State v. Duffy

66 Conn. 551 | Conn. | 1895

Andrews, C. J.

This is an appeal for the revision of questions of law decided by the court below, in its charge to the jury. For the presentation of such questions a finding of sufficient facts to properly present the errors claimed to exist in the charge, is essential; and the trial judge is required to make such finding upon request of the appellant, but not without such request. General Statutes, §§ 1129, 1132. The questions of law relied upon must be specifically stated in the appeal; and in such an appeal as this the questions so specified cannot be considered, unless it appears by the finding that they were distinctly raised at the trial, and were decided by the court adversely to the appellant’s claims. General Statutes, § 1135. The request for a finding must contain a draft for a proposed finding and a statement of the questions of law arising thereon which it is desired to have reviewed, and such request must be filed in duplicate, one copy for the judge, and one copy for counsel on the opposite side who, after examining the proposed finding and statement of questions of law alleged to have arisen, may file a counter finding. Rules of Court, XVII., § 3.

These provisions of statute and rules of court must be followed, to entitle a party as of right to a finding, and to consideration in this court of the errors specified in the appeal. White Co. v. Howd, ante, p. 264.

The request of the present appellant consisted onty of a proposed finding, and did not contain any statement of the questions of law he desired to have reviewed. The trial judge might have refused to make any finding, unless the requests were properly amended. The judge, however, against the objection of the appellee, ruled that the requests for charge and the charge which were included in the proposed finding, might be construed as a sufficient request and statement of the questions of law, under the rules, and made a finding. We think the trial judge might well have ruled the other way. Possibly it would have been wiser if he had ruled against the appellant; such a practice would tend to an evasion of the law regulating appeals that might seriously limit its beneficial purpose.

The sufficiency of the request for a finding is a question to be passed upon by the trial judge. We do not discuss what remedy an appellee aggrieved by the decision on that question may have, because, if he has any remedy, it is not by plea in abatement to the appeal in this court, and the question of any other remedy is not before us, and has not been argued. We may fairly presume that, in view of recent decisions on this subject, the simple rules relating to appeals will be so followed that no question of this kind will arise hereafter.

It appears by the finding that “ during the trial, the counsel for the defense made the claim that upon proof that the prosecuting officer, at the time of drawing the original information, knew to whom the alleged sale was made, he was in duty bound to insert the name in the information, and having failed so to do, the accused was entitled to a discharge. The defendant called H. A. Hull, Esquire, the Prosecuting Attorney of this court, who admitted having drawn or advised in the drafting of the original information, to testify as to his knowledge at that time regarding the person to whom the alleged sale was made. The Prosecuting Attorney of the town court of Stonington was also called to testify regarding the same matter. Upon this evidence the State claimed to have proved that neither Mr. Hull nor the Prosecuting Attorney had knowledge, at the time the original information was drawn, as to whom the alleged sale was made, but that officer Gilmore, in giving them information regarding the sale did not state to whom the sale was made, but said that there was ample proof of the sale, which would be forthcoming at the time of the trial. The defense claimed from this testimony and from the other testimony in the case, that both said Hull and the Prosecuting Attorney of the town court in Stonington, or at least one of them, knew at the time the original information was drawn, to whom the alleged sale was made, and that Mr. Hull was present and heard the testimony in the lower court.”

In respect to these claims the defendant requested the court to charge the jury as follows:—

(1) “ If it appears that the name of the purchaser of intoxicating liquors is known to the law officers making a complaint, at the time of making the same, for the illegal sale of intoxicating liquor, the name of the purchaser must be given in the complaint, and if the sale in such case is charged as being made to a person unknown, then the defendant must be acquitted.

(2) “ If the complaint in this case was made for no particular offense of illegal selling and without any ¡rarticular offense in view, then the defendant must be acquitted.

(3) “ Where a witness testifies positively that he was present at a trial and heard a certain statement of a witness, and another witness testifies that he was present at the same trial and did not hear any such statement, and that he could have heard it if made, the witness who testifies that he heard the remark is, everything being equal, entitled to more credit than the opposite; because if no such statement was made, the first witness commits perjury, whereas the second witness who testifies he did not hear the statement, may be mistaken.”

Each of these requests was complied with. The judge charged the jury that the law was, in these respects, as stated by the defendant’s counsel. The defendant has appealed, and assigns as reasons for his appeal that the judge erred in the remarks he made to the jury in connection with the several requests. We have gone over the finding with considerable care, and are not able to concur with the appellant. In every case where a court is requested to instruct the jury as to a rule of law, the request, if granted, must be accompanied with such comments as will enable the jury to apply the rule to the facts claimed to be proved in the case. Wherever the facts are disputed, the rule of law must be stated to the jury, conditioned upon their finding the facts to be as claimed by the party making the request. This is what was done in the present case. Take the first request: the rule of law could only be applied if the jury found that the prosecuting officer at the time the information was drawn, knew the name of the person to whom the alleged sale of liquor was made. And the judge said to the jury, commenting upon the evidence on this part of the case, that they should not guess, but should be satisfied by the proof on this point, as upon any other question. So as to the second request: what was said was by way of illustration of the sort of a case to which that request would apply. It was said to aid the jury in making a proper application of the request to th'e facts claimed to be shown by the evidence before them. As to the third request, the remarks of the judge were well calculated to guide the jury to the right use of the rule stated.

On the whole we think the comments of the judge were not only not erroneous, but were fair and reasonable, and such as were suited to the circumstances of the case. They were within the rule heretofore laid down many times by this court and other courts. First Baptist Church v. Rouse, 21 Conn., 160, 167; Lillibridge v. Barber, 55 id., 366; Comstock’s Appeal, ibid., 215; People Sav. Bank v. Norwalk, 56 id., 547; Butte Hardware Co. v. Wallace, 59 id., 336; Greenleaf v. Birth, 9 Peters, 292, 299; Rowell v. Fuller, 59 Vt., 688. We think the appellant has no ground of complaint.

We are not, however, prepared to commit ourselves unreservedly to the rule stated by the trial court in this case in the first request: that when any person is on trial upon an information for selling liquors without a license, which charges a sale to a person unknown, and it is shown that the name of the person to whom the alleged sale was made was known to the informing officers, the accused must be acquitted. That there are authorities to this effect is true; and very respectable ones. But whether it may not be successfully shown that these authorities rest upon an erroneous assumption, we desire to leave for future discussion if a case should ever arise.

It is true that the identification of the person upon or against whom a crime is committed, has always been considered as material to constitute the offense; and so the person aggrieved by the crime, or from whom property has been stolen, must be described by name, or, when that is impracticable, by the best description attainable ; but if the name of a third party be immaterial to constituting the offense, it may be rejected as surplusage. U. S. v. Howard, 3 Sumner, 12. But in this case the offense is a statutory misdemeanor, and consists in selling liquor without a license. The material facts that constitute the offense are two: the act of selling liquor, and the non-possession of a license. The kind, quantity, and value of the liquor, the person or persons who' purchase it, the manner and circumstances of selling it, may all in the course of the trial become material to the proof of the offense; but the detailing of all such matters in the information, is not material to constituting the offense created by the statute. The offense is not against any person; it is against the State alone; a mere violation of a police regulation, and is complete with the action of an unlicensed person by which he sells liquor. Whether the name of the purchaser, known or unknown, is more material to the description of the offense created by the statute, than the kind or quantity of the liquor sold, or the bill of sale, or coin given in payment, or other evidence of the act of selling, — -as said above, we leave for future discussion.

There is no error.

In this opinion the other judges concurred.