In State v. Anderson, 152 Conn. 196, 205 A.2d 488 (1964), also a child abuse case, this court found harmful error in the failure of the trial court to grant "in substance" a request to charge that was identical to that proposed by the defendant in this case, even though the instructions on credibility were otherwise adequate.Summary of this case from State v. James
The denial of a motion to dismiss counts of an information is not properly assignable as error. In this prosecution upon an information charging the defendant with the crimes of risking impairment of the morals of a ten-year-old child and with indecent assault upon the child's father, the child's testimony was material to the defendant's guilt, and the court should have granted, in substance, the defendant's request to charge on the standard for testing the credibility of a child. The failure to do so was harmful error.
Argued October 6, 1964
Decided December 2, 1964
Information charging the defendant with the crimes of risking impairment of the morals of a minor and indecent assault, brought to the Superior Court in Fairfield County and tried to the jury before Devlin, J.; verdict and judgment of guilty and appeal by the defendant. Error; new trial.
George A. Saden, Edwin K. Dimes and Henry McDonald, Jr., with whom, on the brief, was Sturges N. Laros, for the appellant (defendant).
Joseph T. Gormley, Jr., assistant state's attorney, with whom, on the brief, were Otto J. Saur, state's attorney, and John F. McGowan, assistant state's attorney, for the appellee (state).
The defendant was arraigned on an information containing three counts. In the first count, he was charged with placing a child under the age of sixteen years in such a situation that his morals were likely to be impaired, and with doing certain acts likely to impair his morals, in violation of 53-21 of the General Statutes. In the second and third counts, he was charged with indecent assault in violation of 53-217 of the General Statutes. The first and third counts of the information relate to incidents which happened on or about April 3, 1961. The jury could find that the defendant arrived at the home of Mr. and Mrs. William F. Hoisington in Weston, Connecticut, late in the afternoon while Mrs. Hoisington was away. Their son David, then aged ten years, was upstairs. Hoisington called David downstairs and forced him to drink two glasses of vodka and coca-cola. Hoisington ordered David into the master bedroom on the first floor. In about fifteen minutes, Hoisington and the defendant entered the bedroom, locked the door and both of them performed acts of fellatio on David. Then, in his presence, they performed similar acts upon each other. David cried when subjected to their acts. His sister Andrea, who was then eight years of age, had come home after the door was locked, heard David inside the room crying, and also heard the voices of her father and the defendant from inside the room at the same time.
We shall discuss only the assignments of error which have not been abandoned. In one of them, the defendant claims error in the denial of his motions to dismiss the three counts of the information. Since the denial of such a motion is not properly assignable as error, we will not consider it. State v. Smith, 149 Conn. 487, 489, 181 A.2d 446; Maltbie, Conn. App. Proc. 212. The defendant also claims error in three rulings excluding evidence. These claims are without merit because proper foundation had not been laid for the admission of the proffered evidence.
The court should have granted, in substance, the defendant's request to charge the jury on the standard for testing the credibility of a child, Since David's testimony was material to the question of the defendant's guilt on the first and third counts and probably on the second count also. Handler v. Remington Arms Co., 144 Conn. 316, 320, 130 A.2d 793. Failure to grant this request to charge was harmful error even though the charge on credibility was otherwise adequate. The other requests to charge were covered, in substance, in the charge as given.
It is unnecessary to discuss the other errors assigned.