Opinion
The plaintiff applied for a writ of habeas corpus, seeking his release from state prison, where he had been confined since his conviction in 1960, as a second offender, of the crime of breaking and entering with criminal intent. He claimed that, because the bench warrant for his arrest prior to his first conviction of that crime in 1958 had been issued on an application unsupported by oath or affirmation, its issuance violated the state constitution, and that therefore that first conviction could not stand, nor consequently the 1960 conviction as a second offender. He alternatively claimed, that, under the rule of State v. Licari, 153 Conn. 127, applied retrospectively, the 1960 judgment had to be declared a nullity. On appeal from the denial of the writ, held that, for the reasons set forth in Reed v. Reincke, ante, p. 591, the 1960 judgment could not be disturbed.
Argued November 9, 1967
Decided December 7, 1967
Habeas corpus alleging unlawful imprisonment, brought to the Superior Court in Hartford County and tried to the court, Palmer, J.; judgment dismissing the writ, from which the plaintiff appealed. No error.
David M. Borden, special public defender, for the appellant (plaintiff).
Robert K. Walsh, assistant state's attorney, with whom, on the brief, was George R. Tiernan, state's attorney, for the appellee (defendant).
In 1958, the plaintiff was arrested pursuant to a Superior Court bench warrant issued on an application unsupported by oath or affirmation. Thereafter, he was presented in the Superior Court and pleaded not guilty to a charge of breaking and entering with criminal intent and, following a court trial, was convicted, sentenced to, and imprisoned in the Connecticut reformatory. In 1960, he was again presented in Superior Court and pleaded guilty to a count of breaking and entering with criminal intent and to a count charging him with being a second offender. He was sentenced to the state prison, where he is now confined. In May, 1965, he brought this petition for habeas corpus, acting pro se. The writ issued, and counsel was appointed to represent him. The petition alleged the imprisonment to be illegal and in violation of the fourth, sixth, and fourteenth amendments to the constitution of the United States and of article first, 8, of the Connecticut constitution (now Connecticut constitution, 1965, article first, 7). The claim is that the arrest prior to the 1958 conviction was illegal, that, therefore, that conviction cannot stand, and that consequently he was improperly convicted as a second offender in 1960. The claim, under the sixth amendment, that he was "not adequately represented by counsel" has been abandoned. State v. Grimes, 154 Conn. 314, 317, 228 A.2d 141. Following a hearing, the petition was denied, the judgment was certified for review, and the plaintiff has appealed.
The claim is that, under what is now article first, 7, of the constitution of Connecticut, there has always been the requirement that an arrest warrant be issued only on oath or affirmation, and consequently a retroactive application of State v. Licari, 153 Conn. 127, 214 A.2d 900, is not necessary for the granting of the relief sought. In the alternative, it is claimed that, if the first proposition is unsound, the Licari case must be given retrospective effect. In either event, it is claimed that the 1960 judgment must be declared a nullity, and the plaintiff must now be released from confinement.
In Reed v. Reincke, 155 Conn. 591, 599, 236 A.2d 909, we discussed at length the reasons why an arrest held to be illegal under the mandate of the fourth amendment to the constitution of the United States did not, when no timely objection was made, deny due process of law to an accused person. The language of what is now 7 of article first of the constitution of Connecticut does not differ significantly from that of the fourth amendment to the constitution of the United States. No reason is suggested to us in the present case, nor do we conceive of one, for applying any different reasoning to the one section than to the other. For the reasons set forth in the Reed case, we hold that the judgment cannot be disturbed.