State v. McCoy

• Decision Date: 21 October 1966
• Docket Number: No. MV,MV
• Citation: 226 A.2d 116,4 Conn.Cir.Ct. 109
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. Charles E. McCOY. 5-21091.

Page 116

226 A.2d 116

4 Conn.Cir.Ct. 109

STATE of Connecticut v. Charles E. McCOY.

No. MV 5-21091.

Circuit Court of Connecticut, Appellate Division.

Argued July 11, 1966.

Decided Oct. 21, 1966.

Benjamin M. Chapnick, New Haven, for appellant (defendant).

Arnold Markle, Chief Pros. Atty., for appellee (state).

LEVINE, Judge.

The defendant, in a trial to the jury, was convicted of speeding in violation of § 14-219 of the General Statutes and in his appeal assigns these errors: (1) The denial of his motion to set aside the verdict; (2) the denial of his motion to correct the finding; (3) the court's failure to charge in accordance with the defendant's requests; (4) the setting of a $500 bond for the appeal; (5) certain rulings on evidence.

The state claimed to have proved that on September 6, 1965, at 10:30 p.m. the defendant was clocked by radar at seventy-four miles per hour while traveling westerly on the Connecticut Turnpike, on which the posted speed was sixty miles per hour; that the Connecticut Turnpike is a multiplelane limited-access highway; that the radar unit was tested in the usual fashion by the use of three tuning forks at forty, sixty and eighty miles per hour when the set was first put in operation that day at 10:20 p.m. and again at the end of the period of operation at 11:15 p.m. and was found to operate correctly; that the radar operator observed the chase car take up a position behind the defendant's vehicle; that the radar equipment was tested at the factory July 21, 1965, and found to be operating properly; that the tuning forks are tested at the factory every six months; that a large gouge or a bending of the tuning forks is required to make them operate improperly; and that the defendant was the operator of the motor vehicle.

The defendant claimed to have proved that on the night in question he observed the radar unit in the westerly lane while he was proceeding easterly; that when he returned in the westerly lane, with his knowledge of the radar machine location, he noted his speed on two occasions and on both occasions he was not in excess of sixty-five miles per hour; that in the two lanes of the roadway to his right as he went through the radar field there were other vehicles which were parallel to and abreast of him and going at the same speed; that the night was clear and weather conditions good; that the stylus needle on the graph equipment was not tested that night; and that the turning forks were not tested for accuracy that night.

The assignments of error in the finding that the court failed to include the questions of admission or rejection of evidence which the draft finding requested indicate that there is a misunderstanding of the function of a finding in a jury case in the Circuit Court. The finding is simply a statement of the relevant facts which each of the parties claims to have offered evidence to prove and claims were proven, made for the purpose of presenting to the appellate court errors which the appellant claims were made in the charge. Practice Book § 999. This section differs from § 635 of the Practice Book, which governs the finding in jury cases on appeal to the Supreme Court and permits the presentation of claimed errors in the course of the trial and in evidence as well as in the charge. Peterson v. Meehan, 116 Conn. 150, 153, 163 A. 757, 758; Maltbie, Conn.App.Proc. §§ 145, 147. So far as the Supreme Court is concerned, the sole purpose of the finding 'is to enable the presentation of claimed errors in the charge and rulings of the court, and if it fairly does this it will not be corrected.' Peterson v. Meehan, supra. It serves no useful purpose to seek correction in the finding as regards unessential details or facts which do not serve to make clear the situation as related to the claimed errors. Krowka v. Colt Patent Fire Arm Mfg. Co., 125 Conn. 705, 711, 8 A.2d 5; Voronelis v. White Line Bus Corporation, 123 Conn. 25, 27, 192 A. 265. It should be further noted that the suggested forms for findings in the Supreme Court (Practice Book, Forms 603, 604) differ from forms for findings in the Circuit Court (Practice Book, Forms 817, 820, 821). See Practice Book § 648.

Even if it were permissible to include in the finding claims of error in rulings on evidence, it would not have availed the defendant, since he failed to state his claim of admissibility or inadmissibility of the evidence which he claimed to be admissible or to which he objected. Williams v. Consolidated Cigar Corporation, 154 Conn. 98, 99, 221 A.2d 588; Casalo v. Claro, 147 Conn. 625, 630, 165 A.2d 153; Maltbie, Conn.App.Proc. § 147. Only one such requested finding concerning a question of evidence states the reason for the objection, namely, hearsay. The defendant claimed that the radar officer's testimony on the car description and its speed which he reported to the chase officer over the radio after he had clocked the defendant's car was hearsay. The officer was relating in court what he reported to the chase officer; this was not an extrajudicial assertion and therefore hearsay; rather it was in-court testimony upon which the officer could be cross-examined.

The questions of admissibility or rejection of evidence should have been assigned as error and exhibits drawn and referred to in accordance with §§ 1006(4) and 989(4) of the Practice Book. The remaining paragraphs of the finding which the defendant seeks to strike with respect to the court's charge find adequate support in the evidence, so that the state may claim to have proved them. The findings which the defendant seeks to add were included in the finding, and while they are not stated in the exact words used by the defendant, they were adequately stated in the court's phraseology.

The defendant made certain requests to charge which he claims were not complied with by the court. Our examination of the charge reveals that all the requests were given by the court in its own language in accordance with the evidence which the defendant claimed to have proved; Ziskin v. Confietto, 137 Conn. 629, 634, 79 A.2d 816; and that the charge met the test of legal accuracy, adaptability to the issues, and sufficiency as a guide to the jury in reaching a verdict. D'Addario v. American Automobile Ins. Co., 142 Conn 251, 254, 113 A.2d 361. The request to charge that judicial notice could be taken that radar equipment is inaccurate to the extent of two to five miles per hour, a request which the defendant claims should have been...