State v. Silver

• Decision Date: 07 November 1952
• Citation: 139 Conn. 234,93 A.2d 154
• Court: Connecticut Supreme Court
• Parties: STATE v. SILVER. Supreme Court of Errors of Connecticut

Page 154

93 A.2d 154

139 Conn. 234

STATE v. SILVER.

Supreme Court of Errors of Connecticut.

Nov. 7, 1952.

Joseph E. Klau and David M. Shea, Hartford (John M. Bailey and Alfred F. Wechsler, Hartford, on the brief), for the appellant-defendant.

Joseph V. Fay, Jr., Asst. State's Atty., Hartford, (Albert S. Bill, State's Atty Hartford, on the brief), for the appelleestate.

Before BROWN, C. J., and JENNINGS, BALDWIN, O'SULLIVAN and INGLIS, JJ.

INGLIS, Justice.

The defendant was informed against in five counts. The first charged carnal knowledge, on or about October 13, 1950, of a female under sixteen years of age. The second and third alleged indecent assault upon minors, and the fourth and fifth charged the doing of acts likely to impair the morals of children under the age of sixteen. In none of the counts were the victims named, nor were any specific dates set forth for the commission of the offenses except in the first count. All of the counts, however, complied with the rule relating to short form informations. Practice Book, § 344. No bill of particulars was requested by the defendant. See Practice Book, § 345. The jury found the defendant not guilty on the first count and guilty on the other four counts. He has appealed from the denial of his motion to set aside the verdict on the last four counts and also from the judgment. He claims errors in the denial of three motions, in various rulings on evidence and in the charge.

The evidence in the case centered around the testimony of two girls, the first of whom was ten and the second eleven years of age. The first girl testified to these facts: On her way to and from school she ordinarily passed an apartment house in Hartford in which, it appeared from other evidence, the defendant was employed as janitor. On several occasions prior to October 13, 1950, as she reached the apartment house on her way home from school at noon, the defendant called her in and committed indecent assaults upon her. One of these assaults was committed in a vacant apartment, two in the cellar and several--she did not remember how many--in an apartment in which there were furniture and a bulldog. On some of these occasions the defendant gave her small sums of money. Her testimony as regards the assault in the vacant apartment was at first open to the interpretation that it had occurred at noon on October 13, but it later appeared that she did not intend to say that. As it was left, she was unable to fix the date of that or any of the other occasions. On cross-examination, she testified that she had not told her mother about the incidents because she was afraid of being punished and that on one occasion the defendant had 'chased' her from the building because she was playing on the self-service elevator.

By way of corroboration of her story the state produced another young girl, who testified to this incident: 'Once, as she and the first girl were passing the apartment, the defendant rapped on the window of the entrance door with a coin and motioned the first girl to come over. In response to the witness' inquiry, the first girl said that 'that was the man that was fooling with her in a naughty way.' It also appeared that on October 13 the complaining witness had conducted police officers, without any coaching by them, to the vacant apartment, to the apartment occupied by the defendant himself, where they found a bulldog, and to the cellar of the apartment house. On the same day she had given the police a statement embodying essentially the same story as that to which she testified. A physician testified that he had examined the girl on October 13 and found that her hymen had been ruptured but, except that it was not a recent rupture, he could not tell how long that condition had existed or by what it had been caused.

The second little girl testified that she lived in the apartment house where the defendant was the janitor and, in circumstantial detail, told how, on two different days in September, 1949, he took her to the cellar and committed indecent assaults upon her. She further stated that after the second occasion she had told her mother that the defendant had taken her to the cellar but not that he had assaulted her.

The defense consisted of a denial of guilt, evidence of good character, an alibi for October 13, 1950, and the suggestion of a motive for falsification on the part of the first complaining witness in that he had told her not to play in the building.

It is clear that if the jury could reasonably have believed the testimony of the two complaining witnesses the verdict must stand. The contention of the defendant is not only that the testimony could not reasonably be believed but also that the jury showed that they did not believe the first girl because they returned a verdict of not guilty on the count charging carnal knowledge. This latter contention is a non sequitur. There was, in connection with that charge, enough indefiniteness in the child's description of the defendant's exact acts so that the jury might well have felt a reasonable doubt that there had been penetration. That they gave the defendant the benefit of that doubt does not indicate that they disbelieved the girl's account of the various indecent assaults.

The defendant produced no testimony which would necessarily discredit the testimony of either of the girls. His alibi for October 13 was of no value against the testimony of the first girl because, as it finally developed, she had not intended to fix that day as being one upon which an assault had been committed. On all the evidence, we cannot say that the jury could not reasonably have believed the testimony of the complaining witnesses. Since the jury apparently did believe it, they were warranted in finding the defendant guilty both of indecent assault on, and of conduct impairing the morals of, each of the girls. It follows that the trial court acted properly in denying the motion to set aside the verdict.

Such claims of proof as are necessary to test the assignments of error in the appeal from the judgment will be stated in connection with the discussion of those assignments.

Before the start of the trial the defendant moved that the counts involving one minor be tried separately from those involving the other. The court denied the motion and that ruling has been assigned as error. The basis of the defendant's contention is that the refusal to grant separate trials resulted in the jury's having before them, in their consideration of one group of crimes, evidence that the defendant was guilty of another group of crimes, and that this was prejudicial to him.

Section 8770 of the General Statutes provides: 'Whenever two or more cases shall be pending at the same time against the same party, in the same court, for offenses of the same character, counts for such offenses may be joined in one information unless the court shall order otherwise.' This statute, it is true, does not in terms relate to the trial of separate crimes. It speaks only of the joinder of counts in a single information. There can, however, be no reason for joining various counts in one information except to permit the trial of all of those counts at a single trial. The intendment of the statute, therefore, is that charges of several offenses, if they are of the same character, shall be tried together unless, as the statute provides, the court shall order otherwise.

The matter of separate trials of distinct offenses charged against a single defendant was before us in State v. Bradley, 134 Conn. 102, 55 A.2d 114, certiorari denied, 333 U.S. 827, 68 S.Ct. 453, 92 L.Ed. 1112. We upheld the denial by the trial court of a motion for separate trials of charges of three distinct first degree murders. We said, 134 Conn. at page 109, 55 A.2d at page 117: 'In State v. Kemp, 126 Conn. 60, 84, 9 A.2d 63, we stated that in view of the statute such a joinder in one indictment or information cannot be regarded as so prejudicial in itself as to make a trial improper. * * * The matter lies within the discretion of the trial court and the exercise of that discretion cannot be interfered with unless it has been manifestly abused.' The discretion of a court to order separate trials should be exercised only when a joint trial will be substantially prejudicial to the rights of the defendant, and this means something more than that a joint trial will be less advantageous to the defendant. State v. McCarthy, 130 Conn. 101, 103, 31 A.2d 921; State v. Castelli, 92 Conn. 58, 63, 101 A. 476. The test is whether substantial injustice will result to the defendant if the charges are tried together. State v. Klein, 97 Conn. 321, 324, 116 A. 596.

Substantial injustice might result to a defendant where the evidence of one of the several crimes charged will show such brutality on his part that it is apt to arouse the passion of the jury against him to such an extent that they probably would not give fair consideration to the evidence relating to the other charges. Such a situation, however, is rare, and it does not exist in the present case. It is, of course, true that ordinarily upon the trial of one criminal charge evidence of the commission of another offense is not admissible. This principle, however, does not necessarily require separate trials when several offenses are charged against the same defendant. The rule itself is not one of universal application. There are many exceptions to it. See State v. Barnes, 132 Conn. 370, 372, 44 A.2d 708; State v. Simborski, 120 Conn. 624, 630, 182 A. 221; State v. Chapman, 103 Conn. 453, 480, 130 A. 899; State v. Gilligan, 92 Conn. 526, 530, 103 A. 649. If the principle were applied to preclude the joint trial of several charges against the same defendant, the statute would be utterly meaningless. There never could be a joint trial and, therefore, there could be no reason for joining several counts in the same information.

The defendant...