State v. Poplowski
| Decision Date | 29 May 1926 |
| Citation | 104 Conn. 493,133 A. 671 |
| Court | Connecticut Supreme Court |
| Parties | STATE v. POPLOWSKI. |
Appeal from Superior Court, Tolland County; Allyn L. Brown, Judge.
Samuel B. Harvey, of Willimantic, for appellant.
Thomas F. Noone, State's Atty., of Rockville for the State.
The record makes it clear that, unless the finding of facts is changed, the judgment must stand. The defendant asks a correction of the finding in several important particulars and attaches a transcript of the entire evidence for our examination. From that portion of the finding not thus challenged it appears that two work horses were at large upon the public highway which leads from the so-called Hartford-Willimantic highway to Columbia; that about 8 p. m. while one Robinson, with his wife and daughter-in-law, in an automobile, were proceeding at a moderate speed upon said highway, toward their home in Columbia, the night being dark and foggy with some rain, these horses suddenly appeared before the machine in such close proximity that, while the driver successfully avoided one of them, he was unable to avoid the other, and the automobile came into violent collision with that horse, causing a considerable damage to the machine, and swerving it off the road, where the driver brought it to a stop. The court reached the conclusion that this defendant was the owner, and entitled to the custody, of these horses which were thus at large upon the public highway.
The court further found as follows:
" Prior to the time of the collision, the defendant, who was the owner, and entitled to the custody, of both horses turned them loose, and permitted them to be at large without a keeper on the old dirt road, Columbia road, and the state road, to the extent hereinbefore set forth, and the two horses which crossed the road as alleged in paragraphs 9 and 10 hereof were these two horses of the defendant."
This paragraph is attacked as found without evidence. We have read the evidence with care, and are satisfied that the conclusions of fact stated in this paragraph are supported by direct evidence in part, and in part by legitimate and reasonable inference deduced from the testimony and the circumstances. The only legitimate question of which the paragraph is susceptible relates to that which says the defendant " turned them loose and permitted them to be at large."
In the next two paragraphs of the finding the court expressly finds that the circumstantial statements of the defendant as to the whereabouts of the horses and the cause of the injuries on one of them was false. The defendant said, in substance, that the wounds had been caused by a wire fence in which the horse had been entangled the previous morning; that that horse had been confined in the defendant's orchard all that day and evening until put into the stable by the defendant; that the other horse had, after being worked that day, been confined in a separate pasture until put into the barn by the defendant; and that both lots were adequately fenced and the gates kept closed all the time these horses were so confined.
It is true, as counsel for defendant says, that finding this explanation false does not in itself justify a finding of a contrary state of facts. " Facts cannot be established by not believing witnesses who deny them." Beers v. Prouty & Co., 203 Mass. 254, 257, 89 N.E. 557; Morse v. Hill, 136 Mass. 60, 70; Wallace v. Berdell, 97 N.Y. 14, 21. On the other hand, it must be recognized that some one had the legal custody and control of the horses, and was under a duty to use due care to keep them in restraint, and not allow them to roam at large on the public highway. That person, the court justifiably found, was the defendant. That he failed to restrain the horses is quite apparent. The defendant gives no valid explanation of their presence in the highway. He does not claim that they escaped from a keeper or from an inclosure, or from a tether. He does not admit that any fence or gate was down, but asserts that such was not the case. Under the circumstances, it is a legitimate conclusion, and indeed the only logical one which a reasonable person could reach, that the horses were permitted by the defendant himself to be in the highway without a keeper. That they were in fact there, and that the defendant had not prevented it, is too clear for argument. If this be the meaning of the finding, it is a reasonable conclusion from the evidence, and we think it should stand, though the significance of the word " permit," as used in the statute, will receive consideration later.
Objection is made to paragraph 25 of the finding, which is to the effect that the defendant had previously allowed his horse to run loose on the highway. It is claimed that this was found without " evidence of any kind either direct or by inference." The transcript shows that the defendant admitted on cross-examination that a horse of his had been so allowed the previous year, and that the sheriff came to him about it. This finding should stand.
Two other findings (21 1/4 and 21 1/2) are objected to for the same reason. These are amplifications of paragraph 21, to the effect that the defendant made no attempt to restrain the horses, but knowingly, intentionally, and deliberately permitted them to go at large, and that he failed and neglected to tether, impound, or otherwise restrain them as ordinary care and prudence required.
These conclusions are inconsistent, in that an intentional turning loose of the horses contradicts the conclusion that they were loose merely by the defendant's neglect. Reading the evidence with care, we are unable to find any sufficient basis from which the inference could reasonably be drawn that the defendant made no attempt whatever to restrain these horses, though, as we have already said, the evidence is clear that he failed and neglected to restrain them. That he probably made no attempt at restraint, and did turn them loose, may be true, as the trial court found; but this is a criminal case, and the essential facts must be supported by facts established beyond a reasonable doubt, and...
To continue reading
Request your trial
-
State v. Coleman
...the well settled law in Connecticut.The rule prohibiting such a finding apparently first surfaced in Connecticut in State v. Poplowski, 104 Conn. 493, 495, 133 A. 671 (1926), where the court, citing Massachusetts and New York cases, stated: " 'Facts cannot be established by not believing wi......
-
DeLaurentis v. City of New Haven
...form the basis for such an inference. " 'Facts cannot be established by not believing witnesses who deny them.' " State v. Poplowski, 104 Conn. 493, 495, 133 A. 671 (1926); see also State v. Mayell, 163 Conn. 419, 426-27, 311 A.2d 60 (1972). 18 Given that public officials in these times hav......
-
Frankel, In re, D--5
...v. Pennsylvania R. Co., 164 F.2d 996 (3rd Cir.1947), affirmed 335 U.S. 329, 69 S.Ct. 91, 93 L.Ed. 41 (1948); State v. Poplowski, 104 Conn. 493, 133 A. 671 (Sup.Ct.Err.1926). The principle is not apposite here. The charges may be proved by direct or circumstantial evidence; and the question ......
-
State v. Mayell
...Walkinshaw v. O'Brien, 130 Conn. 151, 153, 32 A.2d 639; Meagher v. Colonial Homes Co., 109 Conn. 343, 347, 146 A. 609; State v. Poplowski, 104 Conn. 493, 495, 133 A. 671. Obviously the jury concluded that the defendant was one of the three assailants involved in the Plungis robbery on Augus......