State v. Davis, CR

• Decision Date: 19 July 1962
• Docket Number: No. CR,CR
• Citation: State v. Davis, 186 A.2d 383, 24 Conn.Supp. 22 (Conn. Cir. App. Div. 1962)
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: , 24 Conn.Supp. 22 STATE of Connecticut v. Mae F. DAVIS. 14-8598.

Page 383

186 A.2d 383

1 Conn.Cir.Ct. 361, 24 Conn.Supp. 22

STATE of Connecticut v.Mae F. DAVIS.

No. CR 14-8598.

Circuit Court of Connecticut, Appellate Division.

Argued March 30, 1962.

Decided July 19, 1962.

Peter J. Zaccagnino, Jr., Hartford, for appellant(defendant).

John J. Devine, Asst. Pros.Atty., for appellee(state).

KOSICKI, Judge.

The defendant was charged in two counts with (1) selling liquor without a permit in violation of § 30-77 of the General Statutes and (2) violation of the state policy law, § 53-298, as amended byPublic Acts 1961, No. 528, § 2.Upon a trial to the jury, she was found guilty on both counts.In her appeal to this court, she has assigned error in the refusal of the court to grant her motion to suppress the evidence obtained by the police after a search of her home without a search warrant; in allowing that evidence and police testimony of what was found to be introduced by the state in violation of the state and federal constitutional provisions prohibiting illegal search and seizure; in the use of the evidence and information so obtained in the prosecution of the defendant for the crimes charged; and in denying her motion for a directed verdict as to both counts.

I

We address ourselves first to the assignment of error last stated.'A ruling denying a motion to direct a verdict was formerly not an assignable error even on an appeal from the judgment in the case.'Maltbie, Conn.App.Proc. § 204;State v. Murphy, 124 Conn. 554, 567, 1 A.2d 274;State v. Fasano, 119 Conn. 455, 459, 177 A. 376;State v. Boucher, 119 Conn. 436, 437, 177 A. 383.Under present procedure, a denial of a motion for a directed verdict may be assigned as error on an appeal from a judgment later entered.Practice Book, § 377; Maltbie, loc. cit.In the circumstances of this case, it was unnecessary to appeal both from a denial of the motion and from the judgment, as an appeal from the latter includes any error in the court's action on the motion.Rickey v. E. H. Jacobs Mfg. Co., 142 Conn. 495, 496, 115 A.2d 336.The ruling of the court must be tested by the evidence.For the appellant to prevail, it must appear that there was no issue of fact for the court to submit to the jury, that the facts were undisputed, and that the question presented was only one of law.H. Wales Lines Co. v. Hartford City Gas Light Co., 89 Conn. 117, 125, 93 A. 129;Senderoff v. Housatonic Public Service Co., 147 Conn. 18, 21, 156 A.2d 517.Our examination of the evidence shows that the situation was not such that the motion could have been entertained properly, and the ruling of the court was correct.

II

The defendant at the outset of the case filed a motion to suppress evidence allegedly obtained as a result of an illegal search and seizure.She assigns error in the denial of this motion by the court.The motion was filed on the analogy to a motion of the same name provided for under the federal rules of practice.Fed.R.Crim.P. 41(e).No such motion is cognizable under our common law or by statute or under the rules of court.SeeState v. Carol, 120 Conn. 573, 576, 181 A. 714;State v. Magnano, 97 Conn. 543, 547, 117 A. 550.It is foreign to our procedure and is not assimilable to any motion, written or oral, permitted under Connecticut law in a criminal case.The purpose of the proffered motion was to test the admissibility of certain evidence in advance of trial.This is not in accord with our procedure, which prescribes that no ruling on evidence pertaining to the general issue can be made by the court until after the evidence has first been offered in the course of a trial on the merits of the case, at which time an objection made and reasons given would compel the offeror to state valid reasons in support of the offer; and a ruling admitting or excluding the evidence would then be assignable as error on appeal if an exception to the ruling had been duly taken.Practice Book§§ 155, 405;Cir.Ct. Rule 7.29.1(4).

Giving effect to what appears on its face to be an improper motion, pleading, or plea is permissible where a substantial similarity to a permissible one exists so that, but for the erroneous designation or formal incorrectness, the substance makes consideration allowable as being in consonance with our practice.In this case, neither expressly nor by implication can the motion to suppress evidence be regarded as in accord with our established procedure.

Our courts do not have the power to make rules coram judice, notwithstanding the apparent merit, convenience, or asserted advantage of the particular procedural innovation that might be urged.The rule-making power ultimately reposes in the justices of the Supreme Court of Errors and the judges of the Superior Court and fundamentally is derived from the implied powers at common law of the judges of the Superior Court to implement the machinery of justice.No single judge has the authority to make a rule or change one; and the exercise of this power requires not only the necessary consultation and consent of the judges but, in the case of the Circuit Court rules, notice, public hearing, and publication as well.General Statutes §§ 51-14,51-260,51-265,51-267,51-269,51-22;Public Acts 1959, No. 28, § 5; Maltbie, 'The Rule-Making Powers of the Judges,' Practice Book, pp.XI-XVII.

It has often been suggested, as a sound reason for testing before trial the admissibility of evidence allegedly seized in disregard of the constitutional rights of the accused, that the court should not interrupt a trial to determine the collateral issue of illegal procurement of otherwise competent evidence.This may be a sound rationalization which courts may adopt either to support a legislative change in a rule of evidence or to explain a rule of practice derived from authoritative decision and expressive of judicial policy.Such inquiry, however, into the illegal source of evidence cannot be called collateral, any more than the determination of the voluntariness of a confession offered in evidence against an accused can be called collateral; and undeniably such latter offer cannot be anticipated by a test of a confession dehors the trial on the issue of guilt or innocence.The reason stated above for the rule concerning suppression of evidence, as it obtains in the federal and in many state jurisdictions, should not be mistaken for the common law rule barring inquiry into the source of evidence otherwise competent and admissible.'The underlying principle [of the common-law rule] obviously is that the court, when engaged in trying a criminal cause, will not take notice of the manner in which the witnesses have possessed themselves of papers or other articles of personal property which are material and properly offered in evidence.'People v. Adams, 176 N.Y. 351, 358, 68 N.E. 636, 638, 63 L.R.A. 406;Weeks v. United States, 232 U.S. 383, 395, 34 S.Ct. 341, 58 L.Ed. 652.

The action of the trial court in overruling the motion to suppress the evidence was correct.

III

The remaining two assignments of error relate to the claimed erroneous admission of evidence in proof of each count of the information.The defendant filed no request to charge and has taken no exception to the court's instructions to the jury.We must assume, therefore, that the charge to the jury was correct.These claims of error must be considered as being directed solely to the rulings on evidence.In regard to the conviction on each of the two counts, the defendant maintains that the same prejudicial error had been made in admitting evidence obtained in consequence of a search and seizure violative of her constitutional rights under the fourth and fourteenth amendments to the constitution of the United States and article first, § 8, of the constitution of Connecticut.

No finding of facts was requested or made.Such facts as the court was entitled to find proved, in their relation to the claimed errors in the rulings on evidence, may be summarized as follows: At about 10:15 o'clock on the night of October 6, 1961, Officer Clarke, upon orders of the police department, purchased of the defendant a half-pint of whiskey labeled with a brand name and sealed with a government internal revenue stamp.He paid the defendant with two $1 bills and a quarter in coin, having first made a record of the serial numbers on the bills.The sale was made at the second-floor apartment where the defendant lived.The defendant had no permit for the sale of alcoholic liquor, and no such permit had been issued for the apartment.After the purchase, Officer Clarke rejoined Detectives Corbett and Dec, who were in a car in the vicinity of the premises and who had the place under surveillance before, during, and after the sale.Within fifteen minutes thereafter, all three returned to the apartment and knocked on the door, and the accused opened it.She was informed that they were members of the Hartford police department, was shown their badges, and was then placed under arrest.She was told that she was being arrested for selling liquor without a permit and keeping liquor with intent to sell and was asked her consent to search the premises.The defendant admitted them and told them to go ahead and look around for the $2, to try to find the money, and that they would not find it.She denied having seen Officer Clarke before.The apartment consisted of a living room, two bedrooms and a kitchen.At no time did the police officers observe any occupant other than the accused.They did not ransack the apartment or extend their search for things other than the bills in question and other liquor.The accused did not ask them to leave.They found a half-pint of whiskey, of the same brand as the bottle purchased, under a pillow on a settee in the living room.The serial number on the bottle was 25424502.The serial number on the bottle sold to Officer Clarke was 25424508.No money was found.During the search for the...