State v. Ward

• Decision Date: 16 July 1947
• Citation: 54 A.2d 507,134 Conn. 81
• Court: Connecticut Supreme Court
• Parties: STATE v. WARD et al.

134 Conn. 81

54 A.2d 507

STATE

v.WARD et al.

Supreme Court of Errors of Connecticut.

July 16, 1947.

Appeal from Superior Court, Hartford County; Patrick B. O'Sullivan, Judge.

Harry J. Ward and others were convicted of a conspiracy to prevent and interfere with public justice and to violate statutes penslizing gambling, keeping and resorting to gaming houses and illegal selling of liquor and defendants Kennedy, Barnes and Levitan appealed. On motion by the state to dismiss the appeals for failure to prosecute.

Judgment in accordance with opinion.

ELLS and DICKENSON, JJ., dissenting.

John P. Cotter, of Hartford, for appellant Kennedy.

Milton D. Newman, of Hartford, for appellant Barnes.

William S. Hyde, of Manchester, and Thomas F. McDonough, of Hartford, for appellant Levitan.

Hugh M. Alcorn, Jr., State's Atty., of Hartford, for the State.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON,JJ.

MALTBIE, Chief Justice.

The information in this case charged eleven defendants with a conspiracy to prevent and interfere with public justice and to violate statutes penalizing gambling, keeping and resorting to gaming houses and illegal selling of liquor. Four of the defendants pleaded guilty, five elected to be tried by the court, and two were tried to the jury. The trial lasted many weeks. The case against one was dismissed, but all the others who went to trial were found guilty. On February 21, 1946, sentences were imposed. Five of the accused appealed, but two of them later withdrew their appeals and surrendered themselves for service of their sentences. The appeals of the other three, Kennedy, Barnes and Levitan, remained pending.

The trial court granted various extensions of time in which to file requests for findings, the counterfinding, and assignments of error. Finally, on April 1, 1947, the last of the assignments of error was filed. They all sought many corrections and additions to the finding. On April 23, the trial court returned the papers to the clerk's office with the notation that, except as to a minor correction made that day, all the claims for correction assigned as error were refused. On May 6, one defendant filed an amendment to his assignments of error attacking a single paragraph in the finding and on the same day the trial court examined the amendment and refused to make the correction. On May 12, the clerk wrote counsel for all the defendants requesting payment of $4,500, which he stated would be the approximate cost of printing the evidence, but he added that the matter would be adjusted when the record had been printed and the actual cost determined. The defendants made no response to this letter. On June 25 this motion to dismiss was filed, and thereafter it was assigned for hearing on July 9. On July 8 the defendants paid the clerk the amount stated in his letter of May 12.

The various extensions of time granted by the trial court for filing appeal papers were made under provisions of the rules of court authorizing such action ‘for good cause shown.’ We must, in considering this motion, regard the extensions as properly granted, and as all papers were filed within the times fixed in them we cannot consider the failure by the defendants to file them earlier in determining whether they have prosecuted the appeals with reasonable diligence.

Under our rules the trial court was bound to consider the claims for correction in the finding, and the record could not be printed by the clerk until the assignments of error had been returned to him with the action taken by it noted thereon. Practice Book § 347. This did not occur until April 23, 1947. The record is so complicated and voluminous that it would necessarily take some time for the clerk to ascertain how the printed record should be made up and to estimate the cost of printing the evidence. Until that was done and counsel for the defendants were so notified, they were under no duty to make any payment to the clerk. The claim for the dismissal of these appeals necessarily reduces itself to this, that the defendants were guilty of improper delay in not paying the amount due for printing the record after they received the letter sent by the clerk on May 12, 1947.

Section 351 of the Practice Book requires that an appellant must pay the actual cost of printing the evidence necessary to present claims of error in the finding ‘prior to the printing of the same and within two weeks from the completing of the record’; § 356 provides that procedure to secure corrections in a case tried to the jury shall be in accordance with that for securing corrections in a case tried to the court, so far as applicable, and this includes the requirement in § 351 as to the payment of the cost of printing the evidence. Under § 351, the period allowed for payment runs from the time when the clerk has so prepared the record that it is ready to go to the printer. In so far as the appeals required the printing of the evidence to support attacks on the finding, the defendants are all clearly in default, and the clerk is without authority to print it for that purpose. Barnes was tried to the court, and in addition to assignments of error as to the finding he also claims error in the conclusion of the trial court that he was guilty, on the ground that it is not supported by the facts found. For printing the record to present to us that claim, no payment other than the record fee paid when the appeal was taken is necessary; he has done everything required of him by our procedure; and he cannot, to the extent of that claim, be found to be in default.

In addition to assignments of error as to the finding, Kennedy, also tried to the court, claims error in the decision of the trial court finding him guilty upon...