State v. Trombley

• Decision Date: 15 September 1964
• Docket Number: No. CR,CR
• Citation: 206 A.2d 482,3 Conn.Cir.Ct. 28
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. Ralph J. TROMBLEY. 6-19202.

Page 482

206 A.2d 482

3 Conn.Cir.Ct. 28

STATE of Connecticut v. Ralph J. TROMBLEY.

No. CR 6-19202.

Circuit Court of Connecticut, Appellate Division.

Argued May 18, 1964.

Decided Sept. 15, 1964.

Nathan G. Sachs, New Haven, for appellant (defendant).

Sherman Drutman, Asst. Pros. Atty., for appellee (state).

LEVINE, Judge.

The defendant was convicted of the crime of lewdness in violation to § 53-226 of the General Statutes and has appealed, assigning five errors. The first three assignments are addressed to the finding and the conclusions therein, the fourth is a general assignment of error in the conclusion of guilt beyond a reasonable entrapment of the defendant by a police officer.

The court could reasonably have found the facts to be as follows: Detective Arthur J. Lee of the New Haven police department, on duty in civilian clothes, was standing on the corner of Edgewood Avenue and Park Street in New Haven on October 14, 1963, about midnight. The police department had received information that homosexuals were soliciting in the neighborhood of the two streets mentioned and on nearby streets. The defendant arrived at about that time, parked his car on Park Street, near Edgewood Avenue, and remained in it. The officer, without any sign or invitation from the defendant, walked over to the defendant's car and stood on the sidewalk, and a conversation was initiated between the defendant and the officer when the officer asked the defendant for the time. During the conversation, the defendant opened the passenger door and asked the officer if he would like to sit in the car. The two continued conversing in the car, and when the officer asked the defendant what he was doing there, the defendant replied that he was waiting for a friend to have an unnatural act performed. Thereafter, the defendant stated that he had tried the unnatural act a few times but that he had had difficulty with it. The last part of this statement was elicited on direct examination of the defendant. The defendant inquired of the officer if he performed the unnatural act, and thereafter asked the officer to take a ride out of town to engage in the act. The officer revealed his identity and arrested the defendant on a charge of lewdness. The defendant at no time touched the officer nor did he do anything in furtherance of the act discussed. Only conversation took place between the defendant and the officer.

The defendant's assignments of error addressed to the finding have not been briefed and will be deemed to be abandoned. Maltbie, Conn.App.Proc. §§ 167, 327. Moreover, the defendant's rights with respect to the finding will be adequately protected by the comprehensive inquiry required by the general assignment of error directed to the finding of guilt beyond a reasonable doubt upon all the evidence. State v. Pundy, 147 Conn. 7, 8, 156 A.2d 193.

In his brief, the defendant raises for the first time the question of the sufficiency of the information upon which he was presented for trial. This issue was not included in his assignments of error. The court is not bound to consider any error on appeal unless the error is specifically assigned and unless the record shows that the question was raised at the trial and ruled upon by the court. Practice Book §§ 652, 1023. Therefore we cannot consider the question.

The defendant next claims error in that there is no substantive offense of lewdness. Section 53-226 defines 'lewdness' to include 'any indecent or obscene act.' The legislature originally enacted § 53-226 as chapter 77 of the 1919 Public Acts, and the statute has continued to date in the same form. Lewdness is recognized by the Supreme Court of Errors as a statutory crime including any indecent or obscene act. State v. Curtis, 146 Conn. 365, 369, 151 A.2d 336. 'Lewdness has been defined as the unlawful indulgence of lust. It signifies that form of immorality which has relation to sexual impurity, and is generally used to indicate gross indecency with respect to the sexual relations. * * * Particular acts and forms of lewdness constitute criminal offenses at common law and under statutes in many jurisdictions.' 33 Am.Jur. 16, Lewdness, Indecency and Obscenity, § 2. 'The term 'lewdness' must be given some meaning. * * * It includes immoral and degenerate conduct between persons of the same sex. * * * The acts proven are sexual, induced by a degrading passion within the meaning of 'lust' in Webster's New Int. Dict., 2d Ed., and therefore 'lewd' within the definition of the same authority.'...