State v. Kemp

• Decision Date: 14 October 1938
• Court: Connecticut Supreme Court
• Parties: STATE v. KEMP. SAME v. ALDERMAN et al. SAME v. KINGSLEY et al.

1 A.2d 761

124 Conn. 639

STATE v. KEMP.

SAME v. ALDERMAN et al.

SAME v. KINGSLEY et al.

Supreme Court of Errors of Connecticut.

October 14, 1938

Appeal from Superior Court, Fairfield County; Alfred C. Baldwin Judge.

Appeal from Superior Court, New Haven County; Ernest A. Inglis Judge.

Three separate proceedings by the State of Connecticut against G Le Roy Kemp, Simon J. Alderman and others, and George H Kingsley and others. From an order entered in the first case permitting defendant and his counsel to inspect the minutes of a grand jury which returned the indictment, in so far as they relate to the defendant, the State appealed, and the defendant filed a motion to dismiss the appeal.

Motion granted.

In the other two cases certain defendants who were informed against in informations by the special state's attorney appealed from the denial of motions for inspection and examination of the minutes of the grand jury upon the report of which the informations were based, and the State moved to dismiss the appeals.

Motion granted.

The oath by which witnesses before grand jury were sworn to secrecy merely prevented witnesses from disclosing what took place in the grand jury room, including the testimony they or others there gave, but would not prevent witnesses from giving to the accused any information they might have relevant to the prosecution even though it was the same information as to which the witnesses testified before the grand jury.

In State v. Kemp:

Lorin W. Willis and Otto J. Saur, both of Bridgeport, and Richard F. Corkey, of New London, for the State.

John Keogh and John Keogh, Jr., both of South Norwalk, for appellee.

In State v. Alderman, and State v. Kingsley:

George W. Crawford and Nathan Shepatin, both of New Haven, for appellant Alderman.

Benjamin Slade, of New Haven, for appellants Kingsley, Murray, and Meany.

Hugh M. Alcorn, Sp. State's Atty., Hugh Meade Alcorn, Jr., and Harold E. Mitchell, all of Hartford, for the State.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.

MALTBIE, Chief Justice.

In the first of these cases the defendant has been charged with a criminal offense by the indictment of a grand jury. In the other two, informations have been brought against the defendants as a result of a report made by a special grand jury. All three cases are before us upon motions for permission to inspect the minutes of the grand juries. In the first case the trial court granted the motion and the State has appealed, but in the other two the trial court in a different county denied the motions and the defendants have appealed. Whatever difference, if any, there may be in the rights of the defendants to inspect the minutes, there is no distinction as regards the question presented upon these motions to erase the appeals. The question before us is whether the rulings upon the motions are final judgments within the statute giving a right of appeal to this court. General Statutes, § 5689.

We have said, referring to a ruling granting a motion to erase a case from the docket, that ‘ Any order or proceeding which disposes of the cause and places the parties out of court is final.’ Norton v. Shore Line Electric R. Co., 84 Conn. 24, 31, 78 A. 587, 590; In re O'Brien's Petition, 79 Conn. 46, 59, 63 A. 777. It is also true that a decision which concludes the right of a party to the relief he claims may be a final judgment although the proceeding in which that decision is reached does not dispose of the entire case but it still remains in court for adjudication of other claims for relief involving the same or other parties. Practice Book 1934, p. 112, § 372; Bunnell v. Berlin Iron Bridge Co., 66 Conn. 24, 37, 33 A. 533; Banca Commerciale Italian Trust Co. v. Westchester Artistic Works, Inc., 108 Conn. 304, 307, 142 A. 838; Town of Enfield v. Hamilton, 110 Conn. 319, 322, 148 A. 353; Antman v. Connecticut Light & Power Co., 117 Conn. 230, 238, 167 A. 715. Thus an appeal lies from an order made in the course of receivership proceedings which determines the right of a party to the relief he claims. Guarantee Trust & Safe-Deposit Co. v. Philadelphia, R. & N.E. R. Co., 69 Conn. 709, 714, 38 A. 792,38 L.R.A. 804; Barber v. International Co., 74 Conn. 652, 657, 51 A. 857,92 Am.St.Rep. 246; Raymond v. Gilman, 111 Conn. 605, 611, 151 A. 248. So it lies from an order appointing appraisers in condemnation proceedings. New Milford Water Co. v. Watson, 75 Conn. 237, 242, 52 A. 947,53 A. 57; City of Bristol v. Bristol Water Co., 85 Conn. 663, 670, 84 A. 314; Antman v. Connecticut Light & Power Co., supra. In the last case we say [page 718]: ‘ Ordinarily, the judgment appointing appraisers closes the judicial part of the proceedings; what remains to be done being of an administrative character, as the appraisers discharge only a quasi judicial function.’ So a judgment disposing of equitable issues may be final although the action remains in court for the disposition of a claim for damages at law. Town of Enfield v. Hamilton, supra.

In Banca Commerciale Italian Co. v. Westchester Artistic Works, Inc., supra, we said with reference to final judgments in the appeal statute [page 839]: ‘ The test lies, not in the nature of the judgment, but in its effect as concluding the rights of some or all of the parties; if such rights are concluded, so that further proceedings after the entry of the order or decree of the court cannot affect them, then the judgment is a final judgment from which an appeal lies.’ We did not use the word ‘ rights' in that opinion in an inclusive sense. There are many rulings in the course of an action by which rights are determined which are interlocutory in their nature and reviewable only upon an appeal taken from a judgment later rendered. France v. Munson, 123 Conn. 102, 107, 192 A. 706. Such rulings are those made in the course of the proceeding, the object of which is to bring the parties to, and present to the court for determination, the ultimate issues which determine the right of a party to the relief he claims, but which neither terminate the action nor determine these issues in such a manner as to put it beyond the power of the court to alter its decision except as it may reopen the judgment it has rendered. Batesville v. Ball, 100 Ark. 496, 500, 140 S.W. 712, Ann.Cas.1913C, 1317. The character of such interlocutory rulings is well illustrated in the case of a demurrer; the decision upon it may determine the basic issues upon which a party relies for relief, yet that decision, whether the demurrer be sustained or overruled, is not a final judgment from which an appeal may be taken; Huntington v. McMahon, 48 Conn. 174, 201; Costecski v. Skarulis, 103 Conn. 762, 131 A. 398. Thus where the trial court sustained the demurrer of a town, defendant in the action, we held that no appeal would lie from the decision, saying: ‘ The court simply sustained the town's demurrer. This alone did not amount to final judgment dismissing the town from the case. It might furnish the foundation for such a judgment if amendment should not be made. The rights of the parties as against the town were not finally foreclosed by the ruling upon the demurrer. The town was still in court. The case against it was still open. Judgment might still be rendered against it upon amended pleadings.’ Martin v. Sherwood, 74 Conn. 202, 203, 50 A. 564, 565. An analogous situation exists where the court makes a ruling sustaining a demurrer to a remonstrance to a committee's report and refuses to accept that report. Cothren v. Atwood, 63 Conn. 576, 29 A. 13.

Recognizing the force of these decisions the appellants claim that the motions now before us were made in the proceedings collateral to but independent of the prosecutions and as the rulings upon them terminated these proceedings they constitute final judgments. Under § 5701 of the General Statutes a...