State v. Dionne

• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Citation: 186 A.2d 561,24 Conn.Supp. 59
• Decision Date: 11 September 1962
• Docket Number: Nos. MV,s. MV
• 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.

Page 562

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

Page 563

of racing in violation of § 14-224(b) of the General [24 Conn.Supp. 60] [1 Conn.Cir.Ct. 396] 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 [24 Conn.Supp. 61] [1 Conn.Cir.Ct. 397] 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...