State v. Keating

• Decision Date: 05 May 1964
• Citation: 151 Conn. 592,200 A.2d 724
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. John KEATING. STATE of Connecticut v. Vincent JOSEPH. Supreme Court of Errors of Connecticut

Page 724

200 A.2d 724

151 Conn. 592

STATE of Connecticut v. John KEATING.

STATE of Connecticut v. Vincent JOSEPH.

Supreme Court of Errors of Connecticut.

May 5, 1964.

Joseph F. Skelley, Jr., Sp. Public Defender, for appellant (defendant Keating).

Donald J. Cantor, Bridgeport, with whom, on the brief, were Richard S. Levin and Jacob A. Saxe, Hartford, for appellant (defendant Joseph).

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

Before KING, C. J., MURPHY and ALCORN, JJ., and HOUSE and BOGDANSKI, Acting Justices.

HOUSE, Acting Justice.

John Keating and Vincent Joseph, the appellants in these two cases, were tried with Armand Lupo, Roland Arvisais, and Augustine Prete by a jury on a short-form information, authorized by Practice Book, 1963, § 493, charging that they and others conspired to obtain money by false pretenses. The offense was not otherwise specified except that each of them 'did combine, confederate and agree with one another, and with others to said [the State's] Attorney unknown, to obtain money by false pretenses, in violation of Section 53-360 of the General Statutes, Revision of 1958; and in pursuance of said conspiracy one or more of said conspirators did do certain acts in furtherance of said combination, confederation and agreement, all in violation of Section 54-197 of the General Statutes, Revision of 1958.' George Kania, another alleged conspirator, pleaded guilty and testified for the state. The jury returned a verdict of guilty as to each of the appellants and Lupo and Arvisais but not guilty as to Prete. Motions to set aside the verdict filed by each of the appellants were denied by the court, and they have appealed. Each has assigned as error the court's denial of his motion to set aside the verdict on the ground that it was fatally inconsistent as a matter of law. The common assignment of error presents the same question and will be first examined before consideration of Joseph's additional assignment of error as to rulings on evidence.

In is the claim of the appellants that the alleged conspiracy involved an agreement between all the accused conspirators whereby a milk truck driven by Prete would collide with an automobile in which the others were riding, whereupon fraudulent claims of injuries would be presented to collect insurance. It is the contention of the appellants that in such a conspiracy a verdict of guilty in the case of the appellants and not guilty in the case of Prete is fatally inconsistent as a matter of law.

This court can decide the merits of an appeal only on the record as it is presented. Cohn v. Mt. Zion Baptist Church, 130 Conn. 362, 366, 34 A.2d 129. Upon the common assignment of error claimed, the sole question presented is whether the verdict as rendered is inconsistent as a matter of law. That assignment advanced no claim that the verdict was not supported by the evidence, as was claimed in Smith v. Housing Authority, 144 Conn. 13, 14, 127 A.2d 45, but nevertheless the briefs of both the appellants and the state argue inconsistency as a question of fact and refer to the evidence offered at the trial. On this issue, there is no appendix containing the evidence relied on in the briefs. Any portion of a transcript of evidence which a party desires this court to consider must be printed or stated in narrative form in an appendix to the brief. Practice Book, 1963, §§ 716, 718, 720-722; State v. Pundy, 147 Conn. 7, 9, 156 A.2d 193; State v. Mendill, 141 Conn. 360, 361, 106 A.2d 178; Marciniak v. Wauregan Mills, Inc., 139 Conn. 264, 267, 93 A.2d 135; Maltbie, Conn.App.Proc. § 331. A ruling on a motion to set aside a verdict is tested by the evidence and not by the finding. State v. Devine, 149 Conn. 640, 654, 183 A.2d 612; Maltbie, Conn.App.Proc. § 185, p. 227. In the absence of any appendix containing relevant evidence, we have no factual basis on which to test the decision of the trial court in denying the motions to set aside the verdict. Without such evidence that is nothing in the record from which this court can determine whether or not the verdict was inconsistent as a matter of fact. Hence, we have no occasion to consider the rationale of the court's memorandum of decision or the rule of such cases as United States v. Austin-Bagley Corporation, 31 F.2d 229 (2d Cir.), cert. denied, 279 U.S. 863, 49 S.Ct. 479, 73 L.Ed. 1002, which is attacked by the appellants and relied on by the state.

Strictly as a matter of law on the record, there is no inconsistency in the verdict. In testing the verdict for inconsistency as a matter of law, we are necessarily limited to an examination of the offense charged in the information and the verdict rendered thereon without regard to what evidence the jury had for consideration. The information alleges a general conspiracy among six named persons, who allegedly agreed with one another and with others unknown to obtain money by false pretenses. There is nothing in the information to indicate that the acquittal of any one or...