Jacobs v. Holgenson , 70 Conn. 68 ( 1897 )

Hamebsley, J.

If the complaint in this case alleges, and alleges only, the defendant Holgenson’s conviction of the offense created by Chap. 251 of the Public Acts of 1895, the judgment is wrong. The obligations of the bond are determined by the statute law as it was on January 1st, 1896. At that time, by force of § 8064 of the General Statutes, the bond would be forfeited if the licensee should be convicted “ of a violation of any of the provisions of sections 8087 to 3101 inclusive.” No one of these sections then contained a provision forbidding the giving away intoxicating liquors between the hours of 12 o’clock on Saturday night and five o’clock on Monday morning next following; but Chap. 251 of the Public Acts of 1895 creates such an offense, which is similar to one of the offenses defined in § 3097; and it is claimed by the plaintiff that this Act should be construed as if it said: “Section 3097 is amended so as to read as follows ” (incorporating therein the new offense in place of the similar offense defined in the section as originally enacted).

Such construction is not allowable. The Act of 1895 is an independent Act; it does not purport to be in addition to, or amendment of, or repeal of, any prior Act or part thereof. Whether the new offense is so defined as, by implication, to repeal the provision relative to the similar offense contained in § 3097, is immaterial; that section is not amended by including the new offense within its provisions, and therefore a conviction of that offense cannot work a forfeiture of the bond.

The complaint, however, does allege Holgenson’s conviction of a different offense, to wit, keeping open, between the hours of 12 o’clock on Saturday night and 12 o’clock on Sunday night next following, a place where intoxicating liquors are sold. This is admittedly a conviction of the violation of one of the provisions contained in § 3097, and within the condition of the bond.

The defendant urges that in paragraph 3 of the complaint this conviction is defectively alleged. The record of the conviction is a part of paragraph 3, and by including that record in the paragraph the pleader alleges, inferentially at least, that Holgenson was charged in one prosecution with two offenses, to wit: the offense of violating the provisions of the Act of 1895 in the first count, and of violating one of the provisions of § 3097 in the second count; and that by his plea of “ guilty ” he was convicted of each of these distinct offenses. The pleader also in general terms defines the offense of which Holgenson was so convicted, inaccurately and in language of doubtful meaning,' especially in connection with the legal conclusion alleged, that the Act of 1895 was an amendment to § 3097. Paragraph 3 is plainly open to demurrer. We think, however, that the defects are matters of form rather than of substance, and that the paragraph as a whole does substantially allege that Holgenson was convicted of the violation of the provisions of § 3097 specified in the record of conviction, which is made a part of the paragraph. Such formal defects are healed by verdict. Griffin v. Pratt, 3 Conn. 513, 515; State v. Ryan, 68 id. 512, 517. And the finding of the court below, recited in the judgment, that “ the court having heard the parties finds the issue for the plaintiff,” must operate in the same manner. The defendants might have demurred, and in that case the defects could have been cured by amendment. In answering by a specific admission of each allegation in the complaint, they have waived their right of objecting to formal defects as effectually as if they had answered by denial; they cannot now limit the effect of their admissions as evidence upon winch the court may act in finding the issues for the plaintiff. Conn. Hospital for Insane v. Brookfield, 69 Conn. 1, 5. The law requires all demurrers to distinctly specify the reasons why the pleading demurred to is insufficient, and cannot be evaded by treating an answer admitting each allegation as a demurrer to formal defects.

The defendants further urge that the record of conviction indicates that the Police Court regarded the complaint before it as charging a single offense; and that the sentence is illegal if treated as a punishment for more than one offense. The formal finding of the judgment is “ that the accused is guilty in manner and form as alleged in said complaint.” This is conclusive. It is immaterial to the present case whether the sentence was imposed on one or both counts, or is illegal. The bond was forfeited by the conviction, unless an appeal was taken. By the terms of § 3064 the forfeiture took place after the plea of guilty was entered, when the time limited for giving notice of appeal expired. Quintard v. Knoedler, 53 Conn. 485, 487.

There is no error in the judgment appealed from.

In this opinion the»other judges concurred.