State v. Fenster

• Citation: 2 Conn.Cir.Ct. 184,199 A.2d 177
• Decision Date: 04 June 1962
• Docket Number: No. CR,CR
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. Max FENSTER. 10-2383.

Page 177

199 A.2d 177

2 Conn.Cir.Ct. 184

STATE of Connecticut v. Max FENSTER.

No. CR 10-2383.

Circuit Court of Connecticut, Appellate Division.

Argued April 13, 1962.

Decided June 4, 1962. ¹

C. Robert Satti, New London, for appellant (defendant).

Harold B. Dean, Asst. Pros. Atty., for appellee (state).

JACOBS, Judge.

The defendant, convicted in a trial to the court upon an information charging him in the first count with the crime of lascivious carriage or behavior in violation of § 53-219 of the General Statutes and in the second count with making a false report to a police officer; § 53-168; has appealed upon the ground that upon all of the evidence he could not have been found guilty of the charges. The finding, as corrected, discloses that on Sunday night, September 17, 1961, at about 8 o'clock, the defendant met up with a young sailor at the Dolphin Restaurant in New London. They were total strangers. The sailor took a seat on a stool at the bar which happened by mere coincidence to be next to that which was occupied by the defendant. They struck up a chance conversation which lasted for nearly an hour, talking of things in general. Just before closing time, which was 9 p. m., the defendant invited the sailor to take a ride with him and have a drink together. The sailor consented. The defendant drove to a deserted area off Ocean Avenue some three miles from the intersection of Bank and Golden Streets and onto an extension of Mansfield Road, where he parked his car and turned out the lights. Thereafter, the defendant exposed himself and made a repeated unwelcome invitation to homosexual activity, whereupon the sailor struck the defendant a severe blow in the right temple, causing him serious injury and laceration by severe bleeding. The sailor then forced the defendant out of the car and drove away, leaving the defendant in the deserted area where the automobile had been parked. The defendant returned to town in a bleeding condition. At about 10:20 p. m., he entered the Lawrence and Memorial Associated Hospitals in New London for treatment of the injury. In accordance with customary hospital practice in a situation of this kind, the night nurse notified the police department of the character of the defendant's injury and shortly afterwards, in response to the call, Officer Richard Brown, in uniform and in the discharge of his official duties, arrived at the hospital to question the defendant, who, at the time, was lying on a treatment table, bleeding, while his forehead was being stitched by a doctor. The defendant told the police officer that at about 9:20 p. m on the same night, at the corner of Bank and Golden Streets, in New London, he had been struck and knocked down by a sailor dressed in 'blues.' The trial court found that this information was false. No such offense as described by the defendant had been committed. Acting upon the information as given by the defendant, the police launched an investigation. The police officer did not advise the defendant that an investigation would be undertaken as a result of his statement.

The defendant's basic claim of error directed against the first count is that the crime of lascivious carriage or behavior under our statute and as interpreted by our courts is applicable only to behavior of persons of different sexes, that is to say, behavior which is heterosexual in character. The defendant places much reliance upon Fowler v. State, 5 Day 81, decided in 1811, which construed the statute as it had existed since 1784. 'Sound [statutory] construction requires that statutes be considered in the light of their history, their language, the purpose they are designed to serve and the circumstances surrounding their enactment.' Cassidy v. Tait, 140 Conn. 156, 160, 98 A.2d 808, 809; Lee v. Lee, 145 Conn. 355, 358, 143 A.2d 154. Our lascivious carriage statute is a descendant of a seventeenth-century statute. In 1642, lascivious carriage was made a crime by the 'General Courte,' which was then the legislative body of the colony of Connecticut. The statute appears in the Code of 1650 as an addendum to the last of a list of fourteen 'Capitall Lawes' and reads: 'And whereas frequent experience, gives in sad evidence of severall other wayes of uncleanes, and lascivious carriages, practised amongst us; whereunto in regarde of the variety of circumstances, perticular and express lawes and orders cannott suddenly be suted; this Courte cannott but looke upon evills in that kinde, as very pernitious and destructive to the wellfare of this Commonwealth: And, doe judge, that severe and sharpe punnishment, should bee inflicted upon such delinquents; * * * that others may heare and feare.' Conn.Code of 1650, p. 30 (Andrus & Judd 1833). We are told that '[t]his law originated from the peculiar sentiments of the first settlers respecting the intercourse of the sexes, and was occasioned by a prosecution for this offence before the particular court.' Statutes, 1821, p. 164 n. The prosecution referred to was the case heard at a session of the Particular Court on June 4, 1640, when Nicholas Olmsteed was convicted for 'laciuious caridge & fowle mysdemenors at sundry tymes w ^th Mary Brunson.' 1 Col.Rec. 50 (1636-1665). There are also records of prestatutory convictions of 'sinfull dalliance' with girls of poor reputation which probably would have constituted lascivious carriage in 1642. See New Haven Blue Laws (Aug. 5, 1640) (Conn.Code of 1650, p. 110). 'In December, 1642, the General Court, after expressing their approbation of what had been done by the Particular Court, as agreeable to the general power previously granted to them, proceeded to pass an act * * *. After the establishment of the County Courts, the cognizance of this offence was transferred to them.' Statutes, 1808, p. 457 n.

In its original form, the lascivious carriage statute on its face appears to be residual, falling, as it does, at the end of the list of 'Capitall Lawes.' Other interdictions relating to sexual behavior deal with bestiality, homosexuality, adultery and rape--all capital crimes. Conn.Code of 1650, pp. 28, 29. Fornication was prohibited and punished 'either by injoyning to marriage, or fyne, or corporall punnishment, or all * * *.' Conn.Code of 1650, p. 48. Each statute was intended to regulate and control an exclusive area of sexual conduct, and only that area. On the other hand, the lascivious carriage statute, being residual, was a general prohibition against all other acts loosely described as lascivious. Statutes, 1821, p. 164 n. The 1784 statute, entitled 'An Act for the Punishment of lascivious Carriage and Behaviour,' contained the following preamble: 'For the preventing of lascivious Carriage and Behaviour, against and for the Punishment of which, (in Regard to the Variety of the Circumstances) particular and express Laws cannot be easily suited and made.' Statutes, 1784, p. 124. The act read: 'Be it enacted by the Governor, Council and Representatives, in General Court assembled, and by the Authority of the same, That the several and respective County Courts within this State, shall be, and are hereby impowered and directed to proceed against, and punish such Persons as shall be guilty of lascivious Carriage and Behaviour; either by imposting a Fine on them, or by committing them to the House of Correction, or by inflicting corporal Punishment on them, according to the Nature and Aggravation of the Offence, and according to the Discretion of such Court: That such seasonable and exemplary Punishment may be inflicted upon Offenders in that Kind, that others may hear and fear.'

Against such a historical background, Fowler v. State, 5 Day 81, the only Connecticut decision which attempted to give the lascivious carriage statute judicial interpretation, was handed down in June, 1811. The court interpreted the statute in this way (5 Day p. 84): 'Although, from the indelicacy of the subject, and the different shades of criminality attending the offense, the legislature have avoided a definition of lascivious carriage and behavior; yet, it is evident from the preamble to the act, and the plain import of its expressions, that they meant to include and suppress all those wanton acts, between persons of different sexes, flowing from the exercise of lustful passions, which are grossly indecent and unchaste; and which are not otherwise punished as crimes against chastity and public decency.' Although the interpretation is in general terms, the court seemed to place two limitations upon the application of the statute--limiting it to heterosexual behavior and to behavior not otherwise punished as a crime.

By 1821, the statute had attained a modern form. Statutes, 1821, p. 164. Discretion as to punishment was limited. The purposeful preamble was omitted. The seriousness of the offense was downgraded. At the same time, the range of specific sexual crimes had widened; for example, statutory rape and assault to commit rape were added to the statutes. Statutes, 1821, p. 152. In 1871, the residual scope of the lascivious carriage statute was significantly cut by the passage of an act which punished a person who did 'wantonly and indecently expose his person in sight of any dwelling house...