State v. Kelly , 100 Conn. 505 ( 1924 )

Counsel for the accused filed a motion to correct the finding made by the trial court, and at the same time filed exceptions. The exceptions are to certain paragraphs of part I of the finding, and to the refusal of the court to find certain paragraphs of part II as requested in the draft-finding. The motion to correct does not contain reference to part I of the finding, but to the paragraphs set forth in part II of the exceptions, together with new matter not included in the draft-finding. The exception to part I cannot constitute a valid reason of appeal, since it is not a part of the motion to correct. Young v. Shetucket Coal Wood Co.,97 Conn. 92, 95, 115 A. 672.

The remedies open to the accused to secure a correction of the finding in a case tried to the jury were two: that under General Statutes, § 5836, and that under § 5829.State v. Klein, 97 Conn. 321, 326, 115 A. 596; Hartford-ConnecticutTrust Co. v. Cambell, 97 Conn. 251, 253, 116 A. 186; State v. Gargano, 99 Conn. 103, 106,121 A. 657. The accused obviously has not pursued the remedy by § 5836. That remedy is particularly adapted to corrections in the appeal record requiring the use of evidence outside the record, although it has been used in cases tried to the court as well as to the jury, where the corrections desired do not require for their determination evidence to be taken outside the record. Merwin v. Backer, 80 Conn. 338, 347,68 A. 373; Fisk's Appeal, 81 Conn. 433, 440, 71 A. 559; Bristol v. Pitchard, 81 Conn. 451, 454, 71 A. 558; McWilliams v. McNamara, 81 Conn. 310, 311, 70 A. 1043;Griswold v. Guilford, 75 Conn. 192, 196, 52 A. 742;Sansona v. Laraia, 88 Conn. 136, 137, 90 A. 28; State v. Reynolds, 95 Conn. 186, 190, 110 A. 844; Hartford-ConnecticutTrust Co. v. Cambell, supra; State v. Klein,supra. The remedy attempted to be pursued by the accused was that provided by § 5829, viz., by a motion to correct or to add to the finding, and by an appeal from such finding or refusal to find as requested in the manner provided in § 5830. "The finding, in the case of a jury trial, will be corrected only when it is reasonably necessary to fairly present a claimed error in law made by the court." State v. Gargano, supra, p. 106. Whether the method adopted under § 5829 be by motion to correct or by exceptions, the appellant must on appeal adopt the method of § 5830. A part of that method requires the filing of such excerpts from the evidence as are applicable to each of the corrections or exceptions which form a part of the appeal. The objection to this course, that it may involve the reprinting of the same evidence a number of times, is not tenable, since the refiling and reprinting should be avoided by some form of reference. Section 11 of the Rules of the Supreme Court of Errors (Practice Book, p. 309) likewise requires that the motion to correct, or the exceptions, shall be accompanied by a transcript of all the evidence bearing upon each of the several motions to correct, or exceptions, and each exhibit designated as applicable to one or more of the motions or exceptions. Instead of pursuing this course, counsel for the accused has filed a transcript of what purports to be the entire evidence applicable to the corrections claimed, thus imposing upon the trial court the duty of selection which the statute and rules impose upon counsel. The denial by the trial court of the motion to correct and its ruling refusing to certify the evidence were correct.Hartford-Connecticut Trust Co. v. Cambell, supra; State v. Klein, supra; State v. Gargano, supra.

The same practice prevails under § 5829 as under § 5830, except that § 5829 provides an additional remedy by way of exceptions. DeFeo v. Hindinger,98 Conn. 578, 580, 120 A. 314. In all cases under § 5829 and § 5830, only such evidence as bears upon each of the several corrections claimed shall be certified.

The method of correcting a finding provided by General Statutes, § 5832, is applicable to the correction of findings in a court case and not to a jury case. State v. Klein, 97 Conn. 321, 326, 116 A. 596.

The application of the appellant (the accused) is denied.