Pouncey v. Carraway

258 A.2d 483, 5 Conn. Cir. Ct. 571, 1969 Conn. Cir. LEXIS 181
CourtConnecticut Appellate Court
DecidedApril 18, 1969
DocketFile No. 14-684-35025
StatusPublished
Cited by1 cases

This text of 258 A.2d 483 (Pouncey v. Carraway) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pouncey v. Carraway, 258 A.2d 483, 5 Conn. Cir. Ct. 571, 1969 Conn. Cir. LEXIS 181 (Colo. Ct. App. 1969).

Opinions

Dearington, J.

The plaintiff brought this action under § 52-435a of the General Statutes, alleging she gave birth on December 15,1965, to a child begotten on March 15, 1965, and that the defendant was the father of the child. After a jury trial a verdict was returned for the plaintiff and, judgment having been rendered thereon, the defendant appealed. At the conclusion of the evidence the defendant moved for a directed verdict, which motion was denied. After the verdict had been returned the defendant moved [573]*573for judgment notwithstanding the verdict and his motion was denied. In his appeal he has assigned error in the denial of his motions, in certain rulings on evidence and in comments to the jury claimed to be harmful.

We first consider the defendant’s assignment of error relating to comments of the court claimed to have had an adverse effect on the jury. During the cross-examination of the plaintiff, the defendant offered both a Meriden Hospital admission sheet and a birth certificate of the child. Both documents indicated a blank space where ordinarily the name of the father would appear. Both documents were received in evidence, the court remarking in each instance that they were received for “what it’s worth.” Such comments could hardly be said to be prejudicial; furthermore, there was no objection made or exception taken as required by our practice. Practice Book § 226; see Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 502. Later, on direct examination, the defendant was asked whether he had seen two men (named) at the plaintiff’s apartment in December of 1965. The plaintiff objected to such evidence on the ground that the answer would be irrelevant. The court, in admitting the witness’ answer, “Yes, I did,” commented as follows: “Well, for what it’s worth, I’m going to admit it. I think it is irrelevant at this point because they haven’t been tied in.” Again, no objection was made or exception taken by the defendant. Aside from such procedural omissions, however, and in the absence of an offer to develop relevancy, the question called for an irrelevant answer. 1 Jones, Evidence (5th Ed.) § 170; see Ferguson v. Smazer, 151 Conn. 226, 233. Such statements in each instance constituted merely comments on the weight of the evidence which were not beyond the discretion of the trial judge. Vinci v. O’Neill, 103 Conn. 647, 655.

[574]*574On direct examination the plaintiff, in respect to the spaces left blank in the hospital admission sheet and the birth certificate, was asked if that procedure is generally followed. She answered, “Yes, it is generally done when it’s involving a woman that’s not married to a man and she’s having a baby for him, unless the father signs — he voluntarily signs the birth certificate.” The defendant objected and took an exception, claiming that the witness was not in a position to know what is generally done. That the witness was unacquainted with the hospital procedure might be open to question for, on the record, this was her third experience in such matters. If there was any infirmity in her answer, it could be exposed on cross-examination. There is no merit in this assignment of error.

The defendant has further assigned error in the court’s refusal to allow him to write the names of certain individuals on a blackboard. The plaintiff’s objection was sustained. The defendant argued that the names would be reappearing throughout the trial and “the only way one can keep an idea or an accurate picture of what’s going on is to have these names in front of them.” The defendant made no objection, nor did he take an exception to the court’s ruling. Aside from the defendant’s failure to comply with procedural requirements, it is difficult to reconcile the mere writing of names on a blackboard, for the purpose offered, with claimed demonstrable evidence. It is only when it appears that this type of evidence can be of real assistance and is not likely to be given undue weight by a jury that the trial court may in its discretion admit such evidence. See Sellew v. Middletown, 121 Conn. 331, 333. No abuse of discretion has been shown here.

The basic claim of the defendant is that in paternity proceedings the putative father is not accorded the same statutory immunity as that [575]*575accorded the mother. General Statutes § 52-435b provides that the mother “shall not be excused from testifying because her evidence may tend to disgrace or incriminate her; nor shall she thereafter be prosecuted for any criminal act about which she testifies in connection with such proceedings.” The defendant contends that since such immunity is unilateral in its application his rights under the fourteenth amendment to the federal constitution have been transgressed, and he could not, therefore, adequately conduct his defense. The plaintiff was a married woman, and the defendant argues that if in testifying he admitted relations with her he would expose himself to prosecution for adultery, a felony, and he further asserts that any witness he might call in his defense who was shown to have had relations with the plaintiff would expose himself to possible prosecution.

The privilege against self-incrimination can be claimed in any proceeding, be it criminal, civil, or otherwise; it protects any disclosure which any witness may reasonably apprehend could be used in a criminal prosecution. Obviously, this protection extended to the defendant. In re Gault, 387 U.S. 1; see 58 Am. Jur., Witnesses, § 45. In the instant case it should be noted that no witness was produced by the defendant who claimed any privilege not to give self-incriminating evidence. Moreover, we are here concerned, not with a possible defense, but solely with the constitutionality of a statute exempting a mother of an illegitimate child from prosecution for the matter to which she is required to testify. The cases cited by the defendant do not bear on the question of immunity accorded one in this type of a proceeding. The immunity privilege grants absolute immunity, is intended solely for the protection of the mother, and is coextensive with the immunity secured her by the constitution as to self-[576]*576incrimination, and under such circumstances her testimony may be required. The statute in this respect is not unconstitutional. 58 Am. Jur., Witnesses, § 86, and cases cited. Furthermore, the question of constitutionality of the statute could only be raised by the plaintiff after having been called to testify and not by the defendant, for it in no way concerned him. 4 Jones, Evidence (5th Ed.) § 859.

We now consider whether on the evidence a directed verdict would have been proper. Only if that question is answered affirmatively do we come to the question whether the court erred in refusing to render judgment for the defendant notwithstanding the verdict. Hemmings v. Weinstein, 151 Conn. 502, 503. “In deciding the primary question, we give the evidence the most favorable construction in support of the verdict of which it is reasonably capable.” Id., 504. The verdict was reached on conflicting evidence and should stand unless the jury could not reasonably have reached the conclusion which they did upon the evidence. Canfield v. Sheketoff, 104 Conn. 28, 30.

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272 A.2d 700 (Connecticut Appellate Court, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
258 A.2d 483, 5 Conn. Cir. Ct. 571, 1969 Conn. Cir. LEXIS 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pouncey-v-carraway-connappct-1969.