State v. Gyuro

• Decision Date: 23 April 1968
• Citation: 156 Conn. 391,242 A.2d 734
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Edward R. GYURO.

Page 734

242 A.2d 734

156 Conn. 391

STATE of Connecticut v. Edward R. GYURO.

Supreme Court of Connecticut.

April 23, 1968.

W. Paul Flynn, New Haven, with whom, on the brief, were Frank J. Raccio, Bernard P. Kopkind, and Charles L. Flynn, New Haven, for appellant (defendant).

Richard A. Schatz, Asst. State's Atty., with whom, on the brief, was John D. LaBelle, State's Atty., for appellee (state).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

ALCORN, Associate Justice.

The defendant was presented in the Superior Court on an information in two counts filed by the state's attorney. The first count accused the defendant of attempted larceny in violation of General Statutes §§ 54-198 and 53-63. The second count accused him of breaking and entering without permission in violation of General Statutes § 53-75. Both of the offenses charged were infamous crimes. Drazen v. New Haven Taxicab Co., 95 Conn. 500, 508, 111 A. 861. The defendant moved to quash or dismiss the information on the ground that he was being required to answer for infamous crimes without presentment to or indictment by a grand jury in violation of the fifth and fourteenth amendments to the constitution of the United States. The court denied the motion, and the defendant, following a not guilty plea, was convicted by a jury on both counts. Motions to set aside the verdict and for a new trial were denied, and judgment was rendered on the verdict. The defendant has appealed from that judgment.

We first consider the defendant's claim that his rights under the constitution of the United States were violated because he was not presented for indictment before a grand jury. An identical claim was made in a recent habeas corpus proceeding in the Superior Court arising out of breaking and entering and larceny convictions; Smith v. Warden, 25 Conn.Sup. 509, 209 A.2d 521; in which the application for the writ was denied, and the United States Supreme Court, as recently as June 1, 1965, dismissed an appeal and denied certiorari. Smith v. Warden, 381 U.S. 411, 85 S.Ct. 1584, 14 L.Ed.2d 698. The defendant nevertheless urges us to reexamine our decision in Kennedy v. Walker, 135 Conn. 262, 63 A.2d 589, aff'd, 337 U.S. 901, 69 S.Ct. 1046, 93 L.Ed. 1715, rehearing denied, 337 U.S. 934, 69 S.Ct. 1493, 93 L.Ed. 1740, which discusses the reasons why the federal constitutional requirement of a grand jury indictment does not apply in the case of infamous crimes such as the present ones. We find nothing in the more recent decisions of the United States Supreme Court which requires a change in the rule in that case. Beck v. Washington, 369 U.S. 541, 545, 82 S.Ct. 955, 8 L.Ed.2d 98; State v. Jones, 153 Conn. 451, 457, 217 A.2d 691; see also United States ex rel. Cooper v. Reincke, 333 F.2d 608, 611 (2d Cir.) cert, denied, 379 U.S. 909, 85 S.Ct. 205, 13 L.Ed.2d 181. Article first, § 8, of the constitution of Connecticut requires an indictment by a grand jury only in the case of crimes punishable by death or life imprisonment, and for all other crimes the prosecution may be initiated by complaint or information. General Statutes § 54-46. The defendant was properly presented for trial on the information filed by the state's attorney. State v. Stallings, 154 Conn. 272, 278, 224 A.2d 718. The defendant's claim that he should have been charged only in an indictment by a grand jury is without merit, and the court properly denied the motion to quash or dismiss the information.

Another claim made by the defendant is that he was not arrested under authority of a warrant supported by oath or affirmation and that, in this respect also, his constitutional rights, were violated. The constitutional right involved is not specified, but the brief indicates reliance on the rule of State v. Licari, 153 Conn. 127, 132, 214 A.2d 900. Incident to this claim are attacks on the court's failure 'to find that the defendant was not arrested by a warrant supported by oath and affirmation, which fact is apparent on the face of the record' and also on the court's finding that the defendant has waived the claim of an illegal arrest which he now makes. The court found that no claim of an illegal arrest was made until after the trial or until this appeal was taken. These findings are unchallenged. There was no request made of the court to find that the defendant 'was not arrested by a warrant supported by oath and affirmation.' The record fails to disclose how the defendant was arrested. So far as appears he may have voluntarily surrendered. Nothing is laid before us except the fact that, in the Circuit Court, after the defendant had pleaded not guilty, that court found probable cause and ordered the defendant bound over the Superior Court on a charge of attempted larceny made on the complaint of the prosecuting attorney of the Circuit Court, and, thereafter, that he was informed against, pleaded not guilty, and was tried and convicted in the Superior Court on that charge and on the added charge of breaking and entering. State v. Stallings, supra. There is no merit to the claim of an illegal arrest which is now made for the first time and no indication that the defendant has been denied due process of law. Reed v. Reincke, 155 Conn. 591, 600, 236 A.2d 909; State v. Darwin, 155 Conn. 124, 141, 230 A.2d 573.

The remaining assignments of error concern an asserted denial by the court of a motion to direct a verdict, the charge to the jury and a ruling on evidence. No basis is shown for making any correction in the finding.

The jury could have found the following facts: On the main floor of the Lord and Taylor store in West Hartford there was, at the time of the incidents involved in this case, what is called a fur vault, consisting of an enclosure approximately seventeen feet by eight feet in size, formed on one side by a masonary wall and on the other three sides by wooden stud partitions eight feet high. A wire mesh ceiling was nailed to the top of the wooden partitions below the ceiling of the room in which the vault was situated. The only means of entering the fur vault was through a door in one side. This door was kept locked, and the key was kept in an unlocked drawer of a desk two feet away from the door of the fur vault. Nearby, on the same floor of the store was an accessory stock room used for storage, but not for the storage of furs. On October 15, 1964, at about 5:15 p.m., a man, dressed in a uniform such as that used by porters and maintenance employees of the store, was seen at the door of the fur vault grasping the knob of the door. Porters and maintenance employees are not permitted to enter the fur vault or to handle furs. A half hour later the man was seen still standing at the door. At 6:15 p.m. the defendant was seen bending over a box or carton in the accessory stock room. He was wearing clothes similar to the uniform worn by store maintenance men and claimed to be changing light bulbs in the room. He left the accessory stock room and ran down a stariway to a lower floor and out of the store, followed by the assistant manager of the store who lost sight of him in the parking lot outside. When the police arrived, the box in the accessory room was opened and was found to contain five mink coats. In the fur vault were five empty hangers. When furs are sold they are taken on the hanger to a packing station in another location, where they are wrapped. No furs were sold on October 15, 1964, and no personnel of the store was authorized to take furs into the accessory stock room. Each of the five mink coats had identifying numbers and a price tag affixed to it. The price tag indicated the retail price for which that coat would be sold by the store. The five coats were returned to the fur vault and later to the Lord and Taylor New York store. Four of the coats were thereafter sold for $995, $1095, $2000, and $2400 respectively. The fifth coat, priced at $1995, was not sold.

We have recited the foregoing facts from the claims of proof in the finding because of the peculiarities of this appeal. As previously related, one of the defendant's claims is that the court erred '(i)n denying defendant's Motion for a Directed Verdict.' Actually the record does not disclose that any such motion was ever made or denied. On the other hand, the record does disclose that a motion to set aside the verdict was made on the ground that the verdict, was contrary to law and against the evidence and that this motion was denied. The denial of this motion is not, however, assigned as error. The court's action on either of these motions, if properly assigned as error, would, of course, be tested in the light of the evidence printed in the appendices to the briefs. State v. Stallings, 154 Conn. 272, 283, 224...