State v. Faillace.

• Decision Date: 14 November 1947
• Citation: State v. Faillace., 134 Conn. 181, 56 A.2d 167 (Conn. 1947)
• Parties: STATE v. FAILLACE.
• Court: Connecticut Supreme Court

134 Conn. 181

56 A.2d 167

STATE

v.FAILLACE.

Supreme Court of Errors of Connecticut.

Nov. 14, 1947.

Appeal from Superior Court, Fairfield County; Cornell, Judge.

Carlo Faillace was convicted of conspiracy to violate gaming statutes, and he appeals.

No error.

Joseph J. Rinaldi and Frank Pimpinella, both of Stamford, for appellant (defendant).

Lorin W. Willis, State's Atty., of Bridgeport, (Otto J. Saur, of Bridgeport, on the brief), for appellee (state).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

JENNINGS, Judge.

The defendant, after a trial to the jury, was convicted of conspiracy to violate the statutes against gambling. He claims that the court lacked jurisdiction because he was not tried within the time limited by statute and that the court erred in denying his motion to set aside the verdict.

The first claim is based on General Statutes, § 6428: ‘Any case which shall come to the superior court by * * * binding over * * * for a violation of any statute against * * * gaming * * * shall be tried at the first term of the court to which such case shall so come by * * * binding over at which a jury shall be in attendance, unless the court shall order the case to be continued.’ The defendant was, on August 14, 1945, bound over to the next criminal term of the Superior Court, which was the September term, 1945, on a complaint in two counts, the first charging conspiracy to violate the statutes against gaming and the second, gaming. The defendant and a jury were present at the September criminal session but he was not put to plea nor was the case continued. He was tried on a substituted information, charging conspiracy only, in February, 1946, at the January session. He pleaded not guilty and also to the jurisdiction on the ground above set forth.

The plea to the jurisdiction was properly overruled. The defendant was tried at the next term of the Superior Court. General Statutes, Sup.1941, § 789f, provides: ‘Terms. There shall be a term of the superior court for the transaction of both criminal and civil business, held annually on the Friday before the third Tuesday of September in each of the several counties of the state * * *.’ The case of Spelke v. Shaw, 117 Conn. 639, 169 A. 787, 789, does not apply, for the court was there concerned with § 5409, which speaks of ‘term or session,’ while § 6428 only mentions term. It is also true, as claimed by the state, that the crime of conspiracy ‘is a distinct offense, entirely independent of the crime or unlawful act which is the purpose of the conspiracy.’ Fimara v. Garner, 86 Conn. 434, 437, 85 A. 670, 672. The defendant was charged with conspiracy, not with gaming. Finally, failure to try him at the September criminal session would not go to the jurisdiction of the court in any event, even if it rendered his conviction erroneous. Dime Savings Bank v. Pomeranz, 123 Conn. 581, 583, 196 A. 634.

No finding was necessary in this case. The one ruling on evidence assigned as error was not pursued in the brief and there were no exceptions to the charge. The assignments seeking corrections in the finding need not be considered. The sole issue is whether on all the evidence the jury reasonably could find the defendant guilty beyond a reasonable doubt of the crime charged. State v. Chin Lung, 106 Conn. 701, 704, 139 A. 91. They could have found the following facts: In August, 1945, the Stamford lodge of Eagles promoted an outing. They planned to run a dice game, and the privilege was sold to one of their members, Leonard Ottaviani, for $200. Leonard secured the assistance of his brother Dominick, alias Bull Montana. At the outing, Dominick said he was expecting some friends from New York, and the defendant and others arrived in New York cars. They asked for Dominick, who, they said, had their tickets. Later, the outing was raided by state police, who found a dice game in full operation and about $4500 on the table. The defendant was standing at the foot of the table. Michael Colletti, another accused, who has stipulated that he will be bound by the outcome of this appeal, stood at the head of the table on two cement blocks and attempted to scoop up the money when the police arrived. At that time the defendant claimed that the money on the table was his.

A few evenings later, Dominick and the defendant went to the office of the Eagles and demanded the return of the money paid by Leonard. The officer of the Eagles said they would return it only to Leonard. A short time later, Leonard came to the office with Dominick and the defendant and, at Leonard's direction, the money was returned to the defendant.

The information alleges that the defendant conspired with others ‘to set up and maintain a certain gambling game known as dice throwing; and pursuant thereto he did participate in causing...