State v. Holota

• Decision Date: 18 March 1963
• Docket Number: No. MV,MV
• Citation: 2 Conn.Cir.Ct. 45,194 A.2d 69
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. Wasyl HOLOTA. 12-4962.

Page 69

194 A.2d 69

2 Conn.Cir.Ct. 45

STATE of Connecticut v. Wasyl HOLOTA.

No. MV 12-4962.

Circuit Court of Connecticut, Appellate Division.

Argued Oct. 26, 1962.

Decided March 18, 1963.

William C. Bieluch and David M. Barry, Hartford, for appellant (defendant).

Eugene T. Kelly, Prosecuting Atty., for appellee (state).

KOSICKI, Judge.

The defendant was found guilty, after trial to a jury, of operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227 of the General Statutes. In his appeal the defendant has made a number of assignments of error, and these will be considered seriatim.

He first claims that the court erred in failing to make a finding. There had been a request for a finding, with draft finding annexed, followed by a counterfinding, all in accordance with our rules. Cir.Ct. Rules 7.32.1, 7.32.2. The court then made and filed what was incorrectly designated as 'Draft Finding.' This error in nomenclature may be disregarded. The body of the finding sets out the claims of proof by the state and the defendant and conforms in every respect to what is required by our rules. Cir.Ct. Rule 7.33.1. The situation here is in no way comparable to that in Raughtigan v. Norwich Nickel & Brass Co., 86 Conn. 281, 287, 85 A. 517, in which case the court, after a trial to the jury, through inadvertence filed a finding as though the case had been tried to the court. On appeal, it was held that no possible prejudice could have resulted to the appellant, since the facts in controversy and such questions as were presented on appeal appeared with sufficient clearness in the record. This assignment is without merit.

The second claim of error is the denial of the defendant's motion to correct the finding. In a jury trial, the finding merely sets forth facts claimed to have been proved. It does not establish the truth or existence of the facts stated therein but only that there was evidence tending to prove their existence. 'The finding, in case of a jury trial, will be corrected only when it is reasonably necessary to fairly present a claimed error in law made by the court. Ordinarily, the errors claimed relate to the charge or to rulings upon the admission of evidence or to the ruling of the court upon some motion made upon the trial.' State v. Gargano, 99 Conn. 103, 106, 121 A. 657, 658; Maltbie, Conn.App.Proc. § 160. Our examination of the finding, the motion to correct, and the claimed errors in the charge and in rulings on evidence fails to disclose that a fair presentation of the errors asserted requires any of the changes in the finding requested in the motion to correct. The action of the court in denying the motion was not erroneous.

In the fourth and fifth assignments of error, the defendant claims that the court incorrectly charged the jury as follows: 'A violation of this statute is proved if the evidence shows that this accused at the time and place as charged operated his motor vehicle when, by reason of having drunk intoxicating liquor, he became so affected in his mental, physical, or nervous processes that he lacked to an appreciable degree the ability to function properly in relation to the operation of his motor vehicle. I will read that over again:--' and the court then repeated the foregoing verbatim. The error claimed is (1) that the charge was incorrect as related to the facts in this case and (2) the repetition unduly and prejudicially emphasized a particular aspect of the entire charge to the jury. As to the latter objection, no error can be found unless the charge itself was incorrect or called for an erroneous application of a rule of law. The mere fact of repetition could not have prejudiced the defendant. See Doherty v. Connecticut Co., 133 Conn. 469, 475, 52 A.2d 436; Maltbie, Conn.App.Proc. § 80.

The charge is unexceptionable. The language is taken from the definition of the crime in State v. Andrews, 108 Conn. 209, 216, 142 A. 840; see also 2 Wright, Conn. Jury Instructions § 713(d). The defendant does not attack the charge directly but appears to argue that under the peculiar circumstances of this case the charge, as a general statement of law, was insufficient and that on the facts the defendant could not have been found guilty beyond a reasonable doubt. We so state the question in order to place the issue raised in language most favorable to the defendant, in view of the absence in this appeal of any general assignment of error attacking the verdict and the judgment.

The facts, insofar as they relate to this point, may be summarized as follows: The defendant, while operating his automobile northerly on a divided highway, crossed the grass esplanade and drove northerly in the southbound lane. He was stopped by a state trooper, taken to troop headquarters and given the usual sobriety tests, which he failed. He had a strong odor of liquor on his breath. He admitted having consumed beer some time before the arrest. Upon being confined in a cell, he pounded on the bars, tore his blanket in strips and threatened to hang himself. He was removed to a hospital and the second day after the arrest, was examined by Dr. Felber, a psychiatrist. Dr. Felber testified that, in his opinion, the condition of the accused, at the time of the arrest, was one of 'pathological' intoxication, which could probably be produced by the ingestion of a 'minute' quantity of alcohol, and that in a state of pathological intoxication the alcohol...