State v. Yorczyk

• Decision Date: 31 December 1974
• Citation: 356 A.2d 169,167 Conn. 434
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Edward YORCZYK.

Page 169

356 A.2d 169

167 Conn. 434

STATE of Connecticut v. Edward YORCZYK.

Supreme Court of Connecticut.

Dec. 31, 1974.

Richard E. Gruskin, New London, for appellant (defendant).

Walter H. Prescott, Asst. Prosecuting Atty., for appellee (state).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

HOUSE, Chief Justice.

By an information dated January 19, 1970, the defendant was charged in the Circuit Court in twenty-eight counts with the crime of curetly to animals in violation of § 53-247 of the General Statutes. That conglomerate statute was subsequently amended by Public Acts 1971, No. 99, but, as it was in effect at the time of the alleged offense in December, 1969, it is copied in the footnote ¹ infra dn the words subsequently deleted from that statute by the 1971 act have been placed in parentheses. The specific offenses with which the defendant was charged were defined and narrowed by a bill of particulars filed by the state. This charged that the defendant 'did fail to provide and supply twenty-eight (28) animals with wholesome air, food and water and did unjustifiably abuse said twenty-eight (28) animals by failing to provide them with food and protection and by abandoning said animals and containing them without food, adequate shelter, water, etc.' On a jury trial, the defendant was found guilty on all counts. The judgment was affirmed on appeal to the Appellate Division and this court granted certification for the present appeal. Practice Book §§ 740, 742.

The record submitted to us on the appeal is wholly inadequate for a proper review of most of the defendant's assignments of error, but it is sufficient to consider one assignment addressed to the court's charge, and our decision on that assignment of error is decisive of the merits of this appeal.

Assignments of error addressed to a charge are tested by the claims of proof as they appear in the findings. State v. Edwards, 163 Conn. 527, 528, 316 A.2d 387; State v. Fine, 159 Conn. 296, 300, 268 A.2d 649; Practice Book §§ 609, 635. The finding discloses that the only claim of proof made by the state was '(t)hat the defendant, Yorczyk, prior to December 13, 1969, failed to make proper arrangements for the care and maintenance of his animals, by failing to provide proper amounts of feed, water, and care.' As to the defendant's claims of proof, the court found that he offered evidence to prove that prior to December 13, 1969, he had made proper arrangements for the care and maintenance of his animals by purchasing an adequate amount of food and by leaving one Joyce Harbinson with complete custody, control and charge of the animals with the authority to perform whatever acts were necessary for the welfare of the animals, and that she accepted the responsibility of having the complete control, custody and charge of the animals during his absence. These were the only claims of proof made by the state and by the defendant which were found by the court, and it is upon these claims that the adequacy and correctness of the court's charge must be tested.

The court charged the jury in part as follows: 'Proof of knowledge of what is happening is not required, merely proof of what happened. It is no excuse in matters of this nature under this statute to show that someone else was doing or should have been doing what the principal was charged with. Roughly, it can be compared to the situation of the owner of a truck that is overloaded by an employee. The owner is still liable even though he may not know of the actual violation being committed. Proof of knowledge is not necessary, merely proof of what happened.' The defendant excepted to this portion of the charge as it related to the example of an overweight truck, stating: 'I believe that the statute says the person having charge. The ownership is not defined by the statute. It was not an element, it is simply the question of who has charge.'

The assignment of error based on this portion of the charge was well taken. Although the exception to the charge could well have been expressed with greater particularity, nevertheless, it was sufficiently stated to alert the court to the subject of the objection and the basis for it. 'The purpose of the rule (Practice Book § 249) is to alert the court to claims of error while there is still an opportunity for correction in order to avoid the 'economic waste and increased court congestion caused by unnecessary retrials." Prystash v. Best Medium Publishing Co....