State v. Plant

1 Conn. Cir. Ct. 76, 22 Conn. Supp. 436
CourtConnecticut Appellate Court
DecidedJuly 18, 1961
DocketFile No. CR 14-216
StatusPublished
Cited by2 cases

This text of 1 Conn. Cir. Ct. 76 (State v. Plant) 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. Plant, 1 Conn. Cir. Ct. 76, 22 Conn. Supp. 436 (Colo. Ct. App. 1961).

Opinion

Rubinow, Chief Judge.

The information charged the defendant with violation of the policy statute, G-eneral Statutes § 53-298. After a trial during which the defendant neither took the stand nor offered any evidence in his own behalf, the court entered a judgment of guilty. The defendant then filed an appeal, stating therein that he desired to have reviewed the court’s conclusion upon the facts. Cir. Ct. Rule 7.21.1. Pursuant to that rule and to Circuit Court Rule 7.22.1, the court made a finding, setting forth the subordinate facts found and the conclusions drawn from those facts. The defendant has assigned error in the refusal of the court to correct the subordinate facts found; in rulings on evidence; in the court’s conclusions drawn from the subordinate facts; and in the court’s conclusion that upon all the evidence the defendant was guilty of the crime charged.

The principal facts set forth in the finding are the following: During the forenoon, on both January 4, 1961, and January 5, 1961, the defendant was on Windsor Street in Hartford, in the vicinity of a hallway entrance to 285 Windsor Street. On January 5, 1961, between 10:45 a.m. and 11:45 a.m., he talked with several people on Windsor Street, and after talking with them, he went into the hallway. This conduct occurred on four or five different occasions. On January 5, 1961, at about 11:45 a.m., the defendant entered the hallway, put his hand in one of three mailboxes that were there, and then [78]*78went out to the street. Immediately thereafter, members of the Hartford police department went to the mailboxes and found in two of them policy slips that showed bets totaling $23.20. These slips were under wine bottle caps. The defendant stated to one of the officers that he, the defendant, had transferred a wine bottle cap from one of the mailboxes to another.

In addition to the foregoing facts, the court found that one of the officers could see more clearly in the hallway because he had a telescopic or binocular glass, and also that, while the hallway was under observation, the defendant was the only person to enter or leave, except on one occasion when another person accompanied the defendant. The defendant filed a motion that the court delete both of these findings. In denying the motion, the court stated that these findings were supported “by other evidence and inferences logically drawn therefrom.” The transcript of the testimony, which we examine in connection with a motion to correct the finding (Cir. Ct. Rule 7.26.1), fully confirms this statement of the court.

The defendant sought to have the finding corrected by adding a finding that it was “possible” for persons other than the defendant to come into the hallway unobserved. The trial court properly refused to make the requested finding. “Statements of circumstances which may possibly or perhaps have happened have no place in a finding.” Williamson’s Appeal, 123 Conn. 424, 432; General Petroleum Products, Inc. v. Merchants Trust Co., 115 Conn. 50,58.

The defendant also sought to have added a finding that there was “no evidence” as to the length of time the slips were in the mailbox. Requesting a finding that there is “no evidence” concerning a sub[79]*79ordinate fact found is unnecessary, because the “no evidence” issue can be raised by assigning error in the court’s ruling on a motion to delete the challenged subordinate fact found. Cir. Ct. Rule 7.29.1(2). Requesting a finding that there is “no evidence” concerning a subordinate fact not found is also unnecessary, because if that fact is essential to the conclusion, the appellant can attack the conclusion on the ground that the fact was not found. Tiernan v. Savin Rock Realty Co., 115 Conn. 473, 476. If the fact about which there is claimed to be “no evidence” is not essential to the conclusion, the weight to be given to the “no evidence” about that fact is a decision for the trial court, not the appellate court. There are, of course, cases where a “no evidence” finding will make clearer the reason for the court’s decision (Sprague v. New York & N.E.R. Co., 68 Conn. 345, 356), but error may not be predicated on the refusal of the court to make such a finding. The motions to correct the finding were properly denied.

The assignment of error relating to the admission of evidence is presented by a mere reference to “admissions” of the defendant, rather than in the manner called for by the Circuit Court Rule 7.29.1(4). In the absence of an exhibit setting forth the question and answer, we lack the material necessary to determine what the ruling was and, a fortiori, to decide whether it was correct.

After having set forth the subordinate facts summarized above, the trial court found, as a preliminary conclusion, that the defendant “exchanges, transfers, collects or receives, or is concerned in transferring or receiving policy slips used in policy playing.” We must read this conclusion as if the word “or” appeared between each of the verbs in the series. State v. Bello, 133 Conn. 600, 604. As [80]*80thus read, the court’s preliminary conclusion does not specify which offense the court concluded that the defendant had committed. Instead, the court’s conclusion states, in effect, only that the accused had committed one or more of several offenses. The court should have set forth explicitly in the conclusion that the defendant committed a specific offense or specific offenses. The facts in a finding, including the facts in the conclusion, should be stated definitely and precisely, not in uncertain or disjunctive language. Maltbie, Conn. App. Proc. § 134, p. 165.

This defect in the court’s preliminary conclusion does not, however, require a reversal of the judgment. If a part of a preliminary conclusion is valid and that part supports the judgment, the judgment will be sustained. Id. § 165, p. 204. A preliminary conclusion is valid if it is supported by the subordinate facts and represents a correct application of legal principles. Bridgeport Hydraulic Co. v. Scor-tino, 138 Conn. 690, 692. Because any one of the offenses enumerated in the preliminary conclusion would support the ultimate conclusion and judgment of guilt, that ultimate conclusion and judgment must be sustained if any one of the offenses enumerated in the preliminary conclusion finds support in the subordinate facts. Bielan v. Bielan, 135 Conn. 163,170.

In our opinion, the subordinate facts support the conclusion that the accused was collecting policy slips. The “commonly approved usage” (General Statutes § 1-1) of the word “collect” includes “to gather into one place.” Merriam-Webster New International Dictionary (2d Ed.). From the subordinate facts, and inferences that could logically be drawn therefrom, it appears that the accused followed a behavior pattern that involved being at a given location on a public street, at a given time, [81]*81for an extended period of time and, also, involved street conversations followed by entrance into the hallway where the mailboxes were. It further appears that the accused placed his hand in one of the mailboxes in which the policy slips were found. The failure of the accused to testify about matters “necessarily within the knowledge of the accused” (State v. Guilfoyle, 109 Conn. 124, 144) creates a strong inference that he put a policy slip or slips in the mailbox when he placed his hand therein. Gathering slips in the mailboxes constituted “collecting” slips within the meaning of the statute.

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Related

Fairfield County Trust Co. v. Steinbrecher
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251 A.2d 185 (Connecticut Appellate Court, 1968)

Cite This Page — Counsel Stack

Bluebook (online)
1 Conn. Cir. Ct. 76, 22 Conn. Supp. 436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-plant-connappct-1961.