State v. Volpe

Decision Date01 June 1931
CourtConnecticut Supreme Court
PartiesSTATE v. VOLPE.

Appeal from Superior Court, Fairfield County; Carl Foster, Judge.

Peter Volpe was convicted, by the verdict of a jury, under an information charging carnal abuse of a minor female, and he appeals.

Error judgment set aside, and a new trial granted.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

John P. Knox, of Greenwich, George E. Beers, of New Haven, and William C. Rungee, of Greenwich, for appellant.

William H. Comley, State's Atty., and Lorin W. Willis. Asst State's Atty., both of Bridgeport, for the State.

AVERY, J.

The information charges that December 15, 1930, at Stamford, the accused did carnally abuse Margaret Yacakowski, a minor of the age of 14 years. On the trial, the state claimed to have proved illicit relations between the parties on that day, and on several occasions between October 1, 1930, and December 15th of the same year; and that she, at the time, was a minor 14 years of age. Further, the state claimed to have proved that January 23, 1931, they were married in Westchester county in the state of New York; and, thereafter, on several occasions, had sexual intercourse at Greenwich. Fairfield county, in the state of Connecticut. The accused claimed to have proved by the evidence that no illicit relations before their marriage had occurred within the state of Connecticut that after the marriage January 23, 1931, the parties lived together as husband and wife at Greenwich. A verdict of guilty having been rendered by the jury, the accused moved to set it aside upon the ground, among others, that no crime was shown to have been committed within the state of Connecticut. This motion was denied. The appeal presents the questions growing out of the action of the court upon this motion, and also certain rulings upon evidence and instructions to the jury.

At the trial, Margaret was called as the first witness by the attorney for the state, who, after inquiring her age, and if she was acquainted with the accused, asked whether, during any part of the summer of 1930, she had sexual intercourse with him. She declined to answer this question; and, in response to inquiries by the court, testified she married the accused in Rye, N. Y., January 23, 1931, and had lived with him as his wife until the time of the trial in a house owned by his parents. A certificate of a justice of the peace of Rye, N. Y., attesting the sciemnization of the marriage by him there on that days, was then offered and received in evidence. The witness still declining to testify against the accused and claiming privilege in so doing as his wife, the court, after hearing argument, ruled she was not entitled to privilege and informed her that she must testify under penalty of severe punishment. To this ruling, exception was duly taken, and error is assigned therein. Subsequently, in her testimony, she stated that to obtain the marriage license, she misrepresented her age to the clerk at Mamaroneck, N. Y., who issued it, by stating to him that she was 21 years old.

Under the law of New York, a marriage between persons of non-age is not void until its unllity is declared by a court of competent jurisdiction, and such non-age does not of itself constitute an absolute right to the annulment of such marriage; " but such annulment shall be in the discretion of the court which shall take into consideration all the facts and circumstances surrounding such marriage." Cahill's Consolidated Laws of New York, 1930, c. 14, § 7; Cunningham v. Cunningham, 206 N.Y. 341, 99 N.E. 845, 847, 43 L.R.A. (N. S.) 355; Smith v. Smith, 129 Misc. 503, 221 N.Y.S. 672, 673; Wolf v. Wolf. 194 A.D. 33, 185 N.Y.S. 37, 39. And this is so, even thought the applicant may be punishable for making a false statement as to age. Kellogg v. Kellogg, 122 Misc. 734, 203 N.Y.S. 757, 765. The marriage between the parties was not void but voidable, Gould v. Gould, 78 Conn. 242, 249, 61 A. 604, 2 L.R.A. (N. S.) 531; and being voidable only, Margaret, at the trial, had the same right to testify or decline to do so as any married woman would have in a criminal case involving her husband as the accused.

Gen Stat. 1930, § 6480, provides: " Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial; and, if such person shall have a husband or wife, he or she shall be a competent witness but may elect or refuse to testify for or against the accused, except that a wife when she shall have received personal violence from her husband or shall be a woman described in section 6227 or 6239 may, upon his trial for offenses arising out of such personal violence or from violation of the provisions of either of said sections, be compelled to testify in the same manner as any other witness." It is conceded that sections 6227 and 6239 have no bearing upon the case presented in this record. These contentions of the state are that carnal connection with a female under the age of consent is " personal violence" within the meaning of the statute; and that though she may thereafter marry the man, she has not the option to refuse to testify against him as to what may have occurred between them before marriage. These contentions cannot be supported, except by straining the language of the statute. It is difficult to see how personal violence received by a woman before marriage from a man whom she afterwards marries can be said to be " personal violence from her husband" ; because, at the time the violence was received, he was not her husband. We think, therefore, that the exception in the statute compels a married woman to testify only in case the " personal violence" was received by her, after marriage; that for violence received before marriage, she has the same privilege of refusing to testify against her husband as she would in regard to any other crime charged against him. This conclusion is supported by the overwhelming weight of authority. State v. Frey, 76 Minn. 526, 79 N.W. 518, 77 Am.St.Rep. 660; Miller v. State, 37 Tex. Cr. R. 575, 40 S.W. 313, 314; People v. Schoonmaker, 117 Mich. 190, 75 N.W. 439, 72 Am.St.Rep. 560; People v. Souleotes, 26 Cal.App. 309, 146 P. 903, 904; Sands v. David Bradley & Co., 36 Okl. 649, 129 P. 732, 45 L.R.A. (N. S.) 396 and note; Norman v. State, 127 Tenn. 340, 155 S.W. 135, 45...

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23 cases
  • State v. Christian, (SC 17010)
    • United States
    • Supreme Court of Connecticut
    • March 9, 2004
    ...his or her spouse in a criminal proceeding, provided that the couple is married at the time of trial. See id.; State v. Volpe, 113 Conn. 288, 290, 155 A. 223 (1931); see also C. Tait, Connecticut Evidence (3d Ed. 2001) § 5.34.1, pp. 325-26. The marital communications privilege, on the other......
  • State v. Amarillo
    • United States
    • Supreme Court of Connecticut
    • January 14, 1986
    ...New York courts do not have any jurisdiction over these offenses because they clearly occurred in Connecticut. See State v. Volpe, 113 Conn. 288, 294, 155 A. 223 (1931). The fact that the state of New York previously had attempted to indict the defendant is immaterial to the power of our co......
  • State v. Ross
    • United States
    • Supreme Court of Connecticut
    • July 26, 1994
    ...murdered in Connecticut. General Statutes § 51-1a(b); State v. Beverly, 224 Conn. 372, 375-76, 618 A.2d 1335 (1993); State v. Volpe, 113 Conn. 288, 294, 155 A. 223 (1931); A. Spinella, Connecticut Criminal Procedure (1985) 18-19, § 3A. This point of departure is consistent with the common l......
  • State v. Stevens, 14525
    • United States
    • Supreme Court of Connecticut
    • February 23, 1993
    ...cannot enforce the penal laws of another, nor punish offenses committed in and against another State or sovereignty." State v. Volpe, 113 Conn. 288, 294, 155 A. 223 (1931); Taintor v. Taylor, 36 Conn. 242, 252-53 (1869); see also The Antelope, 23 U.S. (10 Wheat.) 337, 344, 6 L.Ed. 268 (1825......
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