5 Conn. Cir. Ct. 298 | Conn. App. Ct. | 1968
In a trial to the court, the defendant was convicted of the crime of breach of the peace; General Statutes § 53-174; and from a judgment of guilty he has appealed, assigning as sole error that the court erred in concluding on all the evidence that the defendant was guilty of the crime charged beyond a reasonable doubt. Practice Book § 995. Upon this assignment of error, we determine from the entire evidence whether the court erred in holding that guilt was established by the requisite degree of proof. State v. Pundy, 147 Conn. 7, 8; State v. Salvaggio, 152 Conn. 716, 717.
There was competent evidence adduced to establish the following salient facts: The defendant has owned and operated an automobile body or repair shop in Guilford for some years, known as B. B. Mac’s Garage or Auto Body Shop. The complaining witness, Michael Piecirillo, a salesman of automobile parts for a concern known as M. and O. Chrysler, visited the defendant’s place of business on or about April 11, 1968, to collect an unpaid bill in the approximate amount of $191. The complaining witness had done business with the defendant over a considerable period of time. Upon entering the defendant’s place of business, he drove into the yard in front of the shop. The doors of the repair shop were wide open. The defendant was then in the front yard discussing an estimate on a station wagon with a lady customer. Ralph DiLauro, a passenger in the car of the complaining witness, accompanied him and was present at all times herein mentioned. Three employees of the defendant were on the premises and were also present at all times herein mentioned. The complaining witness went into the shop, where the three employees were work
In the course of the trial there was a sharp conflict of testimony. The state chose to rely on the evidence adduced through the complaining witness. The defendant not only testified in his own behalf but additionally offered the testimony of his three employees in corroboration of his own version of the incident. The trial court obviously believed the complaining witness and discredited the defense wit
The record shows that the state chose not to produce and offer the testimony of Ealph DiLauro, who accompanied the complaining witness and was present throughout the incident. The defendant contends that (a) the trial court was justified in drawing the inference that such testimony would have been unfavorable to the state, and (b) such an inference raised a question of reasonable doubt which should have been resolved in the defendant’s favor. It is so that the failure to produce a witness who is within reach and who would naturally have been produced permits, but does not require, an inference that the evidence of the witness would have been unfavorable. The failure to offer such evidence is, however, not proof of any specific fact; it simply permits the inference, which must be weighed with the entire evidence. Cayer v. Salvatore, 150 Conn. 361, 365, and authorities cited. It has been said time after time that it is within the province of the trier, whether court or jury, to draw reasonable
The defendant lastly contends that the elements of the crime charged were not proved. The essence of this argument is reduced to (a) the complaining witness did not take seriously the threats, “If you don’t get out of here I’ll hit you over the head,” accompanied by the indicated overt acts, because he remained on the premises in question for some twenty minutes, and (b) he was not put in a state of apprehension or serious disquietude. No witness testified to any serious disquietude or apprehension of harm, and, as the argument goes, no one was so disturbed as to take any immediate action. The applicable portion of the statute reads: “Any person who disturbs or breaks the peace by tumultuous and offensive . . . behavior, or by threatening, . . . quarreling with . . . [or] assaulting . . . another . . . .” General Statutes § 53-174. The stat
The acts of the defendant constituted a breach of the peace within the fair intendment of the statute. State v. Cantwell, supra; State v. Van Allen, supra; State v. Boyer, supra, 291 — 94; State v. Marzbanian, 2 Conn. Cir. Ct. 312, 313 n.1; 1 Wharton, Criminal Law and Procedure § 329; 2 Swift, Digest, p. 365 (Rev. 1862); 6 Am. Jur. 2d, Assault and Battery, §§ 3, 4.
Upon all of the evidence, the court was warranted in concluding that the defendant was guilty of the offense charged beyond a reasonable doubt.
There is no error.
In this opinion Kosicki and Jacobs, Js., concurred.