State v. Duffy

• Decision Date: 24 July 1895
• Citation: 34 A. 497,66 Conn. 551
• Court: Connecticut Supreme Court
• Parties: STATE v. DUFFY.

34 A. 497

66 Conn. 551

STATE

v. DUFFY.

Supreme Court of Errors of Connecticut.

July 24, 1895.

Appeal from court of common pleas, New London county; Hotchkiss, Judge.

Edward Duffy was convicted for an illegal sale of intoxicating liquors, and appeals. No error.

Albert B. Crafts, for appellant.

Hadlai A. Hull, Pros. Atty., for the State.

ANDREWS, C. J. This is an appeal for the revision of questions of law decided by the court below in its charge to the jury. For the presentation of such questions a finding of sufficient facts to properly present the errors claimed to exist in the charge is essential, and the trial judge is required to make such finding upon request of the appellant, but not without such request. Gen. St. §§ 1129, 1132. The questions of law relied upon must be specifically stated in the appeal; and in such an appeal as this the questions so specified cannot be considered, unless it appears, by the finding, that they were distinctly raised at the trial, and were decided by the court adversely to the appellant's claims. Id. § 1135. The request for a finding must contain a draft for a proposed finding, and a statement of the questions of law arising thereon which it is desired to have reviewed, and such request must be filed in duplicate, one copy for the judge, and one copy for counsel on the opposite side, who, after examining the proposed finding and statement of questions of law alleged to have arisen, may file a counter finding. Rules of Court, No. 17, § 3 (26 Atl. xv. 1. These provisions of statute and rules of court must be followed, to entitle a party as of right to a finding, and to consideration in this court of the errors specified in the appeal. White v. Howd, 66 Conn. 264, 33 Atl. 915.

The request of the present appellant consisted only of a proposed finding, and did not contain any statement of the questions of law he desired to have reviewed. The trial judge might have refused to make any finding, unless the requests were properly amended. The judge, however, against the objection of the appellee, ruled that the requests for charge and the charge which were included in the proposed finding might be construed as a sufficient request and statement of the questions of law, under the rules, and made a finding. We think the trial judge might well have ruled the other way. Possibly it would have been wiser if he had ruled against the appellant. Such a practice would tend to an evasion of the law regulating appeals that might seriously limit its beneficial purpose. The sufficiency of the request for a finding is a question to be passed upon by the trial judge. We do not discuss what remedy an appellee aggrieved by the decision on that question may have, because, if he has any remedy, it is not by plea in abatement to the appeal in this court, and the question of any other remedy is not before us, and has not been argued. We may fairly presume that, in view of recent decisions on this subject, the simple rules relating to appeals will be so followed that no question of this kind will arise hereafter.

It appears by the finding that, "during the trial, the counsel for the defense made the claim that, upon proof that the prosecuting officer, at the time of drawing the original information, knew to whom the alleged sale was made, he was in duty bound to insert the name in the information, and, having failed so to do, the accused was entitled to a discharge. The defendant called H. A. Hull, Esq., the prosecuting attorney of this court, who admitted having drawn or advised in the drafting of the original information, to testify as to his knowledge at that time regarding the person to whom the alleged sale was made. The prosecuting attorney of the town court of Stonington was also called to testify regarding the same matter. Upon this evidence the state claimed to have proved that neither Mr. Hull nor the prosecuting attorney had knowledge, at the time the original information was drawn, as to whom the alleged sale was made, but that Officer Gilmore, in giving them information regarding the sale, did not state to whom the sale was made, but said that there was ample proof of the sale, which would be forthcoming at the time of the trial. The defense claimed, from this testimony, and from the other testimony in the case, that both said Hull and the prosecuting attorney of the town court in Stonington, or at least one of them, knew, at the time the original information was drawn, to whom the alleged sale was made, and that Mr. Hull was present and heard the testimony in the lower court."

In respect to these claims the defendant requested the court to charge the jury as follows: "(1) If it appears that the name of the purchaser of intoxicating liquors is known to the law officers making a complaint,...