Kennedy v. Walker

• Decision Date: 22 December 1948
• Citation: 135 Conn. 262,63 A.2d 589
• Parties: KENNEDY v. WALKER, Warden.
• Court: Connecticut Supreme Court

135 Conn. 262

63 A.2d 589

KENNEDY

v.WALKER, Warden.

Supreme Court of Errors of Connecticut.

Dec. 22, 1948.

Appeal from Superior Court, Hartford County; Inglis, Judge.

Habeas corpus proceeding by James A. Kennedy against Ralph H. Walker, Warden of Connecticut State Prison, alleging unlawful imprisonment. A motion to quash and dismiss the writ was granted and the issues were all found for defendant. Plaintiff failed to plead further and judgment was rendered for defendant, from which plaintiff appeals.

No error.

Clayton L. Klein and Thomas J. Birmingham, of Hartford, for appellant (plaintiff).

John P. Hodgson, Asst. State's Atty., of Hartford (John S. Murtha, Asst. State's Atty., of Hartford, on the brief), for appellee (defendant).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

MALTBIE, Chief Justice.

The petitioner, hereinafter called the plaintiff, was serving a sentence in the state prison for the crime of conspiracy and brought this habeas corpus action to secure his release on the ground that he was denied due process of law by the dismissal of an appeal to this court which he had filed and that he had been tried and convicted not upon an indictment by a grand jury but an information filed by a state's attorney. The trial court granted a motion to quash and dismiss the writ, and subsequently judgment was rendered for the defendant. From that judgment the plaintiff has appealed. The question is: Was he, in the respects specified, deprived of rights guaranteed to him by the constitution of the United States?

The application for the writ merely alleged that the plaintiff was held in imprisonment at the state prison without law or right, and the writ directed the defendant warden of the prison to bring the body of the plaintiff before the court on a certain day with the cause of his imprisonment. The defendant filed a return in which he stated that he was producing the body of the plaintiff and which further alleged: The plaintiff was arrested upon a bench warrant issued by the Superior Court for Hartford County charging him with conspiracy to pervert and interfere with public justice and to violate certain statutes relating to gaming and liquor; he was tried upon an information for the crime of conspiracy filed by the state's attorney, was found guilty and was sentenced to the state prison for a period of not less than three nor more than six years; he filed an appeal to this court; thereafter the state filed a motion in this court to dismiss the appeal on the ground that it had not been taken in good faith and was not being prosecuted with due diligence; this court granted the motion; thereafter a mittimus was issued and the plaintiff was by virtue of it delivered to the defendant at the state prison where he has since been confined. To this return the plaintiff filed an answer. Aside from certain matters irrelevant or of no materiality to the vital issues before us, it did not controvert the essential facts stated in the return but alleged in substance that the dismissal of the plaintiff's appeal was a denial of due process of law under the constitution of the United States and that his conviction upon an information was in contravention of certain provisions of that constitution which he claimed require a grand jury indictment. Thereafter the defendant filed a motion that the writ be quashed and dismissed upon three grounds, the only one of which material to the issues before us is that the provisions of the United States constitution upon which the plaintiff relied had no application to criminal procedure in a state court.

At the threshold of our consideration of this case we are met with a claim of the plaintiff that the motion to quash and dismiss was an improper method by which to raise the issue whether the facts stated in the return and the answer to it established legal justification for his conviction and imprisonment. The judges of the Superior Court have had for many years the power to make rules concerning procedure in habeas corpus, General Statutes, § 5360; Sup.1945, § 981h; but they have never done so. The statutes provide for a return by the defendant and an answer thereto but make no specific mention of any method by which the sufficiency of either as matter of law may be tested by an interlocutory pleading. General Statutes, § 5896. We have, however, held that it is proper to demur to a return and that after a return has been filed the usual rules of pleading apply. Scott v. Spiegel, 67 Conn. 349, 358, 35 A. 262; and see McDonald v. Hugo, 93 Conn. 360, 361, 105 A. 709. A motion to quash is at common law a recognized pleading in habeas corpus, 29 C.J. 153; 39 C.J.S., Habeas Corpus, § 86, page 650; but properly used it is adapted only to raise issues as to the propriety of the issuance of the writ and is not a means by which to test the legal sufficiency of the facts alleged in a return or the answer to it. McGlennan v. Margowski, 90 Ind. 150, 153; State ex rel. Hellige v. Milwaukee Liedertafel, 166 Wis. 277, 279, 164 N.W. 1004. In view of the fact that under our procedure the usual rules of pleading apply after a return has been filed, there is no reason to give a more extended scope to a motion to quash. The motion, however, was in effect one for judgment on the pleadings. Their allegations show no substantial dispute as to the facts, however it may be as to statements of legal conclusions contained in them, and we can conceive of no additional facts which would alter our decision upon the issues so presented. They have been fully argued before us. To remand the case on the ground that the motion to quash was an improper pleading to raise the vital issues in the case would be merely to delay its final disposition, with an ultimate determination not different from that we now reach. Under these circumstances we shall disregard any defect there may be in the procedure under which the issues were decided by the trial court and are now presented to us. Campbell v. Rockefeller, 134 Conn. 585, 589, 59 A.2d 524; Artman v. Artman, 111 Conn. 124, 127, 149 A. 246.

We first consider the claim of the plaintiff that the dismissal of his appeal to this court constituted a denial to him of due process of law. The appeal was dismissed upon the ground that he had failed to prosecute it with reasonable diligence, and that conclusion was reached upon the basis of his failure reasonably to comply with the requirements of the procedure established for taking appeals to this court. State v. Ward, 134 Conn. 81, 54 A.2d 507. The plaintiff does not contend that he was not given a fair and full trial in the Superior Court. He was fully heard upon the motion by the state for the dismissal of his appeal. An appeal in this state is a statutory privilege accorded only if the conditions fixed by the statutes and rules of court for taking and prosecuting it are complied with. Bronson v. Mechanics' Bank, 83 Conn. 128, 133, 75 A. 709; Bennett v. United Lumber & Supply Co., 110 Conn. 536, 538, 148 A. 369. The determination of those conditions has been almost wholly vested in the judges of the Superior Court; General Statutes, § 5700; and the judges of that court include the judges of the Supreme Court. General Statutes, § 5373. One of the rules provides that if an appeal is not prosecuted with proper diligence it may on motion be dismissed. Practice Book, § 412. The dismissal of the plaintiff's appeal was, in our judgment, justified under the rules of procedure in this state. Even if we were in error in our ruling, that would not constitute a denial of the due process of law required of the states by the fourteenth amendment to the United States constitution. Howard v. Commonwealth of Kentucky, 200 U.S. 164, 172, 26 S.Ct. 189, 50 L.Ed. 421; Thorington v. City Council of Montgomery, 147 U.S. 490, 494, 13 S.Ct. 394, 37 L.Ed. 252. In fact, the plaintiff, having been tried and convicted in the Superior Court, could not have invoked that requirement had our statutes given him no right of appeal. State of Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74, 80, 50 S.Ct. 228, 74 L.Ed. 710, 66 A.L.R. 1460; Reetz v. People of State of Michigan, 188 U.S. 505, 508, 23 S.Ct. 390, 47 L.Ed. 563; Kohl v. Lehlback, 160 U.S. 293, 297, 16 S.Ct. 304, 40 L.Ed. 432.

Previous to 1784 there was no constitutional or statutory requirement in this state for an indictment by a grand jury as the basis for the trial of one accused of crime, whatever the nature of his offense. Neither the fundamental orders of 1638 nor the bill of rights embodied in the code of 1650 nor the royal charter of 1662, under which the government of this state continued to be conducted until the adoption of the constitution in 1818, contained any such provision. As early as 1643 a statute was enacted which provided that a grand jury of twelve men should be warned to appear before the ‘particular court,’ the court in which criminal cases were ordinarily tried, in September, ‘or as many & oft as the Governor or Courte shall thinke meet, to make presentment of the breaches of any lawes or orders or any other misdemeanors they know of in the Jurisdiction,’ 1 Col.Rec. 91; but this statute did not require indictment by a grand jury as the necessary basis of a prosecution. Later statutes authorized presentments by less than twelve; indeed, they might be made by a single grand juror; see General Laws, 1672, p. 27; Acts & Laws, 1702, p. 45; 5 Col.Rec. 324 (1712); and the learned annotator of the 1821 revision of the statutes states that as a result of these laws the practice of summoning a grand jury at a session of the court seems to have been discontinued. Statutes, Rev.1821, p. 261. The Superior Court was established as a court of general jurisdiction in both civil and criminal matters in 1711; 5 Col.Rec. 238; and the same annotator goes on to say that it was the practice of that court to summon a grand jury in...