2 Conn. Cir. Ct. 184 | Conn. App. Ct. | 1962
The defendant, convicted in a trial to the court upon an information charging him in the first count with the crime of lascivious carriage or behavior in violation of § 53-219 of the General Statutes and in the second count with making a false report to a police officer; § 53-168; has appealed upon the ground that upon all of the evidence he could not have been found guilty of the charges. The finding, as corrected, discloses that on Sunday night, September 17, 1961, at about 8 o’clock, the defendant met up with a young sailor at the Dolphin
The defendant’s basic claim of error directed against the first count is that the crime of lascivious carriage or behavior under our statute and as interpreted by our courts is applicable only to behavior of persons of different sexes, that is to say, behavior which is heterosexual in character. The defendant places much reliance upon Fowler v. State, 5 Day 81, decided in 1811, which construed the statute as it had existed since 1784. “Sound [statutory] construction requires that statutes be considered in the light of their history, their language, the purpose they are designed to serve and the circumstances surrounding their enactment.” Cassidy v. Tait, 140 Conn. 156, 160; Lee v. Lee, 145 Conn. 355, 358. Our lascivious carriage statute is a descendant of a seventeenth-century statute. In 1642, lascivious carriage was made a crime by the “General Courte,” which was then the legislative body of the colony of Connecticut. The statute appears in the Code of 1650 as an addendum to the last of a list of fourteen “Capitall Lawes” and reads: “And whereas frequent experience, gives in sad evidence of severall other wayes of uncleanes, and lascivious carriages, practised amongst us; whereunto in regarde of the variety of circumstances, perticular and express lawes and orders cannott suddenly be suted; this Courte cannott but looke upon evills in that kinde, as very pernitious and destructive to the wellfare of this Commonwealth: And, doe judge, that severe and sharpe punnishment, should bee inflicted uppon such delinquents; . . . that others may heare and
In its original form, the lascivious carriage statute on its face appears to be residual, falling, as it does, at the end of the list of “Capitall Lawes.” Other interdictions relating to sexual behavior deal with bestiality, homosexuality, adultery and rape— all capital crimes. Conn. Code of 1650, pp. 28, 29. Fornication was prohibited and punished “either by injoyning to marriage, or fyne, or corporall punnishment, or all . . . .” Conn. Code of 1650, p. 48. Each statute was intended to regulate and control an exclusive area of sexual conduct, and only that area. On the other hand, the lascivious carriage statute, being residual, was a general prohibition against all other acts loosely described as lascivious. Statutes, 1821, p. 164 n. The 1784 statute, entitled “An
Against such a historical background, Fowler v. State, 5 Day 81, the only Connecticut decision which attempted to give the lascivious carriage statute judicial interpretation, was handed down in June, 1811. The court interpreted the statute in this way (p. 84): “Although, from the indelicacy of the subject, and the different shades of criminality attending the offense, the legislature have avoided a definition of lascivious carriage and behavior; yet, it is evident from the preamble to the act, and the plain import of its expressions, that they meant to include and suppress all those wanton acts, between persons of different sexes, flowing from the exercise of lustful passions, which are grossly indecent and unchaste; and which are not otherwise punished as crimes against chastity and public decency.” Al
By 1821, the statute had attained a modern form. Statutes, 1821, p. 164. Discretion as to punishment was limited. The purposeful preamble was omitted. The seriousness of the offense was downgraded. At the same time, the range of specific sexual crimes had widened; for example, statutory rape and assault to commit rape were added to the statutes. Statutes, 1821, p. 152. In 1871, the residual scope of the lascivious carriage statute was significantly cut by the passage of an act which punished a person who did “wantonly and indecently expose his person in sight of any dwelling house or public highway.” Public Acts 1871, c. 106. In 1875, lascivious carriage and fornication were joined in one statute. Rev. 1875, p. 511, § 5. In subsequent revisions, except for relatively minor changes, its content was retained intact. Rev. 1888, §1528; Rev. 1902, §1315; Rev. 1918, §6383; Rev. 1930, §6231; Rev. 1949, §8553.
The legislative history of § 53-219 leads us to the conclusion that to constitute the crime of lascivious carriage or behavior under our law, the carriage or behavior referred to in the statute was intended to apply only to conduct between persons of different sexes. It may well be that the defendant’s conduct in this case may be punishable by some other statute, but not by the one in question. We look upon the construction of old statutes as law not to be interfered with by us. Furthermore, the authorities support such a construction. Fowler v. State, 5 Day 81; Zeiner v. Zeiner, 120 Conn. 161 (heterosexual behavior); State v. Curtis, 146 Conn. 365, 369; 2 Swift, Digest, p. 343; 2 Wright, Conn. Jury Instruc
The defendant, with regard to the second count, assigns error in the court’s conclusion that the defendant gave a police officer a false report within the meaning of § 53-168, which provides: “Any person who knowingly makes to any police officer . . . a false report . . . alleging that a crime or crimes have been committed” shall be punished. Neither the state nor the defendant has drawn our attention to any authorities upon the question raised before us. Our own independent research has led us to two California cases. In People v. Smith, 131 Cal. App. 2d 889, the defendant was convicted of violating a section of the Los Angeles Municipal Code (§ 52.50) which provided: “No person shall wilfully make to the Police Department . . . any false . . . report . . . .” The defendant made false statements at the scene of an automobile accident in response to inquiries addressed to him by investigating officers in respect to the identity of one of the drivers involved in the accident. Upon appeal, the conviction was set aside. The court held (p. 891) that “[w]hile not entirely free from doubt, we have concluded that if it had been the intent of the city council to proscribe conduct such as that disclosed by the evidence here, it would have used language substantially different from that which it did. It seems reasonable that in such circumstances it would have provided that it should be unlawful for any person to willfully make a false statement to a police officer . . . rather than using the word ‘report,’ which in its context,
These cases, if followed by us, would seem to sustain the defendant’s position and require a reversal.
There is no error as to the second count; there is error as to the first count; the ease is remanded with direction to modify the judgment as to the first count to adjudge the defendant not guilty on that count.
In this opinion Pruyüst and George, Js., concurred.