State v. Carabetta
| Decision Date | 04 May 1927 |
| Court | Connecticut Supreme Court |
| Parties | STATE v. CARABETTA. STATE v. FEMIA. |
Appeal from Superior Court, New Haven County; Edwin C. Dickenson Judge.
Joseph Carabetta and Rocco Femia were charged with the willful burning of personal property, and acquitted, and the State appeals. On the State's demurrer to pleas in abatement to the appeal filed by defendants. Demurrer overruled.
Benjamin D. Winner, Asst. State's Atty., of New Haven, for the State.
Philip Pond, of New Haven, and Daniel J. Danaher, of Meriden, for appellees.
Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.
The plea in abatement recites that the judgment was entered on October 29, 1926; that the permission of the presiding judge to take an appeal was granted on January 1, 1927, more than two months later; that all proceedings relative to the appeal--the filing of notice of appeal, request for a finding, and the finding--were had before any permission was granted to the state to appeal; and that no permission was granted within a reasonable time from the entry of the verdict and judgment. From the record it appears that the draft finding was filed November 22, 1926, and the finding filed December 30, 1926.
The state demurred upon the grounds that it had duly filed its notice of appeal and request for a finding within the time prescribed by the statutes; that it received permission to appeal from the presiding judge prior to the actual appeal and that the permission to appeal from the verdict and judgment were recorded and thereupon became a part of the files and records in these cases.
The right of the state to appeal in criminal cases to this court did not exist at common law and was first given by the statute of 1886 (Acts 1886, c. 15), " with the permission of the presiding judge * * * in the same manner and to the same effect as if made by the accused" (Gen St. 1887, § 1637). In State v. Lee, 65 Conn 282, 30 A. 1114 (27 L.R.A. 498, 48 Am.St.Rep. 202), the permission of the presiding judge did not appear of record, but we held that the finding of facts by the presiding judge, for the purpose of appeal, was sufficient evidence that the necessary permission was granted, but we were careful to state that the formal permission should not be omitted from the record, and thereupon we stated the proper practice governing the request for the granting of and the recording of permission in these words:
" We think as a matter of practice certainly that, in all appeals under section 1637, the permission of the presiding judge should be asked and granted, and a formal record thereof made at the time of the judgment, and that the accused, if in custody, should then be admitted to bail."
Since that time we have never been called upon to again consider the question of practice which was thus formulated in State v. Lee. In the 32 years intervening ten appeals to this court have been taken by the state; three judgments in the superior court, two of which conformed strictly to the practice outlined in State v. Lee, and seven from judgments of the district and common pleas courts, four of which conformed to the practice of State v. Lee. In the other cases from 7 to 18 days intervened between the date of judgment and the permission of the court to appeal. Three of these appeals were from a judgment upon a demurrer; the other an appeal for errors in the charge. A practice which was carefully considered by this court over 30 years ago ought not to be lightly changed at this day, particularly when state's attorneys and prosecutors have, as a general rule, conformed to it.
There are, too, considerations of vital import to the accused, as well as the state, which led to the adoption of this practice and which are equally potent to forbid departure from that practice. When the accused is acquitted, it is his privilege to move for discharge, and the duty of the court to discharge the accused, unless the state shall move for permission to appeal. When the court orders or permits the discharge, the accused is at liberty to depart, a free man, to go whithersoever he may choose. If he shall go to another jurisdiction, he may not be brought again within this jurisdiction by process of extradition or otherwise, since there is no longer a criminal charge against him. He cannot be put in jeopardy again for the crime of which he has been acquitted and discharged by the court. If he remains within the State, he cannot be again apprehended for a crime of which he has been acquitted and discharged. His bail would be...
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State v. Butler
...... Ross , 189 Conn. 42, 46, 454 A.2d 266 (1983), citing State v. Carabetta , 106 Conn. 114, 119, 137 A. 394 (1927). "It is not necessary that the prosecutor shall at the moment of judgment reach a final determination that he will prosecute the appeal. It is necessary that he determine at the time of the judgment that he ought to ask the court for permission to take such ......
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State v. Hanusiak
...... For a court to acquire and maintain the power to hear and determine a case, jurisdiction must exist in three particulars: the subject matter of the cause, the parties, and the process. Mazzei v. Cantales, 142 Conn. 173, 175, 112 A.2d 205. . In State v. Carabetta, 106 Conn. 114, 137 A. 394, the defendant had been found not guilty by the jury and was discharged. More than two months later, the state was granted the right to appeal, after having completed all the proceedings relative to the appeal. The defendant filed a plea in abatement to the appeal to ......
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State v. Ledbetter
...guaranteed by article first, § 9, of our constitution. See State v. Lee, 65 Conn. 265, 271, 30 A. 1110 [1894]; State v. Carabetta, 106 Conn. 114, 117, 137 A. 394 [1927]; State v. Holloway, 144 Conn. 295, 298, 130 A.2d 562 [1957]." Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. ......
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State v. Brunn
...... adverse to the accused, there might have been review at his. instance, and as often as necessary to purge the vicious. taint. A reciprocal privilege, subject at all times to the. discretion of the presiding judge, State v. Carabetta (106 Conn. 114, 137 A. 394), has now been. granted to the state. There is here no seismic. innovation. The edifice of justice stands, its symmetry, to. many, greater than Before .' (Italics ours.). . . [It. should be remembered, in considering the ......
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"incorporation" of the Criminal Procedure Amendments: the View from the States
...accord State v. Laws, 655 A.2d 1131, 1139 (Conn. App. Ct. 1995), cert. denied, 659 A.2d 1210 (Conn. 1995); see also State v. Carabetta, 137 A. 394 (Conn. 1927) (holding that after acquittal and discharge, defendant's reapprehension on decision of prosecutor to appeal constituted double jeop......