made a part of the record on appeal. The state acquiesced in the motion. Since the evidential ruling involved a matter as to which there had been a change in the law after the case was tried, the appeal taken and the original finding made, we granted the motion. State v. Kreske, 130 Conn. 558, 562, 36 A.2d 389.

An examination of the transcript discloses the following: The state, in its case in chief, produced William Tarsi of the Norwalk police department. He testified that on February 1, 1960, at about 6:55 a. m., he observed swastikas painted in black paint on the synagogue, and that they had not been there when he observed the building at 4 a. m. that morning. The state then called Officer Lindwall, who testified to the facts already recited as having been found by the court, as follows: At about 4:40 a. m., he saw the Fahy car being operated, without lights on, about a block from the synagogue. He pursued the car until it stopped, and he questioned the defendants, who were riding in it. He observed a jar of paint and a brush in the car but did not take them into his custody. He allowed the defendants to proceed to Fahy's home and followed them until their car turned into the driveway.

The transcript further discloses the following evidence: When Lindwall learned, about 7:30 a. m., that swastikas had been painted on the synagogue he went to Fahy's house, entered the garage and took the jar of paint and the brush from the car. On cross-examination, Lindwall testified that he entered the garage, that he removed the jar of paint and the brush from the car in the garage, and that he had no search warrant. Thereupon, he was asked whether he had applied for a search warrant, and the state objected. The court sustained the objection and refused to allow any further inquiry, on the ground, in effect, that the lack of a search warrant was immaterial.

Although the defendants objected to the admission of the paint jar and the brush when they were first offered, the objection was not at that time based on an illegal search and seizure, and the court was not asked to rule on their admissibility in the light of any such claim. See Casalo v. Claro, 147 Conn. 625, 629, 165 A.2d...

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