State v. Fenster, No. CR

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

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

Page 178

[2 Conn.Cir.Ct. 185] 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 [2 Conn.Cir.Ct. 186] 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.

Page 179

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 [2 Conn.Cir.Ct. 187] 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 [2 Conn.Cir.Ct. 188] 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...