State v. Weinrib
| Decision Date | 04 August 1953 |
| Citation | 99 A.2d 145,140 Conn. 247 |
| Court | Connecticut Supreme Court |
| Parties | STATE v. WEINRIB. Supreme Court of Errors of Connecticut |
Nelson Harris, New Haven, with whom, on the brief, was Charles G. Albom, New Haven, for appellant (defendant).
George R. Tiernan, Pros. Atty., New Haven, for appellee (state).
Before BROWN, C. J., and BALDWIN, INGLIS, O'SULLIVAN and CORNELL, JJ.
The jury found the defendant guilty on an information charging him with transporting Frank J. Kaminski for the purpose of prostitution, in violation of § 8548 of the General Statutes. The defendant's motions for a directed verdict and to set aside the verdict of guilty were denied and sentence was imposed by the court. The defendant has appealed. Since his brief includes no appendix pursuant to §§ 445(d) and 447 of the Practice Book, the errors assigned in the denial of the motions require no consideration. See Maltbie, Conn.App.Proc., §§ 116, 117; Kirkbride v. Bartz, 82 Conn. 615, 619, 74 A. 888; Firszt v. Kalinowski, 109 Conn. 732, 144 A. 894; Hoyt v. Stuart, 90 Conn. 41, 44, 96 A. 166. The same holds true as to claimed errors in the finding. The questions determinative of the appeal, therefore, relate solely to certain rulings on evidence.
The pertinent facts disclosed by the record are: At 3 a. m. on July 10, 1952, the defendant, a taxicab driver, drove Kaminski, a merchant seaman of Chester, Pennsylvania, to 22 Canal Street in New Haven, knowing that his purpose was to have immoral sexual relations with a woman; the defendant was well acquainted with the inmates of this tenement, George Roe and Beatrice Moore; he collected $20 from Kaminski and thereupon arranged for him to enter the place and gratify his desires with Beatrice, which he did; while in the place, Kaminski also paid for the drinks and, owing to a marked deck, lost $80 in a card game; at about 6:30 a. m. the defendant called for him, drove him back to his ship, and was paid the taxi fares.
On July 25, 1952, the defendant was convicted in the City Court of New Haven on a charge identical with that referred to in the first paragraph of this opinion. He thereupon appealed to the Court of Common Pleas, where the case was tried de novo to the jury. When the case was so tried, Kaminski was not available to testify and the state offered in evidence the transcript of the testimony which had been taken in the City Court. The court, over the defendant's objection, allowed the pertinent part of Kaminski's testimony to be read to the jury. The gist of what was read is stated in the preceding paragraph. Counsel for the defendant conceded that the transcript read reflected the proceedings in the City Court accurately, that the defendant was present when Kaminski testified, and that the latter was subjected to cross-examination by counsel for the defendant. Objection was raised, however, on the ground that the state had failed to establish a proper foundation showing the unavailability of Kaminski as a witness, as required under the rule laid down in State v. Gaetano, 96 Conn. 306, 314, 114 A. 82, 15 A.L.R. 458. It was there held that where the accused, upon his appeal to the Court of Common Pleas, was charged with the identical offense for which he had been prosecuted and convicted in the City Court, on which occasion he had, through counsel, cross-examined the missing witness, and where diligent and reasonable search had been made for the witness to secure her attendance on the trial in the Court of Common Pleas and there was no reason to believe that she could be found and procured as a witness at any reasonable time in the future, the stenographic notes of her testimony in the City Court were admissible when duly authenticated under oath by the stenographer of that court. The defendant's objection is restricted to the claim that in the case at bar the court was unwarranted in reaching the essential conclusion that a diligent and reasonable effort had been made to bring Kaminski into Connecticut to testify. This requires consideration of the evidence offered upon this issue in the Court of Common Pleas.
The testimony of state policeman Trippe shows that the case was tried on September 30 and October 1, 1952; that some two weeks previously the prosecutor had given him a subpoena for service on Kaminski; that by virtue of an inquiry at the local office of the Atlantic Refining Company, he learned that Kaminski was employed by it as third mate on the tanker Atlantic Seaman, working out of the company's depot at Philadelphia; that by telephoning that office he ascertained that Kaminski's ship was due in New Haven on September 19; that he left word for Kaminski to telephone him upon his arrival, which Kaminski failed to do; that upon calling the New Haven office on September 19 he was told that Kaminski had already gone, and upon again calling Philadelphia he was informed that the ship was en route to Venezuela and was due in Philadelphia on September 23; that in response to his request Kaminski did telephone him from Philadelphia on September 25 and was told that the case was down for trial on the 30th and that he was to be there; that Kaminski replied that he would lose his job if he came, that this would be so even if his ship should dock at New Haven on that day, for it never remained there longer than for the uncertain period necessary to unload, which was seventeen hours at the maximum, that he had no idea when the ship would be in New Haven again, and that it would be impossible for him to come to court at any time. Trippe further testified that upon searching throughout the courthouse on September 30 he had ascertained that Kaminski was not there. It is undisputed that Kaminski was not a resident of Connecticut but lived in Chester, Pennsylvania, during the entire period in question in this case. There was no evidence that Pennsylvania has in force a statute relating to attendance of witnesses in criminal proceedings...
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