State v. Caplan

• Decision Date: 26 July 1912
• Citation: 84 A. 280,85 Conn. 618
• Court: Connecticut Supreme Court
• Parties: STATE v. CAPLAN.

84 A. 280

85 Conn. 618

STATE v. CAPLAN.

Supreme Court of Errors of Connecticut.

July 26, 1912

Appeal from Superior Court, New Haven County; Ralph Wheeler, Judge.

Harry Caplan was convicted of larceny, and he appeals. Appeal dismissed.

Robert C. Stoddard, of New Haven, for appellant.

Arnon A. Alling, State's Attorney, of New Haven, for the State.

BURPEE, J.

In the superior court held in New Haven county on November 11, 1911 the defendant, after full hearing, was found by the jury guilty of the crime of stealing cattle, and thereupon judgment was rendered that he be confined in the common jail of the county for the term of one year. From this judgment the defendant, on January 13, 1912, filed an appeal " to the Supreme Court of Errors, next to be held at Bridgeport in and for the Third judicial district, on the second Tuesday of April, 1912, for the revision of errors which he claims to have occurred in the trial." This appeal having been entered in the court described, the state pleads in abatement because the appeal was taken to that court, " and was not taken, as it should have been," to the court " next to be held after the filing of the appeal, to wit, at New Haven, on the third Tuesday of January, A. D. 1912."

Section 480 of the General Statutes provides that a term of this court shall be held annually on the third Tuesday of January in New Haven. Taking judicial notice of the coincidence of the days of the week with those of the month it appears that the third Tuesday of January, 1912, was the 16th day of that month. The record shows that the defendant's appeal was filed on the 13th day of that month. Section 788 of the General Statutes permits a party aggrieved to appeal and remove questions of law for revision " to the Supreme Court of Errors next to be held after the filing of the appeal, in the judicial district where the judgment was rendered." An appeal to this court is a process of which the form and requirements are fixed by statute, the provisions of which must be strictly complied with. In re Shelton Street R. R. Co., 70 Conn. 329, 331, 39 A. 446. This appeal, therefore, could be taken only to the court to be held on the third Tuesday of January. An appeal filed when this one was could not be taken to the later term in April. In this respect, this plea in abatement is controlled by the decision in Farnham v. Lewis, 83 Conn. 134, 75 A. 625, and accordingly should be sustained.

But the defendant, by a demurrer to this plea, seeks to escape from that decision which relates to one part of section 788, and to shelter himself from its effects behind another part of that section, which he points out, and which reads as follows: " And when a final judgment is rendered in any cause in which a party may be entitled to a writ of error to the Supreme Court of Errors, he may appeal from such judgment to the next term of said court which would have cognizance of a writ of error in the cause."

The demurrer states that " it appears from the record and files in this cause that the judgment rendered was rendered in a cause in which he was entitled to a writ of error" to this court, and that " it does not appear but that this appeal was taken to the next term" of this court " which would have cognizance" of such writ of error; that a party entitled to a writ of error in this cause has the choice of two terms of this court, to either of which he may appeal from the judgment rendered, the one being the next term " after the filing of the appeal," and the other the next term " which would have cognizance of a writ of error in said cause" ; and that, while the plea in abatement alleges that the defendant did not comply with the law by taking this appeal to the former term, it does not allege that he did not comply with the law in taking this appeal to the other term. Therefore he claims it is defective.

In the first place, then, it is necessary to determine whether it does appear that in this cause the defendant is entitled to a writ of error to this court.

The writ of error is the common-law method, and formerly the only method in this state, of carrying up a cause from an inferior to a higher court for the revision of questions of law. The writ will lie where there is error in law apparent on the record. Under the old practice, if it was desired to have any other error devised, such as error in admitting or rejecting evidence or in the charge by the court to the jury, it was necessary to bring it into the record by means of a bill of exceptions. This common-law practice was recognized and required by an act of the General Assembly of the colony of Connecticut in October, 1719. Colonial Records, vol. 6, p. 191. But this method was never entirely satisfactory, and sometimes, by reason of misstatements or omissions in the bill of exceptions which there was no means of correcting, the questions it was intended to raise could not always be presented to the higher tribunal. Hence, after a new organization of the Supreme Court of Errors and of the superior court of the state was established in 1806, the judges, under a statute authorizing them to ordain rules of practice, adopted one that " bills of exceptions shall not hereafter be admitted, but motions for new trials shall be admitted, in all cases, in their room" ; and these motions might, in the discretion of the trial court, be reserved for the opinion of all the judges. From that time, at first by reason of this rule and afterwards under a statute enacted in 1830 (Laws 1830, c. 3), any error in the rulings or charge of the superior court must be presented for review in the Supreme Court in a motion for a new trial. By the act of 1830, the discretion of the lower court to reserve such motions was taken away, and it was made imperative to reserve them. Manifestly, without a bill of exceptions to place them upon the record of the trial court, it was not possible for a writ of error to carry questions of law relating to error in the charge or rulings of the superior court to the Supreme Court to be reviewed. 1 Swift's Digest, side pp. 771, 781, 782, 789; 3 Day, 27, 28; 18 Conn. 564; Zaleski v. Clark, 45 Conn. 397, 402.

In 1823 (Laws 1823, c. 1) the General Assembly provided a substitute for the writ of error, called a " motion in error." It was a less expensive and speedier proceeding for transmitting from the superior court, after final judgment, to the Supreme Court the record in any cause in which a party might be entitled to a writ of error to the higher court. But, like a writ of error, it was not a proper method of bringing up errors in law not apparent on the record. " A writ of error or motion of error will bring up properly a revision of the declaration, pleadings, and judgment, but not an error in receiving or rejecting evidence or in the charge of the court. We notice it, that a salutary rule of law may be preserved and followed." Tolland v. Willington, 26 Conn. 580.

Almost 60 years later, by another act of the General Assembly, it was provided that all questions of law thereafter arising on the trial of any action in any inferior court, that might then be carried to a higher court by a motion for a new trial or a motion in error, should thereafter " be removed to such higher court by an appeal," and no such motions should thereafter be allowed. P. A. 1882, c. 50, p. 144. In the next revision of the rules of practice of the Supreme and superior courts, made in 1890, it was prescribed that no bill of exceptions would be allowed in the superior court, " except in cases where an adequate remedy is not afforded by an appeal." 58 Conn. 578. In the rules adopted in 1899 this rule was retained, with a further exception relating to the bills of exceptions that may be filed by an adverse party " after the allowance of an appeal," under chapter 194, P. A. 1897, p. 888. General Rules of Court 1899, p. 29. The present rule is the same, with another exception which relates only to writs of error in actions of summary process. Pr. Bk. p. 225.

This review of the law and rules of practice in this state shows that a writ of error without a bill of exceptions was never a proper means to bring before this court questions of law relating to the rulings or charge to the jury in the superior court; that since 1807 bills of exceptions have not been allowed on writs of error, except in summary process; that after that year a motion for a new trial was the only proper means to bring up such questions of law; and that since 1882 an appeal has been substituted for the motion for a new trial.

Since in the case now before this court, the only questions of...