State v. Stallings

• Citation: 154 Conn. 272,224 A.2d 718
• Court: Connecticut Supreme Court
• Decision Date: 29 November 1966
• Parties: STATE of Connecticut v. Richard L. STALLINGS.

Page 718

224 A.2d 718

154 Conn. 272

STATE of Connecticut v. Richard L. STALLINGS.

Supreme Court of Connecticut.

Nov. 29, 1966.

James C. Cosgrove, Public Defender, for appellant (defendant).

John D. LaBelle, State's Atty., with whom, on the brief, was George D. Stoughton, Asst. State's Atty., and Brandon J. Hickey, Sp. Asst. State's Atty., for appellee (State).

Before KING, C. J., and ALCORN, HOUSE, THIM and RYAN, JJ.

ALCORN, Associate Justice.

On the morning of April 27, 1964, Mrs. Ida Kantrowitz, a woman about seventy-eight years old, was found dead of strangulation in her apartment in Hartford. She was bound hand and foot, both eyes were blackened, her nose was crushed, a gag in her mouth had lacerated the root of her tongue, and her hyoid bond, or Adam's apple, and the laryngeal cartilage surrounding it were fractured. Mars. Kantrowitz was last seen alive on her back porch about midnight on April 26, 1964. The defendant was arrested and presented in the Circuit Court on April 28, 1964, charged with murder in the first degree. The public defender was called as soon as the defendant was arrested and has acted as his counsel ever since. On April 28, 1964, the Circuit Court continued the case until May 27, 1964, and ordered the defendant held without bond. The defendant was committed to jail under a Circuit Court mittimus for the period of the continuance. On May 15, 1964, a bench warrant, charging the defendant with murder in the first degree, was issued by the Superior Court and served on him, and he did not appear further in the Circuit Court although his counsel was present, prepared for a hearing in probable cause, on May 27, the continuance date. On June 2, 1964, a grand jury was legally impaneled and sworn in the Superior Court to hear evidence on an indictment charging the defendant with the murder of Mrs. Kantrowitz. On June 3, 1964, the grand jury returned a true bill, and, on October 14, 1964, the defendant, before being put to plea, filed a motion to quash or dismiss the indictment. The grounds of the motion were that (1) the defendant, after his arrest and presentation in the Circuit Court, was denied a hearing in probable cause in violation of General Statutes § 54-76a (later amended by Public Acts 1965, No. 321); (2) the grand jury heard evidence which would not have been admissible in the trial of the case and considered it in determining whether or not to return a true bill; and (3) the defendant was not permitted to have counsel with him in the grand jury room. The court denied the motion on October 22, 1964, and, on October 27, 1964, the defendant was put to plea, pleaded not guilty and elected trial by jury. On November 24, 1964, following a trial, the jury found the defendant guilty of murder in the first degree, and the court accepted the verdict. The defendant moved to set aside the verdict, and the court denied the motion. The case was then submitted to the jury on the issue of the penalty, and they found that the defendant should be sentenced to the state prison for life. General Statutes § 53-10. The court accepted the verdict, and, on December 1, 1964, judgment was rendered accordingly.

The defendant has appealed from the judgment, assigning error in the denial of the motion to quash or dismiss the indictment, in the denial of the motion to set aside the verdict, in the charge to the jury, and in a ruling on evidence. The court has made a finding of facts pertinent to the motion to dismiss or quash the indictment and a finding as to the claims of proof at the trial which we utilize to test the correctness of the charge. Turner v. Scanlon, 146 Conn. 149, 151, 148 A.2d 334. The errors assigned in the finding pertinent to the motion to quash or dismiss the indictment raise only the legal issues involved in the action on that motion, and they are hereinafter considered. Error is also assigned in the court's refusal to find the facts stated in sixteen paragraphs of the draft finding relating to the trial of the case. Of these we consider only the two which are pursued in the brief. Labbadia v. Bailey, 152 Conn. 187, 190, 205 A.2d 377. The essential particulars of one of these paragraphs appear in the finding. The defendant seeks to have both paragraphs added to the state's claims of proof. 'A party cannot compel his adversary to incorporate in his claims of proof factual matter upon which he does not rely.' Turner v. Scanlon, supra. Moreover, the requested additions would not aid in the attack on the charge. Maltbie, Conn.App.Proc. § 160. No corrections can be made in the finding.

I

We consider first the denial of the motion to quash or dismiss the indictment. The first claim of the defendant is that he was denied a hearing in probable cause in violation of § 54-76a of the General Statutes. The short answer is that there was no violation of that statute. The section is entitled 'Procedure at hearings in probable cause' and, as its title indicates, does no more than prescribe the procedure to be followed when a hearing in probable cause is held. Here no such hearing was held. The defendant disgresses from the point of his motion, however, to argue that, because of another statute, namely § 54-1a, the Superior Court was impotent to remove the case from the jurisdiction of the Circuit Court. Section 54-1a defines the criminal jurisdiction of the Circuit Court, and the portion relied upon by the defendant, taken out of context, provides that '(w)hen any complaint for any offense punishable by imprisonment for more than five years is legally brought before the court, it shall conduct a hearing in probable cause'. The defendant argues in substance that that portion of the statute requires a hearing in probable cause in the Circuit Court, asserting claimed benefits to an accused person from such a procedure.

The argument misconstrues the purport of the quoted language. Section 54-1a first limits the criminal jurisdiction of the Circuit Court to offenses punishable by a fine of not more than $1000 or imprisonment for not more than one year or both. It then provides that, when a complaint is brought for an offense punishable by a fine of more than $1000 or imprisonment for more than one year but not more than five years, the court may, under specified circumstances, hold a hearing in probable cause and bind the offender over to a court having jurisdiction or take jurisdiction and impose no greater penalty than a $1000 fine or one year imprisonment or both. Finally, the section provides that, when a complaint is made for an offense punishable by imprisonment for more than five years, the court is required, by the language already quoted, to hold a hearing in probable cause and, if it finds probable cause, to bind the accused over to a court having jurisdiction. The clear meaning of § 54-1a is to fix the jurisdiction of the Circuit Court and delineate its powers in the three situations explicitly set forth. The quoted portion of the section is not to be construed as requiring a hearing in probable cause in the Circuit Court to the exclusion of other prescribed and time-honored procedures. The hearing in probable cause amounts only to an inquest, the finding of probable cause is not final, and it cannot be used against the accused on the trial. United States ex rel. Cooper v. Reincke, 333 F.2d 608, 611 (2d Cir.).

The Superior Court, on the other hand, is a constitutional court of unlimited jurisdiction. Conn.Const. art. 5 § 1. It has sole jurisdiction of all offenses not within the jurisdiction of the Circuit Court and concurrent jurisdiction of those within the Circuit Court's jurisdiction. General Statutes § 54-17. An original information may be filed in the Superior Court in any case in which the Circuit Court may, at its discretion, punish or bind over for trial, and in any other case on the order of the Superior Court. § 54-42. The power of the state's attorney to file an original information is deeply rooted in the common law. State v. Keena, 64 Conn. 212, 215, 29 A. 470.

The defendant injects the argument that the Superior Court bench warrant which was issued in this case was invalid under our decision in State v. Licari, 153 Conn. 127, 214 A.2d 900. While this claim forms no proper issue on the defendant's appeal, we notice it to the extent of pointing out that the Licari decision (p. 131 n., 214 A.2d 900) strictly limited its application to circumstances not present in the case now before us. In the present case, the warrant was issued to bring before the Superior Court a person who was already under arrest and confined in jail.

The procedure which was followed in this case has been the practice in this state for a great many years and serves the desirable end of expediting the disposition of criminal cases to the mutual benefit of the defendant and the state. State v. Hayes, 127 Conn. 543, 581, 18 A.2d 895; State v. Chin Lung, 106 Conn. 701, 720, 139 A. 91. The filing of the original information in the Superior Court was not prohibited by any constitutional provision. Dillard v. Bomar, 342 F.2d 789 (6th Cir.); United States ex rel. Cooper v. Reincke, supra; State v. Hayes, supra. The service of the Superior Court bench warrant superseded the Circuit Court mittimus, under which the defendant was being held, and brought him under the jurisdiction of the Superior Court. State v. Chin Lung, supra.

II

The next two issues raised by the defendant attempt an attack upon ancient and firmly established grand jury procedures. It was his effort to introduce, on the motion to quash or suppress the indictment, his own testimony that an inadmissible statement had been read to the grand jury. For the present purposes, we assume that inadmissible evidence was submitted to the grand jury. The assumption is necessary in order to consider the claim since the trial court properly refused to hear evidence concerning the proceedings before the grand jury. State v. Hayes, supra, 127...