State v. Gorra Bros., Inc.

• Decision Date: 16 June 1967
• Docket Number: No. CR,CR
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. GORRA BROTHERS, INC. 10-22321.

Page 345

236 A.2d 345

4 Conn.Cir.Ct. 488

STATE of Connecticut v. GORRA BROTHERS, INC.

No. CR 10-22321.

Circuit Court of Connecticut, Appellate Division.

Argued March 13, 1967.

Decided June 16, 1967.

Joseph E. Moukawsher, New London, for appellant (defendant).

James J. Murphy, Jr., Assistant Pros. Atty., for appellee (state).

KOSICKI, Judge.

The defendant was prosecuted on a single count of working and making sales of agricultural products on Sunday, August 14, 1966, in violation of § 53-300 of the General Statutes, and has appealed. The portions of the statute, which is a lengthy one, relied on by the state in proof of its case read as follows: 'Work and recreation on Sunday. Any person who does, or requires an employee to do, any secular business or labor, except works of necessity or mercy, or, unless required by necessity or mercy, keeps open any shop, (or) warehouse * * * or sells or exposes for sale any goods, wares or merchandise * * * between the hours of twelve o'clock Saturday night and twelve o'clock Sunday night next following, shall be fined not more than fifty dollars. * * * The sale of dairy products, fresh eggs, fresh agricultural products, horticultural products, bakery products, fruit, ice, ice cream, confectionery, nonalcoholic beverages, tobacco in any form, smokers' supplies, antiques, newspapers and other periodicals, medical supplies or supplies and repair parts for motor vehicles, motorcycles, motor boats and aircraft, by retail dealers whose places of business are open for the sale thereof on secular days, shall not be a violation of the provisions of this section.'

There was sufficient evidence from which the court could reasonably find the following facts: The defendant maintains a produce market in New London. On August 14, 1966 (a Sunday), at about 8:30 a.m., Officer Johnson was on duty in the vicinity of the market, which is located at 365 Bank Street. At that time and place he observed John Gorra, an officer of the defendant corporation, load several hand trucks of produce, consisting of lettuce, tomatoes and potatoes, and place them on his three-quarter-ton pickup truck. Gorra loaded the truck with produce on three separate occasions and each time drove off and returned shortly thereafter without the load. A delivery was made to C & R Grocery Store, a retail establishment, located across the street from the defendant's place of business. On that date and at approximately the same time, a Mr. Zingus, who operates a food concession at Ocean Beach Park, came to the defendant's shop and picked up a box of lettuce, containing twenty-four heads, and about three pounds of tomatoes. Zingus opens his concession around May 21 and closes in September. He usually deals with the defendant as a wholesaler on a running account which he pays about the middle of September. On the day in question, the purchases made by Zingus from the defendant were at wholesale and were charged to his running account. Other restaurants in the vicinity, because of lack of storage space and the perishability of the produce, frequently buy fruits and vegetables from the defendant on Sunday. The defendant sells on Sundays to keep its customers.

The court concluded that the defendant is a wholesale dealer in fruits and vegetables; that it engaged in sales at wholesale on Sunday, August 14, 1966; and that, in doing so, it violated § 53-300. In its motion to correct the finding, the defendant requested that certain paragraphs of subordinate facts be stricken because the officer who made the observations had no direct knowledge as to the disposition of the produce in question or as to whether the transactions were at wholesale or retail. It also claimed that whatever transactions occurred were exempt from the penal provisions of the statute for the reason that they were induced by necessity or mercy, because the produce sold to Zingus was perishable by nature and it was necessary for him and for other restaurants to purchase such items on Sunday in order to do business on that day.

The court's denial of the motion was correct. Absence of direct evidence as to a fact does not preclude the court from drawing inferences from the acts done or from considering the circumstances which would reasonably lead, by the requisite degree of proof, to its conclusion that the law had been violated. State v. Grosso, 139 Conn. 229, 233, 93 A.2d 146. 'Courts must necessarily rely upon circumstantial evidence and are entitled to draw reasonable and logical inferences from all the facts. * * * In the final analysis, the contention of the defendant is that this court should retry the case on the evidence. This we cannot do.' Pillou v. Connecticut Co., 143 Conn. 481, 484, 123 A.2d 470, 472. There is no distinction, so far as the weight and effect which should be given it is concerned, between direct and circumstantial evidence, even in a criminal case. State v. DelVecchio, 145 Conn. 549, 551, 145 A.2d 199; Bradbury v. City of South Norwalk, 80 Conn. 298, 301, 68 A. 321; State v. Rome, 64 Conn. 329, 334, 30 A. 57.

The defendant's contention also appears to mistake the clear import and intent of our statute. Section 53-300 prohibits the doing of secular business on Sunday except under certain circumstances as provided therein. The evidence was sufficient to prove that the defendant engaged in one or more of the prohibited acts, and there is no finding, nor evidence on which it could be based, to show that the defendant's acts came within the statutory exemptions. Selling of agricultural products on Sunday to retailers for resale to their customers does not fall within the statutory definition of exempted sales of such products 'by retail dealers whose places of business are open for the sale thereof on secular days.' 'As a rule, wholesale dealers are those who sell only to merchants who buy to sell to the consumer, where as retail dealers sell direct to the consumer and not to other retail merchants.' Ballentine, Law Dictionary, p. 1362. A retail dealer is one who sells for consumption and not for resale. Id., p. 1135. The court's conclusion that the defendant violated § 53-300 necessarily excludes any finding that the acts performed were 'works of necessity or mercy' and, upon the defendant's own argument, it is clear that the decision of the court was correct. Whether the act is excusable as one of mercy or necessity because of the honest belief by the defendant that such was the fact is a question to be resolved by the trier. Myers v. State, 1 Conn. 502, 504. The only reasonable conclusion which could be reached was that the proscribed acts were performed for the convenience or profit of the defendant or for the purpose of minimizing the risk of loss by its customers. It may be noted further that the defendant was not excepted from the operation of the statute because of any religious beliefs. General Statutes § 53-303.

The remaining assignments of error which we need to dispose of are whether the conclusions stated by the court are supported by the evidence; whether the court correctly found that the defendant was guilty of the crime charged beyond a reasonable doubt; whether the court erred in overruling the defendant's claims of law that it was deprived of its constitutional right to a jury...