State v. Moore

• Decision Date: 06 November 1969
• Citation: 158 Conn. 461,262 A.2d 166
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. James A. MOORE.

Page 166

262 A.2d 166

158 Conn. 461

STATE of Connecticut v. James A. MOORE.

Supreme Court of Connecticut.

Nov. 6, 1969.

John M. Byrne, Asst. Public Defender, with whom, on the brief, was John A. O'Reilly, Jr., Hartford, for appellant (defendant).

John F. Skelley, Jr., Asst. State's Atty., with whom, on the brief, was John D. LaBelle, State's Atty., for appellee (state).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

ALCORN, Associate Justice.

The defendant was arraigned on an information containing two counts. In the first count he was accused of rape in violation of § 53-238 of the General Statutes. The second count charged incest in violation of § 53-223 of the General Statutes. The accusation in the second count is separate and distinct in its elements from that made in the first count so that error as to the second count would not invalidate a judgment on the first count. State v. Fasano, 119 Conn. 455, 463, 177 A. 376. The case was tried to a jury which returned a verdict of guilty on both counts. The judgment file recites that, following a denial of the defendant's motion to set aside the verdict, the court adjudged the defendant 'guilty as charged on both counts of said information,' imposed a state prison sentence on the first count, and 'suspended judgment on the second count.'

The defendant has appealed from the judgment. The only error which is assigned and pursued in the brief concerns the charge of the court relating to the crime of incest. The claim is that, while there was little doubt of sexual intercourse between the parties, the court's charge compelled the jury to conclude that the defendant was guilty of incest and thereby unduly influenced their decision on the charge of rape. This being the only issue, there is, on the record before us, no properly appealable issue unless the court's charge on incest can be said to have influenced the verdict on the charge of rape to the prejudice of the defendant. This is because the improper action of the trial court in suspending judgment on the incest count has left the sentence on the rape count as the only final judgment from which an appeal would lie.

In a criminal case the imposition of sentence is the judgment of the court. State v. Smith, 149 Conn. 487, 489, 181 A.2d 446; State v. Ashman, 112 Conn. 599, 601, 153 A. 654; State v. Lindsay, 109 Conn. 239, 243, 146 A. 290; State v. Vaughan, 71 Conn. 457, 458, 42 A. 640. An appeal lies only from a final judgment, and there can be no judgment in a criminal case until sentence is pronounced. State v. Vaughan, supra. 'The judgment-file consists of the writing out of the judgment for record, giving a history of the various steps in the action leading up to it, and it is prepared and signed at a time subsequent to the rendition of the judgment.' State v. Lindsay, supra, 109 Conn. 242, 146 A. 292. A final judgment is the adjudication which finally disposes of the case before the court. Norton v. Shore Line Electric Ry. Co., 84 Conn. 24, 31, 78 A. 587. A person accused of crime and formally presented before a criminal court must not be left in the limbo of a temporary stay of sentence by the device of a suspended judgment. See also General Statutes § 54-91. In a criminal case it is never proper for the court to suspend judgment, although the court may properly render judgment by imposing sentence and then suspend the execution of the sentence for an ascertainable period, thereby protecting the right of appeal.

We turn now to the single question whether the charge of the court concerning the crime of incest did, as claimed by the defendant, result in prejudicial error affecting the judgment rendered on the count of rape. We find nothing to indicate that it did.

The evidence before the jury was that the victim of the crimes charged was the nineteen-year-old daughter of the defendant's brother-in-law, that is, the daughter of the defendant's wife's brother. There was also evidence from which the jury could reasonably conclude that the defendant had sexual intercourse with the victim against her will and by the use of force sufficient to overcome her resistance.

On the facts presented to the jury in this case, the distinguishing element between the two crimes charged was the use of force by the defendant to overcome the will of the victim. State v. Esposito, 122 Conn. 604, 606, 191 A. 341.

In the portion of the charge objected to, the court expressly told the jury that in the crime of incest under the second count 'force and consent is not involved' and that the state had the burden of proving only sexual intercourse between the defendant and his niece.

The court, however, quoted to the jury the pertinent portions of § 53-223 and § 46-1 of the General Statutes. The statutes are set forth in the footnote. ¹ The court then instructed the jury that incest is the crime of sexual intercourse between persons related within the degrees wherein marriage is prohibited by law, that 'the law prohibits a marriage by a man with his niece,' and that 'a niece is a daughter of one's brother or sister, or a daughter of one's brother-in-law or sister-in-law.' The defendant duly excepted to this portion of the charge.

We feel impelled, in the interest of justice and because of the unusual record in this case, to observe in passing that the court extended the meaning of § 46-1 beyond its fair import. A penal statute such as § 53-223 must be sufficiently explicit to inform those who are subject to it of the conduct which it penalizes. Grievance Committee, etc. v. Dacey, 154 Conn. 129, 147, 222 A.2d 339, 22 A.L.R.3d 1092, appeal dismissed, 386 U.S. 683, 87 S.Ct. 1325, 18 L.Ed.2d 404. The crime defined by § 53-223 can be committed only by persons within the relationship specified in § 46-1. A criminal statute must be strictly construed, and no act should be held to be within its ambit which does not fall within its spirit and the fair import of its language. State v. Faro, 118 Conn. 267, 273, 171 A. 660; State v. Parker, 112 Conn. 39, 46, 151 A. 325; State v. Penner, 85 Conn. 481, 484, 83 A. 625. The meaning of the statute cannot be extended by presumption or intendment. State v. Zazzaro, 128 Conn. 160, 167, 20 A.2d 737. No part of the statute is to be treated as insignificant or unnecessary, and there is a presumption of purpose...