State v. Orlando

• Decision Date: 13 December 1932
• Citation: 115 Conn. 672,163 A. 256
• Parties: STATE v. ORLANDO.
• Court: Connecticut Supreme Court

163 A. 256

115 Conn. 672

STATE v. ORLANDO.

Supreme Court of Errors of Connecticut.

December 13, 1932

Appeal from Superior Court, New Haven County: Alfred C. Baldwin Judge.

Carmine Orlando was convicted of indecent assault, and he appeals.

No error.

In prosecution for indecent assault, testimony of complaint witness that she told an older sister about assault the following day held admissible.

Anthony A. E. DeLucia, of New Haven, for appellant.

Abraham S. Ullman. Asst. State's Atty., and Irving Sweedler, both of New Haven (Samuel E. Hoyt. State's Atty., of New Haven, on the brief), for the State.

MALTBIE, C.J.

The defendant was found guilty of an indecent assault upon a young girl ten years old. The appeal contains thirty assignments of error, but we shall deal only with those pursued in the defendant's brief.

The defendant made a motion in arrest of judgment, but, with one exception, the grounds stated were errors in the charge or rulings of the trial court or the insufficiency of the evidence to support a conviction; none of these grounds are proper matters for a motion in arrest, but should be raised by an appeal from the judgment or a motion to set the verdict aside. Bishop v. Copp, 96 Conn. 571, 574, 114 A 682; 1 Swift's Digest. p. 776. The remaining ground, that the defendant was found guilty of an offense not charged in the information, is not supported by the record. The motion was properly denied. The defendant also moved to set the verdict aside as against the evidence; this motion was denied and, even if the appeal could be construed as intended to bring before us that ruling, the evidence has not been certified to us and we have no basis for reviewing the action of the trial court. Counsel for the defendant were permitted to argue the motion in arrest of judgment, but the court stopped his argument upon the motion to set the verdict aside, stating that in its opinion the evidence abundantly supported the verdict. The extent to which a trial court will permit such a motion to be argued rests in its discretion, subject to review only in case of abuse. Frank v. State. 94 Wis. 211, 217, 68 N.W. 657; Hull v. Seattle, R. & S. R. Co., 60 Wash. 162, 166, 110 P. 804; Hodge v. Territory of Oklahoma, 12 Okl. 108. 69 P. 1077; Howel v. Common wealth, 5 Grat. (46 Va.) 664, 668. If the guilt of the accused was in fact shown by abundant evidence, no good purpose would be served by prolonging the argument in this instance, and in the absence of the evidence we have no basis upon which to question whether that were so or not.

The claimed corrections in the finding, if made, would have no material bearing upon any issue presented upon the appeal and we disregard them. The trial court, while not adopting the language of the defendant's requests to charge, substantially complied with all of them except one, and as to that, no claim of error is made. The only error in the charge pressed upon the appeal was the concluding statement of the court as follows: " The State of Connecticut does not desire the conviction of innocent accused persons, but where the evidence has established to the degree which I have indicated guilt, the State of Connecticut expects the jury in its service by their verdict so to express the fact." This was an entirely proper instruction for the trial court to give.

The substantial questions raised by the appeal are rulings as to the admission of testimony. The trial court, after the complaining witness, and a sister aged eight, had been examined, admitted them as witnesses. Whether a child of tender years is qualified as a witness is a matter peculiarly within the discretion of the trial court, and its ruling will not be disturbed unless in a clear case of abuse or of some error in law. Kuezon v. Tomkieviez, 100 Conn. 360, 572, 124 A. 226. We cannot say that the trial court abused its discretion in finding that these little girls were qualified to testify as witnesses.

The examination of a child for the purpose of determining its competency as a witness is for the sole purpose of satisfying the court that he has the requisite qualifications; the examination is not under oath and has no bearing upon the issues of the case; and the method in which it is conducted is also in the discretion of the trial court, reviewable only for clear abuse. State v. Whittier, 21 Me. 341, 347, 38 Am.Dec. 272; Hughes v. Detroit, G. H. & M. Ry. Co., 65 Mich. 10, 15, 31 N.W. 603; State v. Dowell, 47 Idaho, 457, 276 P. 39, 68 A.L.R. 1061; 5 Jones, Commentaries on Evidence (2d Ed.) § 2107.

It may well be that questions asking for definitions of words or involving broad generalizations may be beyond the mental capacity of the child under examination and of no benefit in determining his competency. We cannot find error, therefore in exclusion of a question addressed to one of the children asking the difference between right and wrong, or hold one of them disqualified as matter of law...