State v. Hughes

• Decision Date: 04 March 1965
• Docket Number: Nos. CR,s. CR
• Citation: 209 A.2d 872,3 Conn.Cir.Ct. 181
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: , 14 A.L.R.3d 1166 STATE of Connecticut v. Julia A. HUGHES. STATE of Connecticut v. George S. HUGHES. 1-15862, CR 1-15863.

Page 872

209 A.2d 872

3 Conn.Cir.Ct. 181, 14 A.L.R.3d 1166

STATE of Connecticut v. Julia A. HUGHES.

STATE of Connecticut v. George S. HUGHES.

Nos. CR 1-15862, CR 1-15863.

Circuit Court of Connecticut, Appellate Division.

Argued Dec. 21, 1964.

Decided March 4, 1965.

Robert M. McAnerney, Darien, with whom, on the brief, was Peter M. Ryan, Darien, for appellants (defendants).

Benjamin F. Ferris, Greenwich, for appellee (state).

KOSICKI, Judge.

These cases were presented together and, although separate, identical records have been filed, the appeals from the judgments rendered have been combined at the instance of the parties. The information originally filed in each case charged the defendant with the sale, delivery or giving of liquor to minors in violation of § 30-86 of the General Statutes. A minor under our Liquor Control Act is a person under twenty-one years of age. § 30-1(12). In response to a motion, a bill of particulars was filed, alleging that the crime in each case consisted of delivery and the giving of liquor to minors on the premises of a private home, and that, at the time the alleged crime was committed, neither accused was a permittee or the servant or agent of any permittee within the meaning of § 30-86. To these informations and specifications the defendants demurred on the ground that the acts alleged did not constitute a crime under the provisions of § 30-86, 'in that the alleged delivery or giving of liquor to minors took place in or about a private home.' The demurrers were overruled and, upon being arraigned, the defendants stood mute. The court thereupon entered a finding of guilty and imposed sentence, and the defendants have appealed.

The procedure followed was with the complete knowledge and acquiescence of the defendants, who at all times were ably represented by counsel. In standing mute and allowing the findings of guilty and the judgments to enter against them, the defendants claim as authority, for the preservation of their right to present the questions of law raised by the demurrer, this single sentence, taken from the context of the opinion in State v. Sul, 146 Conn. 78, 83, 147 A.2d 686, 689: 'Upon the overruling of his demurrer, the defendant could have refused to plead over, let judgment enter, appealed from the judgment and raised the questions of law which he now presents.' In the Sul case, which attacked the constitutional validity of the statute under which prosecution was brought, the defendant did plead not guilty upon the overruling of the demurrer and, after trial, was found guilty on the merits. The practice followed in the present case fully accords with our precedent where the bare issue involved is the constitutionality of the very statute under which the defendant is charged; State v. Darazzo, 97 Conn. 728, 731, 118 A. 81; or where the information is so defectively framed as to be held bad upon a motion to quash or demurrer. State v. Tyrrell, 100 Conn. 101, 102, 122 A. 924. In the situation before us, the validity of the statute was conceded and the only issue raised was one of its construction and its applicability to the few simple facts alleged in the information and the bill of particulars. Without our expressing ourselves on the adequacy of the information and its further specifications, it would seem that the case presented a factual situation which, unless admitted, made evidential support requisite; and we can find no authority for the proposition that, by standing mute on arraignment, the defendants have permitted the truth of the essential allegations, as charged, to stand admitted, in a manner comparable to their filing of pleas of nolo contendere. A plea of nolo contendere must, of course, be in writing and must be followed by a finding of guilty. Practice Book § 476. The presumption of innocence that shields every person accused of crime would appear to exclude the drawing of any inference of guilt from the silence of the accused on arraignment; and the allegations of facts in support of the information would still need to be proved, at least prima facie, by the state, before a finding of guilty could be made. See State v. Nelson, 139 Conn. 124, 127, 90 A.2d 157. We make the foregoing comment in order that it may be clear that no requirement of due process has been overlooked; and we have decided to treat the case as treated by the parties in the trial court by adopting the expressed intention of the defendants that all alleged facts and those fairly inferable therefrom may be taken as true so far as they relate to the questions of law raised by the demurrer. See Jenkins v. Indemnity Ins. Co., 152 Conn. 249, 260, 204 A.2d 931.

The only assignment of error in each appeal is that the court erred in overruling the defendant's demurrer to the information as made more specific by the bill of particulars. The special ground of demurrer is that the delivery or giving of intoxicating liquors by the defendants to minors did not fall within the terms and intendment of § 30-86 because it took place on the premises of a private home. Section 30-86 reads as follows: 'Sales to minors, intoxicated persons and drunkards. Any permittee who, by himself, his servant or agent, sells or delivers alcoholic liquor to any minor, or to any intoxicated person, or to any habitual drunkard, knowing him to be such an habitual drunkard, or to any person after having received notice from the selectmen, as provided in section 30-83 or 30-84, not to sell or give such liquor to such person, and any person, except the parent or guardian of a minor, who delivers or gives any such liquors to such minor, except on the order of a practicing physician, shall be subject to the penalties of section 30-113.'

The gravamen of the defendants' argument bears on the statutory construction to be given to the quoted section and may be stated concisely as follows: (1) The statute, read in its entirety, is ambiguous in that it is capable of being understood as being applicable to the serving of liquor to a minor either in a private home or as part of a commercial transaction; (2) the title of § 30-86, 'Sales to minors, intoxicated persons and drunkards,' can be fairly indicative of the meaning of the statute as having reference only to a gift or delivery involved in a commercial transaction; (3) the general designation 'any person,' used in the latter part of the section, as well as the words 'such liquors' must, by the operation of the rule of ejusdem generis, be considered as being of the same class of persons, acts and things as those described in the first part of the section, and therefore such phrases are employed solely in connection with a commercial transaction; and (4), if it were held otherwise, said latter portion of § 30-86 would be the only part of the Liquor Control Act regulating noncommercial use of alcohol and thus would be inconsistent with the remaining 112 sections of the act, so that, obviously, if all sections are read and construed as being in pari materia, the questioned section can be said reasonably to apply only to a delivery of alcoholic liquor as part of a commercial transaction and not to a transfer of liquor in a private home.

In the long history of liquor regulation in this state, ¹ which includes that of sale or service of intoxicating liquor to minors, it was not until 1913 that the predecessor of the portion of § 30-86 reading, 'and any person, except the parent or guardian of a minor, who delivers or gives any such liquors to such minor, except on the order of a practicing physician, shall be [punished],' was passed. The full text of the act under review, appearing as Public Acts, 1913, chapter 10, is as follows: 'An Act concerning the Delivery or Gift of Liquors to Minors. Be it enacted by the Senate and the House of Representatives in General Assembly convened: Every person, except the parent or guardian of a minor, who shall deliver or give any spirituous or intoxicating liquors to such minor, except on the order of a practicing physician, shall be subject to the penalties of section 2712 of the general statutes [1902 Revision].'

This was an original enactment, complete in itself, and definitive in expression and scope. It was nowhere described or referred to as an amendment to § 2696 of the Revision of 1902, which read as follows: 'Sales to minors and others, and loitering, forbidden. Every licensed person, who by himself, his servant, or agent, shall sell or deliver spirituous and intoxicating liquor to any minor, either for his own use or the use of any other person, or to any intoxicated person, or to any husband, after having received notice from his wife not to sell or deliver such liquor to him, or to any wife, after having received notice from her husband not to sell or deliver such liquor to her, or to any habitual drunkard, knowing him to be such, or to any persons, after having received notice from the selectmen, as provided in § 2695, not to sell, exchange, or give such liquor to such persons, or who shall allow any minor to loiter on his premises where such liquors are kept for sale, shall be subject to the penalties of § 2712.' Until the enactment of chapter 10 of the Public Acts of 1913, the proscription of sale or delivery of intoxicating liquor to minors was directed against persons licensed to conduct a liquor business, acting by themselves or through their servants or agents.

It is an axiom of statutory construction that where the language of a statute, taken at its ordinary and usually understood meaning, is plain, unequivocal and unambiguous, the enactment speaks for itself and there is no occasion to construe it. 'Where the language is plain and unambiguous, as in this case, the intent of a statute is to be determined from its language. Landry v. Personnel Appeal Board, 138 Conn. 445, 447, 86 A.2d 70. In such a case, the enactment speaks for itself and there is no occasion to construe it. State ex rel. Cooley v....