State v. Holloway

• Court: Supreme Court of Connecticut
• Writing for the Court: Before INGLIS; INGLIS
• Citation: 144 Conn. 295,130 A.2d 562
• Parties: STATE of Connecticut v. Preston HOLLOWAY. Supreme Court of Errors of Connecticut
• Decision Date: 05 March 1957

Page 562

130 A.2d 562 144 Conn. 295 STATE of Connecticut
v.
Preston HOLLOWAY. Supreme Court of Errors of Connecticut. March 5, 1957.

[144 Conn. 296]

Page 563

Douglass B. Wright, Asst. State's Atty., Hartford, with whom, on the brief, was Albert S. Bill, State's Atty., Hartford, for the state.

James D. Cosgrove, Public Defender, Hartford, for defendant.

Before [144 Conn. 295] INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

[144 Conn. 296] INGLIS, Chief Justice.

The defendant is charged with a violation of the Uniform State Narcotic Drug Act, Gen.St.1949, § 3961 et seq., third offense, and this reservation seeks the advice of this court on various questions which are certain to enter into the decision of the case in the Superior Court. See Practice Book, § 469.

[144 Conn. 297] On October 24, 1956, the defendant was arraigned on an information charging him with violation of the narcotics law, third offense. The information was in separate parts. After he had been notified outside the courtroom that one part of the information alleged that he had been twice before convicted of violation of the narcotics law, he pleaded not guilty to the part of the information charging the principal offense and elected a trial before a jury of twelve. On December 12, 1956, he was arraigned on a substituted information which was substantially the same as the one to which he had pleaded on October 24, and he again pleaded not guilty to the principal offense charged and elected trial by jury. Counsel then began to examine prospective jurors on the voir dire. Before the jury were sworn, however, and of course before any evidence was taken, the court ruled that inasmuch as the law provides that the penalty for the crime with which the defendant was charged is life imprisonment, his trial could be had only upon an indictment by a grand jury. Accordingly, the court did not impanel a jury at that time but ordered a grand jury to be summoned for December 18. On that day the grand jury returned a true bill on an indictment against the defendant. This indictment was in two parts. In the first part, denominated 'Part A,' it was charged that the defendant, at Hartford, on or about July 7, 1956, possessed, had under his control, administered or dispensed narcotic drugs, heroin or morphine in violation of § 3962 of the General Statutes. Part B of the indictment alleged that the defendant was a third offender under §§ 2103d and 2104d of the 1955 Cumulative Supplement. One of the two prior convictions alleged was a conviction in the United States District Court for the southern district of New York on May 29, 1947, and [144 Conn. 298] the other was in the same court on March 26, 1952.

To this indictment the defendant filed a demurrer and a motion to quash. The ground stated in both is that 'the previous convictions alleged in Part B of the indictment occurred prior to the effective date of the passage of Sections 2103d and 2104d of the 1955 Supplement.' At this stage of the proceedings the parties stipulated for this reservation. The questions propounded are set forth in the footnote. ¹

Page 564

As regards the first of these questions, the parties are now agreed that the proceedings looking to the selection of a jury to try the defendant on the information but stopping short of the administration of the oath to the jury will not constitute former jeopardy when the defendant is arraigned on the indictment. [144 Conn. 299] There can be no doubt that this is the law. State v. Lee, 65 Conn. 265, 273, 30 A. 1110, 27 L.R.A. 498; State v. Garvey, 42 Conn. 232, 233; State v. Benham, 7 Conn. 414, 418; 1 Wharton, Criminal Law (12th Ed.) § 395.

The remaining questions depend for their answer on the interpretation and constitutionality of §§ 2103d and 2104d of the 1955 Cumulative Supplement. ² These sections went into effect on June 30, 1955.

The contention of the defendant in connection with question 3 is that these sections must be interpreted in such a way that the prior offenses referred to in them must be offenses which were committed after the effective date of the sections. To support this contention he relies on State v. Sanford, 67 Conn. 286, 289, 34 A. 1045. In that case we had before us for interpretation § 1 of chapter 331 of the Public Acts of 1895. This section read: 'Every person convicted for a first violation of...