149 Conn. 567 | Conn. | 1962
This is an appeal from the Court of Common Pleas, where the defendant was accused of a violation, in 1959, of § 53-298 of the General Statutes, entitled “Policy Playing,”
The defendant has assigned error in the finding, in rulings on the admission of evidence, and in the court’s ruling that he was not put in double jeopardy by a finding of guilty of a violation of General Statutes § 53-298 when he had been acquitted, in the West Haven Municipal Court, of a violation of § 53-295.
We shall consider first the ruling on the admission of evidence. The defendant claims that the police obtained the decisive evidence in the case by a search of his person and automobile after an unlawful arrest without a warrant of any kind. The finding of the court, with such corrections as we find should be made, may be stated in summary as follows: About 2:45 in the afternoon of September 12, 1959, Paul Albanese drove his Nash Rambler automobile east on route 1 and turned into the west driveway of the Dairy Queen, an ice-cream parlor located on the south side of route 1 in West Haven. He went around the back of the building and parked on the east side of it, backed in on a
Donald Paige, a police sergeant, arrested the defendant at the Dairy Queen. Albanese and the defendant were taken to the West Haven police headquarters, about two miles away. There, Paige searched the Cadillac. He found five packages of pads of blank blue-lined yellow paper, similar to the sheets in Albanese’s possession which listed the policy bets; a box of carbon paper the size of the sheets; and, in the glove compartment, a pad of paper and a notebook. When the defendant was asked to empty his pockets, he took out a roll of money amounting to $1091 and a notebook which had inside it a pencil and a pad similar to the pad found in the glove compartment of the Cadillac. The pad which the defendant removed from his
At the trial, the defendant made timely objection to the admission in evidence of the items seized pursuant to the search of his person and the Cadillac. He claimed that the search and the seizure which made this evidence available to the prosecution were illegal and in violation of rights guaranteed to him by article first, §§ 8 and 9, of the constitution of Connecticut and the fourth, fifth and fourteenth amendments to the federal constitution.
It has long been the law in this state that evidence, although obtained by unlawful search and seizure, is, nevertheless, admissible in a criminal prosecution. State v. Carol, 120 Conn. 573, 575, 181 A. 714; State v. Reynolds, 101 Conn. 224, 231, 125 A. 636; State v. Magnano, 97 Conn. 543, 546, 117 A. 550; State v. Griswold, 67 Conn. 290, 306, 34 A. 1046. In Mapp v. Ohio, 367 U.S. 643, 648, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, the Supreme Court of the United States held that the rule announced in Weeks v. United States, 232 U.S. 383, 398, 34 S. Ct. 341, 58 L. Ed. 652, excluding, in federal courts, evidence obtained by searches and seizures in violation of the federal constitution, is enforceable against the states under the due process clause of the fourteenth amendment. On this point, the Mapp case, supra, 654, overruled Wolf v. Colorado, 338 U.S. 25,
We examine the law of this state to determine whether the arrest was lawful. See Johnson v. United States, 333 U.S. 10, 15, 68 S. Ct. 367, 92 L. Ed. 436; United States v. Di Re, 332 U.S. 581, 589, 68 S. Ct. 222, 92 L. Ed. 210. General Statutes § 6-49, entitled “Arrest without warrant,” compre
We had occasion to consider the phrase “taken or apprehended in the act” in Price v. Tehan, 84 Conn. 164, 79 A. 68, which concerned an arrest, without a warrant, for a misdemeanor. We pointed out (p. 168) that the arrest there was made on the strength of the officer’s own knowledge, gained from
Our right to remand a case for a new trial where there is error is unqualified. General Statutes
Since a new trial is to be ordered, we shall dispose of the defendant’s claim that he was subjected to double jeopardy. He was acquitted in the Municipal Court of West Haven on a charge of violating § 53-295, the pool selling statute. He asserts that the offense charged under that statute and the of
The defendant also assigned error in one other ruling on evidence. That assignment, however, was not pressed in brief or oral argument, and we consider it abandoned.
There is error, the judgment is set aside and a new trial is ordered.
In this opinion the other judges concurred.
<!See. 53-298. policy playing; gaming by use op lottery slips OR tickets. Any person, whether a principal, agent or servant, who owns, possesses, keeps, manages or maintains, or assists in keeping, managing or maintaining, any policy-office or place where the game of chance, business, scheme or occupation, commonly known as policy, is, or is reputed to be, played or carried on, or any place where bets or wagers are, or are reputed to be, made upon the result of a drawing in any lottery, or of the drawing of any numbers by chance, or any place which is, or is reputed to be, resorted to for any such purposes in whole or in part, or writes, sells, bargains, exchanges, gives, transfers, delivers, buys, collects or receives, or is concerned in writing, selling, bargaining, exchanging, giving, transferring, delivering or receiving, any policy slips, tickets, tokens, numbers or chances, used in said game of chance, business, scheme or occupation, or in wagering or betting upon the result of any drawing in any lottery, or in any drawing of any numbers by chance, or collects or receives, or is concerned in receiving or collecting, any money or other valuable thing for any such slips, tokens, numbers or chances, or plays or takes part in any way in such game of chance, business, scheme, occupation, betting or wagering, in or out of any such office or place, or frequents any place or office where the game of chance, business, scheme or occupation, commonly known as policy, is, or is reputed to be, played or carried on in whole or in part, or any place where wagers or bets are, or are reputed to be, made upon the result of any drawing in any lottery, or of any drawing of any numbers by chance, or frequents any place which is, or is reputed to be, resorted to for any of such purposes in whole or in part, or makes, manufactures or keeps, or is the custodian of, any slips, tokens, papers, books, records or registers of bets or wagers, or any appliances or apparatus used for any such purposes, shall be fined not more than one hundred dollars or imprisoned not more than six months or both. Any owner, mortgagee in possession, lessee or occupant of any building, room, structure or place, or part thereof, who knowingly permits the same to be used or occupied for any of the purposes mentioned in this section, shall be fined not more than one hundred dollars or imprisoned not more than six months or both.”
“See. 6-49. arrest without warrant. Sheriffs, deputy sheriffs, •county detectives, constables, borough bailiffs, police officers, special protectors of fish and game and railroad and steamboat policemen, in their respective precincts, shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when ■such person is taken or apprehended in the act or on the speedy information of others, and members of the state police department •or of an organized local police department or county detectives shall arrest, without previous complaint and warrant, any person who such officer has reasonable grounds to believe has committed or is committing a felony. Any person so arrested shall be presented with reasonable promptness before proper authority.”