State v. Costello

241 A.2d 548, 5 Conn. Cir. Ct. 51, 1968 Conn. Cir. LEXIS 169
CourtConnecticut Appellate Court
DecidedJanuary 19, 1968
DocketFile No. CR 5-10653
StatusPublished

This text of 241 A.2d 548 (State v. Costello) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Costello, 241 A.2d 548, 5 Conn. Cir. Ct. 51, 1968 Conn. Cir. LEXIS 169 (Colo. Ct. App. 1968).

Opinion

Kosicki, J.

The defendant was charged with pool selling in violation of General Statutes § 53-295 and with policy playing in violation of § 53-298. Before arraignment, he filed a motion for a bill of particulars which the court denied, and later he filed a motion to quash the arrest warrant which was also [53]*53denied. After a trial to the court, the defendant was found guilty on each count and has appealed.

In his motion to correct the finding, the defendant has requested the striking from or adding to the finding of facts which he claims, in his assignment of errors, were admitted, undisputed or uncontradicted. We have examined the transcript and find that there was evidence which, with the reasonable inferences therefrom and the subordinate facts found, furnished support for the conclusions. “Facts are not admitted or undisputed merely because they are not contradicted. The question of credibility is for the trier.” National Broadcasting Co. v. Rose, 153 Conn. 219, 223; Setaro Motors, Inc. v. Intelisano, 151 Conn. 590, 592.

The finding, which is not subject to any of the corrections sought by the defendant, shows the following facts: On April 13, 1967, and for approximately four years prior thereto, Sergeant Dennerstein was attached to the criminal intelligence unit of the Connecticut state police department. He had been a member of that department for about eleven years. The criminal intelligence unit concerns itself with organized crime as it pertains to gambling, prostitution, narcotics and other vices. He was an expert on the prohibited operations of pool selling and policy playing. On the date mentioned, at about 12:55 p.m., Sergeant Dennerstein was on duty at a factory known as H. C. Cook Company, in Ansonia. For a while before the time stated, he had under observation a telephone booth, located in another room, to which various people had access. During the period of observation, he was about thirty or forty feet away from the telephone booth and had seen three or four women enter and leave it. At the hour mentioned, he heard the telephone bell ring in the booth he was watching. Thereupon he saw the defendant enter the booth. Sergeant Dennerstein [54]*54approached the booth to a point between a foot and one and one-half feet from it. He saw the defendant seated in the booth with numerous white slips of paper in his hand and a number of other white slips on a telephone book resting on the shelf in the booth. The telephone receiver was lying on that shelf. There was sufficient light for Sergeant Dennerstein to read the matter written on the top slip in the defendant’s hand, and it consisted of horse bets. Sergeant Dennerstein then arrested the defendant as a result of his observations and his ability to decipher that the top slip the defendant held in his hand while using the telephone had horse bets written thereon. After the arrest, Sergeant Dennerstein took into his possession the slips of paper which were in the defendant’s hand and which contained a record of horse bets, and also the slips on the booth shelf which had written thereon tallies of policy plays.

Upon the foregoing subordinate facts, the court concluded that the defendant was concerned with the buying or selling of pools in violation of § 53-295 of the General Statutes and with policy playing in violation of § 53-298. In his appeal, the defendant has assigned a number of errors, claiming that the court erred (1) in denying his motion for a bill of particulars; (2) in denying his motion to quash the arrest warrant; (3) in denying his motion to suppress evidence; (4) in finding certain facts without evidence; (5) in failing to find certain facts in the defendant’s motion to correct, which facts were admitted or undisputed, or as to which “no evidence was offered to dispute them”; (6) in. reaching the conclusions it did when the subordinate facts found do not support them; (7) in admitting the evidence of Sergeant Dennerstein; and, finally, (8) in concluding on all the evidence that the defendant was guilty as charged beyond a reasonable doubt. We have [55]*55already considered the claims raised by the fourth, fifth and sixth assignments, and no further discussion is necessary. Furthermore, the facts sought to be added to the finding would in no way have affected the issues presented and the ultimate results arrived at.

I

“The information is in the short form authorized by Practice Book . . . [§ 493]. At common law it was necessary to set forth in an information, in detail, the means by which the particular offense was accomplished. 2 Swift’s Digest 378. That requirement has now been removed by the rule. It was to avoid unnecessary prolixity that the rule permitting short-form informations was adopted.” State v. Davis, 141 Conn. 319, 320. “The practice authorized by . . . [§ 493] has been held to be constitutional.” State v. Whiteside, 148 Conn. 208, 211, citing State v. Davis, supra. The information in this ease, although in general terms, is sufficient in that it charges the defendant with crimes according to the terms of and by reference to the statutes creating the crimes, and it sets forth with precision the date when and the place where the crimes are alleged to have occurred. State v. Davis, supra; Practice Book §§ 493, 494.

The motion for a bill of particulars consisted of more than two pages and sought allegations of minutiae which were mainly evidential in nature. Under the circumstances here present, they were not needed by the defendant to inform him “of the particulars of the offense sufficiently to enable bim to prepare his defense, or to give him such information as he is entitled to under the constitution of this state.” Practice Book § 495. The statutes were plainly directed at certain types of gambling and specified various ways in which the offenses might [56]*56be committed. See State v. Scott, 80 Conn. 317, 324; State v. McLaughlin, 132 Conn. 325, 337, A-211 Rec. & Briefs 441. The arrest of the defendant was made at the time of the alleged commission of the offenses charged. All the information necessary to prepare a defense was detailed in a warrant which was made part of the file and was available to the defendant for examination.

The defendant is not entitled “to a preview of the state’s case or to specifications that are simply evidential. ... If the evidence shows that the crime alleged was committed in a certain manner, then the information must be read as though it alleged that the crime was committed by that means. State v. Mele, 140 Conn. 398, 402.” State v. Miller, 24 Conn. Sup. 247, 250, 1 Conn. Cir. Ct. 534, 538. Since the defendant offered no evidence to support his claim that the information sought was required for preparation of his defense, the denial of his motion for a bill of particulars was not erroneous. State v. Curtis, 146 Conn. 365, 368.

II

In his second assignment, the defendant claims error in the court’s denial of his motion to quash the arrest warrant. He points to no authority, nor have we been able to find any rule by statute, practice or under common law for such a motion. It is elementary that a warrant is not a pleading, and whereas formerly it was part of the arrest file it is now returned, after execution, to the court which issued it.

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Jones v. United States
362 U.S. 257 (Supreme Court, 1960)
Wong Sun v. United States
371 U.S. 471 (Supreme Court, 1963)
State v. Whiteside
169 A.2d 260 (Supreme Court of Connecticut, 1961)
State v. Licari
214 A.2d 900 (Supreme Court of Connecticut, 1965)
State v. Collins
191 A.2d 253 (Supreme Court of Connecticut, 1963)
State v. Mele
100 A.2d 570 (Supreme Court of Connecticut, 1953)
State v. Rafanello
199 A.2d 13 (Supreme Court of Connecticut, 1964)
State v. Curtis
151 A.2d 336 (Supreme Court of Connecticut, 1959)
National Broadcasting Co. v. Rose
215 A.2d 123 (Supreme Court of Connecticut, 1965)
State v. Elliott
215 A.2d 108 (Supreme Court of Connecticut, 1965)
State v. Davis
106 A.2d 159 (Supreme Court of Connecticut, 1954)
State v. Traub
187 A.2d 230 (Supreme Court of Connecticut, 1962)
State v. Scott
68 A. 258 (Supreme Court of Connecticut, 1907)
State v. McLaughlin
44 A.2d 116 (Supreme Court of Connecticut, 1945)
State v. Barles
197 A.2d 339 (Connecticut Superior Court, 1964)
State v. Miller
190 A.2d 55 (Connecticut Superior Court, 1962)
State v. Dibble
22 A. 155 (Supreme Court of Connecticut, 1890)
State v. DelVecchio
182 A.2d 402 (Supreme Court of Connecticut, 1962)
Setaro Motors, Inc. v. Intelisano
200 A.2d 728 (Supreme Court of Connecticut, 1964)
State v. DeMartin
216 A.2d 204 (Supreme Court of Connecticut, 1965)

Cite This Page — Counsel Stack

Bluebook (online)
241 A.2d 548, 5 Conn. Cir. Ct. 51, 1968 Conn. Cir. LEXIS 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-costello-connappct-1968.