Opinion
Upon the evidence held that the court was not unwarranted in concluding that the state failed to prove the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor beyond a reasonable doubt. After the case had been argued, this court permitted the state to amend the record to include the transcript of the arguments of counsel and the statements and rulings by the trial court incident thereto. The amendment failed to bear out the state's claim that the court reached its conclusion through a mistaken interpretation of State v. McDonough, 129 Conn. 483, as holding it essential to conviction that there be direct testimony by a witness that he saw the defendant operate the vehicle. The McDonough case is not open to the construction that, in order to convict, direct testimony by a witness that he saw the defendant operate the motor vehicle while under the influence of intoxicating liquor is necessary. The universal rule that circumstantial evidence which affords the basis for an inference of guilt beyond a reasonable doubt may be sufficient to convict applies in this offense as it does in every other criminal prosecution.
Argued January 6, 1944
Decided February 10, 1944.
INFORMATION charging the defendant with the crime of operating a motor vehicle while under the influence of intoxicating liquor, brought to the Court of Common Pleas in New Haven County and tried to the court, Swain, J.; judgment of not guilty and appeal by the state. No error.
The appellee filed a plea in abatement which was overruled and a motion to dismiss the appeal which was denied.
PER CURIAM. On September 22, 1943, the state, having secured permission from the trial court, filed an appeal from the judgment in this case, which was tried to the court without a jury. The appeal followed the form in the Practice Book as it was before an amendment to the rules which took effect September 1, 1943. The plea in abatement is based on the fact that the appeal does not accord with the provisions of that rule. The state demurred to the plea. The amendment was adopted to bring our rules into conformity with a change in the statute concerning appeals made by the last General Assembly under which it is now possible to take a single appeal both from a ruling on a motion to set a verdict aside and from the judgment. General Statutes, Sup. 1943, 728g. The concluding paragraph of the rule (Practice Book, 335) is as follows: "The appeal shall state whether the appellant considers himself aggrieved (1) by the decision of the court on questions of law arising during the trial or (2) by the decision of the court on a motion to set aside the verdict or in arrest of judgment, or (3) by both. The appeal shall follow the appropriate portion of Form 643 as amended." The appeal filed does not conform to the provisions of this rule. However, our rules are not adopted with a view to interposing technicalities in the way of a determination of the questions at issue and are to be liberally construed. Practice Book, 423. In this case, the allowance of the appeal by the trial court indicates that there is some question involved of such a nature that, if the trial court committed an error, there was a serious miscarriage of justice, or that its final determination by this court is necessary in the public interest. Also some leniency may properly be allowed where counsel fail to heed so recent a change in the rules as the one here in question. The appeal as filed is adequate to present any question of law arising at the trial. In matters where the statutes fix definite requirements for the taking of an appeal and in matters of substance, there must be a strict compliance with the statutes and rules. White v. Howd, 66 Conn. 264, 266, 33 A. 915; State v. Caplan, 85 Conn. 618, 621, 84 A. 280. But to abate the appeal in such a situation as the one before us would be to exalt technicalities above substance. The demurrer to the plea in abatement is well-founded. The motion to erase is based on the fact that the assignments of error are to the effect that the trial court erred in holding the defendant not guilty upon all the evidence. This assignment follows the procedure adopted to permit this court to review a judgment of guilty in a criminal case tried to the court in the same way that it would if the case were tried to the jury and a motion were made to set the verdict aside. State v. Frost, 105 Conn. 326, 333, 135 A. 446; State v. Cots, 126 Conn. 48, 53, 9 A.2d 138. It suffices for our decision upon the motion to point out that where a valid appeal has been taken a motion to erase is not the way to take advantage of the fact that improper assignments of error have been filed. Even a Plea in abatement does not lie in such a case. Distin v. Bradley, 83 Conn. 466, 471, 76 A. 991. The proper procedure for presenting the question would have been to make a motion to this court to strike out the assignments of error. See Grand Lodge of Connecticut v. Grand Lodge of Massachusetts, 83 Conn. 241, 260, 76 A. 533. The demurrer to the plea in abatement is sustained and the plea overruled; the motion to erase is denied.
After argument, the appellant made a motion to amend the record on appeal which was granted.
Edwin S. Pickett, prosecuting attorney, for the appellant (state).
Ellsworth B. Foote, with whom, on the brief, were David E. FitzGerald, Jr., Charles Albom and Richard C. Hannan, for the appellee (defendant).
The defendant was charged with operating a motor vehicle in Bethany on July 27, 1943, while under the influence of intoxicating liquor, in violation of 496e of the Cumulative Supplement, 1939. The state produced evidence and rested its case. The defendant offered no evidence. The trial court found him not guilty and the state, with the consent of the trial court, has appealed, assigning error in holding that upon the evidence the defendant was not guilty as charged and in failing to hold him guilty beyond a reasonable doubt. The question for determination, therefore, is whether upon the entire evidence the trial court erred in adjudging the defendant not guilty. State v. Frost, 105 Conn. 326, 332, 135 A. 446; State v. Cots, 126 Conn. 48, 53, 9 A.2d 138. Our determination of this issue renders it unnecessary to consider other questions raised by the defendant.
The state offered evidence of these among other facts: After dark on the evening of July 27, the defendant's motor truck, with lights out and headed north, was parked with its left wheels about one foot east of the center line of a main highway in Bethany a short distance south of the crest of a hill. It was there less than three-quarters of an hour. The defendant, who was alone, was lying back in the driver's seat with his head thrown back. He was unconscious and in no condition to drive. There were two bottles partly filled with alcoholic liquor back of the seat. The defendant admitted to police officers that he was the driver of the truck. He owned it and had an operator's license.
On the printed record the state's case in support of both elements essential to the defendant's guilt, to wit, that he was operating the truck and while doing so was under the influence of intoxicating liquor, was a strong one, especially as supplemented by the inference arising from his failure to testify. The state, however, produced as witnesses, aside from two police officers, the drivers of three cars which stopped at the scene. None of these testified that the defendant was under the influence of liquor, and one testified that the defendant appeared sick rather than drunk and that he noted no odor of alcohol on the defendant's breath. It was also in the evidence that the day was warm and humid, that the defendant stated he had been on the road delivering groceries since early morning and was very tired and that the bottles of liquor belonged to a helper who had gotten out of the car some time before. The trial court had the opportunity to observe the witnesses, and their credibility and the evaluation of their testimony were for its determination, not ours. We cannot hold it unwarranted in concluding that the state failed to prove the defendant's guilt beyond a reasonable doubt.
The burden of the state's argument, however, is that the court erred because in reaching its conclusion it mistakenly interpreted our recent decision in State v. McDonough, 129 Conn. 483, 29 A.2d 582, as holding it essential to conviction that there be direct testimony by a witness that he saw the defendant operate the vehicle. In that case there was no evidence either by admission or by one who saw him driving that the defendant was the operator, or was the owner, or had any right to be in the car. The state's claim finds no support in the printed record before us, which contains no finding. After the case had been argued in this court, however, the state, pursuant to 384 of the Practice Book, moved that the record be amended to include the transcript of the arguments of counsel and the statements and rulings by the trial court incident thereto. Since the defendant will not be prejudiced, the motion is granted and our decision is based upon the record as so amended. The amendment, however, not only fails to bear out the claim made but shows it to be unfounded. The court first pronounced the defendant "guilty," and, referring to the evidence of operation, remarked: "The facts in this case go beyond those in the McDonough case. In this case here we have evidence that he was the operator of the car at the time the car was brought to a standstill." Subsequently the court revoked its pronouncement of guilty, and, in finding the defendant not guilty instead, referred solely to the insufficiency of evidence that the defendant was under the influence of intoxicating liquor. It is apparent, therefore, that the reasonable doubt which the court entertained related to this element of the offense and not to that of operation.
Because in argument counsel for the state was insistent that the McDonough case has been accepted as requiring, in order to convict, direct testimony by a witness that he saw the defendant operate the motor vehicle while under the influence of intoxicating liquors we make this further observation: The decision in that case is open to no such construction. The question there concerned the amount of proof by the state prerequisite to resort by the trier to the inference arising from failure of the accused to testify. In that connection, in pointing out the lack of sufficient evidence to meet the required test, we stated (p. 484): ". . . there is no direct evidence that he [the defendant] was or had been driving the car." While the words quoted summarized accurately the evidence in that case, they were not intended nor are they to be construed as suggesting any departure from the universal rule that circumstantial evidence which affords the basis for an inference of guilt beyond a reasonable doubt may be sufficient to convict. This principle applies in the case of the offense here charged as it does in every other criminal prosecution. See State v. Murphy, 124 Conn. 554, 562, 1 A.2d 274; State v. Donnelly, 124 Conn. 661, 663, 2 A.2d 214; State v. Cots, supra, 55; State v. Hayes, 127 Conn. 543, 555, 18 A.2d 895; State v. Parker, 114 Conn. 354, 366, 158 A. 797.