Perell v. Warden of State's Prison

• Decision Date: 09 June 1931
• Citation: Perell v. Warden of State's Prison, 155 A. 221, 113 Conn. 339 (Conn. 1931)
• Parties: PERELL v. WARDEN OF STATE'S PRISON. Ex parte FINNEGAN.
• Court: Connecticut Supreme Court

155 A. 221

113 Conn. 339

PERELL v. WARDEN OF STATE'S PRISON.

Ex parte FINNEGAN.

Supreme Court of Errors of Connecticut.

June 9, 1931

Appeal from Superior Court, Hartford County; Newell Jennings, Judge.

Petition by Sydney C. Perell for a writ of habeas corpus against the Warden of the Connecticut State Prison at Wethersfield to determine the legality of the imprisonment of Henry Finnegan brought to a judge of the superior court, who overruled respondent's demurrer and granted a motion to strike out petitioner's reply to the return and directed a judgment for respondent: the court later denied petitioner's motion to set aside the judgment and for permission to file an amended and substitute reply, and petitioner appeals.

No error.

Herbert A. De Lima and Jackson Palmer, both of Greenwich, for appellant.

Lorin W. Willis, Asst. State's Atty., and William H. Comley, State's Atty., both of Bridgeport, for appellee.

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

AVERY J.

The petition for the writ alleged in general terms that the prisoner.Henry Finnegan, was unlawfully confined in the state prison at Wethersfield, by the warden thereof.The return to the writ sets forth a mittimus issued by the superior court for Fairfield county, by which Finnegan was held in custody; and a copy of the mittimus was annexed to the return.No attack is made upon the form of the mittimus, nor is any claim made that it did not conform to the judgment of the court.A certified copy of the information and of the judgment of the court was also filed with the return; and from them, it appears that the information charged the prisoner with the crime of rape, committed in Stamford June 15, 1930: that the prisoner appeared and pleaded not guilty; and after full hearing, the case was committed to the jury, who returned a verdict of guilty; and it was thereupon considered by the court that the prisoner was guilty in the manner and form as charged in the information; whereupon, the court imposed sentence to the Connecticut state prison at Wethersfield for a period not exceeding ten years as a maximum term, and not less than six years as a minimum.

The reply of the petitioner to the return of the respondent sets forth the claim that at the trial, the state failed to prove the crime charged was committed in the state of Connecticut or in the county of Fairfield, and therefore the court was without jurisdiction to render any judgment, or impose any sentence in the case.The respondent then moved to strike out the reply of the petitioner for the reasons: (a) That such reply was irrelevant and immaterial: (b) it was nor alleged that the court was without jurisdiction over the person of Finnegan or of the offense charged against him; (c) it was not claimed that upon the face of the record, the judgment was void as beyond the exercise of the court's jurisdiction; (d) it was not alleged that the crime was one for which Finnegan could not be lawfully sentenced and imprisoned in the Connecticut state prison.The judge, before whom the petition was brought, overruled the respondent's demurrer and granted the motion to strike out the petitioner's reply: and directed judgment for the respondent.Thereafter, the petitioner moved to set aside the judgment on the ground that a summary judgment had been rendered upon an interlocutory motion; and that the petitioner should be permitted to present the entire record of the trial of Finnegan, with such other material facts as would sustain the petitioner's reply.The petitioner also moved to amend his reply by substituting another containing in substance the same allegations as were contained in the first which had been stricken out, and annexed thereto a copy of the evidence in the case as tried before the jury in the superior court, with certain affidavits which, it was claimed, tended to prove that on the night when the crime was committed.Finnegan and his victim had been in the state of New York.It was further claimed this evidence would establish that the crime was committed in the state of New York, and not in Fairfield county.These motions to set aside the judgment and for permission to file the substitute reply were denied.The contention made by the various assignments of error is that Judge Jennings, upon habeas corpus, should have examined the testimony taken at the trial, and such other testimony as the petitioner might produce and determine whether or not the rape in question was committed in Fairfield county or in the state of New York.No issue was raised, nor could any be maintained, that the accused was not lawfully in the custody of the court; or that the court was without jurisdiction to punish the crime charged; or that the sentence imposed was beyond that provided by the statute.The real question which the petitioner here seeks to raise involves the sufficiency of the evidence upon which Finnegan was...