228 A.2d 815 (Conn.Cir.A.D. 1966), CR 7-6573, State v. Heller

Docket Nº:CR 7-6573.
Citation:228 A.2d 815, 4 Conn.Cir.Ct. 174
Opinion Judge:KOSICKI, Judge.
Party Name:STATE of Connecticut v. Mark F. HELLER.
Attorney:David M. Reilly, Jr., New Haven, for appellant (defendant). William I. Mark, Asst. Pros. Atty., for appellee (state).
Judge Panel:In this opinion JACOBS and LEVINE, JJ., concurred. KOSICKI,
Case Date:November 04, 1966
Court:Circuit Court of Connecticut

Page 815

228 A.2d 815 (Conn.Cir.A.D. 1966)

4 Conn.Cir.Ct. 174

STATE of Connecticut

v.

Mark F. HELLER.

No. CR 7-6573.

Circuit Court of Connecticut, Appellate Division.

Nov. 4, 1966

Page 816

Argued June 13, 1966.

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[4 Conn.Cir.Ct. 175] David M. Reilly, Jr., New Haven, for appellant (defendant).

William I. Mark, Asst. Pros. Atty., for appellee (state).

KOSICKI, Judge.

At the time of his arraignment on an information alleging a violation of § 53-246 of the General Statutes in having been found intoxicated, the defendant pleaded not guilty and elected to be tried to the jury. The request was denied (Matzkin, J.) on the ground that § 51-266 provided that there shall be no right to trial by jury in criminal actions where the maximum penalty is a fine of $50 or a jail sentence of thirty days or both. Under § 53-246, the maximum penalty which can be imposed on a person found guilty of being found intoxicated is a fine of $20 or a jail sentence of thirty days. No exception to the ruling was taken.

The defendant was then tried to the court and found guilty. The effective sentence was within the maximum that could be imposed. Appeal was taken both from the ruling denying a jury trial and [4 Conn.Cir.Ct. 176] from the judgment rendered on the trial of the issues of fact. The defendant requested a special finding, which was filed, on the question of his right to a jury trial, and,

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on appeal, he made this the subject of a separate assignment of errors. He also filed assignments of error attacking the finding of the court Before which the case was tried and claimed various errors, including that of denial of trial by jury. The procedure followed is not in accord with our practice. Only one finding and one assignment of errors, containing all errors claimed to have been committed during the entire course of the proceedings, would be sufficient to protect the defendant's rights on appeal.

In the ordinary case, not involving a serious crime and imposing a substantial penalty, where the defendant, after his preliminary motion or demurrer attacking the information has been overruled, enters a plea of not guilty and proceeds to trial, he is precluded from pursuing on his appeal any error claimed in the overruling of his demurrer or motion without reference to all the proceedings following the plea. We shall, however, adopt the course followed by the court and the parties, because in both the special finding and the principal finding the question of the constitutionality of § 51-266 has been raised, and it was pursued throughout the action and on appeal. State v. Sul, 146 Conn. 78, 81, 83, 147 A.2d 686.

The defendant asserts that § 51-266 is violative of article first, §§ 8 and 19, of the constitution of Connecticut and of the sixth amendment to the constitution of the United States as guaranteed by the fourteenth amendment. His specific claims are that at the time of the adoption of a Connecticut constitution in 1818 an accused was entitled to a trial by jury. He bases his claim on a provision of Statutes,[4 Conn.Cir.Ct. 177] 1808, p. 241, which penalized a person who was found drunken and was convicted thereof by the imposition of a fine of $1.34 and, upon failure to satisfy the fine, by being set in the stocks, there to remain not more than three hours nor less than one hour. From this, the defendant argues that the constitution of 1818 guaranteed a jury trial where a penalty of a day or more could be imposed.

This is a non sequitur. With the adoption of the 1818 constitution, all forms of criminal punishment prevailing in colonial times, except fine, penal confinement or death, were terminated. The stocks, the whipping post and branding with the scarlet letter (if resort to the last ever was recognized in Connecticut) had disappeared in a resurgence of respect for the dignity of mankind and inviolability of the person.

The rule preserving the constitutional right to a jury trial has been settled in both the state and federal jurisdictions. Concisely stated, there is no constitutional right to a trial by jury unless the right to such a trial existed at the time the constitution was adopted. In McGarty v. Deming, 51 Conn. 422, 423, the claim made here was precisely answered. The court said: 'A party accused of drunkenness had no right to a trial by jury when the constitution was adopted. As the law then was he was tried by a justice of the peace without a jury, and with no right of appeal. Stat. 1808, p. 231. Hence the constitution does not in such cases secure a right to a jury trial. Besides, it may be a question whether this offence does not fall within the police powers of the state, so that the legislature may regulate the trial and punishment thereof as it pleases.' See such cases as Swanson v. Boshen, 143 Conn. 159, 162, 120 A.2d 546; In re Clayton, 59 Conn. 510, 519, 21 A. 1005, 13 L.R.A. 66; LaCroix v. Fairfield County Commissioners, 50 Conn. [4 Conn.Cir.Ct. 178] 321, 327; Seeley v. City of Bridgeport, 53 Conn. 1, 2, 22 A. 1017; State v. Worden, 46 Conn. 349, 365; Curtis v. Gill, 34 Conn. 49, 54. For a review of the origin and history of and the right to jury trials, reference is made to State v. Gannon, 75 Conn. 206, 226-232, 52 A. 727; United States Fidelity & Guaranty Co. v. Spring Brook Farm Dairy, Inc., 135 Conn. 294, 297-299, 64 A.2d 39, 13 A.L.R.2d 769.

Nor is there any right to a jury trial to which the defendant is entitled under the sixth amendment to the federal constitution. 'There is no national common

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law in the United States distinct from the common law which each state has adopted for itself and which it applies as its local law subject to such alteration as may be provided by its statutes.' 15 Am.Jur.2d 799, Common Law, § 4. In the District of Columbia, the government of which is by act of Congress, the common law which prevails is that which was in force in Maryland at the time of the cession of the part of its territory which now comprises the District. 24 Am.Jur.2d, District of Columbia, § 10. There is no right to a trial by jury under the federal constitution for petty offenses, as they may be defined by statute, unless such a right existed at common law antecedent to the adoption of the state constitution or unless the offense is so grave as to be comparable to offenses recognized at common law as entitling the defendant to a trial by jury. See District of Columbia v. Clawans, 300 U.S. 617, 624-627, 57 S.Ct. 660, 81 L.Ed. 843; District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177. The defendant's second 'special' assignment of error is without merit. It is, therefore, unnecessary to consider the first assignment, as to whether the claim just discussed was a available to the defendant in the absence of an exception by him to the court's ruling denying a jury trial.

After the defendant had moved to correct the court's finding, the trial judge made a number of [4 Conn.Cir.Ct. 179] corrections and additions to the finding of facts, the conclusions reached, and a statement on a ruling of law made at the trial. The further corrections sought by the defendant are not warranted. They were neither admitted nor undisputed facts, and we cannot enter upon the fruitless task of examining what credibility the trial court should have accorded to disputed testimony.

The needful facts found by the court can be briefly stated. On September 30, 1964, at 1:50 a.m., the defendant was found by Sergeant O'Leary of the Cheshire police department. He was seated in the driver's seat in a car parked...

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