State v. Tryon

142 A.2d 54, 145 Conn. 304, 1958 Conn. LEXIS 183

• Court: Supreme Court of Connecticut
• Decided: May 8, 1958
• Status: Published

Opinions

Kistg, J.

The defendant, charged in the information with operating a motor vehicle while under the influence of intoxicating liquor, was found guilty by a jury. In a subsequent trial to the court she was found to be a second offender, but of this judgment, in and of itself, no complaint is made and it is not directly involved in this appeal.

The court in its charge to the jury read General Statutes § 2412, except for the portion fixing the penalty. That statute prohibits the operation of a motor vehicle by a person under the influence of either intoxicating liquor or any drug. The defendant had offered evidence to prove that shortly before the time of the alleged offense she had taken two demerol pills under direction of her physician and that the effect of this drug might have accounted for certain actions from which the state’s witnesses had formed the opinion that she was under the influence of liquor. At the close of the charge, counsel for the defendant correctly called the court’s attention to the fact that the information (unlike that in State v. Jones, 124 Conn. 664, 669, 2 A.2d 374) charged only the operation of a motor vehicle while under the influence of intoxicating liquor and would not warrant or support a conviction for such operation while under the influence of drugs, and in effect asked for a clarification and correction of the charge in this respect. The court should not have read to the jury an inapplicable portion of the statute and should have responded to the request to correct its error in so doing. It refused on the ground that the charge as a whole had adequately covered the point, and it was encouraged in this refusal by the prosecuting attorney. Counsel for the defendant then took an exception.

The entire charge is printed in the defendant’s appendix. But for this we should probably have been compelled to find reversible error, since the finding contained only that portion of the charge to which exception was taken. In this connection we point out that, when the appellant’s request for a finding under Practice Book § 398 showed the attack which was to be made on the charge, it was the duty of counsel for the appellee, by a proper counterfinding, and also the duty of the court under Practice Book § 400, to see to it that the finding contained all of the charge bearing on the point in question. Maltbie, Conn. App. Proc., § 128. A charge, as well as a ruling on evidence, is to be tested by the finding, not by the evidence. Practice Book § 385. However, to avoid a new trial on a mere defect in appellate procedure, we have decided to examine the charge as printed in the defendant’s appendix. Maltbie, op. cit., §§ 131, 316. An inspection of the entire charge shows that in discussing the evidence the court referred only to intoxicating liquor and that throughout the charge the jury were repeatedly told that the crime as charged in the information involved two elements: first, the operation of a motor vehicle by the defendant, which was conceded by her, and second, that such operation was while she was “under the influence of intoxicating liquor,” which the court correctly defined in accordance with the rule in State v. Andrews, 108 Conn. 209, 216, 142 A. 840. The jury could not have understood the court’s charge as permitting a conviction upon proof of the operation of a motor vehicle while under the influence of drugs or of anything other than intoxicating liquor. This assignment of error is without merit.

Sergeant Edward M. Winzler, who examined the defendant when she was brought to headquarters by the arresting officer, was asked of what his examination consisted. In the course of an extended answer he stated: “I then asked her if she would submit to an intoxi meter breath test.” Counsel for the defendant objected to testimony as to her reply on the ground that she was under no duty to submit to any test or otherwise to furnish evidence against herself, and that no inference could be drawn from her refusal so to do. The prosecution agreed, but claimed the right to show the defendant’s conversation as part of her actions during her examination at headquarters. The court overruled the objection, and the defendant excepted. The witness then testified : “Her reply was she wouldn’t blow up any balloon, but she would blow my head off.” It perhaps should parenthetically be pointed out that it appeared from the oral argument, although not from the finding, that the so-called intoximeter test would have required the defendant to blow into a container which might be compared to a small balloon. This unusual reply, not of course offered for the truth of any matter stated therein, was in itself, as indicative of a state of intoxication, evidence of some weight on the defendant’s mental condition. State v. Palko, 122 Conn. 529, 537, 191 A. 320; Billings’ Appeal, 49 Conn. 456, 459; Barber’s Appeal, 63 Conn. 393, 412, 27 A. 973; Kovacs v. Szentes, 130 Conn. 229, 231, 33 A.2d 124. The reply was a verbal act, admissible, like the defendant’s other actions at headquarters, on the issue of intoxication. State v. Tolisano, 136 Conn. 210, 214, 70 A.2d 118. Since the reply was the voluntary statement of the defendant, as distinguished from a failure to deny an accusation, the ruling did not violate the settled law of cases relied upon by her such as State v. Ferrone, 97 Conn. 258, 265, 116 A. 336; State v. Yochelman, 107 Conn. 148, 151, 139 A. 632; and State v. Bates, 140 Conn. 326, 329, 99 A.2d 133.

The court in admitting the evidence should have clearly explained to the jury, at the time of the ruling, the limited purpose for which the evidence was being received. State v. Campbell, 93 Conn. 3, 7, 104 A. 653. Where evidence, although inadmissible for one purpose, is admissible and is offered for another and proper purpose, it should be admitted with a limitation to the proper purpose. The fact that theoretically the evidence might be misused by the jury in violation of the court’s instructions is no ground for excluding it. Id., 9; Woodward v. Waterbury, 113 Conn. 457, 464, 155 A. 825; Guarnaccia v. Wiecenski, 130 Conn. 20, 25, 31 A.2d 464. Here again the finding discloses nothing as to the charge on this point, but the appendix shows that the jury were clearly and emphatically instructed that the defendant was under no duty to submit to any test and that no inference could be drawn against her from any refusal on her part so to do. With this instruction in the charge, especially in this short and simple case, we cannot find harmful error in the court’s failure, at the time of the admission of the testimony, to explain to the jury the limited purpose for which it was being received.

The final assignment of error is predicated on an exception to the overruling of an objection to the testimony of Dr. Nicholas A. Marzialo. Were we to consider matters stated in the oral argument and in the defendant’s brief, it would appear that the situation was virtually the same as that previously discussed in connection with Sergeant Winzler’s testimony and that the ruling was correct for the reasons already given. As pointed out, however, a ruling on evidence is to be tested by the finding. Neither the evidence nor statements in oral argument can take the place of a proper finding. Here the finding does not disclose that the question was answered at all. Consequently, the ruling could not be found reversible error.

There is no error.

In this opinion Baldwin and Mellttz, Js., concurred.