190 A.2d 55 | Conn. Super. Ct. | 1962
The defendant was convicted on one count of pool selling in violation of § 53-295 of the General Statutes and has appealed. The information charged that the defendant "on or about June 14, 1961, at Norwalk, did commit the crime of pool-selling (9 counts)" in violation of the statute. The state and defense counsel both accepted this as being an information containing nine counts. The defendant moved for a bill of particulars, asking the state to set out in detail the dates, the places and the specific acts for which he was informed against. This was followed by a further motion that the prosecution specify the dates between June 5 and June 12 on which the defendant violated the statute. In response to the motion, the state filed a bill of particulars alleging that the defendant on all dates from June 5 through June 14, excluding June 11, took horse bets; that these bets were called in to him by telephone by an accomplice who received the bets at a certain manufacturing plant; and that the money was turned over to the defendant by the accomplice at the parking lot of that plant.
Before considering the various assignments of error, we deem it necessary to point out that the initial misunderstanding as to the nature of the information has led to much of the confusion to *249 which the information, as drawn, has given rise. It was assumed that there were nine counts, and the defendant throughout the trial demanded that the state prove each of the counts or any of them. The court found the defendant guilty on one count and not guilty on eight counts.
There was only one count charged in the information, and no trial or judgment could result from the words "(9 counts)." The function of an information is to charge the accused named with the commission of the crime therein set forth. State v.Delmonto,
Our present procedure authorizes the short-form information, in which it is sufficient to charge the offense by using its common-law or statutory name or by reference to the statute of which violation is claimed, by identifying the accused and by stating the time and place of the occurrence. State v. *250 Davis,
The provision in Practice Book § 345 for a bill of particulars fully protected the right of the accused "to demand the nature and cause of the accusation." Conn. Const. art.
The bill of particulars, contrary to the defendant's contention, was not a specification relating to *252
nine separate counts but only a statement of divers events, all of which, severally or together, had reference to that portion of the statute which is directed against "any person who makes, records or registers any such wagers or bets, or buys or sells, or is concerned in buying or selling, any such pools, or in carrying on the business of the transmission of money to any race track or other place there to be bet . . . ." The particulars given the defendant furnished him with such information as he was entitled to have in order to prepare and present his defense; and there is no claim by him that such uncertainty existed in the charge as presented that he was in fact prejudiced in his defense upon the merits or that substantial injustice resulted. SeeState v. Mola,
In our view of the case, it becomes unnecessary to consider in detail any of the thirteen assignments of error directed to the finding, because these are inextricably tied to the erroneous assumption that there were nine counts in the information and that the court was thus presented with the dilemma of determining on which of the nine counts the defendant was found guilty. We have, however, examined carefully the assignments which assert that certain findings were made without evidence and that certain other facts should have been found because they were material and undisputed. There are no corrections that can be made which would materially affect the finding as it stands. The finding and the evidence show the following: On June 14, 1961, a police officer of the Norwalk police department, with a warrant, arrested and searched the person of the accused in the parking lot of the Edwards Company in Norwalk. The accused had in his possession $525.02 and a slip of paper, admittedly in his handwriting, on which was a tally of the amounts of bets placed. A state's witness, Joseph *253 G. Allington, arrested at the same time in that lot, had been in contact with the accused from June 5 to June 14, inclusive, and during that period had turned over to him, in the parking lot, sums of money bet on various horse races. During the period, he delivered to the accused $299 for bets, for which he, Allington, received $60 as his commission. In the defendant's apartment was found, among other papers indicating bets, a tally sheet which contained entries, identified with the name "Joe," showing that the defendant had received the amount of money for bets and paid out as a commission the sum testified to by Allington. The paper found on the person of the accused had thereon entries corresponding to the entries on the tally sheet found in the apartment. It was in the defendant's handwriting and also had written thereon the name "Joe." The court concluded that the defendant was guilty of a violation of § 53-295.
In his assignment of errors, the defendant claims that certain paragraphs of the finding should have been stricken because they were not within the allegations of the bill of particulars. He relies on the rule in State v. Scott, supra, 321, which, referring to a detailed information filed by the prosecution, states: "The Attorney has thus limited himself to the proof of a violation of the statute substantially in the manner described." See also State v. DiLorenzo,
If, as the defendant maintains, the evidence that was adduced did not prove a particular description of the crime alleged in the information, as limited by the bill of particulars, it would amount to a defect in form, or at most a variance between the allegations and proof. Such defect or variance, if it did exist, was amendable and did not constitute ground for acquittal. No prejudice having been claimed or shown, the objection amounts to a technicality which the defendant, in the absence of any proper motion in the trial court, is considered to have waived. Practice Book § 352. "The defendant cannot now obtain a new trial for amendable defects in the information of which he did not seasonably take advantage . . . ." State v. McGee,
The defendant further states that the court in its conclusion on the subordinate facts found that the defendant had violated the statute in a certain manner, that is, by carrying on the business of transmitting money to be bet or placed on any horse race. This ultimate conclusion was the result of a correction made by the court in its original finding, at the request of the defendant. The objection raised by him is that the bill of particulars did not contain such a specific charge. The conclusion of the court, before it was restated, was that the defendant was guilty of violating § 53-295, which was tantamount to a finding of guilty as charged. It was equivalent to a general verdict. The defendant was no more entitled to a further specification in the court's conclusion of guilt than he would have been to interrogatories and a special verdict in a jury trial. We have already observed that a variance between the evidence and the charge, if amendable, is not cause for acquittal. It is not seriously contended that the facts found were insufficient to support a conviction under § 53-295. Neither is it claimed that the evidence offered was not adequate, in the required degree of proof, to sustain a conviction under the portion of the statute quoted above. Whether the reason for the court's conclusion was stated correctly would, under the circumstances, be immaterial, for if the conclusion was valid from facts lawfully found, the fact that the court may have relied upon a wrong analysis or theory does not render the conclusion erroneous. *256 Eastern Oil Refining Co. v. Court of Burgesses,
In his final assignment, the defendant claims error in the ultimate conclusion that upon the evidence he was guilty of the crime charged beyond a reasonable doubt. This assignment is without merit.
There is no error.
In this opinion JACOBS and GEORGE, JS., concurred.