*1
interest
in
as
realty
tiff wife of the husband’s
known
In Wright
Wright,
88 Tuckahoe Drive.
v.
Conn.
A.
this
in
court,
spealdng
stated in
. . .
term
alimony,
part
“[ajlimony
of a
duty
based
husband
upon
continue
a
whom he has in
wife
effect
support
legal
aban
doned.
duty
It defines that
terms of
money,
property
and decrees
specific performance
it;
itself
has .a social and
inter
financial
est
of that
performance
duty.”
(Emphasis
Christiano,
Christiano
added.) See
v.
Conn.
779; Cary
593-94,
A.2d
Gary,
259,
Since express provisions of 46-14 a permit wife a make valid .attachment on real estate secure a court award of I alimony, cannot why see such an award should not include a judgment order- ing transfer title to the attached nor property, such why a judgment lien should not relate back to the attachment. Otherwise, the attachment made and the judgment rendered giving wife a part the husband’s estate would be superfluous.
I would, therefore, find error. Eugene of Connecticut Coleman House, J., Shapiro, C. Loiselle, Bogdanski, MacDonald Js.
Argued April 3 decision releasedOctober public Daly special for the defender, III, M. J. (defendant). appellant attorney, for assistant state’s Scanlon, H.
Walter (state). appellee jury defendant a trial to a House, C. J. On money guilty attempting to obtain found pretenses in Statutes false violation General (repealed by No. 53-360 Public Acts 1971). pertinent part, this effective In October any provided penalty person “who, for a statute by any pretense device, token, false obtains from any thing another valuable . . . intent with person.” him or defraud other The defendant appealed judgment has from the on the rendered assignments error, verdict. his four he Of has briefed three considered and the fourth is Croom,
to have been abandoned. Beaulieu, 348 A.2d 226, 232, assignments A.2d 620, 621, pressed appeal are that of error he has which denying (1) to set aside court erred in his motion contrary evidence, the verdict as to the law and (2) denying in his the informa motion dismiss (3) admitting tion, and a check and a evidence driver’s license.
We consider first the claim of the defendant that
denying
*3
the court erred in
his motion to set aside
contrary
the verdict in that it was
to the law and
supported by
the evidence. Whether
evi-
the
supports
by
summary
dence
the
verdict
tested
printed
appendices
of the evidence as
in the
to the
briefs.
Siberon,
On this
the
evidence,
jury could
reasonably
logically conclude that Coleman was
as
guilty
charged.
could
They
infer
properly
that the attempt
to obtain money by
the
cashing
stolen check was an
to
attempt
obtain money by the false representa-
tion that
the check was a valid check issued by
Guilford Arts to Richard Cam, and the false rep-
resentation by means of the driver’s
license that
Lee was in fact Richard
“A
Cam.
representation
may be found to be false either
expressly
by
implication
and may consist of any act, word,
symbol, or
token
calculated
and intended
to
deceive.” Farrah,
driver’s and infer license, containing attempt the to conceal the wallet the police made the check and the driver’s license when the arrest. Intent to which is an essential defraud, obtaining money by false element the crime of beyond pretenses, prove to a reasonable is difficult by may be inferred from doubt direct evidence but it supra; conduct of accused. v. Far rah, 447. Smith, State v. 254 A.2d necessary may inferred cir from The intent be by cumstances from what accused. was done Fredericks, 121, 124, 176 A.2d no We find merit to the contention the defend- refusing ant that erred in court set aside contrary as verdict law and the evidence. admitting There was no error also into evidence They posi- the check and the driver’s license. were tively identified the cashier as the check and attempt license which were tendered her arresting to have her cash the check. The officer being also identified them as in the wallet which attempted Coleman under conceal the seat of his apprehended car when he parking in the lot of shopping plaza, and the check was identified bookkeeper the Guilford Arts’ as one of those stolen company. from that sufficiently Both items were properly identified to be admitted as full exhibits jury. the consideration of the only remaining claim of the defendant is that the court denying erred in the defendant’s motion *5 to dismiss the discharge information to defendant “because the state of in said Connecticut, information and particulars, in the bill of failed to charge the defendant with a crime.” short in a so-called charged
The defendant was
the Prac
493 of
by
form information as permitted
§
first
information
Book.1 This form of
tice
Practice
an amendment
to the
by
authorized
effective
1929,
Book
6,
which was adopted April
of the
1929. The obvious
September 1,
purpose
amendment was to
with the
dispense
prolixity
offenses
common-law averments
criminal
alleging
constitutional
while still
to an accused his
assuring
to
right
by
be
the state’s
apprised
pleadings
essential elements
the crime with which he was
Beaulieu,
620,
v.
164 Conn.
being charged.
State Couture,
325 A.2d
263;
Whiteside,
196 A.2d
215-16,
169 A.2d
208, 212,
cert.
368 U.S.
denied,
S. Ct.
a motion for a bill of still not if and, may satisfied, seek an order of the court; Practice particulars. Book for a further bill charged against The information filed Coleman money attempting him with “the crime of to obtain pretenses Waterbury, false at about 8/15/70, violation of Section 53-360 of the Gen- provided eral Statutes.” As we have 53-360 noted, penalty anyone by any pre- token, false “who, any tense or obtains from another valuable device, thing . . . with intent to defraud him or other person.” Coleman filed a motion for a bill particulars asking charges that the state make its particular by stating: specific more “1. The nature of the offense or offenses which the defendant charged place with. 2. The time, and manner which this specific offense was committed. 3. The performed by acts the defendant which constitute necessary all charged. elements of the crime 4. The general surrounding alleged circumstances particularity, crime. 5. State with date, time, alleged said violation and the Section of the Con- necticut General Statutes violated. 6. State with particularity, including name or names, persons alleges addresses, all the State were involved in this response said violation.” In particulars motion, state stating: filed a bill of August “1. On or about 15, 1970 the defendant did attempt Stop obtain the sum of from the $87.79 Shop Waterbury, by assisting Market, one James presenting H. Lee in forged a stolen and upon check the account of Guilford Arts at Union and Company, New Haven Trust New Haven, August Connecticut. 2. Stop Shop 15, 1970, Waterbury Market, Waterbury, Plaza, Connecticut, 4. See 1 above. # 3. See 8:10 p.m. at approximately defendant 6. The # 2 above. 5. See # 2 above. *7 H. Lee.” James during or to no time prior at
The defendant of or bill partic to the information objected trial statement for more specific nor did he move a ulars, as permit bill of or for particulars a supplemental Book. Practice of the 496 and 497 ted by §§ information as per to Nor did he move quash claim that Book on a 499 of the Practice mitted by § the offense not constitute stated did particulars first day on the Rather, in the indictment. charged informed that expressly the court was trial, seeking any defendant was satisfied and was at the conclu Nevertheless, further information.2 moved sion of the state’s in the defendant chief, case information the defend to dismiss the and discharge court committed and has briefed a claim that the ant, in his claim “that error the motion. It is denying Bill charged the State had a not, by Particulars, the defendant with a crime.” He asserts statutory that the bill of defective it particulars was because did not contain an of an intent to defraud. allegation
We find no error in the of the court for ruling three reasons, any one of to which suffices support the court’s decision. In the first as we have place, at the start noted, the trial the defendant following colloquy presiding judge occurred between the and counsel for day defendant on the first of trial: “The Court: Daly, Mr. looking through in in file this matter I there notice is a particulars motion for bill of production and motion Daly: disclosure. your Mr. If please, Honor response I have had filed Attorney’s State’s office to the Bill Particulars, response also a filed to the Motion They for Disclosure. The Court: satisfactory are you; to is that Daly: correct? Yes, ques- Mr. each tion is answered. right. The Court: All nothing further, There is then, you seeking are on either one of Daly: those? Mr. No.” represented the court
expressly his satisfaction the information with in supplied the state to his motion for a bill response If particulars. uncertainty existed as to any the state’s pleadings further was necessary apprise of the the defendant statutory crime with which he in charged was the information in order to prepare his defense and to plead judgment in bar of any him further prosecution, way open it by secure motion. Having expressed his satisfac tion with the as pleadings they stood at the opening the defendant trial, waived any defect have might been present the information *8 the bill of particulars. Am. Jur. 2d, Criminal Law, “[R]ights once §325. waived cannot be re gained by waiver.” Lee v. Casualty revoking Co. America, Hend Conn. 202, 208, 96 A. sey Southern New England Telephone Co., 132, 135, A.2d 722.
In the second
place,
defendant has
no
made
and
claim,
there is not the
in
slightest
indication
that
record,
he was in any way
prejudiced
that
its
to the
charge
jury the court did not fully instruct
them as to the burden of the state to
an intent
prove
to defraud.
The defendant has not attacked the
charge and, accordingly,
it
is not
in the
printed
record.
It is, therefore,
to
presumed
have been cor
v. Kohl
rect.
Begley
& Madden
Co.,
Ink
Printing
In the third place, the bill of particulars did not exist in a vacuum. It must be read with the informa- particularized. he asked the defendant tion which supply both particulars is to office a bill “The information additional court the accused the defendant has concerning an accusation constituting a criminal or acts act committed added.) 41 Am. (Emphasis 2d, Jur. offense.” § 163. “The function Informations, Indictments pro- particulars in a criminal case is to of the bill necessary fairly enable vide prepare his defense to understand accused prejudicial charges surprise against without complementary upon It is the shorter the trial. Brown v. Commonwealth, form of indictment.” (Ky.). general “In words, other S.W.2d particulars merely amplifies rule is that a bill of scope proof the indictment and limits the “Sufficiency Note, the trial.” of indictment as particulars,” affected bill 10 A.L.R. particulars supplements The bill of rather than supplants the information or indictment.
In the short form information, the defendant was expressly charged attempting with the crime of money by pretenses obtain false “in violation of *9 Section 53-360 of the General Statutes.” This sec- tion of the a statute, violation of which was the specific charge lodged against in- defendant, in cluded its definition obtaining of the offense the any thing of by any valuable from another, false pretense token, or device, “with intent to defraud person.” him or other particulars, The bill of answering question asking for the nature of by reciting the offense that “the defendant did attempt to obtain the Stop sum of from the $87.79 Shop Waterbury, by assisting Market, one presenting James H. Lee in forged a stolen and certainly check,” did inform the defendant of the of Law Wharton, nature the offense. Criminal 41 Am. (Anderson Rev.) and Procedure 1773; ^ Indictments We 2d, Informations, Jur. to the conclude that there is no merit whatsoever “the state of claim the defendant that present in said information and in the bill Connecticut, particulars, failed to the defendant with charge crime.”
There no error.
In this opinion MacDonald, Loiselle Shapiro, concurred. Js., J. I agree with (concurring).
Bogdanski, result court’s but find unable to in the myself join I opinion. cannot accept reasoning employed by the majority the defendant concluding waived his constitutional to be voluntarily right “informed the nature and cause of his accusa tion” Conn. Const. art. I nor I ; do agree the reference in the short form to the statute which specific defined the suffi offense was cient to the element allege of intent to defraud.
The defendant’s motion to dismiss the information was based on his constitutional right to be informed of the charges against him. The defendant was accused by an information which read as follows: “Francis M. State’s McDonald, Attorney County New Haven at Waterbury, herein acting by Walter Scanlon, Asst. State’s Attorney, accuses Eugene Coleman of the crime of attempting obtain money by false pretenses at Waterbury, or about 8/15/70, violation of Section 53-360 the General Statutes.”
The defendant moved for a bill of particulars, *10 requesting a statement of, among other things, specific “[t]he nature of the offense or offenses . . . with charged [and] which the defendant defendant which acts performed specific [t]he elements of the crime necessary constitute all filed the state bill charged.” particulars as follows: or about August 15,1970 answered “On the defendant did to obtain the sum attempt from the Waterbury, Stop Shop Market, $87.79 one James H. Lee in by assisting a stolen presenting cheek the account of forged upon Guilford Arts Union at the and New Haven Trust New Company, Haven, Connecticut.”
Before trial, defendant’s counsel assured the court that he was satisfied with the answers con- tained in the bill At particulars. the conclusion of the state’s case, however, defendant moved to dismiss the information. One of his grounds dismissal was the state’s failure to allege either the information or the bill of intent particulars to defraud, which is an essential element of the crime. The court denied the motion. At the con- clusion the trial, the information, the defendant’s motion for a bill of particulars and the bill of par- ticulars itself were given to the jury.
General Statutes 53-360 (repealed by Public Acts 1969, No. 828, effective October 1, 1971) pro- vided in pertinent part that “[a]ny person who, by any false token, pretense device, obtains from another any valuable . . . , with intent thing him or any other . . . person, shall be fined defraud not more than five hundred dollars or imprisoned not more than three years or both.” (Emphasis added.) The defendant claims that the information and the bill of particulars taken together failed to him charge with the commission of any crime. *11 272 shall the accused
“In all criminal prosecutions,
informed
nature and
have a
...
to be
right
I
art.
.”
Const.
. . .
cause
the accusation
Ameri
8. That
one of the fundamentals
right,
federal con
can criminal
is also a
jurisprudence,
fourteenth
amendment
right
stitutional
which the
guarantees
prosecutions.
defendants
all state
See
Hamlin,
v.
Argersinger
VI;
U.S. Const. amend.
407
25,
530;
U.S.
92
32 L. Ed. 2d
27-28,
2006,
S. Ct.
In
Gault,
re
1,
387
L. Ed.
33,
1428, 18
U.S.
87 S. Ct.
2d 527; In re Oliver,
499,
333
68
257, 273,
U.S.
S. Ct.
charges against him does not
preserve
outmoded
common-law
of criminal
rules
pleading.
Formal
defects or linguistic imprecision in the state’s plead
if
ings,
nonprejudicial,
are no longer fatal. Practice
Book §§523-531; State v. Beaulieu,
620,
164 Conn.
625, 325 A.2d
State v.
Rafanello, 151 Conn.
263;
453, 456-57,
“An indictment
[or
that does
information]
not
all
allege
the elements of the crime is not cured by
an allegation that what was done was ‘in violation
of’ the statute” which defines the offense and identi
fies its elements. United States v. Guterma, F. Sup. 265, 270 (S.D. N.Y.). Such an allegation “is
not of
allegation
fact but a legal conclusion of the
it
pleader;
constitutes no part of the
of
description
the offense.” Sutton v. United States,
U.S. L. Ed. 380: “It is not controverted all of proceedings Courts either law, against common or the person thing or forfeitures, penalties allegation that was committed in charged act violation of law, provisions particular statute will of of this justify condemnation, unless, of independent stated a case be which allegation, shows that the law to the statute has been violated. reference may direct the attention the Court, particular prose accused, statute which the part sustained, cution is to be but no forms description The importance of this offence. to a fair administration principle justice, to that *13 introduced certainty demanded free of our institutions genius in all prosecutions offences is too against laws, apparent require and the elucidation, itself is too principle familiar not to itself to suggest every gentleman of the pro fession.” (Emphasis added.) Accord, United States Nixon, 231, v. 235 U.S. 35 Ct. 59 Ed. 235, 49, S. L. Tyrrell, State v. 100 207; 924; A. 101, 102, 122 cit. Wharton, 1761; Wright, cit. op. op. § The defendant’s constitutional to know the right nature him a charges against does pose difficult to the it challenge prosecution. Ordinarily is sufficient charge statutory offense in the words of the unless the statute is statute, overly general indefinite so as to require greater partic- Moran, State v. ularity. 99 Conn. 115, 117-18, A. 277; State Costello, supra, 131; Wharton, op. cit. §§1796, 1797; cit. The Wright, op. accused not entitled to a of the preview case prosecution’s or to specifications are merely evidential; Wharton, cit. op. nor is 1764; the state penalized for an unsldllfully drafted it pleading, although may filing ambiguities by clarify be required properly Mola, v. an amended pleading. inform the state’s pleadings If the
The state accused the defendant
in this case with
a so-called short
form information. As permitted
Practice Book
it did not
§493,
describe the
offense charged with
but
particularity
stated
only
the name of the offense and the specific section of
the General Statutes which was allegedly violated.
The rule permitting
short
form informations was
adopted to “avoid unnecessary prolixity”
such as
was required at common law. Davis,
Conn. 319, 320,
The which particulars the state supplies becomes part the record. Practice Book when Thus, a short form information employed, the sufficiency of the state’s can be tested pleadings by reading with conjunction bill of particulars. problem may arise bill of particulars furnished by state still does not adequately inform the defendant. problem That should never become critical, because supplemental bills of particulars be may ordered the court or furnished voluntarily prosecution. Practice 1In the rare case in which represented by an accused is not counsel, justification may appear strained, and the use of form a short accusation would problem raise a presented constitutional not hitherto to this court. *15 § mandate, constitutional Book To enforce the provides: appears § from Book 499 “If it Practice particulars particulars the bills of . . . that charged stated not in the do constitute the offense indictment or shall information . . . the court , quash the indictment unless attorney partic state’s shall furnish another bill of particulars ulars which so states the to show as particulars charged that the constitute the offense in the indictment or information . . .”2.
An intent to defraud was one of the essential ele
by
ments of the offense defined
General Statutes
§ 53-360. When intent is an essential element of the
alleged
by
offense,
accused must be so informed
pleadings.
the state’s
v. McGee,
696,
72 A.
698-99,
141; State v.
Wilson,
500,
503-504; see United States v. Behrman,
258U.S.
S. Ct.
66 L.
Ed.
United
619;
States
Britton, 107 U.S.
655, 669, S. Ct.
27 L. Ed.
(5th
520;
States,
Walker
United
F.2d
Cir.); State v. Fontenot, 256 La.
235 So. 2d
75;
People v. McGuire,
278 unskillfully imprecisely because were they to aver drafted but because omitted they completely an charged, namely, essential element of the offense the intent to defraud.
The state
the defendant waived
argues that
defects in the information and bill of
by
particulars
the
assuring
counsel,
court,
through
answers contained in
bill
were
particulars
sufficient and
after
object until
failing
Kemp,
State v.
state had
put
its case. See
126
McGee,
State v.
Conn.
60, 84,
A.2d
supra.
Since the state could still amend its
pleadings
filing
supplemental bill
either
particulars,
vol-
or on
untarily
order
court,
the defendant’s
motion was not untimely. Furthermore,
the major-
ity rule in this
to which
country,
Connecticut ad-
heres,
is that
omission
the state’s pleadings
of an essential
ingredient
the offense charged
cannot be waived.
Couture,
The error does not, however, reversal require unless it was harmful. The usual rule is that appellant bears burden establishing him.3 “materially injurious” error L’Heureux, 52-265; General Statutes however, When, A.2d 578. 312, 323, occurred, has error constitutional a federal can error and before state, shifts to the burden to declare be able this court “must harmless, be held *17 a reasonable beyond it harmless a belief that 87 24, 18, 386 U.S. Chapman California, v. doubt.” State v. L. see also Ed. 2d 824, S. Ct. 17 L’Heureux, supra. in of the record examination thorough
After a
transcript,
the
of pertinent parts
this
case,
Cali-
of Chapman
standard
I conclude that
the
error
that
the
been satisfied
fornia, supra,
has
sufficient
were
state’s pleadings
The
was harmless.
in
conviction
his
to plead
to enable the defendant
offense.
the same
for
future
any
prosecution
bar
the
that
suggest
not
remotely
record does
or was prejudiced
trial
at
surprised
defendant was
variously
ver
stated, and the
The “harmless error” test has been
always
eaeh
appearing
reports
in
are not
consistent with
sions
our
Vennard,
A.2d 837
Compare
385, 393,
v.
159 Conn.
other.
rulings
showing
that
the
were
(“the defendant has the burden
Tropiano,
probably
v.
[emphasis added])
to him”
with
harmful
949, 90
427,
147,
denied,
U.S.
412,
262 A.2d
cert.
1866,
(“[i]f
that
S. Ct.
in the defense. preparation Counsel for the aware of was well defendant intent requirement Statutes 53-360. He did not General feel a continuance. need to request My conclusion is the fact that on corroborated appeal the defend- pointed ant has possibility of prejudice. It be might argued defendant could have been when the prejudiced bill of incomplete partic- ulars was transmitted to the jury along with defendant’s for the bill of request which particulars, asked for a statement of the “specific nature of the offense” and of the acts “specific performed by defendant which constitute all elements necessary of the crime.” The it jury, be might suggested, could have been into misled ignoring require- ment of intent. I am this satisfied, however, *18 possibility negatived by trial who judge, instructed the on scrupulously jury requirement of intent. The I defendant, note, has assigned error in the charge.
The defendant
that our rule
argues
always
has
been
even in
in
the absence of
that,
prejudice,
dictment
information that
fails to
all
allege
essential
elements of the offense
cannot
charged
result
in a valid conviction.
is the majority
That
rule in the United
and it has
States,
been the rule
Keena,
State
Connecticut.
v.
See, e.g.,
Conn.
Costello,
v.
28 A.
522;
but see A.
477
cit.
v.
; Wharton,
op.
Couture,
House, Loiselle, Bocdanski, Js. MacDonald Argued October 10 decision released October John B. Williams, the appellant (defendant). *19 William F. Gallagher, special assistant state’s attorney, with were Arnold whom, brief, Wright, 4 As Federal pp. Practice and Procedure, says: 233-34 “The purpose fundamental pleadings of the is to inform the defend ant charge of the so that may prepare he defense, his test sufficiency ought to be whether it is fair to the defendant require him to defend on the charge basis of the as stated in the particular indictment or information. requirement The stated every ingredient or essential element of the alleged offense should be must be light read in the just fairness suggested.” test