State v. Palozie

• Decision Date: 11 July 1973
• Citation: State v. Palozie, 165 Conn. 288, 334 A.2d 468 (Conn. 1973)
• Parties: STATE of Connecticut v. Donald L. PALOZIE.
• Court: Connecticut Supreme Court

Page 468

334 A.2d 468

165 Conn. 288

STATE of Connecticut v.Donald L. PALOZIE.

Supreme Court of Connecticut.

July 11, 1973.

Lawrence C. Klaczak, Public Defender, for appellant(defendant).

Abbot B. Schwebel, Asst. State's Atty., for appellee(state).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

LOISELLE, Associate Justice.

The defendant, Donald L. Palozie, was convicted by a jury of three counts of risk of injury to a child in violation of General Statutes § 53-21; two counts of cruelty to persons in violation of § 53-20, and one count of breach of the peace in violation of § 53-174.The charges were made in three informations considered by the jury.The defendant's motion to set aside the verdict was denied and from the judgment rendered thereon he has appealed.

The assignments of error briefed by the defendant relate to four rulings on evidence and to the court's refusal to set aside the verdict as against the weight of the evidence and contrary to law.

The assignments of error relating to the court's refusal to set aside the verdict are tested by the evidence printed in the appendices to the briefs, which reveal the following facts: On February 13, 1970, the defendant's ten-year-old son, Donald Palozie, Jr., hereinafter called Donald, was brought to the school nurse by his teacher after she noticed he had trouble walking and sitting.On that day the nurse saw bruises covering an area of about three-by-four inches on Donald's left buttock which was red and covered with some scabbing and below that a two-by-three-inch area that was black and blue.On February 18, 1970, a bruise on Donald's left buttock about three inches long and one inch wide was photographed and the photograph was later introduced into evidence.The defendant admitted he strapped his son three or four times on February 12, 1970.On February 28, 1970, the defendant was arrested and charged with the crimes of risk of injury to a child in violation of § 53-21, and cruelty to persons in violation of § 53-20, arising out of the incident of February 12, 1970.The jury found him guilty on the first count.

A day or two after his arrest the defendant, at about 1:30 a.m., threw his son Donald against a chair, bruising his head, and stepped on his back because he had 'squealed' to the school principal and a policeman.Donald's teacher, his grandmother, a state trooper, and a school nurse all observed the bruise on his forehead, which was described as large and egg-shaped.On March 9, 1970, Donald was examined in Enfield by a doctor who noted bruises on Donald's forehead and left temple.Donald told the doctor that the bruises were a result of being thrown to the floor by his father and having his head hit against the floor several times.Donald said that he vomited after this incident.The defendant admitted slapping Donald on March 1, 1970.As a result of the incident of March 1, 1970, a second information was filed in three counts; one for the crime of risk of injury to a child in violation of § 53-21, the second for cruelty to persons in violation of § 53-20 and the third for breach of the peace in violation of § 53-174.The jury found him guilty on all counts.

On March 5, 1970, a case worker for the state welfare department placed Donald in the custody of his aunt.On April 15, 1970, the defendant went to his parents' home in Ellington where Donald and his aunt were visiting.The defendant slapped his son and made him cry and later the same day hit has son in the nose, telling him that he was being slapped because he'squealed' to his school principal.The defendant admitted he slapped his son on that day.A third information was filed relative to the events of April 15, 1970, in three counts charging offenses similar to those in the second information.The breach of the peace count was nolled and the jury found the defendant guilty of the two remaining counts.

The defendant claims that on the facts presented the verdict was contrary to law in that the evidence offered was insufficient to prove any of the three separate crimes charged in the three informations.More specifically, the defendant asserts that since no evidence was offered to prove that Donald's health was impaired, an assential element of the crime of risk of injury to a child was lacking.Section 53-21 of the General Statutes¹ does not require a showing that, in fact, the health of the child was impaired but only that the conduct or the acts of the defendant were such that the health of the child was likely to be impaired.Strapping a child to a degree that bruises with some scabbing covering an area of three or four inches result and further causing a two-to-three-inch area to become black and blue, is conduct on which a jury could appropriately base a conclusion that the health of the child was likely to be impaired and there was sufficient evidence to convict the defendant of the charge in the first information.Similarly, throwing a child against a chair, bruising his head, and then stepping on his back, which caused vomiting that night and the next day, is conduct which clearly falls within the definition of risk of injury to a child and is sufficient to establish guilt under the second information.Finally, the defendant's action in slapping his son and then 'poking' his son in the nose is sufficient to establish culpability in the third information.Although the record discloses more by way of proof, further comment to support the jury's verdict that the defendant's actions would likely impair the health of a child in each of the three informations is hardly necessary.

The defendant also claims that corporal punishment administered by the defendant to his son was for disciplinary purposes and was not criminal conduct within the charge of cruelty to persons.Relative to this claim, the second and third informations charged that the defendant'did unlawfully punish a child under the age of sixteen years, in violation of Section 53-20 of the General Statutes.'²The word 'unlawfully' does not connote 'inhuman or barbarous treatment' as claimed by the defendant.Reading the statute in its entirety, and in light of its history and purpose, the word 'unlawfully' should be construed within the rule of statutory construction that a general word, following a particular enumeration, is intended to apply only to matters of the same general character.Griffin v. Fancher, 127 Conn. 686, 690, 20 A.2d 95;Connecticut Mutual Life Ins. Co. v. Rogers, 113 Conn. 14, 21-22, 154 A. 246;Brown v. Congdon, 50 Conn. 302, 309.Since the statute also condemns the maltreatment of overworking of children under sixteen years of age, the words 'unlawfully punishes' must be read to apply to punishment of similar general character.The jury could well find that the defendant's action toward his son as previously recited was 'unlawful' punishment as charged in the second and third informations.

The defendant's argument that the evidence did not support a verdict of guilty of breach of the peace in violation of § 53-174³ in the third information needs no discussion.A slap in the face and a 'poke' in the nose are assaults as contemplated in the statutes.

During the course of the trial, the court admitted in evidence a report prepared by the state welfare department to support the petition to remove the defendant as guardian of his two sons.The report was admitted as a business entry within the provisions of § 52-180.The evidence clearly establishes that the report was admissible as a business entry as it was made in the ordinary course of business; it was the ordinary course of business to make the report; it was made at the time of the occurrence or within a reasonable time thereafter.State v. Vennard, 159 Conn. 385, 397, 270 A.2d 837;Szela v. Johnson Motor Lines, Inc., 145 Conn. 714, 723, 146 A.2d 910;Weller v. Fish Transport Co., 123 Conn. 49, 60, 192 A. 317.The fact that the report was a welfare department report or investigation did not affect its admissibility under the statute.State v. Ferraiuolo, 145 Conn. 458, 464, 144 A.2d 41.The defendant does not contest the admissibility of the report in these grounds but has briefed his objection on the ground that the record was not the entrant's own observation nor was it information transmitted to the entrant by someone whose duty it was to transmit the information.SeeD'Amato v. Johnston, 140 Conn. 54, 59, 97 A.2d 893.

The report includes observations by the entrant; verbal statements by two teachers who reported what the defendant's sons had told them and included their own observations; an admission by the defendant; and statements made by one of the defendant's sons.The entrant's own observations are clearly admissible.Sheary v. Hallock's of Middletown, Inc., 149 Conn. 188, 195, 177 A.2d 680;D'Amato v. Johnston, supra.

Statements made by the teachers were statements by persons whose duty it was to transmit information to the welfare department.General Statutes § 17-38a.The statute not only requires the report by the teachers but also requires that '(s)uch report shall contain . . . any other information which the reporter believes might be helpful in establishing the cause of the injury or injuries and the identity of the perpetrator thereof.'The observations of the teachers as recorded in the reports were admissible within the provisions of § 52-180.

The admission of the defendant made to the entrant was also within the provisions of § 52-180.Since the defendant's statement was in the nature of an admission and came within the exception to the hearsay rule, the entrant's report concerning the admission would be admissible to prove the truth of the statement despite the fact that the defendant had no business duty to make the statement.Kelly v. Sheehan, 158 Conn. 281, 285-286, 259 A.2d 605;McCormick, Evidence (2d Ed.) § 310, p. 726.

The only portion of the report which is...