State v. Muolo

Decision Date01 May 1934
Citation118 Conn. 373,172 A. 875
CourtConnecticut Supreme Court
PartiesSTATE v. MUOLO.

Error from City Court of New Haven; Joseph Weiner, Judge.

Rocco Muolo was charged by information with unlawfully using a taxi stand. Defendant's demurrer to the information was sustained by the city court of New Haven, criminal side, and the information dismissed, and the State, brings error, and defendant files motion to erase the case from the docket.

Motion to erase denied.

Philip R. Pastore, Asst. City Atty., of New Haven for plaintiff in error.

Franklin Coeller, of New Haven, for defendant in error.

Joseph Koletsky and Kenneth Wynne, both of New Haven, amici curiæ .

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

MALTBIE, Chief Justice.

The assistant city attorney of the city court of New Haven informed against the defendant in error, charging him with the violation of an order of the board of police commissioners of the city acting as a traffic commission under section 56b of the General Statutes. Cumulative Supplement of 1933. The defendant demurred to the information as insufficient in law, and the court sustained the demurrer upon the ground that the statute under which the order was issued was unconstitutional. Thereafter it caused judgment to be issued acquitting the defendant, but not discharging him so that he remained under bail, pending the disposition of the present proceedings. This is a writ of error brought by the state, seeking a reversal of the judgment of the city court. The defendant has filed a motion to erase the case from the docket.

Neither in our statutes nor in our Constitution are found any provisions concerning the right of the state to bring a writ of error in a criminal case, although there is a statute which provides that the state may, with the permission of the court, appeal to this court from the rulings or decisions of the superior court or any court of common pleas. General Statutes, § 6494. We must recognize that, in the absence of constitutional or statutory provisions, the right of the state to take an appeal or bring a writ of error in a criminal case is denied in the great majority of American jurisdictions, including those under the federal government. United States v. Sanges, 144 U.S. 310, 12 S. Ct. 609, 36 L.Ed. 445, and cases cited; United States v. Evans, 213 U.S. 297, 29 S.Ct. 507, 53 L.Ed. 803; 17 C.J. pp. 30, 44. In Maryland, however, a state the development of whose criminal jurisdiction has been quite like our own, it would seem that the state may bring a writ of error even from a judgment of acquittal after trial, State v. Buchanan, 5 Har. & J. ( Md.) 317, 9 Am.Dec. 534; State v. McNally, 55 Md. 559; and in a number of jurisdictions where such a writ does not lie from a judgment of acquittal upon a trial, it is permitted in order to bring about a review of rulings based upon the insufficiency of an indictment or information as matter of law, State v. Meyer, 63 N. J. Law, 233, 47 A. 485, 52 L.R.A. 346; People v. Swift, 59 Mich. 529, 541, 26 N.W. 694; Commonwealth v. Capp, 48 Pa. 53; Commonwealth v. Moore, 99 Pa. 570; District of Columbia v. Horning, 47 App. D. C. 413. We have never been called upon to determine whether the state may bring a writ of error in a criminal case or whether, aside from the provisions of section 6494 of the General Statutes, it might appeal. Paying due deference to the weight of authority in other jurisdictions, we still must decide the question before us as one of first impression in this jurisdiction.

The reasons usually advanced for denying the right of review to the state in criminal proceedings are that such a right was denied by the English common law, that such a proceeding has never been invoked in the particular jurisdiction, and that to permit a new trial after acquittal would subject the defendant to double jeopardy. As regards the first, it cannot be said with certainty that the English common law as it existed previous to 1776 did deny to the crown all right to a review of criminal proceedings for the correction of errors occurring in the trial court. State v. Lee, 65 Conn. 265, 276, 30 A. 1110, 27 L.R.A. 498, 48 Am.St.Rep. 202; United States v. Sanges, supra, page 312 of 144 U.S., 12 S.Ct. 609, 36 L.Ed. 445; State v. Meyer, supra; State v. Buchanan, supra. But, even if such a proceeding were denied by the English common law, that would not be conclusive upon us. This court has said, by Baldwin, J., that " during the greater part of the colonial era the common law of England was not deemed to form a part of the jurisprudence of Connecticut, except so far as any part of it might have been accepted and introduced by her own authority." Graham v. Walker, 78 Conn. 130, 133, 61 A. 98, 99, 2 L.R.A. (N. S.) 983, 112 Am.St.Rep. 93, 3 Ann.Cas. 641. However, the doctrine came to prevail that " the English common law, so far as it was not unadapted to the local circumstances of this country, our ancestors, on their emigration hither, brought with them," Card v. Grinman, 5 Conn. 164, 168; but that, where we followed it, this was not by reason of any constitutional provision or statute, but because " this was our inheritance," Baldwin v. Walker, 21 Conn. 168, 181. " As our jurisprudence developed, the courts applied the principles of the common law to the decision of causes, so far as they seemed applicable to our social conditions." Brown's Appeal, 72 Conn. 148, 151, 44 A. 22, 23, 49 L.R.A. 144. But we have never given to it a slavish adherence. An early authority apt to the question before us is the decision in 1786 in the case of Wilford v. Grant, Kirby, 114. In that action the plaintiff recovered a judgment for an assault against several defendants, and certain of them brought a writ of error to reverse the judgment so far as it affected them. One of the questions presented was whether there could be a reversal of the judgment as to some only of the defendants. The court said (page 116 of Kirby): " The common law rules of England are indeed against a reversal in part only, in a case like this, though it is admitted in others without any apparent diversity of reason; *** but it doth not appear that this rule has been adopted in practice here, so as to become authoritative. The common law of England we are to pay great deference to, as being a general system of improved reason, and a source from whence our principles of jurisprudence have been mostly drawn. The rules, however, which have not been made our own by adoption, we are to examine, and so far vary from them as they may appear contrary to reason or unadapted to our local circumstances, the policy of our law, or simplicity of our practice; which, for the reasons above suggested, we do in this case, and reverse the judgment as to the minors only."

Moreover, the common law of England previous to 1776 is not necessarily the common law of Connecticut in 1934. No entirely satisfactory definition of the common law in effect at any particular time can perhaps be phrased, but it is not far from the mark to define it as the prevailing sense of the more enlightened members of a particular community, expressed through the instrumentality of the courts, as to those rules of conduct which should be definitely affirmed and given effect under the sanction of organized society, in view of the particular circumstances of the time, fit with due regard to the necessity that the law should be reasonably certain, and hence that its principles have permanency and its development be by an orderly process. Such a definition necessarily implies that the common law must change as circumstances change. " It is a well settled rule that the law varies with the varying reasons on which it is founded. This is expressed by the maxim, ‘ cessante ratione, cesset ipsa lex.’ This means that no law can survive the reasons on which it is founded. It needs no statute to change it; it abrogates itself. If the reasons on which a law rests are overborne by opposing reasons, which in the progress of society gain a controlling force, the old law, though still good as an abstract principle, and good in its application to some circumstances, must cease to apply as a controlling principle to the new circumstances." Beardsley v. City of Hartford, 50 Conn. 529, 541, 47 Am.Rep. 677. The question before us cannot be solved solely upon the basis that the English common law recognized no right of review of errors committed in criminal proceedings, even if it could be said with certainty that this was so, but we must ask how such a rule would apply in the circumstances of life in this state and at this time.

That no writ of error, so far as appears, has ever been brought in a criminal case in this state is no doubt a circumstance to be considered, as to some extent indicative of the general sense of the community that no such proceeding properly lay and that there has been no great need felt for such a remedy. As far as the former consideration is concerned, it can be by no means conclusive that in the great reservoir of the common law there is not a remedy never before invoked, yet capable of use when the need arises; and, as for the latter consideration, we must inquire not whether there has in the past been need for the remedy invoked, but whether under existing conditions there is need for it now. That there are cases where the state should have the right to secure a review in criminal proceedings was recognized in this state nearly fifty years ago when the right of appeal was given to it which is now authorized by General Statutes, § 6494. That right was and is restricted to cases in the superior...

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28 cases
  • State v. Nardini
    • United States
    • Connecticut Supreme Court
    • May 11, 1982
    ...appeal to this court; State v. Heyward, supra; by writ of error; State v. Falzone, 171 Conn. 417, 370 A.2d 988 (1976); State v. Muolo, 118 Conn. 373, 172 A. 875 (1934); or by writ of habeas corpus. State v. Kyles, 169 Conn. 438, 443, 363 A.2d 97 There is no error. In this opinion the other ......
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    ...else. In short, although it is true that we “have never given to [the English common law] a slavish adherence”; State v. Muolo, 118 Conn. 373, 377, 172 A. 875 (1934); the defendants have failed to persuade us that our adherence to nullum tempus has ever waivered. 28. The trial court agreed ......
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    ...of the Law,” Address at Boston University School of Law (January 8, 1897), in 10 Harv. L.Rev. 457, 469 (1897); cf. State v. Muolo, 118 Conn. 373, 378-79, 172 A. 875 (1934).3 Justice Holmes' observation is particularly apt in the present case because the dearth of medical knowledge that prom......
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