State v. Dionne

• Decision Date: 11 September 1962
• Docket Number: Nos. MV,s. MV
• Citation: 186 A.2d 561,24 Conn.Supp. 59
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: , 24 Conn.Supp. 59 STATE of Connecticut v. Roger J. DIONNE. STATE of Connecticut v. Joseph WALUK. 15-2859, MV 15-2860.

Page 561

186 A.2d 561

1 Conn.Cir.Ct. 395, 24 Conn.Supp. 59

STATE of Connecticut v. Roger J. DIONNE.

STATE of Connecticut v. Joseph WALUK.

Nos. MV 15-2859, MV 15-2860.

Circuit Court of Connecticut, Appellate Division.

Argued June 1, 1962.

Decided Sept. 11, 1962.

Francis C. Vignati, Hartford, for appeallant (defendant dionne).

Martin F. Stempien, New Britain, for appellant (defendant Waluk).

John F. Walsh, Asst. Pros. Atty., for appellee (State).

PRUYN, Judge.

These two cases were tried together, and the defendant in each case was found guilty of racing in violation of § 14-224(b) of the General Statutes and has appealed, assigning as error the denial by the court of his motion to set aside the verdict on the ground that the verdict was not supported by the evidence and that the evidence did not prove him guilty beyond a reasonable doubt. The defendant in each case was found not guilty of speeding, with which he was charged in the same information.

It is to be noted that the appeal in each case is from the decision of the court denying the motion to set aside the verdict, and not from the judgment entered on the verdict. Proper procedure under the General Statutes and rules of practice requires the appeal to be taken from the judgment. General Statutes §§ 51-265, 54-95, 52-263; Practice Book § 377; Cir.Ct. Rule 7.51.1. Appeals to the Appellate Division of the Circuit Court lie from 'any final judgment or action of the circuit court.' § 51-265. The adjective 'final' in this section modifies the word 'action' as well as the word 'judgment.' State v. Wilson, 22 Conn.Sup. 345, 346, 172 A.2d 902. The denial of the motion to set aside the verdict is neither a final judgment nor a final action. However, this court has jurisdiction of the appeal. It is not void, but is merely voidable as defective in form. Unless a motion to dismiss is duly made, the defect is waived. Lengel v. New Haven Gas Light Co., 142 Conn. 70, 72, 111 A.2d 547; Desmarais v. Pinto, 147 Conn. 109, 110, 157 A.2d 596. No motion to dismiss having been made, we consider the appeal in each case on its merits.

This court, in reviewing the tril court's decision in denying the motion to set aside the verdict because of the insufficiency of the evidence, gives great weight to the action of the trial court; State v. Hayes, 127 Conn. 543, 554, 18 A.2d 895; Caldwell v. Danforth, 124 Conn. 468, 470, 200 A. 577; and makes every reasonable presumption in its favor. State v. Bradley, 134 Conn. 102, 109, 55 A.2d 114; Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591. The court and the jury, having agreed, have had the advantage of hearing the testimony and seeing the witnesses, thus being able to evaluate the evidence first-hand. State v. LaFountain, 140 Conn. 613, 616, 103 A.2d 138; McWilliams v. American Fidelity Co., 140 Conn. 572, 575, 102 A.2d 345; Zullo v. Zullo, 138 Conn. 712, 715, 89 A.2d 216. The trial court, in denying the motion, was acting in the exercise of a legal discretion, and its action must not be disturbed unless it is manifest that the discretion was abused. Roma v. Thames River Specialties Co., 90 Conn. 18, 20, 96 A. 169. The question for us to consider is not whether on the evidence we would arrive at the same result as the jury but rather whether the conclusion reached by the jury is clearly unreasonable under all the circumstances and one which no jury could fairly and reasonably reach on the evidence. Brooks' Appeal, 68 Conn. 294, 296, 36 A. 47. 'A verdict is not to be upheld or set aside by weighing the evidence and determining upon the credibility of witnesses, for this is the exclusive function of the jurymen themselves, and, if they acted reasonably, their conclusion upon these points is final.' Canfield v. Sheketoff, 104 Conn. 28, 30, 132 A. 401, 402.

In the light of the conflicting evidence, the jury could reasonably have found, and must have found in order to reach their verdict, the following facts: The defendant Dionne on the evening of December 23, 1961, drove his automobile, with one Jones as a passenger, into the parking area of McDonald's Drive-In Restaurant on the Berlin turnpike (route 15), a public highway. It did not stop but came out onto the highway and turned right, heading west; as it came out of the driveway it came out slowly and then proceeded into the left westbound lane of this four-lane highway, coming to a stop. Immediately behind Dionne was the vehicle driven by the defendant Waluk, with one Castelli as a passenger; it rolled almost to a stop and then proceeded on to the right-hand lane heading west, pulling up abreast of the Dionne car. Then both cars accelerated rapidly, almost from a stopped position, to speeds reaching an estimated sixty to sixty-five miles an hour. They were side by side until just before they reached Kitts Lane, when the Waluk car pulled slightly ahead. After passing Kitts Lane, they decelerated and stopped in response to the flashing light and siren of a police cruiser. The distance from where the two vehicles came out onto the highway to where they were stopped was five-tenths of a mile. The police officer did not clock the defendants.

Section 14-224(b) of the General Statutes provides as follows: 'No person shall operate a motor vehicle upon any public highway for a wager or for any race or for the purpose of making a speed record.' Neither the matter of a wager nor the matter of a speed record is involved in the instant cases; the sole question is whether the defendants were operating their respective motor vehicles 'for any race.' As far as counsel and the court have been able to discover, the words 'for any race' have never been defined by the courts of Connecticut. The Century Dictionary and Cyclopedia...