State v. Muolo

CourtConnecticut Supreme Court
Writing for the CourtMALTBIE, Chief Justice.
Citation118 Conn. 373,172 A. 875
Decision Date01 May 1934
PartiesSTATE v. MUOLO.

172 A. 875

118 Conn. 373

STATE
v.
MUOLO.

Supreme Court of Errors of Connecticut.

May 1, 1934


Error from City Court of New Haven; Joseph Weiner, Judge.

Rocco Muolo was charged by information with unlawfully using a taxi stand. Defendant's demurrer to the information was sustained by the city court of New Haven, criminal side, and the information dismissed, and the State, brings error, and defendant files motion to erase the case from the docket.

Motion to erase denied.

[118 Conn. 375] Philip R. Pastore, Asst. City Atty., of New Haven, for plaintiff in error.

Franklin Coeller, of New Haven, for defendant in error.

Joseph Koletsky and Kenneth Wynne, both of New Haven, amici curiæ .

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

MALTBIE, Chief Justice.

The assistant city attorney of the city court of New Haven informed against the defendant in error, charging him with the violation of an order of the board of police commissioners of the city acting as a traffic commission under section 56b of the General Statutes. Cumulative Supplement of 1933. The defendant demurred to the information as insufficient in law, and the court sustained the demurrer upon the ground that the statute under which the order was issued was unconstitutional. Thereafter it caused judgment to be issued acquitting the defendant, but not discharging him, so that he remained under bail, pending the disposition of the present proceedings. This is a writ of error brought by the state, seeking a reversal of the judgment of the city court. The defendant has filed a motion to erase the case from the docket.

Neither in our statutes nor in our Constitution [172 A. 876] are found any provisions concerning the right of the state to bring a writ of error in a criminal case, although there is a statute which provides that the state may, with the permission of the court, appeal to this court from the rulings or decisions of the superior court or any court of common pleas. General Statutes, § 6494. We must recognize that, in the absence of constitutional or statutory provisions, the right of the state to take an appeal or bring a writ of error in a criminal case is denied in the great majority of American jurisdictions, including those under the federal government. United States v. Sanges, 144 U.S. 310, 12 S. [118 Conn. 376] Ct. 609, 36 L.Ed. 445, and cases cited; United States v. Evans, 213 U.S. 297, 29 S.Ct. 507, 53 L.Ed. 803; 17 C.J. pp. 30, 44. In Maryland, however, a state the development of whose criminal jurisdiction has been quite like our own, it would seem that the state may bring a writ of error even from a judgment of acquittal after trial, State v. Buchanan, 5 Har. & J. ( Md.) 317, 9 Am.Dec. 534; State v. McNally, 55 Md. 559; and in a number of jurisdictions where such a writ does not lie from a judgment of acquittal upon a trial, it is permitted in order to bring about a review of rulings based upon the insufficiency of an indictment or information as matter of law, State v. Meyer, 63 N. J. Law, 233, 47 A. 485, 52 L.R.A. 346; People v. Swift, 59 Mich. 529, 541, 26 N.W. 694; Commonwealth v. Capp, 48 Pa. 53; Commonwealth v. Moore, 99 Pa. 570; District of Columbia v. Horning, 47 App. D. C. 413. We have never been called upon to determine whether the state may bring a writ of error in a criminal case or whether, aside from the provisions of section 6494 of the General Statutes, it might appeal. Paying due deference to the weight of authority in other jurisdictions, we still must decide the question before us as one of first impression in this jurisdiction.

The reasons usually advanced for denying the right of review to the state in criminal proceedings are that such a right was denied by the English common law, that such a proceeding has never been invoked in the particular jurisdiction, and that to permit a new trial after acquittal would subject the defendant to double jeopardy. As regards the first, it cannot be said with certainty that the English common law as it existed previous to 1776 did deny to the crown all right to a review of criminal proceedings for the correction of errors occurring in the trial court. State v. Lee, 65 Conn. 265, 276, 30 A. 1110, 27 L.R.A. 498, 48 Am.St.Rep. 202; United States v. Sanges, supra, page 312 of 144 U.S., 12 S.Ct. 609, 36 L.Ed. 445; State v. Meyer, supra; State v. Buchanan, [118 Conn. 377] supra. But, even if such a proceeding were denied by the English common law, that would not be conclusive upon us. This court has said, by Baldwin, J., that " during the greater part of the colonial era the common law of England was not deemed to form a part of the jurisprudence of Connecticut, except so far as any part of it might have been accepted and introduced by her own authority." Graham v. Walker, 78 Conn. 130, 133, 61 A. 98, 99, 2 L.R.A. (N. S.) 983, 112 Am.St.Rep. 93, 3 Ann.Cas. 641. However, the doctrine came to prevail that " the English common law, so far as it was not unadapted to the local circumstances of this country, our ancestors, on their emigration hither, brought with them," Card v. Grinman, 5 Conn. 164, 168; but that, where we followed it, this was not by reason of any constitutional provision or statute, but because " this was our inheritance," Baldwin v. Walker, 21 Conn. 168, 181. " As our jurisprudence developed, the courts applied the principles of the common law to the decision of causes, so far as they seemed applicable to our social conditions." Brown's Appeal, 72 Conn. 148, 151, 44 A. 22, 23, 49 L.R.A. 144. But we have never given to it a slavish adherence. An early authority apt to the question before us is the decision in 1786 in the case of Wilford v. Grant, Kirby, 114. In that action the plaintiff recovered a judgment for an assault against several defendants, and certain of them brought a writ of error to reverse the judgment so far as it affected them. One of the questions presented was whether there could be a reversal of the judgment as to some only of the defendants. The court said (page 116 of Kirby): " The common law rules of England are indeed against a reversal in part only, in a case like this, though it is admitted in others without any apparent diversity of reason; *** but it doth not appear that this rule has been adopted in practice here, so as to become authoritative. The common law of England [118 Conn. 378] we are to pay great deference to, as being a general system of improved reason, and a...

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26 practice notes
  • State v. Nardini
    • United States
    • Supreme Court of Connecticut
    • May 11, 1982
    ...State v. Heyward, supra; by writ of error; State v. Falzone, Page 314 171 Conn. 417, 370 [187 Conn. 128] A.2d 988 (1976); State v. Muolo, 118 Conn. 373, 172 A. 875 (1934); or by writ of habeas corpus. State v. Kyles, 169 Conn. 438, 443, 363 A.2d 97 There is no error. In this opinion the oth......
  • State v. Lombardo Bros. Mason Contractors, Inc., Nos. 18462
    • United States
    • Supreme Court of Connecticut
    • November 13, 2012
    ...anything else. In short, although it is true that we “have never given to [the English common law] a slavish adherence”; State v. Muolo, 118 Conn. 373, 377, 172 A. 875 (1934); the defendants have failed to persuade us that our adherence to nullum tempus has ever waivered. 28. The trial cour......
  • State v. Lombardo Bros. Mason Contractors, Inc., SC 18462
    • United States
    • Supreme Court of Connecticut
    • November 13, 2012
    ...anything else. In short, although it is true that we "have never given to [the English common law] a slavish adherence"; State v. Muolo, 118 Conn. 373, 377, 172 A. 875 (1934); the defendants have failed to persuade us that our adherence to nullum tempus has ever waivered. 28. The trial cour......
  • Collopy v. Newark Eye and Ear Infirmary, No. A--86
    • United States
    • United States State Supreme Court (New Jersey)
    • April 28, 1958
    ...the Legislature and not with the courts.' In Connecticut, the common law was not adopted b the Constitution or statute. State v. Muolo, 118 Conn. 373, 172 A. 875 The immunity policy has had legislative notice; but there has been no adverse action. The House of Assembly adopted May 26, 1955 ......
  • Request a trial to view additional results
26 cases
  • State v. Nardini
    • United States
    • Supreme Court of Connecticut
    • May 11, 1982
    ...State v. Heyward, supra; by writ of error; State v. Falzone, Page 314 171 Conn. 417, 370 [187 Conn. 128] A.2d 988 (1976); State v. Muolo, 118 Conn. 373, 172 A. 875 (1934); or by writ of habeas corpus. State v. Kyles, 169 Conn. 438, 443, 363 A.2d 97 There is no error. In this opinion the oth......
  • State v. Lombardo Bros. Mason Contractors, Inc., Nos. 18462
    • United States
    • Supreme Court of Connecticut
    • November 13, 2012
    ...anything else. In short, although it is true that we “have never given to [the English common law] a slavish adherence”; State v. Muolo, 118 Conn. 373, 377, 172 A. 875 (1934); the defendants have failed to persuade us that our adherence to nullum tempus has ever waivered. 28. The trial cour......
  • State v. Lombardo Bros. Mason Contractors, Inc., SC 18462
    • United States
    • Supreme Court of Connecticut
    • November 13, 2012
    ...else. In short, although it is true that we "have never given to [the English common law] a slavish adherence"; State v. Muolo, 118 Conn. 373, 377, 172 A. 875 (1934); the defendants have failed to persuade us that our adherence to nullum tempus has ever waivered. 28. The trial cou......
  • Collopy v. Newark Eye and Ear Infirmary, No. A--86
    • United States
    • United States State Supreme Court (New Jersey)
    • April 28, 1958
    ...the Legislature and not with the courts.' In Connecticut, the common law was not adopted b the Constitution or statute. State v. Muolo, 118 Conn. 373, 172 A. 875 The immunity policy has had legislative notice; but there has been no adverse action. The House of Assembly adopted May 26, 1955 ......
  • Request a trial to view additional results

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