State v. Lee

• Decision Date: 06 April 1897
• Court: Connecticut Supreme Court
• Parties: STATE v. LEE.

37 A. 75

69 Conn. 186

STATE

v. LEE.

Supreme Court of Errors of Connecticut.

April 6, 1897.

Appeal from superior court, New Haven county; John M. Thayer, Judge.

J. Edward Lee was convicted of procuring an abortion, and appeals. Affirmed.

Prentice W. Chase, for appellant.

William H. Williams, State's Atty., and Alfred N. Wheeler, for the State.

TORRANCE, J. In the court below, the defendant, Lee, was convicted of the statutory crime of procuring an abortion or miscarriage upon the woman named in the information, and by the means therein described. Within six days after judgment, Lee filed in the trial court a written motion for a new trial on the ground that the verdict was against the evidence, which motion the judge overruled Thereupon the defendant filed a written motion, in substance, requesting the judge to certify the evidence in said cause to this court for its consideration, to the end that a new trial might be had if this court should be of opinion that the verdict was against the evidence. This motion and request the judge denied, but, that the defendant might not be injured by said rulings, if erroneous, the judge certified said evidence, and made it, with said motions and rulings, a part of the record. The defendant also appeals from the judgment of the court below in this cause for the matters set forth in his reasons of appeal. In this court the state filed a written motion to dismiss the defendant's motion for a new trial for a verdict against evidence for the following reasons in substance: (1) Because the defendant had not appealed from the action of the court below in overruling and denying his request and motion to have the evidence certified to this court. (2) Because, as this is a criminal case, "this court has no jurisdiction or power to entertain or grant a motion of this character, or a new trial in a criminal ease, on the ground that the verdict therein is against the evidence in the case." (3) Because it does not appear that the superior court was dissatisfied with the verdict, or was of opinion that it was against the evidence.

This motion presents the question whether the provisions of chapter 51 of the Public Acts of 1893 apply to criminal cases. In support of the view that they do not so apply, it is urged by the state that the act is entitled "An act concerning new trials of civil actions," and that, in terms, it appears to apply only to that class of actions, and not to prosecutions for crime. Ordinarily, the fact that the act appears by its title and its terms to be confined in its operation to civil actions, would be conclusive in favor of the contention of the state, but it is not necessarily so in this case. Under the statute first passed in 1821, and finally embodied in the Revision of 1887 as section 1127, this court has ever since exercised the power to grant new trials for a verdict against evidence in criminal cases in favor of the accused; and yet the statute has always been printed under the head of "Civil Actions," and in terms it appears to apply only to such actions. For a great many years past it has been the general policy of this state to give to a defendant in a criminal proceeding substantially the same remedies by way of new trial or by proceedings in error as are given to parties in civil proceedings. In 1843 this court said that: "in all cases of conviction in criminal prosecutions the accused, by our law, is entitled to relief by new trial in the same manner as in civil actions; and our courts do not, in such cases, as is sometimes done elsewhere, turn the convict round to the clemency of the pardoning power, where the penalty alone is remitted, while, though he may be innocent, the disgrace and degradation remain." State v. Brown, 16 Conn. 54, 59. This policy was expressly carried out, prior to the present statute allowing appeals to this court, by the law allowing the defendant in criminal prosecutions relief for errors of law by way of motion for a new trial, motion in error, or writ of error, as in civil cases (Rev. St. 1875, p. 539, § 16); and since the passage of the statute allowing appeals it has been carried out by expressly allowing to defendants in criminal cases a remedy for errors of law by way of appeal or by writ of error as in civil causes. Gen. St. § 1035. But the power to grant a new trial in a criminal case, in favor of the defendant, for a verdict manifestly against the evidence, has never been in express terms conferred either upon this court or the superior court. The act of 1762, finally embodied with no substantial change of terms in section 1125 of the General Statutes, gives to the courts named in said section power to grant new trials for the causes therein named; but this relates to civil actions, and has always appeared under the head of "Civil Actions" in our statutes. Notwithstanding this, however, the superior court has for a great many years exercised the power to grant new trials in criminal cases under the authority of this statute. Under this statute it has entertained petitions for a new trial for newly-discovered evidence "in numerous criminal cases. Lester v. State, 11 Conn. 415; Andersen v. State, 43 Conn. 514; Shields v. State, 45 Conn. 266; Hamlin v. State, 48 Conn. 92. So far as we are aware, however, the superior court has never, under the law embodied in section 1125, attempted to grant a new trial in a criminal case for a verdict against evidence; and whether it now possesses such a power under the decision in Bissell v. Dickerson, 64 Conn. 61, 29 Atl. 226, is a question upon which it is unnecessary to express any opinion. In 1821 power was conferred upon this court, under certain circumstances, to grant new trials for verdicts against evidence. The law conferring this pover, with no substantial change of terms, was embodied in the Revision of 1887 as section 1127; and, as before stated, it in terms seems to relate only to civil actions, and has always appeared under that title. It has, however, always been regarded as conferring upon this court power to grant a new trial for a verdict against evidence in criminal cases in favor of the defendant, as well as in civil causes in favor of either party; and this practical construction of the statute has prevailed for many years. As early as 1838 this practice of seeking relief in this court in criminal cases for verdicts against evidence seems to have been firmly established. State v. Lyon, 12 Conn. 487. In that case the defendant was convicted of burning a shop, and he moved for a new trial on the ground that the verdict was against the evidence. This court granted a new trial. The right of the defendant in that case to the relief sought is taken for granted by court and counsel, for no question is made about it. In Andersen v. State, 43 Conn. 516, Carpenter, J., speaks of the power of this court in both civil and criminal cases to grant a new trial where the verdict is against the evidence, and seems to ground the exclusive power of this court to do so in both eases upon the law of 1821 as then embodied in the Revision of 1875 (title 19, c. 15, § 3). During the time this statute was in force numerous motions for new trial in criminal cases, made by defendants for verdicts against evidence, have been brought to this court, and considered by it, so that the practice in this respect must be regarded as firmly established. Under section 1127 of the General Statutes, however, as it stood prior to the act of 1893 before referred to, such motions could be brought to this court only under certain restrictions and conditions prescribed in said section, one of which was, among others, that the trial court should be of opinion that the verdict was against the evidence. The act of 1893 in effect repealed section 1127, and provided, among other things, that such motions could be brought to this court without reference to the opinion of the trial court upon the question whether the verdict was against the evidence, and introduced other changes in the method and manner of bringing such motions to this court. Bissell v. Dickerson, 64 Conn. 61, 29 Atl. 226. Although the act of 1893 contains provisions as to the manner of bringing such motions before this court radically different from those contained in the old section 1127, yet we think it should be construed as applying to criminal as well as civil cases, just as the old section was. "The principal mischief which the act of 1893 had in view evidently was that a verdict might be returned which was palpably against the evidence, and yet the trial court take a different view of it, and decline to report the evidence for the consideration of the court" (Bissell v. Dickerson, 64 Conn. 70, 29 Atl. 229); and to construe it as taking away the power of this court to consider motions of this kind in criminal cases— a power exercised under the old statute since 1821— simply because of its title or its terms would, we think, under the circumstances, be a harsh and unwarranted construction. We are of opinion that the motion for a new trial for a verdict against evidence in the case at bar is properly before this court.

The next question is whether the verdict in this case is so palpably and manifestly against the evidence as to warrant this court in granting a new trial on this ground. The act of 1893 has made no change in the principles which determine under what conditions a verdict may be set aside as against evidence (Johnson v. Norton, 64 Conn. 134, 29 Atl. 242); and those principles have been so recently stated in the case just cited, and in Brooks' Appeal, 68 Conn. 294, 36 Atl. 47, that any further reference to them here is entirely unnecessary. After reading the entire evidence carefully, and duly considering the same, we deem it sufficient to say that the verdict is not against the evidence.

The questions next to be considered are those specified in the reasons of appeal, and these relate to certain rulings of the...