State v. MacGregor

• Decision Date: 29 November 1968
• Docket Number: No. CR,CR
• Citation: 5 Conn.Cir.Ct. 298,250 A.2d 721
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. Paul E. MacGREGOR. 8-8862.

Page 721

250 A.2d 721

5 Conn.Cir.Ct. 298

STATE of Connecticut v. Paul E. MacGREGOR.

No. CR 8-8862.

Circuit Court of Connecticut, Appellate Division.

Argued July 29, 1968.

Decided Nov. 29, 1968.

MacGregor Kilpatrick, Branford, for appellant (defendant).

John J. Esposito, Asst. Pros. Atty., for appellee (state).

MACDONALD, Judge.

In a trial to the court, the defendant was convicted of the crime of breach of the peace; General Statutes § 53-174; and from a judgment of guilty he has appealed, assigning as sole error that the court erred in concluding on all the evidence that the defendant was guilty of the crime charged beyond a reasonable doubt. Practice Book § 995. Upon this assignment of error, we determine from the entire evidence whether the court erred in holding that guilt was established by the requisite degree of proof. State v. Pundy, 147 Conn. 7, 8, 156 A.2d 193; State v. Salvaggio, 152 Conn. 716, 717, 210 A.2d 175.

There was competent evidence adduced to establish the following salient facts: The defendant has owned and operated an automobile body or repair shop in Guilford for some years, known as B. B. Macs Garage or Auto Body Shop. The complaining witness, Michael Piccirillo, a salesman of automobile parts for a concern known as M. and O. Chrysler, visited the defendant's place of business on or about April 11, 1968, to collect an unpaid bill in the approximate amount of $191. The complaining witness had done business with the defendant over a considerable period of time. Upon entering the defendant's place of business, he drove into the yard in front of the shop. The doors of the repair shop were wide open. The defendant was then in the front yard discussing an estimate on a station wagon with a lady customer. Ralph DiLauro, a passenger in the car of the complaining witness, accompanied him and was present at all times herein mentioned. Three employees of the defendant were on the premises and were also present at all times herein mentioned. The complaining witness went into the shop, where the three employees were working on repairs to automobiles therein, and waited for the defendant to complete his business with the female customer. Thereafter, the defendant proceeded into the shop. The complaining witness asked about the unpaid bill. In reply, the defendant said, 'If you don't get out of here I'll hit you over the head.' At this time the defendant had in his hand a chain which 'looked like a tow truck chain,' was about two feet away from complaining witness, and raised the chain. He then dropped the chain to the floor but did not strike the complaining witness. There followed a loud verbal altercation between the two men concerning the unpaid bill and a credit of some $25 which the defendant claimed for allegedly defective parts, after which the defendant went over to a telephone, about fifteen feet away, and near it he picked up a hammer or wrench and repeated to the complaining witness, 'Get out of here before I hit you over the head.' Then, threatening to call the police and have the complaining witness thrown out, the defendant dialed a telephone number which was not that of the Guilford police. The complaining witness remained on the premises for about twenty minutes awaiting the police arrival and then departed with his companion DiLauro. He proceeded to the Guilford police station where he filed a complaint. Throughout the incident, the complaining witness did not physically touch the defendant, nor did the defendant physically touch the complaining witness.

In the course of the trial there was a sharp conflict of testimony. The state chose to rely on the evidence adduced through the complaining witness. The defendant not only testified in his own behalf but additionally offered the testimony of his three employees in corroboration of his own version of the incident. The trial court obviously believed the complaining witness and discredited the defense witnesses. Nothing is more fundamental than the proposition that the trial court is the final arbiter of the credibility of witnesses. Drazen Lumber Co. v. Casner, 156 Conn. 401, 403, 242 A.2d 754; Taylor v. Taylor, 154 Conn. 340, 341, 225 A.2d 196; Jarrett v. Jarrett, 151 Conn. 180, 181, 195 A.2d 430; State v. White, 155 Conn. 122, 123, 230 A.2d 18. We do not retry the facts or pass upon the credibility of witnesses. Romaniello v. Dyna Distributors, Inc., 154 Conn. 605, 606, 227 A.2d 430; Triano v. Brodowy, 151 Conn. 445, 446, 199 A.2d 164. 'The issue is not to be determined 'solely by counting the witnesses on one side or the other'. * * * Numerical superiority is not the criterion or key to such a determination. * * * ' State v. Hodge, 153 Conn. 564, 573, 219 A.2d 367, 371. 'It is not uncommon for an accused to be found guilty upon identification by only the complaining witness, and 'it is not the law that corroboration is essential to the proof of guilt." Ibid.

The record shows that the state chose not to produce and offer the testimony of Ralph DiLauro, who accompanied the complaining witness and was present throughout the incident. The defendant contends that (a) the trial court was justified in drawing the inference that such testimony would have been unfavorable to the state, and (b) such an inference raised a question of reasonable doubt which should have been resolved in the defendant's favor. It is so that the failure to produce a witness who is within reach and who would naturally have been produced permits, but does not require, an inference that the evidence of the witness would have been unfavorable. The failure to offer such evidence is, however, not proof of any specific fact; it simply permits the inference, which must be weighed with the entire evidence. Cayer v. Salvatore, 150 Conn. 361, 365, 189 A.2d 505, and authorities cited. It has been said time after time...