State v. AssuntinoState v. Assuntino
- Reporters:
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- Before:
- Loiselle
The defendants were charged with professional gambling and with using a telephone facility to transmit or receive gambling information. The charges were dismissed by the Court of Common Pleas. The state claims that the dismissals were due to an erroneous interpretation of a statute, and that there is a division among the geographical areas of the Court of Common Pleas regarding the interpretation of this statute. At the present time the state has no right of appeal in a criminal case from the Court of Common Pleas to the Appellate
It is true that there is no longer any statutory authority for such a writ. Section 52-272 of the General Statutes, which deals with writs of error, was amended in 1974 to eliminate mention of the Court of Common Pleas. Public Acts 1974, No. 74-183, § 96. Only writs of error from the Superior Court to the Supreme Court are now mentioned in that statute. Public Acts 1974, No. 74-183, was the act which implemented a broad plan of court reorganization, merging the former Circuit Court with the Court of Common Pleas, and establishing a procedure whereby most appeals from the judgments of the Court of Common Pleas would be taken to an Appellate Session of Superior Court. Public Acts 1974, No. 74-183, §9;
Faced with confusion in our own cases, we look back to the practice of England, while bearing in mind that English practice is not determinative unless adopted here. State v. Muolo, 118 Conn. 373, 377, 172 A. 875. In England the writ of error lay at common law to the King’s Bench from the judgment of a county palatine, and from the King’s Bench to parliament. 2 Tidd’s Practice, p. 1059.
The first mention of a writ of error in the Connecticut colony is found in the records of the General Assembly, which then was the court of last resort as well as the legislative body, in 1719. Stating “the number of petitions brought to this Assembly, complaining of erroneous judgments in the courts of common pleas, hath been much increased . . . yet there hath not been any remedy otherwise provided in the law whereby errours from the supe-riour court or inferiour courts might be deter
In 1723 the General Assembly acted on the “memorial” of one who complained that the writ of error he had brought from a judgment of an inferior court had been denied by the Superior Court because the other party was an inhabitant of New Jersey and service on that party’s Connecticut attorney would not suffice. The assembly ordered that the writ be heard by the Superior Court, resolving “that a writ of error, being part of the process allowed and established by law in order to [sic] the regular administration of justice and to bring the action on which its brought to a just conclusion, lyes as well for an inhabitant against a stranger as for a stranger against an inhabitant,” and that notice to the other party’s attorney would suffice. 6 Col. Eec. 402.
Two more acts were passed in colonial times regulating the use of the writ, thereby recognizing its existence. In 1728, an act was passed stating “[t]hat for the future no writ of errour shall be bro’t for the reversal of any judgment after the space of three years next after the giving of the judgment are expired; any law, usage or custom to the contrary notwithstanding.” 7 Col. Eec. 185.
In 1738, the General Assembly passed “An Act for the better regulating Tryals on Writs of Error.” Stating that “sundry debtors and other litigious persons, intending to delay and bring great cost upon them that have suits against them in the law, have taken out writs of error and prosecuted them from court to court; by which the action laid in the
The early records of our courts also provide evidence of a common-law writ of error. In 1775, in the case of Stuart v. Pierce, 1 Root 75, it was held that a writ of error lay from the judgment of two justices to the Litchfield County Court. No statutory authority for this writ has been discovered.
After independence, the practice regarding writs of error was not rejected or drastically altered. Indeed, the acts passed in colonial times were merely incorporated in the legislation passed after independence. The Acts and Laws of the state of Connecticut of 1784 include an act dealing with writs of error which incorporated the provisions of 1728 and 1738, and for the first time expressly stated that “the Superior Court shall have jurisdiction of all Writs of Error, brought for reversal of any Judgment of the County Court, or any Inferior Court, or of an Assistant or Justice of the Peace, in civil or criminal Causes.” Statutes, 1784, p. 50. See also id., p. 29.
Also in the Acts and Laws of 1784 was an act establishing a Supreme Court of Errors, composed of the lieutenant governor and the council, to “be the dernier resort of all Matters brought by way of Error, or Complaint from the Judgment or Decree of the Superior Court.”
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Id., p. 266. In 1806, the powers of that body were terminated and the same
It was not until 1818 that a constitution was enacted by Connecticut, providing for separation of powers among the legislative, executive and judicial branches, and making the Supreme Court of Errors a constitutional court. However, the common-law origin of the writ of error was recognized soon thereafter both by statute and by court decision. In the General Statutes, Revision of 1821, the first review of the statutes after the enactment of our constitution, p. 54, § 69, there is found a provision that “[wjrits of error may be brought to the superior court, from the judgments of the county and city courts, and of justices of the peace, for any error in the same, to be proceeded with according to the course of the common law.” (Emphasis added.) In 1825, in the case of Wetmore v. Plant, 5 Conn. 541, this court held that nothing which contradicts the record could be assigned as error in a writ of error, citing for that proposition a string of English eases.
It is clear that the common-law writ of error was adopted by Connecticut as part of its own common law. No statute has expressly abrogated that law. It is thus unnecessary for this court to consider whether the jurisdiction to hear such a writ is an essential attribute of the constitutional role of this court, as is argued by the state. And the state’s right to bring a writ in a criminal case, where the
In the early days of this state, the jurisdiction of this court was confined by statute to errors in the judgments and decrees of the Superior Court. Statutes, 1808, p. 204, § 19; Green v. Hobby, 8 Conn. 165; Humphrey v. Marshall, 15 Conn. 341. 2 The writ of error lay by statute from judgments of county courts and justices of the peace to the Superior Court, and from the Superior Court to the Supreme Court. Statutes, 1821, p. 54, § 69; id., p. 174, § 113; id., p. 197, § 8.
In 1875, the statutory jurisdiction of the Supreme Court was expanded to include “all matters brought before it according to law.” General Statutes, Eev. 1875, p. 45, § 2. At the same time, a statute was passed providing that the writ of error in matters of law only would lie from the Superior Court, the Court of Common Pleas and the county courts to the Supreme Court. General Statutes, Eev. 1875, p. 449, § 9. That statute remained essentially the same, save for the elimination of the county courts, until the 1974 amendment omitted the words “court of common pleas,” as already discussed. Public Acts 1974, No. 74-183, § 96. The statutory jurisdiction of this court today still extends to “all matters brought before it according to law.”
Where there are no facts to be determined, to bring the writ to Superior Court is unnecessary, and
The defendants claim that the constitutional ban on double jeopardy bars the bringing of the writ and that, as a matter of law, the state cannot prevail on the record. As the record is not now before this court, those questions are better decided when the merits of this writ are considered by this court with full briefs after oral arguments and on examination of the record.
The motion to dismiss is denied.
In this opinion the other judges concurred.