State v. Smith
State v. Smith
Opinion of the Court
On his appeal from his conviction after a trial to the court for the crimes of reckless driving (General Statutes § 14-222) and negligent homicide (General Statutes §14-218), the defendant has assigned as error the refusal of the court to correct the finding as requested by him, the admission and exclusion of evidence, the denial by the court of his motion to dismiss, the bias and prejudice of the court exhibited against the defendant and his attorney, and the court’s conclusion upon all the evidence that the defendant was guilty of the crimes charged beyond a reasonable doubt.
In view of this last assignment of error, we determine from the entire evidence whether the court
The assignment of error in the denial of the defendant’s motion to dismiss the information at the close of the state’s case we do not consider, since it has repeatedly been held both by our Supreme Court and also by this court that such a denial is not assignable as error. Maltbie, Conn. App. Proc. § 212.
At about 4:05 in the morning of Tuesday, June 23, 1964, a beige-colored 1964 Ford station wagon containing two occupants, the defendant and Nancy Hitehings, traveling at a fast speed northerly on Mansfield Avenue in Darien, failed to make a general curve to the left at Mansfield Place, crossed the curb, after leaving 224 feet of light tire marks on the highway, continued on for 14 feet, went through 72 feet of privet hedge, uprooting most of it, continued on for 22 feet, crashed with its left front into a large tree, then traveled sideways with the front wheels about 3 feet ahead of the rear wheels and finally came to rest on all four wheels 52 feet from the tree, after leaving 16 feet of “dig” marks of torn-up turf 36 feet from the tree. The defendant was found unconscious, lying on the ground parallel to the car and 15 feet from the open right front door. Miss Hitehings was found apparently lifeless, with her left foot on the driver’s side
The crucial question of fact which the trial court had to determine was whether the defendant or Miss Hitchings was the driver of the car. There was no direct evidence as to this. Miss Hitchings was dead, and the defendant suffered a loss of memory of the events preceding and subsequent to the accident. The circumstantial evidence was voluminous and in some respects conflicting. The state presented an expert witness, as did the defendant; each expert had eminent qualifications. The court examined the scene of the accident and also the car, which had been impounded by the police and had remained in the same condition it was in as the result of the accident.
The defendant claims error in six rulings on evidence. In the course of the investigation of the accident, the police officers questioned the defendant in the presence of his attorney. Some of the questions the defendant refused to answer on instructions of his attorney. The entire statement, including these questions and his refusals to answer, was admitted in evidence over the defendant’s objection
There was a conflict of testimony as to whether police officer Fraeeola saw the defendant driving the car at 3:30 a.m. and whether Frank Genestra saw the defendant driving the car with Miss Hatchings in the passenger side of the front seat at 3:45 a.m. As it is the exclusive function of the trial court to determine the credibility of the witnesses, we look to the finding to see how the court resolved this conflict. The finding indicates that the court believed the testimony of Fraeeola and Genestra that they saw the defendant driving at the times mentioned.
Likewise, there was a conflict in the opinions of the expert witnesses as to the action of the car after it hit the tree and as to whether the defendant or Miss Hitchings was the driver. “Conflicts in opinion
Both the defendant and Miss Hitchings had attended, on the evening before the accident, a large dinner party and subsequently a dance, both at private homes, at which were served intoxicating liquors which they both drank. Miss Hitchings had a blood content of alcohol of six-hundredths of one percent by weight. There was ample testimony to support the trial court’s conclusion that the defendant was drunk. We note that in rendering its decision the court gave an oral memorandum of decision from the bench, a practice which is common in England but unfortunately rare with us, in which it commented on the credibility of witnesses and the physical evidence and then said: “I, therefore, conclude from the physical evidence more than anything else that Nancy Hitchings was the passenger and that you, Michael Smith, were the driver.”
After examining the voluminous evidence of this nine-day trial, we cannot say that the court’s conclusion that the defendant was guilty of the crimes charged beyond a reasonable doubt was erroneous.
The defendant next claims error in the court’s refusal of his request that the court discontinue cross-examining his expert witness in the manner of
The defendant next claims that the court showed bias and prejudice against the defendant and his counsel by its remarks to Ms counsel during the trial and by issuance from the bench during the trial of this case of warrants for the arrest of all persons involved in furnishing liquor to the defendant and other minors at the parties on the evening preceding the accident. From the transcript of the proceedings of the trial, it appears that the court was patient but strict in requiring both counsel to comply with the rules of courtroom etiquette and decorum. We can find no bias or prejudice on the part of the court but rather a careful regard for the ascertainment of the true facts and for the rights of the defendant. As to the issuance of the bench warrants, the record is completely silent and there is therefore nothing for us to consider. The defendant in his assignment of errors claims that the court during the trial of this case ordered from the bench the issuance of the warrants and did not permit its remarks and orders to become part of the record. If the evidence in the case before us indicated to the court that other persons committed other criminal offenses, there was no reason why the court should not order their arrest and every reason why the court should. The claims of bias and prejudice are without merit.
The final assignment of error pursued by the defendant concerns the publication by the trial judge in the January, 1965, issue of McCall’s Magazine,
The defendant’s remaining assignment of error, concerning merger of the two offenses, is deemed abandoned, not having been briefed or argued.
There is no error.
In this opinion Jacobs and Kinmowth, Js., concurred.
Concurring Opinion
(concurring). The record shows that the trial of this case was commenced at Darien, Connecticut, on September 16, 1964, and lasted for a period of nine court days. It was concluded on October 13,1964. The transcript contains some 1200 pages. After the trial was concluded and while the case was on appeal to the Appellate Division, the trial judge engaged in extrajudicial conduct in that he prepared and caused to be published in the January, 1965, issue of McCall’s (vol. 92, No. 4,
The defendant places great reliance upon United States v. Bufalino, 285 F.2d 408, and Estes v. Texas, 381 U.S. 532. In the Bufalino case, a prosecution for conspiracy to commit perjury, the conviction was reversed on appeal and the case remanded with direction to dismiss the prosecution upon the ground of insufficiency of evidence in the government’s case. Judge Clark, in a separate concurring opinion, sharply criticized (p. 420) the government prosecutors for “indulging in highly colored accounts while the case has been pending on appeal,” and his views on this point were shared by Chief Judge Lumbard and Judge Friendly, who (p. 420) “agree . . . that the publication by former special prosecutors of accounts and comments regarding this case and the appellants, while this appeal was pend
There is nothing in the record before us to indicate, nor has any claim been made, that the trial judge had a personal or pecuniary interest in the impending proceedings. While the judge might well have held his social, provocative declamation against “sinning parents” for another day, it is difficult to see, in the present posture of the case, that any right of the defendant has been infringed, denied or violated as a consequence of this incident.
Prutn, J., and Kinmonth, J., concur with the views expressed herein.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.