State v. Nussenholtz

• Decision Date: 24 July 1903
• Court: Connecticut Supreme Court
• Parties: STATE v. NUSSENHOLTZ.

55 A. 589

76 Conn. 92

STATE

v. NUSSENHOLTZ.

Supreme Court of Errors of Connecticut.

July 24, 1903.

Appeal from Court of Common Pleas, New Haven County; Leverett M. Hubbard, Judge. Frank Nussenholtz was convicted of willfully selling veal less than four weeks old. and he appeals. Reversed.

Jacob B. Ullman, for appellant.

Robert J. Woodruff, Pros. Atty., for the State.

TORRANCE, C. J. In this case we think that two of the errors assigned are well taken, and entitle the defendant to a new trial. One relates to certain rulings upon evidence, and the other to a certain part of the charge to the Jury.

The assignment relating to the rulings upon evidence is based on these facts: The defendant became a witness in his own behalf, and upon his cross-examination was asked if he had ever before been arrested. To this question he objected, but the court ordered him to answer it, and thereupon he did so, saying: "I was arrested. I was not guilty." The court, apparently of its own motion then ordered the words "I was not guilty" to be stricken out, and the statement of arrest to stand. We think the trial court erred in this, and that the error was harmful to the defendant. The question was apparently permitted on the supposition that, if answered in the affirmative, such answer would tend to prove such past misconduct on the part of the defendant as would injuriously affect his character. On no other supposition was the question permissible. But clearly such answer had legitimately no such tendency. Arrests are frequently made upon groundless charges, and a mere charge of misconduct, such as may impliedly be involved in the mere fact of arrest, ought not to be used as the basis of an inference that the charge is true. Both the question and any possible answer to it were, under the circumstances, clearly irrelevant, and should have been ruled out. Moreover, the defendant was the accused, as well as a witness, and, although his character as witness was open to attack in this case, his character as accused was not, inasmuch as he had offered no evidence of good character; and yet by the action of the trial court in this matter the state was allowed to attack the defendant's character both as a witness and as a man, for the fact of arrest was in no way limited to its effect upon his character as a witness, but was received as affecting his character generally, and the jury were nowhere told that it could not be used to affect his character as a man. Under these circumstances, we think that the action of the court in admitting this evidence, coupled with its order striking out the claim of innocence, entitles the defendant to a new trial.

The other material error assigned relates to a certain part of the charge. The statute upon which this case was brought provides, among other things, that "every person who shall willfully sell, or offer to sell * * * the flesh of any calf which was less than four weeks old when killed," shall be punished by fine or imprisonment as therein provided. Pub. Acts 1901, c. 154 (Gen. St. 1902, § 1346). The accused was charged with selling the flesh of a calf in violation of this statute. In construing the statute the court charged the jury as follows: "The accused is charged here with willfully selling. The court would advise you that by 'willfully selling' is meant deliberately selling. It is not a question of motive. A man's motive does not enter into the account in an offense where it is simply that the act of violation was willful." The court here seems to construe the statute as if it did not contain the word "willfully." The jury are, in effect, told that, if the accused did in fact sell or offer to sell flesh of the forbidden kind, he was guilty, even if he in good faith and on sufficient grounds believed it was not flesh of that kind; in other words, that his knowledge that the flesh was of the forbidden kind was not an element of the statutory crime. This would undoubtedly be the true construction if the word "willfully" had been omitted, but we think it is not the true construction of the statute as it now reads. The case turns upon the question of intent. With what intent must a sale be made to make the seller guilty under the statute? Is a mere intent to make the sale sufficient, or must it be an intent to make the sale and also to violate the law? A., knowingly having in his possession flesh of the forbidden kind, sells it. Clearly his intent is twofold: (1) To sell the flesh; (2) to sell it in violation of law. B., having in his possession flesh of the forbidden kind, but blamelessly, without knowledge that it is so, sells it. Clearly his Intent is simply to sell, and nothing more. A. may be said to...