State v. Colonese
| Decision Date | 07 November 1928 |
| Citation | 108 Conn. 454,143 A. 561 |
| Court | Connecticut Supreme Court |
| Parties | STATE v. COLONESE. |
Appeal from Court of Common Pleas, Litchfield County; Elbert B Hamlin, Judge.
Information in two counts against Frank Colonese for violation of the liquor law, in illegally manufacturing for sale and exchange and in illegally owning and keeping with intent to sell and exchange. There was verdict and judgment of guilty on each count, and defendant appeals. No error.
Harry L. Edlin and Louis Sperandeo, both of New Haven, for appellant.
J Howard Roberts, of Thomaston, for the State.
Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.
The defendant moved to strike out 16 paragraphs of the finding, and the denial of the motion by the trial court is assigned as error. All these paragraphs were statements of what the state had offered evidence to prove and claimed to have proved.
We have heretofore called attention to the distinction between a finding on a trial to the jury and one where the case was tried to the court. The latter embodies the ultimate facts which have been determined by the court, while the former is merely a fair statement of what the parties offered evidence to prove and claimed to have proved. We also pointed out that there were two methods of obtaining a correction of the latter, one by motion to this court to rectify the appeal and the other, under General Statutes, § § 5829, 5830, by motion to the trial court to correct, with exceptions to the finding as made. Marks v. Dorkin, 104 Conn. 660, 133 A. 915.
The appellant in the present case failed to file with his motion the exceptions required by statute, so the questions sought to be raised are not properly before us. Being, however, familiar with the evidence, which is all certified to us, we may say we find nothing therein to justify the changes sought. Nor are such changes necessary in order to fairly present errors claimed to have been made by the trial court. State v. Gargano, 99 Conn. 103, 106, 121 A. 657.
During the trial the court personally examined at some length one of the defendant's witnesses after the prosecuting attorney had concluded the cross-examination. The defendant excepted to the court's action, and it now appears as a ground of appeal, but apparently is not pressed in argument or brief. The examination was clearly within the court's discretion and not unreasonably exercised. State v. Cianflone, 98 Conn. 454, 468, 120 A. 347.
Over the objection of the defendant, the court admitted in evidence several of the staves of vats which were found in use in the manufacture. Upon these staves was the name of the defendant in stencil. Defendant conceded that the staves were admissible, but excepted to their admission with the name on them. These staves were properly identified as parts of the vats found on the defendant's premises and in the same condition as when found. It was competent for the state to establish the ownership of the vats, and this the staves with the stenciled name tended to do. The objection was without merit. Ingraham v. Chapman, 177 Mass. 123, 58 N.E. 171, 83 Am.St.Rep. 264; Wigmore, Evidence, vol. 1, p. 210.
A witness for the state was asked on cross-examination whether one Mauli was living on the defendant's farm, whether he had investigated the question of Mauli's residence, whether Mauli was a tenant of the defendant, and about a conversation with Mauli regarding the still and the farm. Upon redirect examination the witness was asked whether Mauli then told him by whom he was employed, and over the defendant's objection the question was admitted, and the defendant excepted. A similar question was put to this witness regarding one Griffin, and this, too, was admitted over the defendant's objection. The record of the cross-examination in both instances shows that the basis for these questions was there laid and the ruling of the trial court in both cases was correct.
This witness was asked by counsel for the defendant what house Mauli lived in, to which he replied: " The same house that Colonese is reputed to live in." The defendant moved that this testimony be stricken out on the ground that it was not responsive and that it incriminated the defendant. This motion was properly overruled on both grounds.
The court in denying this motion referred to the answer of the witness as not pleasing to the defendant's counsel. Upon protest that the remark was prejudicial to the defendant, the court at once disclaimed any such intention and so stated clearly to the jury with the admonition, " You must not allow that passing remark in any way to weigh against the defendant or his counsel." This left the defendant no cause of complaint, and his motion for a mistrial on this ground was properly denied.
At the conclusion of the evidence for the state, the defendant moved for a directed verdict on the ground that the evidence was insufficient to warrant a verdict for the state, and that the two grounds of manufacture for purpose of sale and keeping with intent to sell were not distinct offenses, but were merged. Both claims were unsound and the motion was properly denied. There is evidence from which the jury might reasonably have found that liquor had been manufactured before as well as on the day of the raid, and that a considerable amount of intoxicating liquor was found in containers in various places on the premises. We may not assume that the state claimed convictions on both counts for the same liquors, and must regard the two counts as charging separate and distinct offenses. State v. Ryan, 68 Conn. 512, 515, 516, 37 A. 377.
Error is predicated upon each of 16 separate quotations from the charge. Several of these are cited in support of the claim that the trial court displayed " overzealousness" in favor of the state and a fear that the jury might acquit the accused. We have on more than one occasion criticized the selecting of separate portions of a charge and basing upon them a general contention as to the whole charge. The proposition here advanced is one which should not be lightly made or considered, and we have read the entire charge with careful attention. Thus considered, it is apparent that it is a fair and unbiased statement of the court's views upon the law as applied to the evidence, and no jury of reasonable men could, we think, have considered it otherwise.
There are three other grounds upon which the defendant claims error in the charge; that relating to the presumption of innocence, to the meaning of " reasonable doubt," and upon circumstantial evidence.
The jury were told:
" The presumption of innocence means that when this accused was presented for trial he stood before you free from any prejudice because he was an accused person, so that you were to regard him as innocent unless and until in the orderly progress of the trial you became satisfied of his guilt."
The court also explained to the jury that proof of guilt must be established beyond a reasonable doubt. The defendant claims it was error to say, " You are to regard him as innocent unless and until in the orderly progress of the trial you become satisfied of his guilt." It is insisted that the jury " cannot at any time of the trial become satisfied of the guilt of the accused, but can only do so after deliberation upon all the evidence and upon the charge of the court." There is no force in this claim, especially when the charge is read in full. The only effect which the presumption has is to cast the burden of proving guilt upon the state. It imposes no other burden. It is not evidence, and its function is exhausted when the state has fully sustained this burden. State v. Smith, 65 Conn. 283, 285, 31 A. 206; State v. Brauneis, 84 Conn. 222, 229, 79 A. 70.
After defining and explaining the term " reasonable doubt," the court added:
" The rule should not be a stumbling block in the deliberations of honest men and while it should be observed as a rule it should not be used as a means of acquitting a guilty man."
The defendant thinks this equivalent to saying that if the jury were satisfied of the guilt, no matter how arrived at, it should so find, notwithstanding the evidence raised a reasonable doubt. A reading of the entire charge disposes effectually of this contention.
It is not easy to understand the position of the defendant...
To continue reading
Request your trial
-
State v. Hayes
... ... of statutes of ... [18 A.2d 919] ... materially different content from our own. The defendants ... also claim that language of two earlier decisions of this ... court, State v. Monahan, 96 Conn. 289, 291, 114 A ... 102, and State v. Colonese, 108 Conn. 454, 464, 143 ... A. 561, is in conflict with that in the Ford and Heno cases, ... thus supporting their contention. In so far as these earlier ... opinions contain language inconsistent with the rule laid ... down in the Ford and Heno cases, the former are overruled ... ...
-
State v. Schiappa
...410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973); State v. Cari, 163 Conn. 174, 180-81, 303 A.2d 7 (1972); cf. State v. Colonese, 108 Conn. 454, 460, 143 A. 561 (1928). For the reasons stated in previous cases, and in light of the totality of the trial court's instructions in this case......
-
State v. Just
...duty of the state to prove beyond a reasonable doubt the defendant's guilt of the crimes with which he is charged. State v. Colonese, 108 Conn. 454, 459, 143 A. 561 (1928)." State v. Cari, supra, 163 Conn. 181, 303 A.2d 7. III The defendant's third claim is that, with respect to his convict......
-
State v. Cari
...the duty of the state to prove beyond a reasonable doubt the defendant's guilt of the crimes with which he is charged. State v. Colonese, 108 Conn. 454, 459, 143 A. 561. The defendant's third assignment of error is that the trial court erred in instructing the jury that '(f)requently, evide......