State v. Kelly

• Decision Date: 01 March 1924
• Court: Connecticut Supreme Court
• Parties: STATE v. KELLY.

124 A. 37

100 Conn. 505

STATE v. KELLY.

Supreme Court of Errors of Connecticut.

March 1, 1924

H Mortimer Kelly was prosecuted for an offense, and moved to correct findings of the trial court, and filed exceptions. On application by accused to rectify the appeal by correcting findings. Application denied.

John H Cassidy, of Waterbury, for appellant.

William J. Larkin, Jr., of Waterbury, for the State.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and KELLOGG JJ.

PER CURIAM.

Counsel for the accused filed a motion to correct the finding made by the trial court, and at the same time filed exceptions. The exceptions are to certain paragraphs of part 1 of the finding and to the refusal of the court to find certain paragraphs of part 2 as requested in the draft finding. The motion to correct does not contain reference to part 1 of the finding, but to the paragraphs set forth in part 2 of the exceptions, together with new matter not included in the draft finding. The exception to part 1 cannot constitute a valid reason of appeal, since it is not a part of the motion to correct. Young v. Shetucket Coal & Wood Co., 97 Conn. 95, 115 A. 672.

The remedies open to the accused to secure a correction of the finding in a case tried to the jury were two--that under General Statutes, § 5836, and that under section 5829. State v. Klein, 97 Conn. 321, 326, 116 A. 596; Hartford-Conn. Trust Co. v. Cambell, 97 Conn. 251 253, 116 A. 186; State v. Gargano, 99 Conn. 103, 106, 121 A. 657. The accused obviously has not pursued the remedy by section 5836. That remedy is particularly adapted to corrections in the appeal record requiring the use of evidence outside the record, although it has been used in cases tried to the court as well as to the jury, where the corrections desired do not require for their determination evidence to be taken outside the record. Merwin v. Becker, 80 Conn. 338, 347, 68 A. 373; Fisk's Appeal, 81 Conn. 433, 440, 71 A. 559; Bristol v. Pitchard, 81 Conn. 451, 454, 71 A. 558; McWilliams v. McNamara, 81 Conn. 310, 311, 70 A. 1043; Griswold et al. v. Guilford, 75 Conn. 192, 196, 52 A. 742; Sansona v. Laraia, 88 Conn. 136, 137, 90 A. 28; State v. Reynolds, 95 Conn. 186, 190, 110 A. 844; Hartford-Conn. Trust Co. v. Cambell, supra; State v. Klein, supra.

The remedy attempted to be pursued by the accused was that provided by section 5829, viz. by a motion to correct or to add to the finding, and by an appeal from such finding or refusal to find as corrected in the manner provided in section 5830.

" The finding, in the 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." State v. Gargano, supra.

Whether the method adopted under section 5829 be by motion to correct or by exceptions, the appellant must on appeal adopt the method of section 5830. A part of that method requires the filing of such excerpts from the evidence as are applicable to each of the corrections or exceptions which form a part of the appeal. The objection to this course that it may involve the reprinting of the same evidence a number of times is not tenable, since the refiling and reprinting should be avoided by some form of reference. Section 11 of the rules of the Supreme Court of Errors likewise requires that the motion to correct or the exceptions shall be accompanied by a transcript of all the evidence bearing upon each of the several motions to correct or exceptions, and each exhibit designated as applicable to one or more of the motions or exceptions. Instead of pursuing this course counsel for the accused has filed a transcript of what purports to be the entire evidence applicable to the corrections claimed, thus imposing upon the trial court the duty of selection which the statute and rules impose upon counsel. ...