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Speziale, J. The principal issue on this appeal is whether § 49-14 of the General Statutes, Connecticut's deficiency judgment statute, is unconstitutional because it fails to safeguard a person's constitutional right not to be deprived of his property without due process of law. We now decide that § 49-14 of the General Statutes is unconstitutional because it does not comply with the procedural due process of law requirements of the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution. This appeal presents an attack by the defendant Vincent Osowiecki on the constitutionality of General Statutes §49-14. Osowiecki, who cosigned a mortgage note with the defendant Chestnut Estates, Inc., has appealed the deficiency judgment rendered for the plaintiff-mortgagee, Society for Savings, claiming that the procedure set out in § 49-14 fails to satisfy the requirements of due process under the state and federal constitutions. Conn. Const., art. 1, § 10; U.S. Const., amend. XIV, § 1. On September 22, 1976, the plaintiff brought this action against the defendants Chestnut Estates, Inc., Vincent Osowiecki, and Westwood Park, Inc., claiming, inter alia, strict foreclosure of a mortgage on forty-one parcels of land, with buildings and improvements, located in Tolland. On November 5, 1976, the plaintiff filed its motion for judgment by strict foreclosure and for appointment of appraisers pursuant to § 49-14. The defendants filed no plea or answer and the court found for the plaintiff in the sum of $231,316.62, including $1500 in attorney's fees. The law day was set for December 14, 1976, by which time the defendants were to pay the sum owed, with interest from November 12, 1976, and costs of the suit taxed at $738.10, failing which their equity of redemption would he foreclosed. Pursuant to § 49-14, the plaintiff had moved for appointment of three disinterested appraisers to return their written report of appraisal within ten days after the time limit for redemption had expired. The defendant Osowieeki objected to that motion on the ground that the statute is unconstitutional because it does not provide him .with any meaningful hearing during which he can give testimony or present evidence or testimony of third persons; it fails to provide a proper mechanism for the selection of appraisers; the appraisers lack any authority whatsoever to conduct a meaningful hearing to determine the value of the subject property; and it fails to provide him with an opportunity to examine or cross-examine the bases upon which the premises are to be valued and upon which the appraisers will base their conclusion and their appraisal price. The court appointed three appraisers, who filed their report in which they found the value of the property to be $152,000. The defendant Osowieeki filed an objection to the report, citing, inter alia, the statute's failure to provide for notice, hearing, and cross-examination. He also complained that the report of the appraisers lacked findings of fact upon which they based their conclusion as to the value of the property. The plaintiff thereafter moved for a deficiency judgment in the amount of $88,614.83, plus reasonable appraisal fees. The defendant Osowieeki objected to the motion for deficiency judgment for the same reasons cited in his objection to the report of the appraisers, the plaintiff demurred to the objection, and the court sustained the plaintiff's demurrer and denied Osowiecki's objection, finding no due process violation and, moreover, finding that the defendant had "waived his right to due process protection when he refused to speak" with respect to the appointment of the appraisers. The motion for deficiency judgment was then granted and judgment was rendered for $90,697.42, plus costs of appraisal in the amount of $450. Subsequently the judgment was opened to allow $9500 in attorney's fees in a supplemental judgment. Osowiecki, hereinafter the defendant, appealed from the deficiency judgment. The assignments of error that have been briefed and argued by the defendant are that the court erred: (1) in upholding the constitutionality of §49-14; and (2) by deciding that the refusal of the defendant to participate in the nomination of the appraisers constituted "a waiver of his constitutional rights." I We first consider the waiver issue. The trial court (Wright, J.) concluded that not only was the procedural process provided adequate, but that the defendant's refusal to participate in the appointment of the appraisers constituted a waiver of his due process rights. The plaintiff itself argues on appeal, however, that waiver occurred as a result of the defendant's participation in the strict foreclosure proceedings. Concerning the right to raise the issue of constitutionality we have ruled that "a party cannot seek the relief provided in an ordinance or statute and later in the same proceeding raise the question of its constitutionality. Holley v. Sunderland, 110 Conn. 80, 85, 147 A. 300; Strain v. Zoning Board of Appeals, 137 Conn. 36, 38, 74 A.2d 462." Florentine v. Darien, 142 Conn. 415, 428, 115 A.2d 328 (1955); J & M Realty Co. v. Norwalk, 156 Conn. 185, 191, 239 A.2d 534 (1968). In this case, the plaintiff maintains that the defendant's participation in the strict foreclosure proceedings precludes a challenge to the constitu tionality of § 49-14. This claim is without merit for two reasons. First, the statute under consideration is solely a provision for appraisal and deficiency judgment proceedings following foreclosure. The initial determination of strict foreclosure has already taken place, as it must before the statute comes into play. Although no longer a separate proceeding in equity, strict foreclosure is a common-law, nonstatutory process upon which §49-14 depends, but from which it is separate. Therefore, the defendant's participation in the strict foreclosure stage did not constitute a waiver of the right to challenge the constitutionality of § 49-14. Second, the defendant timely and continuously voiced his constitutional objection. He has not waived his right to challenge the statute; quite the contrary, he has intentionally avoided taking upon himself the benefits and burdens of acquiescence. J & M Realty Co. v. Norwalk, supra; cf. Multiplastics, Inc. v. Arch Industries, Inc., 166 Conn. 280, 286, 348 A.2d 618 (1974). The constitutional issue is therefore squarely before this court on appeal. II The defendant claims that § 49-14 violates the due process clause of the constitution of the United States (amend. XIY, § 1) and of the constitution of Connecticut (art. 1, § 10). "We are not unmindful of the presumption of constitutionality which attaches to a statutory enactment and the burden which rests upon a party asserting its invalidity to establish not only that it is unconstitutional beyond a reasonable doubt but that its effect or impact on him adversely affects a constitutionally protected right which he has. Lublin v. Brown, 168 Conn. 212, 219, 362 A.2d 769; Adams v. Rubinow, 157 Conn. 150, 152, 251 A.2d 49." Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 385, 362 A.2d 778 (1975), vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), on remand, 170 Conn. 155, 365 A.2d 393 (1976), cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976); New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 148, 384 A.2d 337 (1977); Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 (1972); Amsel v. Brooks, 141 Conn. 288, 294, 106 A.2d 152 (1954). "Furthermore, courts must, if possible, construe a law so that it is effective. DeMond v. Liquor Control Commission, 129 Conn. 642, 645, 30 A.2d 547; Connecticut Light & Power Co. v. Southbury, 95 Conn. 242, 247, 111 A. 363; Balch v. Chaffee, 73 Conn. 318, 320, 47 A. 327. It is to be presumed that legislatures do not deliberately enact ineffective and unconstitutional laws. Antman v. Connecticut Light & Power Co., 117 Conn. 230, 237, 167 A. 715; Sage-Allen Co. v. Wheeler, 119 Conn. 667, 679,179 A. 195; State ex rel. Rourke v. Barbieri, 139 Conn. 203, 208, 91 A.2d 773." Amsel v. Brooks, supra, 295. Moreover, this particular statute was upheld against a similar constitutional attack only fourteen years ago; Buck v. Morris Park, Inc., 153 Conn. 290, 216 A.2d 187 (1965), appeal dismissed, 385 U.S. 2, 87 S. Ct. 33, 17 L. Ed. 2d 2 (1966) ; and, a court should overrule its own precedents for only the most compelling reasons. Herald Publishing Co. v. Bill, 142 Conn. 53, 62, 111 A.2d 4 (1955). Nevertheless, in reviewing both the statute and a decision of this court upholding it, we cannot allow such important considerations to impair the rights of persons under our federal and state constitutions. "It is fundamental that property cannot be taken without procedural due process as guaranteed by the fourteenth amendment to the constitution of the United States and article first, § 10, of the constitution of Connecticut." Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 376, 362 A.2d 778 (1975). We must now review and reexamine Buck in the light of recent expansions of procedural due process which touch upon both the right that is affected and the process that is due. Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972); Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969); Roundhouse Construction Corporation v. Telesco Masons Supplies Co., supra. There is no question that the property right involved here is constitutionally cognizable. Although the passing of the law day has already vested title in the mortgagee, the question of value remains as a determination of how much the guarantor will owe on the note. The questions of whether there will he a deficiency owed, and of how much, constitute valid property interests. The procedure commonly followed under § 49-14 allows participation by the parties at the following stages: (1) prior to the appointment of the appraisers, a party to the proceedings may, with the court's permission, suggest names, and may object on the basis of bias or lack of expertise to any appointed appraiser; and (2) after the appraisers' report is returned, and prior to its approval by the court, the parties may object to the report and have the benefit of a hearing on the objection. In Buck v. Morris Park, Inc., we held (p. 294) that nothing more was required to protect the rights of the defendant where: he appeared and participated in the foreclosure; he obtained an extension of the law day by stipulation with the plaintiff and had the opportunity to redeem hut did not do so; he had notice of the appointment of the three appraisers and in fact nominated one of those selected; and he had notice of the motion for deficiency judgment and was fully heard on his objection to the acceptance of the report of the appraisers. The effect of the decision is to allow the appraisers to determine the value of property on the basis of their own experience and judgment; they are not required to hear evidence or to give notice of the meeting at which they make their appraisal. Id., 293. The plaintiff claims that this procedure is constitutionally adequate. We disagree. In order to pass the test of constitutionality, § 49-14 must require an effective opportunity to be heard and proper notice thereof. Lack of the requirement of such a hearing and of such notice to the parties whose rights are to be affected denies them an opportunity to be heard "at a meaningful time and in a meaningful manner." Armstrong v. Manso, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965); Mathews v. Eldridge, supra, 333; Boddie v. Connecticut, 401 U.S. 371, 378, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971). There is, of course, no hard and fast formula that can be applied to all situations; Mitchell v. W.T. Grant Co., 416 U.S. 600, 610, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974); Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961); but "[t]hat the hearing required by due process . is not fixed in form does not affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event." Boddie v. Connecticut, supra, 378-79; Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 377, 362 A.2d 778 (1975). A balance must be struck in each instance between the rights of the individual and the interest of the government in the existing procedure. Smith v. Organization of Foster Families, 431 U.S. 816, 848-49, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1976). Here, the governmental or general public interest, if there be one, is not one that could be characterized as "extraordinary." Fuentes v. Shevin, 407 U.S. 67, 90-91, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972). In fact, the most that can be said for § 49-14 is that it may lighten the judicial burden and promote efficiency, an objective that is vulnerable to constitutional scrutiny. Stanley v. Illinois, 405 U.S. 645, 656, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); see Goldberg v. Kelly, 397 U.S. 254, 265-66, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). Therefore, given the valid property right at stake, the statute must, within its present scheme, provide adequate procedural safeguards to refute the defendant's challenge. The notice and opportunities to be heard, to examine, and to cross-examine that are provided a defendant under § 49-14 are not meaningful, either as to manner or as to time. The statute is constitutionally defective both because it does not require that the defendant be afforded an opportunity to participate in the determination of the value of the property by presenting evidence and because it does not provide the opportunity for cross-examination. The gravamen, then, of the due process attack on § 49-14 is the fact that a debtor is not provided a meaningful opportunity to challenge the determination of value upon which the deficiency judgment against him is predicated. The fact that, under the present application of §49-14 as sanctioned by Buck, he is accorded the limited right to challenge any procedural irregularities which may arise in reaching the appraised value is not sufficient to satisfy due process. "In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses." Goldberg v. Kelly, supra, 269. "It has long been recognized that 'fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . . [And n]o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123,170-172 [71 S. Ct. 624, 95 L. Ed. 817] (Frankfurter, J., concurring)." Fuentes v. Shevin, supra, 81. By tradition, a litigant has the right to contest the facts upon which the judgment depends; next to this right, the significance of any argument for judicial expediency or efficiency pales. Goldberg v. Kelly, supra, 265-66. Although each party may sometimes suggest appraisers if the trial court permits, the appointed appraisers are not their advocates, because their duty is to the court as quasi-judicial officers. And even if disinterested, as a judge or a jury should be, their judgments may be informed by outside evidence that presently goes untested by adversary methods. See New Haven Savings Bank v. Valley Investors, 174 Conn. 77, 384 A.2d 321 (1977). At no time before the report is returned are the appraisers' factual findings probed by the parties for accuracy. An objection to the appointment of an appraiser can challenge only his or her qualifications or neutrality; it does not provide an opportunity to present or to test evidence. Nor is this chance to object to the report sufficient, because presently the objection to the report is sustained only for legal irregularities and the report of the appraisers is final on questions of fact. Connecticut Savings Bank v. Hanoman Realty Corporation, 168 Conn. 554, 558, 362 A.2d 827 (1975); Buck v. Morris Park, Inc., 153 Conn. 290, 293, 216 A.2d 187 (1965). In neither instance, then, does the opportunity to be heard allow a truly adversary testing of the factual bases upon which the report's legal conclusion will rest. Moreover, in both instances the defendant must sustain the burden always to be borne by a movant, rather than being on the equal footing of a party at a hearing. Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969) (action on debt following garnishment of wages held inadequate, putting unjust burden on debtor); Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965) (hearing on motion to annul adoption decree granted ex parte without notice held inadequate because it shifted burden of proof to natural father). The defendant was asked by the court to nominate appraisers and he was able to object to the final report of the appraisers, but he was not allowed to participate in the findings of fact as to value. Because he was not allowed to do so, we conclude that his constitutional right not to be deprived of property without due process of law was violated. Our conclusion leads us to overrule Buck v. Morris Park, Inc., supra, and to declare § 49-14 unconstitutional. " 'If the invalidity of the enactment is evident beyond a reasonable doubt, our duty, delicate as the task may be, is to nullify the statute.' Cahill v. Leopold, 141 Conn. 1, 10, 103 A.2d 818, overruled (on other grounds), Butterworth v. Dempsey, 229 F. Sup. 754, 760 (D. Conn.)." State v. DellaCamera, 166 Conn. 557, 562, 353 A.2d 750 (1974). The legislature of 1833 could not have anticipated the procedural due process law of this country in 1979; and, as evidenced by Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 362 A.2d 778 (1975), state precedent has recognized the constitutional defects in some of our own laws since Buck was decided fourteen years ago. Part of the idea that due process is not a fixed rule is that its content changes according to " 'history, reason, the past course of decisions . . . .' Joint Anti-Fascist [Refugee Com mittee] v. McGrath, 341 U.S. 123, 162-163 [71 S. Ct. 624, 95 L. Ed. 817] (concurring opinion)." Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961). Therefore, we find § 49-14 to he a violation of the due process rights of affected parties under both the Connecticut and the United States constitutions. We fully appreciate the presumption of constitutionality that attaches to a statutory enactment and the burden resting upon a party asserting its invalidity to establish its unconstitutionality beyond a reasonable doubt as well as to establish an adverse personal impact on a constitutionally protected right. Nonetheless, we are compelled to conclude that without a statutory provision mandating a hearing before the court or some other independent tribunal where the defendant may present evidence of value and cross-examine the witnesses the defendant is deprived of his essential constitutional right to be heard at a meaningful time, in a meaningful manner; and, therefore, § 49-14 cannot pass constitutional scrutiny under the due process clauses of the federal constitution and the state constitution. Section 49-14 of the General Statutes is unconstitutional. There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendant Osowiecld. In this opinion the other judges concurred. "[General Statutes] See. 49-14. appraisal of mortgaged property AFTER FORECLOSURE. DEFICIENCY JUDGMENT. Upon the motion of any party to a foreclosure, the court shall appoint three disinterested appraisers, who shall, under oath, within ten days after the time limited for redemption has expired, appraise the mortgaged property and shall make written report of their appraisal to the clerk of the court where such foreclosure was had. Such report shall be a part of the files of such foreclosure suit, and such appraisal shall be final and conclusive as to the value of such mortgaged property. The mortgage creditor, in any further action upon the mortgage debt, note or obligation, shall recover only the difference between the value of the mortgaged property as fixed by such appraisal and the amount of his claim; and the court in which such action is pending may, if such appraisal and report thereof have been made, render judgment for the plaintiff for the difference between such appraisal and the plaintiff's claim, provided application for such deficiency judgment has been made by the plaintiff within ninety days after the time limited for redemption has expired. In reckoning such period of ninety days, the months of July and August shall be excluded from the computation." While the plaintiff did not raise the issue of waiver in the trial court and thus cannot pursue it on appeal; Practice Book, 1978, § 3063; Silverman v. St. Joseph's Hospital, 168 Conn. 160, 177, 363 A.2d 22 (1975); the trial court has based its decision in part on that ground. We may therefore give the issue full consideration; see Maltbie, Conn. App. Proc. § 307; including the analysis offered by the plaintiff. See Equitable Life Assurance Society v. Slade, 122 Conn. 451, 454-55, 190 A. 616 (1937), for an analysis of the statutory evolution of § 49-14. Originally, a judgment of strict foreclosure barred any further action on the mortgage debt, but since 1833 the mortgagee has had a right to a deficiency judgment, coupled with a provision for fixing the value of the property at the date of foreclosure in order to determine the deficiency. In 1902, the revision of the law, in § 4123 and 4124, permitted an action on the debt in the same proceeding as the strict foreclosure, that is, separate actions in equity and at law were deemed unnecessary, and the remedy under § 4124 (predecessor of § 49-14) could flow as a matter of course out of a judgment of strict foreclosure. The defendant objected to the motion for appointment of appraisers on constitutional grounds; the defendant objected to the report itself on those grounds; the defendant objected to the motion for deficiency judgment on those grounds; and the defendant appealed the deficiency judgment on those grounds. This court has held that the due process clauses of both constitutions have the same meaning. Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 170 Conn. 155, 157, 365 A.2d 393 (1976), cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976); Katz v. Brandon, 156 Conn. 521, 537, 245 A.2d 579 (1968); Cyphers v. Allyn, 142 Conn. 699, 703, 118 A.2d 318 (1955). In Buck, we stated (p. 293): "The appraisers determine the value of property upon their own experience and judgment. Consequently, they are not required to hear evidence or to give notice of the meeting at which they make the appraisal. Vincent v. German Ins. Co., 120 Iowa 272, 278, 94 N.W. 458." This is only permitted at the court's discretion because it is not explicitly set forth in the statute. The plaintiff also grounds its defense of the statute on the opportunities to be heard afforded the defendant during the strict foreclosure proceedings. The statute itself, as noted already, applies only to the appraisal and deficiency judgment proceedings; therefore, any due process claimed for the preceding strict foreclosure is irrelevant to the issue on appeal. The dismissal of the appeal by the United States Supreme Court in Buck v. Morris Park, Inc., 385 U.S. 2, 87 S. Ct. 33, 17 L. Ed. 2d 2 (1966), would bind this court only as to federal due process rights; however, several intervening decisions of that court since its ruling in Buck would alter the approach under the federal constitution also. See State v. Brown, 160 Conn. 346, 352, 279 A.2d 554 (1971) (recent federal law of retroactivity in criminal cases rendered old ease not controlling). Therefore we are not constrained by the dismissal in Buck. It should be noted that it is not possible to infer a hearing from a silent statute such as § 49-14. There is "no power under the statute to summon witnesses or hear evidence." Equitable Life Assurance Society v. Slade, 122 Conn. 451, 458, 190 A. 616 (1937). At the outset we cannot read a due process hearing into the law; we must take the statute as it is.

The plaintiffs' petition for certification for appeal from the judicial district of Hartford-New Britain at Hartford is denied by the court.

Longo, J. This is an appeal and cross appeal from a judgment rendered in each of two cases after a combined trial. The plaintiffs in the first case, Gary and Eileen Slattery, instituted an action against the defendants, August P. and Helen F. Maykut, seeking damages for breach of a contract to convey residential real estate, specific performance, and dam ages for fraud. In the second case, the plaintiff, August P. Maykut, sought from the defendants, Gary and Eileen Slattery, damages for the use and occupancy of the real estate, an award for damage to the real estate, and punitive damages. The Slatterys were awarded $15,300 in damages, with interest, on the breach of contract count. August Maykut was awarded $7000 for the Slatterys' use and occupancy of the premises and $2000 for damage to the premises. In both cases the parties, hereinafter referred to as the Slatterys and the Maykuts, have assigned numerous errors in the court's finding; we shall deal with the claims of the Slatterys first. The Slatterys assign as error the finding without evidence of certain facts crucial to the Maykuts' claim for damage to the real estate. The burden of printing evidence to show that no error was committed has clearly been sustained by the Maykuts; the appendix to their brief discloses that the challenged findings are reasonably supported by the evidence. Morningside Assn. v. Morningside Development, Inc., 172 Conn. 60, 63, 372 A.2d 141. The Slatterys next contend that the court erred in reaching conclusions as to the reasonable value of their use and occupancy of the real estate in question, in that those conclusions are contrary to law and unsupported by the findings. It is futile to assign error involving the weight of testimony or the credibility of witnesses. Hartford-Connecticut Trust Co. v. Putnam Phalanx, 138 Conn. 695, 699, 88 A.2d 393. We find that the trial court's conclusions were correct in law; see 5 Corbin, Contracts, § 1115; and consistent with the facts found. Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58. The Slatterys finally assign error in the court's overruling of their claims of law. Two of those claims were neither briefed nor pursued at oral argument. Thus, we treat them as abandoned. Stoner v. Stoner, 163 Conn. 345, 348, 307 A.2d 146. The remaining claims of law warrant discussion at some length and will be addressed later. The Maykuts assign as error the court's failure to find admitted or undisputed facts, certain of the court's findings as not supported by the evidence, the court's overruling of their claims of law, and certain of the court's conclusions. In so doing, the Maykuts claim error by the court in connection with virtually every paragraph of their draft finding, a practice unfailingly discountenanced by this court. Arcari v. Dellaripa, 164 Conn. 532, 534, 325 A.2d 280. Some of the facts claimed are not admitted or undisputed. Salvatore v. Milicki, 163 Conn. 275, 277, 303 A.2d 734. In most instances, the facts sought to be added are already included in the finding, explicitly or implicitly, and in the remaining instances the facts claimed would not affect the conclusions of this court. Walsh v. Turlick, 164 Conn. 75, 77, 316 A.2d 759. The Maykuts' assignments of error relating to facts claimed to be found without evidence are without merit, except for the claim that there was no evidence to support the court's award of $2000 for damage to the premises by the Slatterys. At trial the Maykuts called a contractor to testify to the amount of property damage. He produced a list of the damaged items and an overall estimate of the cost of repairs, $4100. No allocation was made as to the cost of each item. The court found that the itemized list of needed repairs was accurate but that $4100 was in excess of the reasonable cost for making the repairs, and assessed damages at $2000. As it does not appear there was any evidence to support the $2000 figure, we agree with the claim that the award cannot stand. Damages must be based on evidence. Bertozzi v. McCarthy, 164 Conn. 463, 468, 323 A.2d 553. It does not follow, however, that the court was required to accept the estimate of $4100 offered by the Maykuts' contractor merely because no other estimate was offered. The weight and credibility of the contractor's testimony was for the court to determine. Willametz v. Goldfeld, 171 Conn. 622, 628, 370 A.2d 1089. Since the record does not support a definite award for property damage, a new trial of that issue is necessary. See Bianco v. Floatex, Inc., 145 Conn. 523, 525, 144 A.2d 310; Sidor v. Kravec, 135 Conn. 571, 575, 66 A.2d 812. I As may appear from our discussion thus far, the facts underlying these appeals are complex: On or about September 30,1971, August Maykut leased to the Slatterys for one year a twelve-room house in Greenwich. The lease, which was later recorded, was drafted by Helen Maykut, an attorney-at-law. The terms of the lease contained an option allowing the Slatterys to purchase the premises for $165,000, after a payment of $15,300 to exercise the option, which sum would be applied against the purchase price as a down payment. The Slatterys moved into the house in October of 1971 and paid the rent at the rate of $1000 per month through October 10, 1972. When the Slatterys moved into the house, it was in excellent condition, completely redecorated. The total rental paid was $12,000, which was to be applied as a credit on the price of the house if the Slatterys exercised their option and purchased the premises. On October 10, 1972, the date the lease expired, the Slatterys paid to Helen Maykut $15,300 for the exercise of their option to purchase, which sum was and continues to be held in escrow by the Maykuts' attorneys. The lease and option agreement did not provide for payment or nonpayment of rent between October 10,1972, and the time of closing. The Slatterys held over on the premises and had the beneficial use, enjoyment and possession of the property without paying rent from October 10, 1972, until some time in May, 1973. During that period they were served with two notices to quit. On April 10,1973, the date stated in the option for the purchase of the premises, the Slatterys tendered at the closing a certified check in the amount of $140,000. The closing did not take place, however, because of a claim upon the land of Karen Ivey, the former owner of the property. She had been represented by Helen Maykut in a divorce proceeding, and, as a result of a trust arrangement between Karen Ivey, Helen Maykut and August Maykut, Karen Ivey conveyed the premises to August Maykut, Trustee, by a deed which was executed and recorded in the Greenwich land records on June 20, 1969. The Maykuts informed Gary Slattery of the trust agreement disclosing Karen Ivey's equity in the land at the time of the execution of the lease option. Sometime later, the property was conveyed by August Maykut, as trustee, to himself individually. Thereafter Karen Ivey brought suit against the Maykuts, alleging fraud in the conveyance, and placed a real estate attachment on the house and property. The Slatterys had actual knowledge of this claim, and were advised by counsel that the claim represented a cloud on the title and that a release or quitclaim deed from Karen Ivey would be a necessary precondition to closing the deal. Because August Maykut was unable to obtain the quitclaim deed from Karen Ivey, the closing did not take place. The closing was rescheduled for April 17,1973, by agreement of the parties, extending the time for performance of the lease option. On that date, the Slatterys were ready, willing and able to close, but again August Maykut offered no deed from Karen Ivey. Thus the closing fell through a second and final time. Thereafter, August Maykut visited the premises. He found that the Slatterys appeared to have vacated the premises and that the house was substantially damaged and badly in need of repair. The Slatterys instituted their action against the Maykuts on May 10, 1973, and the Maykuts brought their suit shortly thereafter. The Maykuts demurred to the Slatterys' complaint on the ground that the lease and option agreement forming the basis of the damages and specific performance counts was unenforceable under the Statute of Frauds. The Superior Court (Irving Levine, J.) overruled this demurrer on November 6, 1973, essentially finding that the lease and option satisfied the Statute of Frauds. Notwithstanding the overruling of their demurrer in the Superior Court the Maykuts filed suit in the United States District Court for the District of Connecticut, seeking to have the same lease and option declared invalid. Service was made on the Slatterys. They never appeared or answered and the Maykuts obtained a default judgment against them, decreeing that the lease option was void, on February 5, 1974. Thereupon the Maykuts moved for summary judgment in the Superior Court on the ground that the federal court decision was res judicata, conclusively establishing the invalidity of the lease option, and that the Slatterys were thereby estopped from maintaining an action premised upon the invalid option. The Superior Court (Tedesco, J.) agreed, in part, and held that partial summary judgment should be granted for the Maykuts with the exception of the issue of the return of the Slatterys' $15,300, which the court held was a triable issue of fact. The ease then went to a combined trial in the Superior Court, where the court (Stapleton, J.) decreed that the Slatterys were entitled to the return of the $15,300 paid as a deposit for the purchase of the real estate, with interest, and that the Maykuts were entitled to $7000 for the Slatterys' use and occupancy of the premises and $2000 for damage to the real estate. As we have stated, the award of $7000 for use and occupancy must stand and the issue of the amount of property damage must be retried. So far as those parts of the judgment are concerned, the only issue left is whether the court erred in declining to award the Maykuts interest. Although interest ordinarily begins to run from the time when the money is due and payable; Belisle v. Berkshire Ice Co., 98 Conn. 689, 696, 120 A. 599; the equitable determination of whether interest is to be recognized as a proper element of damages turns in each case on whether the detention of money is wrongful under the circumstances. Marcus v. Marcus, 175 Conn. 138, 146, 394 A.2d 727. Whether in certain circumstances a sum has been liquidated may be a useful, although not necessarily a controlling, criterion. Capitol City Lumber Co. v. Sudarsky, 95 Conn. 336, 340-41, 111 A. 349. In view of the unliquidated nature of the sums found due for use and occupancy and for damage to the premises, and the Maykuts' contributions to the breakdown of the transaction, we conclude that the trial court acted within the scope of its discretion in denying interest. Bertozzi v. McCarthy, 164 Conn. 463, 467, 323 A.2d 553. n We now turn to the principal issue in the case, which is the Slatterys' claim for recovery of their $15,300 deposit and the preclusive effect, if any, of the federal court's default judgment on the Slatterys' claim. The Maykuts claim that the federal court judgment removed from the Superior Court suit the Slatterys' claim for the return of the deposit, essentially arguing that this claim must fall if the lease and option were void and unenforceable. Furthermore, they contend that since the third count of the Slatterys' complaint, sounding in fraud, was dismissed at trial, there was no basis for the trial court to conclude that the Slatterys were entitled to the return of their deposit. The Slatterys respond that Judge Levine's ruling on the Maykuts' demurrer sustaining the validity of the option was the "law of the case," notwithstanding the subsequent federal court judgment, and that, in any event, the federal court judgment by default had no preclusive res judicata or collateral estoppel effect on their action. The term res judicata is often used to denote two things in respect to the effect of a valid, final judgment: (1) that such a judgment, when rendered on the merits, is an absolute bar to a subsequent action, between the same parties or those in privity with them, upon the same claim or demand;-and (2) that such a judgment constitutes an estoppel, between the same parties or those in privity with them, as to matters that were necessarily litigated and determined in the first action although the claim or demand in the second action is different. Corey v. Avco-Lycoming Division, 163 Conn. 309, 317, 307 A.2d 155, cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699; Brockett v. Jensen, 154 Conn. 328, 337, 225 A.2d 190. The first proposition embraces what is commonly referred to as res judicata; the second is traditionally termed collateral estoppel. We have held that the preclusive effects of res judicata and collateral estoppel depend upon the existence of a valid, final judgment on the merits by a court of competent jurisdiction. Corey v. Avco-Lycoming Division, supra, 317; Ruocco v. Logiocco, 104 Conn. 585, 595, 134 A. 73. We appear, however, never to have addressed the precise issue of whether a judgment upon default in a prior action is one "on the merits" and thus a final judgment entitled to be given res judicata effect in a subsequent action. Compare Munch v. Willametz, 156 Conn. 6, 10, 238 A.2d 424; Automotive Twins, Inc. v. Klein, 138 Conn. 28, 33, 82 A.2d 146. We agree with the settled law in the federal system and in almost every state: a judgment of a court having jurisdiction of the parties and of the subject matter operates as res judicata in the absence of fraud or collusion even if obtained by default, and is just as conclusive an adjudication between the parties of whatever is essential to support the judgment as when rendered after answer and complete trial. Morris v. Jones, 329 U.S. 545, 550-51, 67 S. Ct. 451, 91 L. Ed. 488; 1B Moore's Federal Practice ¶ 0.409 [4], p. 1025; annot., 77 A.L.R.2d 1410, 1419; 47 Am. Jur. 2d, Judgments § 1200. The same rule applies where, as here, the prior action is an action to qniet title to land; Girard Trust Co. v. McGeorge, 128 N.J. Eq. 91, 101, 15 A.2d 206; 47 Am. Jur. 2d, Judgments § 1212; annot., 128 A.L.R. 472, 507; and where the prior action was in the form of a declaratory judgment. See, generally, Restatement, Judgments § 77; annot., 10 A.L.R.2d 782, 785-87. Having concluded that a default judgment is entitled in some circumstances to preclusive effect on a subsequent action, we now address the issue of whether the federal court action and the present cases involved the "same cause of action" so as to preclude the Slatterys' claim for the return of their deposit. The term "cause of action" is not easily defined, and the authorities have laid down no thoroughly satisfactory and all-embracing definition. Moreover, there exists a number of theories for determining when two causes of action are "the same" for the purposes of res judicata. The majority of courts have relied on the Restatement of Judgments, § 61-67, for the definition of identical causes of action for res judicata purposes. See Lawlor v. National Screen Service Corporation, 349 U.S. 322, 328, 75 S. Ct. 865, 99 L. Ed. 1122; Kaufman v. Somers Board of Education, 368 F. Sup. 28, 32 (D. Conn.). The "operative facts" of a claim determine whether such a claim is identical to a previously litigated cause of action; if the evidence needed to sustain the second action would have sustained the first action, then the first judgment is res judicata on the second claim. Restatement, Judgments § 61; 1B Moore's Federal Practice ¶ 0.410 [1], p. 1158; cf. Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 258-59, 259 A.2d 598; Hatch v. Hatch, 157 Conn. 85, 90-91, 249 A.2d 241. Applying these principles, we conclude that the federal court action to quiet title and the present action by the Slatterys for the return of their deposit are separate and distinct causes of action. The federal action was brought pursuant to 28 U.S.C. § 1655, which allows a federal district court only to remove a cloud from the title to land lying within the district, provided the necessary diversity of citizenship is present. Schetter v. Heim, 300 F. Sup. 1070, 1072-73 (E.D. Wis.). The "cause of action" in federal court was solely one to quiet title. The issue of the Slatterys' right to the return of their deposit was not involved in the question of title to the land actually litigated, and was not within the scope of the complaint or judgment in the federal the federal court's default judgment on the Slat-action. The Slatterys' present ground of recovery is distinct and severable from the claim made and litigated in the federal action. The only evidence necessary to support the "operative facts" of the federal action was proof of the Maykuts' title to the Greenwich property. Therefore, the rules of collateral estoppel, not res judicata, apply to the present case. The only issue, if any, collaterally estopped by the federal court judgment was the issue of the validity of the option. The Slatterys were entitled to maintain an independent suit for the recovery of their deposit after the determination of title to the land in the former judgment. Schleicher v. Schleicher, 120 Conn. 528, 531, 182 A. 162. Thus the trial court did not commit error in entertaining the Slatterys' claim. TIT We now address the merits of the Slatterys' claim that they were entitled to the return of the $15,300 paid as a deposit for the purchase of the property. The Maykuts appear to contend that, since the Slatterys defaulted on their obligation to purchase and failed to show that their pecuniary loss was greater than that of the Maykuts, the Slatterys could not recover the monies paid. While it is true that, where the purchaser in a real estate contract defaults in performance, he should not be given restitution of money paid unless it affirmatively appears that the money paid was in excess of the injury caused to the vendor by the default; 5A Corbin, Contracts, § 1132; this rule is triggered only where the purchaser is in default. The Maykuts claim that the Slatterys defaulted on both the April 10 and April 17,1973, closing dates, when they would not accept the deed tendered by the Maykuts. We disagree. A purchaser is not compelled to accept an unmarketable title, or even to take a conveyance where there is a reasonable probability that he will be subjected to a lawsuit. 6 Powell, Real Property ¶ 928, p. 340; Frank Towers Corporation v. Laviana, 140 Conn. 45, 52-53, 97 A.2d 567; Lunde v. Minch, 105 Conn. 657, 662, 136 A. 552. Here, Karen Ivey had instituted an action against the Maykuts, claiming an equitable interest in the land which the Maykuts sought to convey. Since the Slatterys knew of that claim, they would not be bona fide purchasers of the property. The pendency of a good faith action by a third party against a vendor to establish an adverse equitable or legal title to the land renders the vendor's title unmarketable, and justifies the purchaser's refusal to proceed. Wollenberg v. Rose, 45 Ore. 615, 620, 78 P. 751; 77 Am. Jur. 2d, Vendor and Purchaser § 169. The purchaser is not required to go to court and look up the evidence upon which the third-party action is based, and make a determination whether it is maintainable; to require this would impose an unjust burden. Simon v. Vanderveer, 155 N.Y. 377, 382-83, 49 N.E. 1043. We conclude that the title which the Maykuts sought to convey was unmarketable by virtue of the pendency at the time of the two attempted closings of Karen Ivey's lawsuit against the Maykuts, and that the Slatterys were thereby excused from performance. They had a right to restitution for money paid to a defaulting vendor. Janulewycz v. Quagliano, 88 Conn. 60, 64, 89 A. 897; 5 Corbin, Contracts, § 1108. The trial court did not err, therefore, in ordering the return with interest of the $15,300. In the first case there is no error; in the second case there is error in part, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiff to recover such damages for injury to the real estate as he may prove on a new trial limited to the issue of damages. In this opinion the other judges concurred. Error was assigned in the court's overruling of the Slatterys' claims that they were entitled to a $12,000 credit for rent paid under a lease option, and to $6500 in lost profits in the resale of the premises. The Maykuts have not pursued in their brief two assignments- of-error relating to the overruling of demurrers. We, therefore, consider those assignments to be abandoned. The Maykuts also assign error in the court's failure to admit evidence tending to show the inability of the Slatterys to purchase the property in dispute. In view of the trial court's conclusions, the evidence did not materially affect the outcome of the trial. Thus, such error, if any, was harmless. Wambeck v. Lovetri, 141 Conn. 558, 562, 107 A.2d 395. The option read as follows: "The lessees shall have the option to purchase said premises for the sum of $165,000.00, with the monthly rental up to 12 months, to be applied as a credit on the purchase price. The lessees will be required to pay the sum of $15,300.00 on October 10, 1972 to exercise this option. The option to purchase will run qntil April 10, 1973, provided that the sum of $15,300.00 is paid to the lessor on October 10, 1972 to exercise said option. The lessees shall have no right to sublet the premises. The lessees are obligated to pay the rent within 9 days after becoming due or said lease shall become null and void. The $15,300.00 payable October 10, 1972 will be applied against the purchase price as a down payment. The $2,000.00 payable September 30, 1971 is to be applied as the first and last month's rent on this lease." Although the attachment was released prior to the time oí closing, the release did not indicate that the case had been settled, but rather indicated that the case was still pending. In fact, Karen Ivey's suit against the Maykuts was not terminated until July 23, 1974, some fifteen months after the aborted closings. It does not appear that the Maykuts ever made the federal court aware of Judge Levine's decision that the lease option was valid, or of the pending proceedings in the Superior Court. The Slatterys appealed the default judgment rendered against them to the United States Court of Appeals for the Second Circuit, but subsequently withdrew their appeal. Upon the trial, the third count of the Slatterys' complaint, alleging fraud, was dismissed by the eourt under Practice Book, 1963, § 191A, by agreement of the parties. There is considerable divergence of opinion on the issue of whether a former judgment by default ean have any collateral estoppel effect on a subsequent action, some courts holding that a default judgment actually results in no litigated issues, others holding that default judgments have preclusive effect. Compare Bestatement, Judgments $ 68 (2), with annot., 77 A.L.R.2d 1410, 1424 (eases therein cited). We need not address the Slatterys' claim that the controlling "law of the ease" was Judge Levine's ruling on the Maykuts' demurrer, not the inconsistent judgment of the federal court declaring the real estate option void. Although it has been said that of two conflicting judgments on the rights of the parties, the later in time will prevail; Bestatement, Judgments § 42; 49 C.J.S., Judgments § 445; we have decided that the federal court judgment did not affect the Slatterys' right to the return of their deposit.

Dupont, C. J. After a conviction by a jury of sexual assault in the first degree in violation of General Statutes § 53a-70, and threatening in violation of General Statutes § 53a-62, the defendant appeals and claims that the trial court erred in refusing to allow him to introduce evidence of the victim's prior sexual conduct. The jury could reasonably have found the following facts. The fifteen year old victim was at her home with two male friends, both minors, when the defendant, who was twenty-one years old, arrived. Everyone smoked a joint of marihuana before going to the defendant's home. At his home, everyone drank some beer in the defendant's bedroom. After some time had passed, the defendant ordered one of the boys to undress the victim, threatening the boy with violence if he did not comply. With the victim seated on his bed and partially nude, the defendant ordered the two boys to leave the house. After the two boys left, the defendant threw the victim down on the bed, held her down, and proceeded to have sexual intercourse with her. The victim and the defendant then dressed and left the house. The next day, the victim and her mother went to the police and filed a complaint, resulting in the defendant's arrest shortly thereafter. The defendant denied having any sexual contact or intercourse with the victim on the day in question. The court denied the defendant's motions to offer evidence of the victim's prior consensual sexual conduct with him. Offers of proof were made pursuant to Gen eral Statutes § 54-86f (3) and (4). In the absence of the jury, the defendant testified that he had consensual intercourse with the victim three days prior to the date on which the sexual assault of which the defendant stands convicted took place. The defendant asserts that his right of confrontation of the witness was unduly restricted by the exclusion of such evidence because it would have shown that the victim was biased and had a motive to falsely accuse the defendant of sexual assault. After a lengthy colloquy during which the defendant had ample opportunity to link the prior conduct evidence to the issue of the victim's bias and motive, the trial court excluded the evidence as irrelevant. The defendant's argument focuses upon exception (4) of General Statutes § 54-86f, the "constitutional rights" subsection of the statute. See Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); State v. Jones, 8 Conn. App. 44, 510 A.2d 467 (1986). His argument also involves subsection (3) of the same statute. General Statutes § 54-86f provides: "no evidence of the prior sexual conduct of the victim may be admissible unless such evidence is . . . (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant's constitutional rights." If the proffered testimony is not relevant to a material issue in the case, the defendant's right to confront his accuser is not affected. The fact that the victim may or may not have had prior consensual intercourse with the defendant indicates nothing about a motive to falsely accuse him of forcible sexual intercourse at a later time. See State v. Franko, 199 Conn. 481, 486-88, 508 A.2d 22 (1986); State v. Esposito, 192 Conn. 166, 172, 471 A.2d 949 (1984); State v. Cassidy, 3 Conn. App. 374, 384, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985). This evidence was not offered to show a recent pattern of conduct of a particular mode of consensual sexual relationship. See State v. Cassidy, supra, 384. The right of the defendant to confront and cross-examine witnesses against him is not absolute; Chambers v. Mississippi, supra, 295; State v. Franko, supra, 488; "but may bow to 'other legitimate interests in the criminal trial process.' Chambers v. Mississippi, supra, 295; State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985); State v. Mastropetre, 175 Conn. 512, 521, 400 A.2d 276 (1978). Such an interest is the trial court's 'right, indeed, duty, to exclude irrelevant evidence.' State v. Mastropetre, supra, 521; State v. Talton, [197 Conn. 280, 283-85, 497 A.2d 35 (1985)]; State v. Randolph, 190 Conn. 576, 594, 462 A.2d 1011 (1983); State v. Johnson, [190 Conn. 541, 551, 461 A.2d 981 (1983)]; State v. Gaynor, 182 Conn. 501, 509 n.8, 438 A.2d 749 (1980). Since the defendant failed to establish that the testimony he sought to elicit was relevant to a material issue in the case, he cannot complain that his constitutional rights were violated when that testimony was excluded. Accordingly, the trial court did not err in prohibiting this inquiry." State v. Franko, supra, 488. The only aspect of the cross-examination of the victim restricted by the trial court was in regard to prior sexual conduct between the victim and the defendant. The cross-examination was otherwise virtually unrestricted, and the victim's testimony spanned a period of two days. The defendant was permitted to question the victim in detail about the events of the assault, about events prior to the assault on that same date, and about her subsequent revelation and reporting of the assault. On this record, it cannot be said that the cross-examination was insufficient for compliance with the sixth amendment to the United States constitution. The defendant failed to establish the relevance of the prior consensual sexual conduct, if it occurred at all, and failed to establish the probative value of such evidence. Rulings on relevancy are within the discretion of the trial court and upon review every reasonable presumption should be given in favor of the trial court's ruling. State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982). The relevance of this evidence was " 'so slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case. State v. Bassett, 151 Conn. 547, 551, 200 A.2d 473 [1964].' State v. Mahmood, 158 Conn. 536, 540, 265 A.2d 83 (1969). We have reiterated that evidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case." State v. Talton, supra, 284-85. As the defendant has failed to establish the relevance of the proffered testimony to the issue of non-consensual sexual intercourse, the testimony was properly excluded. The defendant also claims that the trial court erred by excluding testimony offered under General Statutes § 54-86f (3), which allows the trial court to admit evidence of prior sexual conduct of the victim if other conditions of the statute are met, "when consent is raised as a defense by the defendant . " The defendant argues, in essence, that the statute cannot be read to exclude such evidence in cases where consent has not been raised as a defense since such a reading would be an overly restrictive interpretation of its language and put the defendant in an unfair position. In the present case, the defense of consent was not raised by the defendant, but rather, he denied the occurrence of any sexual intercourse on the date on which the sexual assault was alleged to have occurred. In State v. Mastropetre, supra, a defendant charged with sexual assault denied sexual contact with the victim but claimed that the victim's prior sexual conduct was relevant on the issue of consent to intercourse. The relevance of the victim's prior conduct on the issue of consent, that defendant claimed, arose because non-consent is an essential element of the crime charged. Mastropetre, which predates General Statutes § 54-86f, commonly known as the rape shield statute, held that when a defendant denies the occurrence of sexual relations with a victim, "consent was not truly an issue in the case." State v. Mastropetre, supra, 516. The defendant in this case would seek to overturn the reasoning of Mastropetre, and go even further, to read the language of General Statutes § 54-86f as allowing the introduction of evidence of prior sexual conduct whenever a defendant is charged with sexual assault. This subsection of the rape shield statute must be read in such a way as to uphold the integrity of the statutory scheme and must be construed so that it carries out the intent of the legislature. State v. Belton, 190 Conn. 496, 505, 461 A.2d 973 (1983). While penal statutes must be strictly construed, the rule of strict construction does not require an interpretation which would involve absurdity or frustrate the evident design of the legislature. State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985); State v. Belton, supra, 506. General Statutes § 54-86f (3) unequivocally states that evidence of prior sexual conduct may only be offered "when consent is raised as a defense." The defendant's failure to raise consent as a defense in this case precludes the introduction of evidence of prior sexual conduct under subsection three of the statute. If the defendant's contention were to be sustained, the purpose of the statute, which is "specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault . for policy purposes"; State v. Cassidy, supra, 379; would be subverted by making admissible all evidence of a victim's prior sexual conduct in any prosecution for assault except under General Statutes § 53a-71 (a), the only section to which § 54-86f applies which does not involve nonconsensual intercourse. There is no error. In this opinion the other judges concurred. The defendant made two offers of proof, one prior to trial and the other during trial. The first related to allowing this testimony during his direct examination, and the second to allowing questions relating to this prior conduct during the cross-examination of the victim. The sixth amendment to the United States constitution provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right . to be confronted with the witnesses against him . . . . " The unfair position claimed by the defendant is that defendants who would otherwise deny the fact that any sexual intercourse took place, when charged with sexual assault, would be coerced into falsely admitting sexual intercourse and raising the affirmative defense of consent in order to attempt to introduce evidence of prior sexual conduct. To state this claim is to refute it. General Statutes § 53a-71 (a), as amended by Public Acts 1985, No. 85-341, § 2, provides in relevant part: "A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age, or (2) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual intercourse, or (3) physically helpless, or (4) less than eighteen years old and the actor is such person's guardian or otherwise responsible for the general supervision of such person's welfare, or (5) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person."

Dupont, C. J. In this products liability action, the defendant appeals from the judgment rendered by the trial court following a jury verdict for the plaintiff. Certain facts presented to the jury are not disputed by either party. The plaintiff, a fourteen year old girl, was operating a riding lawnmower, which had been sold by the defendant, at the home of relatives when she was injured. She had often operated the lawnmower while staying with her relatives and had been instructed in its use and operation by them. While making a turn on a blacktop driveway, the plaintiff was distracted and drove the lawnmower onto an incline on the lawn. At this point, the lawnmower's steering wheel began to shake violently and the plaintiff lost control of the machine. She then fell off the lawnmower and rolled backwards as the machine continued its turn on the incline. As the lawnmower began moving toward the plaintiff, she reached out with her right arm, in an attempt to deflect the course of the mower. The machine then drove over the left side of the plaintiff's chest, and its revolving blade made contact with her left arm, severely cutting and disfiguring it. As a result of the accident, the plaintiff brought suit against the defendant and her relatives. The jury-returned a verdict for the plaintiff in the amount of $250,000. The jury also found contributory negligence of thirty percent on the part of the plaintiff. As a result, judgment was rendered for the plaintiff in the net amount of $175,000. On appeal, the defendant raised the following claims: (1) that the trial court erred in instructing the jury that they could find that the lawnmower involved in the accident was defective because the defendant had failed to warn that the lawnmower did not have a deadman's control, and in instructing the jury that the existence of a deadman's control on other lawnmowers could be evidence that the defendant's lawnmower was defective; (2) that the court erred in prohibiting the defendant from introducing into evidence a settlement agreement between the plaintiff and the owners of the lawnmower because General Statutes § 52-216a, which allows such settlements to be introduced into evidence in a trial to the court but not in a trial to the jury, violates the equal protection clause of the fourteenth amendment to the United States constitution; (3) that the court erred in admitting into evidence, under the learned treatise exception to the hearsay rule, written materials which were not authoritative reference works; and (4) that it erred in admitting into evidence a videotape portraying the operation of a deadman's control on a later model lawnmower. The plaintiff cross appeals from the judgment, claiming that the trial court erred in its failure to charge the jury on her claim for punitive damages. The defendant's first claim of error involves the trial court's instructions to the jury. The defendant argues that the evidence presented at trial demonstrated that the plaintiff was aware or should have been aware that the machine did not have a deadman's control, and, therefore, that the defendant did not have a duty to warn the plaintiff of the absence of this feature. Its claim is that the court should not have instructed the jury that it could conclude that this failure to warn was a defect. The defendant also argues that the court should not have instructed the jury that they could find the mower to be defective because other mowers sold during the same period of time had a deadman's control. The defendant's claim is that in a strict products liability action, evidence of the design of other products is not relevant in determining whether the product in question is defective. The established rule in this jurisdiction is that "[a] product may be defective because a manufacturer or seller failed to warn of the product's unreasonably dangerous propensities." Tomer v. American Home Products Corporation, 170 Conn. 681, 689, 368 A.2d 35 (1976); see also General Statutes § 52-572q; Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 235, 429 A.2d 486 (1980); 2 Restatement (Second), Torts § 402A. Under such circumstances, the failure to warn, by itself, constitutes a defect. See Giglio v. Connecticut Light & Power Co., supra, 236; Prosser, Torts (4th Ed.) § 99, p. 659. In this case, the trial court properly instructed the jury that it might conclude that the defendant's lawnmower was defective because the defendant failed to warn that the machine was not equipped with a dead-man's control. Whether there was a defect because of the failure to warn was a question of fact to be decided by the jury. Although evidence was presented that the plaintiff was aware of the dangers presented by the operating mower blades, there was no evidence that the plaintiff was aware of the inherent risks involved in operating a riding mower which lacked a deadman's control. "Warnings must specifically identify for the user the danger inherent in the product's use." Giglio v. Connecticut Light & Power Co., supra, 237. Here, there was no warning by the defendant that if the user of the operating riding mower fell from the machine, the absence of a deadman's control would result in its continuing operation, thus presenting a substantial risk that the user could be seriously injured. Under these circumstances, "[t]he defendant had a duty adequately to warn the plaintiff of this unreasonably dangerous condition." Id. Thus, the trial court's instructions to the jury on this issue were correct. The defendant's related claim is that the trial court erred by instructing the jury that it could consider the existence of a deadman's control on other lawnmowers as evidence that the defendant's lawnmower was defective. As the basis for its objection, the defendant argues that evidence of the design of other products is not relevant in a strict products liability action in order to determine whether the product in question is defective. Evidence was presented in this case that deadman's controls were available in similar lawnmowers in the period up to, and including, 1973, the year in which the defendant's machine was produced. The testimony of the plaintiff's expert witness was that a lawnmower without such controls was defective and unreasonably dangerous, and that the defendant could have foreseen the harm which would ensue to the user of the product if the controls were absent. In Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 491 A.2d 389 (1985), the court addressed the related issue of whether evidence of subsequent remedial measures should be excluded where recovery is sought under a theory of strict products liability. The court concluded that "in cases such as this where a strict products liability theory is pursued, evidence of subsequent design modifications, if shown to be related to the claimed defects, may be admitted at trial." (Footnotes omitted.) Id., 148. The court based this conclusion on the fact that the doctrine of strict liability in tort is concerned with the character of the product injected into the stream of commerce and not with the specific conduct of the defendant. Id., 147; Giglio v. Connecticut Light & Power Co., supra, 234. " 'Subsequent change evidence may be highly probative of defectiveness because it provides a safer alternative against which to compare the allegedly defective product. Because the manufacturer's culpability is not an issue, there should be no concern that the subsequent changes will be construed as an admission of negligence. Therefore, evidence of subsequent changes may be relevant without being prejudicial in strict products liability actions.' Note, 'Subsequently Remedying Strict Products Liability: Cann v. Ford, ' 14 Conn. L. Rev. 759, 769 (1982); see Lolie v. Ohio Brass Co., 502 F.2d 741, 744 (7th Cir. 1974); Caterpillar Tractor Co. v. Beck, 624 P.2d 790, 794 (Alaska 1981); Sutkowski v. Universal Marion Corporation, 5 Ill. App. 3d 313, 319, 281 N.E.2d 749 (1972)." Sanderson v. Steve Snyder Enterprises, Inc., supra, 147-48. If evidence of subsequent design modifications, such as a deadman's control, is relevant to the claimed defects, and, therefore, admissible, then evidence of prior or contemporaneous design features are certainly relevant and admissible to prove that the product in question was defective. The trial court properly instructed the jury that it could consider whether other mowers had deadman's controls in determining whether the defendant's lawnmower was defective. The defendant's second claim of error is that the trial court erred in prohibiting the defendant from introducing into evidence a settlement between the plaintiff and the owners of the lawnmower. The defendant bases that claim on the ground that General Statutes § 52-216a, which allows such settlements to be introduced into evidence in a trial to the court but not in a trial to a jury, violates the fourteenth amendment equal protection clause of the United States constitution. The defendant argues that General Statutes § 52-216a imposes an unconstitutional infringement upon the right to a trial by jury as guaranteed by the Connecticut constitution and, therefore, violates the equal protection clause of the fourteenth amendment to the United States constitution. General Statutes § 52-216a prohibits the submission of evidence to a jury concerning an agreement with any tortfeasor not to bring legal action, or a release of a tortfeasor in any cause of action, during the trial of the cause of action against any other joint tortfeasor. The statute, however, does "not prohibit the introduction of such agreement or release in a trial to the court." Id. The defendant claims that this statute impermissibly denies persons asserting their right to trial by jury the equal protection of law as guaranteed by the fourteenth amendment. Before reviewing the substance of this claim, we must first decide whether it is properly before this court. An appellate court is not bound to consider a claim of error unless it was distinctly raised at trial. See Practice Book § 3063. This limitation upon appellate review applies to constitutional issues. Roche v. Fairfield, 186 Conn. 490, 505, 442 A.2d 911 (1982). " 'If a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief. If this is not done, it will not be the duty of either the trial court or the apellate court to decide the claim.' Practice Book § 285A; see Petrillo v. Maiuri, 138 Conn. 557, 86 A.2d 869 (1952); Practice Book § 3060B, 3063. This court will not consider any claim which was neither ruled upon nor decided by the trial court adversely to the moving party. See Petrillo v. Maiuri, supra, 562." Roche v. Fairfield, supra, 505 n.14. At trial, the defendant filed a memorandum of law in support of its offer to introduce evidence of the amount of a settlement with joint tortfeasors. This memorandum alleged that § 52-216a violates the defendant's right to have all questions of fact, including the assessment of damages, decided by a jury. It specifically claimed an unconstitutional interference with its right to trial by jury in violation of article first, § 19 of the Connecticut constitution and the seventh amendment to the United States constitution. The memorandum also stated that the statute is unconstitutional because it imposes a chilling effect upon the exercise of litigants' rights to a trial by jury, but did not refer to the equal protection clause in particular. See United States v. Jackson, 890 U.S. 570, 582, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968). The defendant asserts that its memorandum sufficiently apprised the trial court of the equal protection argument which it now presses before this court. Our review of the record, however, reveals that no mention was ever made of the guarantee of equal protection under the fourteenth amendment. No analysis of the guarantees of the fourteenth amendment was ever made to the trial court, no case law on this issue was cited, and there is nothing to suggest that the trial court ever considered this issue in its ruling on the motion. We therefore decline to address this issue. The defendant's next claim of error is that the trial court erred in admitting into evidence, under the learned treatise exception to the hearsay rule, written materials which were allegedly not authoritative reference works. The defendant argues that the materials, which were relied upon by the plaintiff's expert witness in formulating his opinion that deadman's controls were technologically and economically feasible when the defendant's lawnmower was manufactured, did not qualify as learned treatises on the ground that no evi dence was presented, other than the expert's own testimony, that the materials were authoritative reference works. The rule in this jurisdiction regarding the use of learned treatises is that if a "treatise is recognized as authoritative by an expert witness and if it influenced or tended to confirm his opinion, then relevant portions thereof may be admitted into evidence in the exercise of the trial court's discretion." Cross v. Huttenlocher, 185 Conn. 390, 395, 440 A.2d 952 (1981); see also Kaplan v. Mashkin Freight Lines, 146 Conn. 327, 334-35, 150 A.2d 602 (1959); Tait & LaPlante, Connecticut Evidence § 7.16f (4), 11.19. The written materials objected to by the defendant in this case were five technical papers on the subjects of accidents and injuries involving riding lawnmowers and the design and operation of riding mowers and small tractors. Three of the documents were engineering studies prepared for presentation to the American Society of Agricultural Engineers. At trial, the plaintiff's expert witness testified that he considered the papers to be authoritative on the subject of lawnmower safety and that he relied on the documents in formulating his opinions concerning the defendant's lawnmower. Furthermore, the defendant conducted an extensive voir dire of the witness in order to determine whether he considered the materials to be authoritative. This testimony satisfied the requirements for the admission of the documents under the learned treatise exception to the hearsay rule. See Cross v. Huttenlocher, supra; Tait & LaPlante, supra. Under these circumstances, the trial court was correct in admitting the materials into evidence. The defendant's fourth claim of error is that the trial court erred in admitting into evidence a videotape portraying the operation of the deadman's control on a later model lawnmower. At trial, the plaintiff introduced into evidence a videotape of two riding lawnmowers. The first machine was similar to the one involved in the accident and the second machine was a 1983 model lawnmower which was equipped with a deadman's control. The videotape was admitted for the purposes of explaining the device to the jury and demonstrating to the jury how the deadman's control operated. Prior to viewing the videotape, the trial court gave a limiting instruction to the jury concerning its use. The videotape was then used by the plaintiff's expert witness in conjunction with his testimony. "It is well established that motion pictures, when properly authenticated and relevant to the issues in the case, are admissible in evidence in the discretion of the court. Note, 62 A.L.R.2d 686, 688. The rules which apply to the admissibility of photographs also apply to that of motion pictures, including videotapes. Scott, Photographic Evidence (2d Ed.) § 1294,1297; 29 Am. Jur. 2d, Evidence § 801. Thus, if a motion picture has a tendency to prejudice the jury, the question before the court is whether its value as evidence outweighs its possible prejudicial effect." Pisel v. Stamford Hospital, 180 Conn. 314, 323-24, 430 A.2d 1 (1980); see also Tait & LaPlante, Connecticut Evidence (1985 Sup.) § 9.5. In this case, the trial court did not abuse its discretion in admitting the videotape into evidence. The videotape assisted the jury in understanding the operation of a deadman's control and, in light of the trial court's instructions, the prejudicial effect of the videotape, if any, was minimal. Nor was the videotape the type of "staged reproduction of one party's version of the facts"; Pisel v. Stamford Hospital, supra, 324; which would be misleading to the jury. See Hubbard v. McDonough Power Equipment, Inc., 83 Ill. App. 3d 272, 281, 404 N.E.2d 311 (1980). The evidence demonstrated the location and operation of a deadman's control on a riding lawnmower and supplemented the explanation of the device offered by the plaintiff's expert witness. The trial court has broad discretion with respect to the admission of such demonstrative evidence, and, in this case, the court did not abuse its discretion in allowing the videotape into evidence. See Blanchard v. Bridgeport, 190 Conn. 798, 806, 463 A.2d 553 (1983); Katsetos v. Nolan, 170 Conn. 637, 649-50, 368 A.2d 172 (1976). In addition to the defendant's assignments of error, the plaintiff has filed a cross appeal in this case. She claims that the trial court erred in refusing to charge the jury with respect to the issue of punitive damages in accordance with General Statutes § 52-240b. In her substituted complaint, the plaintiff alleged that the defendant acted recklessly in distributing the riding lawnmower when it knew or should have known of the dangers involved in placing the machine into the stream of commerce. At trial, the court instructed the jury to disregard this count of the plaintiffs complaint on the ground that there was no basis in the evidence presented to indicate that the defendant had acted recklessly. The plaintiff took an exception to the trial court's failure to charge on the issue of recklessness and punitive damages. As a general matter, "[pjunitive damages, applying the rule in this state as to torts, are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights." Collens v. New Canaan Water Co., 155 Conn. 477, 489, 234 A.2d 825 (1967); see also Kenny v. Civil Service Commission, 197 Conn. 270, 277, 496 A.2d 956 (1985); Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978). "In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence. Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 128, 222 A.2d 220 (1966)." Venturi v. Savitt, Inc., 191 Conn. 588, 592, 468 A.2d 933 (1983). In a products liability action, "[pjunitive damages may be awarded if the claimant proves that the harm suffered was the result of the product seller's reckless disregard for the safety of product users, consumers or others who were injured by the product." General Statutes § 52-240b; see also American Airlines, Inc. v. National Automatic Products Co., 39 Conn. Sup. 269, 271, 477 A.2d 171 (1984). Our review of the record in this case indicates that the trial court did not err in refusing the plaintiff's request to charge the jury on the issue of punitive damages. Although evidence was presented that the defendant was aware of the existence of deadman's controls at the time its machine was produced and distributed, the failure to incorporate such a device into its lawnmower did not constitute reckless disregard for the safety of the machine's users so as to support an award of punitive damages. As a general rule, punitive damages may be awarded only for outrageous conduct. See Triangle Sheet Metal Works, Inc. v. Silver, supra, 128; 4 Restatement (Second), Torts § 908, comment (b). The conduct must be outrageous, either because the defendant's acts are done with an evil motive or because they are done with "reckless indifference to the interests of others." 4 Restatement (Second), Torts, supra. The defendant's failure to install a deadman's control on its lawnmower, when such devices were not universally accepted by the industry and were not required under applicable safety standards at the time the defendant's machine was distributed, and its reliance on the product manufacturer for safety testing did not rise to the level of reckless conduct. Without the required showing of recklessness, there was no basis for the jury to consider an award of punitive damages against the defendant under General Statutes § 52-240b. Accordingly, the trial court's instructions to the jury on the issue were correct. There is no error. In this opinion the other judges concurred. The parties agreed that General Statutes § 52-572m through 52-572r would govern the determination of the plaintiffs action, although the injuries sustained by the plaintiff occurred prior to the passage of Public Acts 1979, No. 79-483, now codified as General Statutes § 52-572m through 52-572r. At the time this action was brought, the plaintiff, Laurie L. Ames, was a minor. Accordingly, the action was brought through her mother. During the pendency of the trial, the plaintiff reached her majority of eighteen years of age. The suit against her relatives was subsequently settled for $25,000, the action withdrawn as to them, and a substitute complaint against the defendant was filed. A deadman's control is a device which stops the blades of a lawnmower from rotating when the mower is not being operated. In answer to an interrogatory submitted to the jury, the jury found the mower was defective and unreasonably dangerous. General Statutes § 52-216a provides: "An agreement with any tortfeasor not to bring legal action or a release of a tortfeasor in any cause of action shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors, nor shall any other agreement not to sue or release of claim among any plaintiffs or defendants in the action be read or in any other way introduced to a jury. If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. This section shall not prohibit the introduction of such agreement or release in a trial to the court." The defendant urges us to consider the issue even if it were not distinctly raised below because the parties have briefed it on appeal and because it involves an issue of substantial public importance. Neither of these reasons is compelling. See Peck v. Jacquemin, 196 Conn. 53, 491 A.2d 1043 (1985). It is likely that if this issue is reviewed in the future by the Connecticut Supreme Court, General Statutes § 52-216a would be held to be constitutional under the federal equal protection clause because that court has already stated that the statute does not provide for a substantive difference between the treatment of releases or agreements in jury trials and trials to a court. Id., 73. We acknowledge those cases establishing the right of an appellate court to decide issues not distinctly raised at trial. See, e.g., Peck v. Jacquemin, 196 Conn. 53, 61-62 n.13, 491 A.2d 1043 (1985); Roche v. Fairfield, 186 Conn. 490, 442 A.2d 911 (1982). Exercise of this right, however, lies within the discretion of this court. The defendant has presented no exceptional circumstances which were not apparent at trial to compel us to exercise such discretion in this appeal. The trial court's instructions to the jury on this issue are as follows: "THE COURT: Now, ladies and gentlemen of the jury, we're about to start the evidence again. It's my understanding the Plaintiff is going to put on [her] expert witness today, and he had — the Plaintiff has provided the Court for your benefit a videotape which the expert will use in his testimony. Basically the videotape shows a picture of two lawnmowers, one a Craftsman, the one involved in this particular episode. The identity of the other is unimportant to this case, so you don't have to be concerned with the identity of the lawnmower. The only purpose for this second lawnmower is to illustrate to you how a deadman's switch operates on that particular lawnmower. Whether there's any other way they operate I don't know, but the expert will probably testify. "I want you to understand that you are not to draw any conclusions as to the defect or unreasonable condition of the lawnmower involved in this case merely from the fact that there is a deadman's switch on the second lawnmower that you see. That in and of itself — the fact that there's a dead-man's switch on one lawnmower does not in and of itself mean that it should be on every other lawnmower. Do you understand that? So, the only purpose for showing you this video is to show you how it works so that you'll understand it better in your deliberations; and then when you deliberate, taking all the evidence that you've heard concerning the condition of the Defendant's lawnmower, the Craftsman, with all the instructions, -with all the other evidence that you hear, it will be then for you to determine whether or not it was in a defective and unreasonably safe condition at the time it was sold. "In your deliberations, you may or may not wish to consider whether it should have had a deadman's switch, but again what I'm trying to emphasize is the mere fact that you see a deadman's switch on this second lawnmower is not in and of itself to make you conclude that the Craftsman should have had it, and since it did not have it, it was defective and in an unreasonably safe condition at the time it was sold. Do you understand that?" We note that the defendant did not file a motion to set aside the verdict on the ground that it was inadequate because the trial court instructed the jury not to consider the issue of punitive damages. Although the verdict was in her favor, the plaintiff could have filed a motion to set aside the verdict as inadequate. See Peck v. Jacquemin, 196 Conn. 53, 57, 491 A.2d 1043 (1985). Instead of filing a motion to set aside the verdict, the plaintiff merely took an exception to the trial court's refusal to instruct the jury on the issue of punitive damages. This failure to file a motion to set aside the verdict limits our consideration of this issue to determining whether there has been plain error. See Practice Book § 3063; Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981). " 'Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.' State v. Hinckley, 198 Conn. 77, 87-88 n. 10, 502 A.2d 388 (1985)." State v. Franko, 199 Conn. 481, 489-90, 508 A.2d 22 (1986); see also State v. Vinal, 198 Conn. 644, 654, 504 A.2d 1364 (1986). The plaintiff's claim of error is neither so obvious nor so egregious as to constitute plain error. State v. Franko, supra.

Arthur H. Healey, J. The present case was tried and decided prior to our decision in Nationwide Ins. Co. v. Gode, 187 Conn. 386, 446 A.2d 1059 (1982). This appeal raises the issue of whether the trial court erred in holding that the insured plaintiffs could, under the terms and conditions of their insurance policy, "stack" uninsured motorist coverage where their insurance policy covered two automobiles. Even if we were to find that the terms of the policy prohibited the stacking of uninsured motorist coverage, we held in Nationwide that General Statutes § 38-175c, and the pertinent regulations promulgated thereunder, precluded any such terms and conditions from preventing the stacking of benefits. Therefore, we affirm the decision of the trial court permitting stacking. This action arose out of a motor vehicle accident that occurred on June 19, 1975, in which the plain tiff, Carlton Dixon, was struck and injured by an uninsured motorist. Carlton Dixon was a minor at the time of the accident, so this action was instituted by Rosa F. Dixon, the duly appointed guardian of the estate of Carlton Dixon. Carlton Dixon was "insured" under the terms and conditions of the insurance policy issued by the defendant, Empire Mutual Insurance Company (Empire Mutual), to Dematraious Dixon, the plaintiff's father. The policy covered two automobiles, a 1970 Buick and a 1971 Mercury, for which the plaintiff's father paid separate premiums to provide coverage on both. The policy included a provision protecting against injuries sustained in any accident with an uninsured motorist. The premium for uninsured motorist coverage on the Buick was $2, while for the Mercury it was $1. Empire Mutual has already paid the plaintiffs $5000 for basic reparations benefits, the limit of that coverage provided under the terms of the Basic Reparations Endorsement contained in the policy. Before the trial court, Empire Mutual contended that the absolute ceiling for uninsured motorist coverage was $20,000 for each person injured, regardless of the number of vehicles covered by the policy. The plaintiffs contended that the amount of protection was $20,000 for each vehicle and, because Dematraious Dixon had two vehicles, the total amount of coverage provided by the policy was $40,000. The trial court agreed with the plaintiffs and, accordingly, awarded them $35,000. The insurance policy issued by Empire Mutual is divided into four parts: Part I is entitled "Liability"; Part n is entitled "Expenses for Medical Services"; Part III is entitled "Physical Damage"; and Part IV covers "Protection Against Uninsured Motorists." Following these sections is a set of "Conditions." Condition number 4, which specifically applies only to Parts I, II and III, covers situations with "Two or More Automobiles." It provides, in relevant part, as follows : "When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each . . . The applicable provision in Nationwide, unlike the provision contained in Condition 4 of the policy issued by Empire Mutual, explicitly prohibited stacking of uninsured motorist coverage in the event that two or more cars were insured under the same policy. Nationwide Ins. Co. v. Gode, supra, 398. We held there that because the applicable regulations, § 38-175a-6 of the Regulations of Connecticut State Agencies, did "not expressly authorize a limitation of payment provision such as that contained in this insurance policy, the clause cannot operate to prevent the defendants [the insureds] from stacking their coverages as they have tried to do." Nationwide Ins. Co. v. Gode, supra, 400. The claimed effect of the pertinent provisions of the respective insurance policies in Nationwide and in this case, i.e., no stacking, is the same. Our analysis in Nationwide applies here and need not be repeated. Therefore, regardless of whether Empire Mutual's claimed interpretation of Condition 4 is correct, it cannot act to prohibit the plaintiffs from stacking the uninsured motorist coverage provided by the policy. Furthermore, in the present case, coverage for the 1971 Mercury was added to the policy over five months after the policy was issued on the 1970 Buiek. It was separately listed in the policy, and a separate premium was paid by Dematraious Dixon. In such circumstances, we have noted that it is particularly appropriate to presume that such a policy entitled the insured to stack uninsured motorist coverage. See Safeco Ins. Co. v. Vetre, 174 Conn. 329, 334-35, 387 A.2d 539 (1978), and cases cited therein; see also Nationwide Ins. Co. v. Gode, supra, 396, and cases cited therein; Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 450-51, 370 A.2d 1006 (1976). There is no error. In this opinion Peters, Parskey and Grillo, Js., concurred. The underlying facts were stipulated by the parties. The policy was originally issued on December 12, 1974, but was later amended so as to add the Mercury in its coverage on May 28, 1975. This figure represents the total amount of uninsured motorist benefits, less the $5000 basic reparations benefits already paid by Empire Mutual. Condition 4 provided in full as follows: "two OR more Automobiles — rPARTS I, II, III: When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each, but an automobile and a trailer attached thereto shall be held to be one automobile as respects limits of liability under Part I of this policy, and separate automobiles under Part III of this policy, including any deductible provisions applicable thereto." As noted in Nationwide Ins. Co. v. Gode, 187 Conn. 386, 400, 446 A.2d 1059 (1982), the -regulations have the force of law. See also Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 449, 370 A.2d 1006 (1976).

Speziale, C. J. This is an appeal by the defendant, mother of five children, from the order of the Superior Court for juvenile matters granting tern- porary custody of her children to the plaintiff commissioner of the department of children and youth services. The defendant and her six children lived in a small apartment in New Haven. They had been receiving services from the department of children and youth services (hereinafter DCYS) as a protective service family since 1976, and were supported by the Aid to Families with Dependent Children program. Michelle Spicknall, a DCYS caseworker, was assigned to the defendant's case in January, 1979. In the next nine months she visited the defendant's home twenty-seven times. She considered the family situation "marginal," but noted that the children were "not abused [or] neglected." It was Spicknall's opinion that the children were very happy and active, and that they had a "very warm" relationship with their mother. During the night of September 4-5, 1979, the defendant's youngest child, nine month old Christopher, died. The child was brought by ambulance to Yale-New Haven Medical Center where resuscitation was unsuccessfully attempted by his pediatrician, Robert Murphy. No cause of death could be determined at that time, but the pediatrician noticed some unexplained superficial marks on Christopher's body. Because of Christopher's unexplained death, the plaintiff commissioner of children and youth services seized custody of the defendant's five remaining children on September 5, 1979, under authority of the "96-hour hold" provision of General Statutes § 17-38a (e), which permits summary seizure if the commissioner has probable cause to believe that a child is "suffering from serious physical illness or serious physical injury or is in immediate physical danger from his surroundings, and that immediate removal from such surroundings is necessary to insure the child's safety . . . ." (Emphasis added.) On September 7, 1979, in the Juvenile Court for New Haven, DCYS filed petitions of neglect under General Statutes §46b-129 (a) for each of the defendant's children. Accompanying each petition was an affidavit for orders of temporary custody asking that the court issue temporary ex parte orders to keep the five children in DCYS custody under authority of §46b-129 (b) (2). The petitions alleged, in addition to Christopher's unex plained death, that the defendant's apartment was dirty, that numerous roaches could be found there, that beer cans were to be found in the apartment, that the defendant had been observed drinking beer, that on one occasion the defendant may have been drunk, that a neighbor reported that the children once had been left alone all night, and that the two older children had occasionally come to school without having eaten breakfast. On the basis of these allegations, on September 7, 1979, the court granted, ex parte, temporary custody to the commissioner pending a noticed hearing on temporary custody set for September 14, 1979, within ten days of the ex parte order as required by §46b-129 (b) (2). The court also set October 1, 1979, for a hearing on the neglect petitions. At the September 14 temporary custody hearing, DCYS presented testimony of Spicknall confirming and elaborating on the conditions of the defendant's home and on the defendant's beer drinking. Christopher's pediatrician testified concerning Christopher's treatment and physical appearance when the child was brought to the hospital on September 5. The doctor also testified that, although the pathologist's report on the autopsy was not complete, the external marks on Christopher's body were not a cause of death, that no internal injuries were found, and that the child had had a viral lung infection. He also explained, on cross-examination, the term "sudden infant death syndrome" and its pathology. At the conclusion of the state's case, the court found "probable cause" and ordered temporary custody of the children to remain with the plaintiff commissioner of children and youth services. The defendant appealed to this court claiming that General Statutes §46b-129 (b) violates the due process clause of the fourteenth amendment both because it is an impermissible infringement on her right to family integrity, and because the statute is unconstitutionally vague. The defendant also claims error in the trial court's determination that "probable cause" is the standard of proof in a temporary custody proceeding. "We conclude that § 46b-129 (b) is constitutional; however, we do find that the trial court erred when it decided that "probable cause" is the standard of proof in a temporary custody proceeding. As hereinafter set forth, we hold: (1) that § 46b-129 (b) is constitutional because it must be read together with § 17-38a which contains adequate criteria for determining whether temporary custody of children may be taken from the parent by court order; and (2) that the standard of proof applicable to temporary custody proceedings pursuant to § 46b-129 (b) is a fair preponderance of the evidence. I Constitutionality of General Statutes §46b-129 (b) A FAMILY INTEGRITY The Connecticut legislature has declared: "The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family." General Statutes § 17-38a (a). In administering this policy, courts and state agencies must keep in mind the constitutional limitations imposed on a state which undertakes any form of coercive intervention in family affairs. The United States Supreme Court has frequently emphasized the constitutional importance of family integrity. "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights of man,' and '[r]ights far more precious . . . than property rights.' 'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment." (Citations omitted.) Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). It must be stressed, however, that the right to family integrity is not a right of the parents alone, but "encompasses the reciprocal rights of both parents and children. It is the interest of the parent in the 'companionship, care, custody and management of his or her children,' Stanley v. Illinois, [supra], and of the children in not being dislocated from the 'emotional attachments that derive from the intimacy of daily association,' with the parent, [Smith v.] Organization of Foster Families [for Equality and Reform, 431 U.S. 816, 844, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977)]." Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977). This right to family integrity includes "the most essential and basic aspect of familial privacy — the right of the family to remain together without the coercive interference of the awesome power of the state." Duchesne v. Sugarman, supra. B CRITERIA EOR COERCIVE INTERVENTION BY THE STATE Where fundamental rights are concerned we have a two-part test: "[1] regulations limiting these rights may be justified only by a 'compelling state interest,' and . [2] legislative enactments must be narrowly drawn to express only the legitimate state interests at stake." Roe v. Wade, 410 U.S. 113, 155, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). The state has a substantial interest in protecting minor children; Stanley v. Illinois, supra, 649; Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 645 (1944); intervention in family matters by the state is justified, however, only when such intervention is actually "in the best interests of the child," a standard long used in this state. See General Statutes § 17-43a, 46b-129 (e); State v. Anonymous, 179 Conn. 155, 165, 425 A.2d 939 (1979); In re Juvenile Appeal (Anonymous), 177 Conn. 648, 661-62, 420 A.2d 875 (1979). Studies indicate that the best interests of the child are usually served by keeping the child in the home with his or her parents. "Virtually all experts, from many different professional disciplines, agree that children need and benefit from continuous, stable home environments." Institute of Judicial Administration — American Bar Association, Juvenile Justice Standards Project, Standards Relating to Abuse and Neglect, p. 45 (Tentative draft, 1977) (IJA-ABA, STDS). The love and attention not only of parents, but also of siblings, which is available in the home environment, cannot be provided by the state. Unfortunately, an order of temporary custody often results in the children of one family being separated and scattered to dif ferent foster homes with little opportunity to see each other. Even where the parent-child relationship is "marginal," it is usually in the best interests of the child to remain at home and still benefit from a family environment. The defendants' challenge to the temporary custody statute, §46b-129 (b), must be addressed in light of the foregoing considerations. The defendant contends that only when the child is "at risk of harm" does the state's interest become a compelling one, justifying even temporary removal of the child from the home. We agree. In custody proceedings, any criteria used to determine when intervention is permissible must take into account the competing interests involved. The parent has only one interest, that of family integrity; Stanley v. Illinois, supra, 651; and the state has only one compelling interest, that of protecting minor children. Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981); Sims v. State Department of Public Welfare, 438 F. Sup. 1179, 1191 (S.D. Tex. 1977), rev'd on other grounds sub nom. Moore v. Sims, 442 U.S. 415, 99 S. Ct. 2371, 60 L. Ed. 2d 994 (1979). The child, however, has two distinct and often contradictory interests. The first is a basic interest in safety; the second is the important interest, discussed above, in having a stable family environment. Connecticut's child welfare statutes recognize both the conflicting interests and the constitutional limitations involved in any intervention situation. Thus, under the criteria of General Statutes § 17-38a (e), summary assumption of temporary custody is authorized only when there is probable cause to believe that "the child is suffering from serious physical illness or serious physical injury or is in immediate physical danger from his surroundings, and that immediate removal from such surroundings is necessary to insure the child's safety . . . ." (Emphasis added.) The language of § 17-38a (e) clearly limits the scope of intervention to cases where the state interest is compelling, as required by the first part of the test from Roe v. Wade, supra. Intervention is permitted only where "serious physical illness or serious physical injury" is found or where "immediate physical danger" is present. It is at this point that the child's interest no longer coincides with that of the parent, thereby diminishing the magnitude of the parent's right to family integrity; In re Angelia P., 28 Cal. 3d 908, 916-17, 623 P.2d 198 (1981); and therefore the state's intervention as parens patriae to protect the child becomes so necessary that it can be considered paramount. Alsager v. District Court, 406 F. Sup. 10, 22-23 (S.D. Iowa 1975). A determination that the state interest is compelling does not alone affirm the constitutionality of the statute. More is needed. The second part of the due process analysis of Roe v. Wade, supra, requires that statutes affecting fundamental rights be "narrowly drawn to express only the legitimate state interests at stake." General Statutes § 17-38a (e) meets this part of the test by requiring, in addition to the compelling need to protect the child, that the assumption of temporary custody by the commissioner be immediately "necessary to insure the child's safety." This phrase requires that various steps short of removal from the home be used when possible in preference to disturbing the integrity of the family. The statute itself mentions supervised in-home custody, but a wide range of other programs short of removal are a part of existing DCYS procedure. See DCYS': Programs and Priorities, FY 1979. The challenged statute, §46b-129 (b), does not contain the "serious physical illness or serious physical injury" or "immediate physical danger" language of § 17-38a (e). We note, however, that § 46b-129 (b) does limit the temporary custody order to those situations in which "the child or youth's condition or the circumstances surrounding his care require that his custody be immediately assumed to safeguard his welfare." It is axiomatic that statutes on a particular subject be "considered as a whole, with a view toward reconciling their separate parts in order to render a reasonable overall interpretation . We must avoid a conse- qnence which fails to attain a rational and sensible result which bears most directly on the object which the legislature sought to obtain." LaProvidenza v. State Employees' Retirement Commission, 178 Conn. 23, 29, 420 A.2d 905 (1979); see United Aircraft Corporation v. Fusari, 163 Conn. 401, 414, 311 A.2d 65 (1972). This is no less true when the legislature has chosen to place related laws in different parts of the General Statutes. Therefore, the language limiting coercive intervention in chapter 301 ("Child Welfare"), § 17-38a, must be read as applying equally to such intervention in chapter 815t ("[Family Law] Juvenile Matters"), §46b-129. Because we hold that General Statutes § 46b-129 (b) may be applied only on the basis of the criteria enunciated in § 17-38a, we reject the defendant's claim that § 46b-129 (b) is unconstitutional. In the instant case, no substantial showing was made at the temporary custody hearing that the defendant's five children were suffering from either serious physical' illness or serious physical injury, or that they would he in immediate physical danger if they were returned to the defendant's home. The DCYS caseworker admitted at trial, as did the state's counsel at argument before this court, that without the unexplained death of Christopher there was no reason for DCYS to have custody of the other children. The medical evidence at the hearing indicated no connection between Christopher's death and either the defendant or the conditions in her home. While the final autopsy report was not available at the hearing, the pediatrician testified that the marks on Christopher's body were not related to the child's death. There was, therefore, no evidence before the court to indicate whether his death was from natural causes or was the result of abuse. Yet with nothing before it but subjective suspicion, the court granted the commissioner custody of the defendant's other children. It was error for the court to grant to the commissioner temporary custody when no immediate risk of danger to the children was shown. It appears from this record that DCYS has not heeded the suggestion of this court that the agency bears a responsibility of continuing review of cases it is litigating. In In re Juvenile Appeal (Anonymous), 177 Conn. 648, 662, 420 A.2d 875 (1979), we stated that when the cause for the commitment of children to DCYS custody ends, the state bears the burden of showing the necessity to continue the commitment. Although that holding concerned a parent's petition for revocation of a commitment, implicit in our holding was that the state had a duty to seek the best interests of the child even after adversary proceedings with the parent had begun. In this case, at some time shortly after the orders of temporary custody were granted, the state received the final autopsy report which effectively exonerated the defendant from any wrongdoing in Christopher's death. The reason for the custody order then no longer existed. It was then incumbent on DCYS to reunite the family. "In this situation, the state cannot constitutionally 'sit back and wait' for the parent to institute judicial proceedings. It 'cannot . . . [adopt] for itself an attitude of "if you don't like it, sue. " ' " Duchesne v. Sugarman, 566 F.2d 817, 828 (2d Cir. 1977). Petitions for neglect and for temporary custody orders, like the petitions to terminate parental rights in Duchesne v. Sugarman, supra, or in In re Juvenile Appeal (Anonymous), supra, "are particularly vulnerable to the risk that judges or social workers will be tempted, consciously or unconsciously, to compare unfavorably the material advantages of the child's natural parents with those of prospective adoptive parents [or foster parents]." In re Juvenile Appeal (Anonymous), supra, 672. This case clearly shows that these dangers do exist. It is shocldng that the defendant's children have been in "temporary" custody for more than three years. This is a tragic and deplorable situation, and DCYS must bear full responsibility for this unwarranted and inexcusable delay. Too often the courts of this state are faced with a situation where, as here, litigation has continued for years while the children, whose interests are supposed to be paramount, suffer in the insecurity of "temporary" placements. The well-known deleterious effects of prolonged temporary placement on the child, which we have discussed above, makes continuing review by DCYS of all temporary custody and commitment cases imperative. Where appropriate, the agency can and must take unilateral action either to reunite families or to terminate parental rights as expeditiously as possible to free neglected children for placement and adoption in stable family settings. The failure of DCYS properly to administer § 46b-129 does not, however, affect its constitutionality. The statute is constitutional because when it is read together with § 17-38a, as it must be, it is justified by a compelling state interest and is narrowly drawn to express only that legitimate state interest. Roe v. Wade, supra. II Burden of Proof; Standard of Proof The defendant's children were initially removed from her custody pursuant to the ninety-six hour hold provision of General Statutes § 17-38a (e). As explained above, this statute allows the commissioner of children and youth services to remove a child temporarily from the home, without court order, if the commissioner has probable cause to believe that the child is suffering from serious physical illness or physical injury, or is in immediate physical danger. The plaintiff commissioner promptly filed petitions of neglect with the Superior Court under General Statutes § 46b-129 (b), accompanied by a request for an ex parte order that the commissioner could retain custody pending an adversary hearing on temporary custody. § 46b-129 (b) (2). Section 46b-129 (b) provides for court ordered temporary custody in either of two ways after a neglect petition is filed. Under subsection (1) of §46b-129 (b), the court may issue to the parents an order to show cause why the court should not vest custody in the commissioner. Under sub section (2), used in this case, if the court has "reasonable cause to find" that "the circumstances surrounding [the child's] care require that his custody be immediately assumed to safeguard his welfare . . . the court may issue a temporary custody order ex parte, "pending a hearing upoii the petition [for temporary custody] which shall be held within ten days . . . This procedure is in two steps: first, upon a "reasonable cause" finding, the court may issue an ex parte temporary custody order of no more than ten days duration; and, second, a noticed temporary custody hearing must be held within ten days to determine whether the ex parte order should be confirmed. In this case, the unexplained death of Chris*-topher, combined with the marks on his body, was sufficient to support a finding under § 17-38a (e) that there was probable cause to believe that the defendant's other children might be "in immediate' physical danger," as required for removal from the home under the standards enunciated earlier in this opinion. Therefore, both the initial seizure by DCYS under the ninty-six hour hold provision of § 17-38a (e), and the court's decision to issue an ex parte temporary custody order under the first stepI of § 46b-129 (b) (2) on September 7, 1979, were entirely proper. Neither of these actions is challenged here. The court below erred, however, at the second step of § 46b-129 (b) (2) when it confirmed its order of temporary custody after taking evidence at the temporary custody hearing on September 14, 1979, and October 1, 1979. On the basis of testimony heard on those two days, the court found "probable cause" to continue custody in the commissioner, and concluded that the defendant's children were "presumptively neglected and uncared-for children whose return to parental care would not adequately assure their well being prior to an adjudication on the merits of the petitions alleging their neglect." The defendant claims that the court erred by presuming neglect and by requiring "probable cause" as the burden of proof, thereby effectively shifting the burden of proof to the defendant. We agree. We hold that the burden of proof is always on the state when it seeks to remove children from the home. We hold further that the standard of proof to be used in temporary custody hearings under General Statutes § 46b-129 (b) (2) is the normal civil standard of a fair preponderance of the evidence. A BURDEN OF PROOF We noted above that it is both a fundamental right and the policy of this state to maintain the integrity of the family. Where a fundamental right is involved, the burden of proof is always on the party seeking to interfere with that right. In re Juvenile Appeal (Anonymous), 177 Conn. 648, 662, 420 A.2d 875 (1979). The trial court's conclusion that the children were "presumptively neglected" impermissibly shifted to the defendant the burden of proof to show that the children were not neglected, and was, therefore, error. B STANDARD OF PROOF General Statutes § 46b-129 (b) establishes a reasonable cause standard of proof for the issuance of ex parte orders of temporary custody, but does not prescribe the standard of proof required in the second stage of proceedings under that section, when an adversary evidentiary temporary custody hearing is held. Where no standard of proof is provided in a statute, due process requires that the court apply a standard which is appropriate to the issues involved. In Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), the United States Supreme Court held that in hearings on petitions to terminate parental rights, due process requires that the state prove statutory termination criteria by "clear and convincing evidence" rather than by the normal civil standard of a "fair preponderance of the evidence." Santosky v. Kramer, supra, 769-70. The defendant urges us to adopt the same higher standard of proof for hearings on temporary custody, while the state suggests that the court below was correct in applying a "probable cause" standard. We reject both suggestions and hold that the proper standard of proof in temporary custody hearings is the normal civil standard of a fair preponderance of the evidence. See Darrow v. Fleischner, 117 Conn. 518, 519-20, 169 A. 197 (1933). The party seeking a change in custody, in this case the state, must prove by a fair preponderance of the evidence that custody should be taken from the parent and vested in the commissioner on a temporary basis under the criteria established in §46b-129 (b). Despite the Supreme Court determination in Santosky, supra, that parental termination hearings require the higher standard, we reject the "clear and convincing evidence" standard for temporary custody hearings because: (1) the nature of the private interests concerned in the two kinds of hearings differs, and (2) the deprivation of rights in a temporary custody adjudication is neither final nor irrevocable. " 'The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he [or she] may be "condemned to suffer grievious loss." ' [Citation omitted.] Whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the factfinder turns on both the nature of the private interest threatened and the permanency of the threatened loss." Santosky v. Kramer, supra, 758. "[T]he minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed____" Id., 755. 1. Private Interests In the termination of parental rights hearing discussed in Santosky, the United States Supreme Court emphasized that only the fundamental family integrity interest of the parent was at stake. "The factfinding [hearing] does not purport — and is not intended — to balance the child's interest in a normal family home against the parents' interest in raising the child. . . . Rather, the factfinding hearing pits the State directly against the parents." Santosky v. Kramer, supra, 759. In a hearing on temporary custody, however, the child's interests are very much at issue. We hold today that no temporary custody order may issue unless the child is suffering from serious physical illness or serious physical injury or is in immediate physical danger. We also hold that the child's safety pending further proceedings is the primary concern of a temporary custody hearing. Therefore, there are two competing interests: — the safety of the child and the parent's right of family integrity — at stake in a temporary custody hearing, whereas only the parent's family integrity interest is directly involved in the fault stage of a termination of parental rights proceeding like thát in Santosky. The child, of course, has an interest both in safety and in family integrity. The state, as parens patriae, represents the safety interest of the child in custody proceedings. This interest must be balanced against the combined family integrity interests of parent and child, which are represented by the parent. An elevated standard of proof cannot protect the child's interests, because some interest of the child is adversely affected whether the state or the parent prevails. The child's interests are best protected not by an elevated standard of proof, but by the "risk of harm" standards enunciated today. Where two important interests affected by a proceeding are in relative equipoise, as they are in this situation, a higher standard of proof would necessarily indicate a preference for protection of one interest over the other. See In Re Winship, 397 U.S. 358, 371, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (Harlan, J., concurring). We see no reason to make such a value determination, and find that the various interests in a temporary custody hear ing are best served by applying the normal civil standard of proof which is a fair preponderance of the evidence. 2. Permaneiicy of Deprivation of Rights The fair preponderance of the evidence standard is also appropriate in § 46b-129 (b) hearings because of the temporary nature of the orders contemplated by these proceedings. In Santosky v. Kramer, supra, 759, the court emphasized that an elevated standard of proof was required because the "decision terminating parent rights is final and irrevocable." (Emphasis in original.) A decision granting temporary custody to the commissioner of children and youth services certainly affects important rights of the parent and the child, as explained in part I of our opinion. The decision, however, is neither final nor irrevocable. The determination is necessarily reviewed during the hearings on the neglect petition under §46b-129 (a) and (c). It is also reviewable upon a petition for revocation of custody filed, inter alia, by the parent or by DCYS under § 46b-129 (g) ; and, therefore, the deprivation of the parent's right to care and custody of his or her children is much less serious in a temporary custody hearing than in the Santosky termination of parental rights proceeding. In conclusion, we hold that the fair preponderance of the evidence standard of proof must be applied in temporary custody proceedings, both because the private interests involved are relatively balanced between the safety of the child and the combined family integrity interests of parent and child, and also because any deprivation of rights is both temporary and reviewable. There is error, and the ease is remanded with direction to set aside the orders of temporary custody. In this opinion Peters, Parskey and Grillo, Js., concurred. A protective services family is one which has come to the attention of DCYS as having a potential for abuse, neglect, abandonment, or sexual exploitation. DGYS then investigates the family and, where appropriate, provides "support systems to bolster family functioning." DCYS: Programs and Priorities, FY 1979. Aid to Families with Dependent Children is a federal-state grant-in-aid program authorized by 42 U.S.C. § 601 et seq. and administered pursuant to General Statutes § 17-85 through 17-107. General Statutes § 17-38a (e) provides: "Agencies or institutions receiving reports of ehild abuse as provided in this section shall, within twenty-four hours, transfer sueh information to the commissioner of children and youth services or his agent, who shall cause the report to be investigated immediately. If the investigation produces evidence that the ehild has been abused in the manner described in subsection (b), he shall take sueh measures as he deems necessary to protect the ehild, and any other children similarly situated, including but not limited to the removal of the child or children from his home with the consent of his or their parents or guardian or by order of the superior court. If the commissioner of children and youth services or his designee, after such investigation, has probable cause to believe that the child is suffering from serious physical illness or serious physical injury or is in immediate physical danger from his surroundings, and that immediate removal from sueh surroundings is necessary to insure the child's safety, the commissioner, or his designee, may authorize any employee of his department or any law enforcement officer to remove the ehild from sueh surroundings without the consent of the child's parent or guardian. Such removal and temporary custody shall not exceed ninety-six hours during which time either a petition shall be filed with the superior court or the ehild shall be returned to his parent or guardian. If the commissioner determines that there are grounds to believe the ehild may be properly cared for in his own home, the parents or guardian, as the case may be, shall be aided to give sueh proper care under the supervision of the commissioner. Such supervised custody may be terminated when the commissioner finds a safe environment has been provided the ehild; but if the commissioner, after a reasonable time, finds this condition cannot be achieved in the child's own home under such supervision, he may petition the superior court for commitment of the ehild." General Statutes § 46b-129 (a) provides: "Any selectman, town manager, or town, city, or borough welfare department, any probation officer, the Connecticut Humane Society, or the commissioner of human resources, the commissioner of children and youth services or any child-caring institution or agency approved by the commissioner of children and youth services, a child or his representative or attorney or a foster parent of a child, having information that a child or youth is neglected, uncared-for or dependent, may file with the superior court which has venue over such matter a verified petition plainly stating such facts as bring the child or youth within the jurisdiction of the court as neglected, uncared-for, or dependent, within the meaning of section 46b-120, the name, date of birth, sex, and residence of the child or youth, the name and residence of his parents or guardian, and praying for appropriate action by the court in conformity with the provisions of this chapter. Upon the filing of such a petition, the court shall cause a summons to be issued requiring the parent or parents or the guardian of the child or youth to appear in court at the time and place named, whieh Summons shall be served not less than fourteen days before the date of the hearing in the manner prescribed by section 51-309, and said court shall further give notice to the petitioner and to the commissioner of children and youth services of the time and place when the petition is to be heard not less than fourteen days next preceding the hearing in question." General Statutes § 46b-129 (b) provides: "If it appears from the allegations of the petition and other verified affirmations of fact accompanying the petition, or subsequent thereto, that there is reasonable cause to find that the child's or youth's condition or the circumstances surrounding his care require that his custody be immediately assumed to safeguard his welfare, the court shall either (1) issue an order to the parents or other person having responsibility for the care of the child or youth to show cause at such time as the court may designate why the court shall not vest in some suitable agency or person the child's or youth's temporary care and custody pending a hearing on the petition, or (2) vest in some suit able agency or person the child's or youth's temporary care and custody pending a hearing upon the petition which shall be held within ten days from the issuance of such order on the need for such temporary care and custody. The service of such orders may be made by any officer authorized by law to serve process, or by any probation officer appointed in accordance with section 46b-123, investigator from the department of administrative services, state police officer or indifferent person. The expense for any temporary care and custody shall be paid.by the town in which such child or youth is at the time residing, and such town shall be reimbursed therefor by the town found liable for his support, except that where a state agency has filed a petition pursuant to the provisions of subsection (a) of this section, the agency shall pay such expense." The report was allegedly made by an upstairs neighbor of the defendant. At the hearing, the neighbor denied having made such a report at any time. The hearing on the neglect petitions was continued when additional evidence on the temporary custody petitions was heard on October 1, 1979. It was never rescheduled. The final autopsy report was not complete at the time of the hearing. Preliminary findings were available, however, and the cause of death could not be determined. No evidence available at the hearing connected the death with any sort of neglect or abuse. The court stated after the state's first witness: "I think I have enough to make a determination. The court should have available to it that which is sufficient to make a probable eause determination for purposes of orders today." Additional testimony was taken for purposes of the temporary custody order on October 5, 1979, and October 23, 1979, from witnesses called by the defendant, some of whom contradicted the facts alleged in the neglect petitions. The court then "affirmed" its earlier temporary custody order, and denied the defendant's motion to dismiss the petitions and the order of temporary custody. The defendant also attacks the definition of "neglect" in § 46b-120 as being unconstitutionally vague. This appeal, however, is from a temporary custody order issued pursuant to $ 46b-129 (b) ; it is not- an appeal of a neglect proceeding. We therefore do not address the "neglect" issue; $ 46b-120; because it is not properly before us. Uniuterrupted home life "comports . . . with each child's biological and psychological need for unthreatened and unbroken continuity of care by his parents. No other animal is for so long a time after birth in so helpless a state that its survival depends upon continuous nurture by an adult. Although breaking or weakening the ties to the responsible and responsive adults may have different consequences for children of different ages, there is little doubt that such breaches in the familial bond will be detrimental to a child's well-being." (Footnotes omitted.) Goldstein, "Medical Care for the Child at Eisk: On State Supervision of Parental Autonomy," 86 Yale L.J. 645, 649 (1977). Separation from his or her parents for any significant time has damaging effects on a child, even when the parents are minimally supportive of the child's needs. See Gold-stein, Freud and Solnit, Before the Best Interests of the Child, pp. 6-12 (1979); Wald, "State Intervention on Behalf of 'Neglected' Children: Standards for Eemoval of Children from Their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Eights," 28 Stan. L. Eev. 623 (1976) ; Goldstein, Freud and Solnit, Beyond the Best Interests of the Child, p. 20 (1973). "Even when placed in good environments, which is often not the ease, they suffer anxiety and depression from being separated from their parents, they are forced to deal with new caretakers, playmates, school teachers, etc. As a result they often suffer emotional damage and their development is delayed." Wald, "Thinking About Public Policy Toward Abuse and Negleet of Children," 78 Mich. L. Rev. 645, 662 (1980). The American Bar Association Juvenile Justice Standards Project, after a thorough study of the competing individual, societal, and legal interests involved when state intervention into family affairs is contemplated, developed model Standards Relating to Abuse and Neglect (Tentative Draft, 1977) (IJA-ABA, STDS). The basie policy assumptions underlying the study mirror our own law, i.e., "[s]tate intervention should promote family autonomy and family life. . . . [But] where a child's needs . . . conflict with his/ her parents' interests, the child's needs should have priority." ABA Standard 1.5. When interpreting the "at risk" criteria set forth in General Statutes § 17-38a (e), the following guidelines may be considered insofar as they help to define more clearly our own statutes pertaining to temporary custody orders: "Courts should . . . assume jurisdiction in order to condition continued parental custody upon the parents' accepting supervision or to remove a child from his/her home only when a child is endangered in a manner specified in subsection A.-F.: "A. a child has suffered, or there is a substantial risk that a ehild will imminently suffer, a physical harm, inflicted nonaceidentally upon him/her by his/her parents, which causes, or creates a substantial risk of causing disfigurement, impairment of bodily functioning, or other serious physical injury; "B. a child has suffered, or .there is a substantial risk that the child will imminently suffer, physical harm causing disfigurement, impairment of bodily functioning, or other serious physical injury as a result of conditions created by his/her parents or by the failure of the parents to adequately supervise or protect him/her; "0. a child is suffering serious emotional damage, evidenced by severe anxiety, depression, or withdrawal, or untoward aggressive behavior toward self or others, and the child's parents are not willing to provide treatment for him/her; "D. a child has been sexually abused by his/her parent or a member of his/her household . . . ; "E. a child is in need of medical treatment to cure, alleviate, or prevent him/her from suffering serious physical harm which may result in death, disfigurement, or substantial impairment of bodily functions, and his/her parents are unwilling to provide or consent to the medical treatment; "F. a child is committing delinquent acts as a result of parental encouragement, guidance, or approval." ABA Standard 2.1. We recognize that there are three parties to litigation in the Superior Court for juvenile matters — DCYS, the parent, and the child (through a guardian ad litem appointed pursuant to Practice Book § 484) and that any of these parties could have moved to terminate this litigation in a number of ways. We are saying only that DCYS, acting as parens patriae, had a duty to do so. This court notes, however, that the defendant mother took no steps either to revoke custody under General Statutes § 46b-129 (f) or to pursue a judicial resolution of the neglect petitions. We are even more concerned that the attorney for the children took no steps to protect their interests in family integrity by insisting on a resolution of the neglect petitions, and failed to represent their interests before this court. This court, therefore, is appreciative of the fact that the interests of the children have been ably represented by the Connecticut Civil Liberties Union as amicus curiae on this appeal. Although § 46b-129 (b) (1) was not used here, and is not challenged here, our discussion of the temporary custody statute would be incomplete if we did not make clear that the burden of proof at the order to show cause hearing remains on the state. As discussed in detail in our opinion, where the state seeks to obtain custody of children, the fundamental right to family integrity is at stake, and the burden of proof remains on the party challenging that right. This is so even though the procedures in the statute involve issuing the parents an order to show cause. Merely by appearing in response to the order to show cause, the parent invokes the presumption in favor of maintaining the family intact. See In re Juvenile Appeal (Anonymous), 177 Conn. 648, 663-64, 420 A.2d 875 (1979). General Statutes § 46b-129 (e) provides: "When a petition is filed in said court for the commitment of a child or youth, the commissioner of children and youth services shall make a thorough investigation of the case and shall cause to be made a thorough physical and mental examination of the child or youth if requested by the court. The court after hearing on the petition and upon a finding that the physical or mental ability of a parent or guardian to care for the child or youth before the court is at issue may order a thorough physical or mental examination, or both, of the parent or guardian whose competency is in question. The expenses incurred in making such physical and mental examinations shall be paid as costs of commitment are paid." General Statutes § 46b-129 (g) provides: "Any court by which a child or youth has been committed pursuant to the provisions of this section may, upon the application of a parent, including any person who acknowledges before said court paternity of a child or youth born out of wedlock, or other relative of such child or youth, the selectman or any original petitioner, or a licensed child- earing agency or institution approved by the commissioner, or said commissioner, and while such child or youth is under the guardianship of said commissioner, upon hearing, after reasonable notice to said commissioner, and, if said commissioner made the application, after reasonable notice to such parent, relative, original petitioner, selectman or child-earing agency or institution, upon finding that cause for commitment no longer exists, revoke such commitment, and thereupon such guardianship and all control of said commissioner over such child or youth shall terminate. The court may further revoke the commitment of any child or youth upon application by the commissioner or by the child or youth concerned and after reasonable notice to the parties affected upon a finding that such revocation will be for the best interest and welfare of such child or youth. No hearing shall be held for such reopening and termination of commitment or transfer of commitment more often than once in six months, except upon the application of said commissioner." We reiterate that it is the continuing duty of DCYS to review the custody situation and to petition the court to return custody to the parent if and when the original reasons for the change in custody no longer exist. See footnote 11, supra.

Gtsillo, J. In Sandstrom v. Montana, 442 U.S. 510, 524, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), the United States Supreme Court held that in a case where intent is an element of the crime charged, a jury instruction which creates a conclusive or burden-shifting presumption relative to that issue violates due process of law as guaranteed by the fourteenth amendment. This appeal from the judgment of the trial court denying a petition for a writ of habeas corpus addresses the following issues with respect to that decision: (1) whether the Sandstrom principle is entitled to full retroactive effect; (2) whether the Sandstrom principle was violated by the trial court in its instructions to the jury. The facts are not in dispute. The plaintiff, Charles Crawford, was indicted for murder by a grand jury on January 28, 1974. At the trial to a jury, the plaintiff did not contest the fact- that he had shot and killed the victim, but based his defense on a claim that his voluntary intoxication from alcohol and drug intake prior to the shooting resulted in his incapacity to form the specific intent necessary for a conviction of murder. After presentation of the evidence, the trial court charged the jury, inter alia, as follows: "Now intent is a mental process. A person's intention may be inferred from his conduct. Every person is presumed to intend the natural and necessary consequences of his acts." On October 8, 1974, a verdict of guilty was returned by the jury. The plaintiff was sentenced to a term of imprisonment of not less than twenty-two years nor more than life on October 31, 1974. The plaintiff appealed his conviction to this court, asserting error by the trial court in its charge to the jury relating to the burden of proof on the effect of voluntary intoxication. State v. Crawford, 172 Conn. 65, 67-68, 372 A.2d 154 (1976). This court, viewing the jury instructions in their entirety, underscored the fact that the trial court specifically charged the jury that the defendant had no burden of proof at all and that the state had the burden of proving the required intent. Id., 70. We therefore concluded that "there was neither an erroneous charge nor even a reasonable possibility that the jury was misled." Id. In 1979, approximately two and one-half years after this court's decision on the appeal taken by the plaintiff, the United States Supreme Court considered the constitutional validity of a state trial court jury instruction that " 'the law presumes that a person intends the ordinary consequences of his voluntary acts.' " Sandstrom v. Montana, supra, 512. Under the circumstances in which the challenged jury instruction was given, the court held that the charge violated the defendant's due process rights because a reasonable jury could have interpreted the instruction as either a burden-shifting or a conclusive presumption. Id., 517-24; see United States v. United States Gypsum Co., 438 U.S. 422, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978) (invalidating conclusive presumption); Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) (invalidating burden-shifting presumption). Relying on the rule established in Sandstrom, the petitioner, on January 28, 1980, filed the present petition for a writ of habeas corpus. A stipulation of facts was entered into by the parties and submitted to the trial court. After hearing the parties' respective legal arguments, the trial court, O'Donnell, J., concluded that while the principles of Sandstrom v. Montana must be applied retroactively, the challenged instruction, viewed in the context of the entire jury charge, could not be interpreted by a reasonable juror as either a conclusive or burden-shifting presumption. Accordingly, the court denied the petition for a writ of habeas corpus, from which judgment the plaintiff has appealed. Subsequently, the state filed a cross appeal, asserting error by the trial court in its conclusion that the Sandstrom, rule must be applied retroactively in the present case. Our first consideration involves the question of whether we should apply the Sandstrom rule retroactively in the present case, taking into consideration the fear of the state that retroactive application under these circumstances would create an avalanche of collateral proceedings resulting in an overwhelmingly adverse impact on the administration of justice. In determining the scope of retro-activity, it is clear that " £[w]here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.' " Ivan V. v. City of New York, 407 U.S. 203, 204, 92 S. Ct. 1951, 32 L. Ed. 2d 659 (1972). "It is true . . . that the question of whether the purpose of a new constitutional rule is to enhance the integrity of the factfinding process is a question of 'degree' . . . and when the degree to which the rule enhances the integrity of the factfinding process is sufficiently small, we have looked to questions of reliance by the State on the old rule and the impact of the new rule on the administration of justice in deciding whether the new rule is to be applied retroactively." Hankerson v. North Caro lina, 432 U.S. 233, 243, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977); see Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Guided by these precedents, we turn to a consideration of the purpose of the Sandstrom rule and its impact on the truth-finding function. In Hankerson v. North Carolina, supra, the Supreme Court held that its decision in Mullaney v. Wilbur, supra, which struck down a jury instruction on the ground that it created a burden-shifting presumption relieving the state from establishing all elements of a criminal offense beyond a reasonable doubt, was entitled to full retroactive effect. The Hanherson court reached this determination by concluding that the effect of the burden-shifting presumption upon the reasonable doubt standard of proof substantially impaired the truth-finding function, thus raising serious questions about the accuracy of guilty verdicts in past trials. Hankerson v. North Carolina, supra, 243-44. Similarly, in Sandstrom, the court concluded that a jury instruction which creates either a conclusive or a burden-shifting presumption with respect to the intent element of a crime conflicts with the presumption of innocence to which every defendant is entitled and relieves the state from proving every element of the crime charged. Sandstrom v. Montana, supra, 522-25. Where either presumption is present, therefore, its existence casts substantial doubt upon the truth-finding function of a criminal trial, thus raising serious questions as to the accuracy of a guilty verdict. "Accordingly, any person convicted of a crime on the basis of the . . . instruction on intent challenged here is entitled to review of the conviction so obtained." Harris v. Israel, 515 F. Sup. 568, 572 (E.D. Wis. 1981). Concededly, the Sandstrom decision did not create a per se constitutional rule with respect to every instruction of the type challenged here. The application of a particular rule of law may be constitutional under certain circumstances and unconstitutional under others. Compare State v. Harrison, 178 Conn. 689, 695-99, 425 A.2d 111 (1979) (invalidating instruction under Sandstrom rule) with State v. Pina, 186 Conn. 261, 264, 440 A.2d 967 (1982) (validating instruction challenged under Sandstrom rule.). Indeed, as we have previously stated, "the rule of Sandstrom may not be oversimplified." State v. Mason, 186 Conn. 574, 582-83, 442 A.2d 1335 (1982). "It is not the use of the word 'presume' itself which renders an instruction invalid; rather it is the 'lack of qualifying instructions as to the legal effect of the presumption,' making it possible for a reasonable jury to interpret the presumption in an unconstitutional manner." Id., 583. Turning to a review of the challenged instruction, considered in relation to the entire jury charge, we are unable to conclude that a Sandstrom violation exists. "On many occasions this court has found no error in instructions containing language similar to that invalidated in Sandstrom because the challenged instructions contained other language not present in the Sandstrom instructions which was sufficiently precise or elaborate to prevent the jury from applying the instructions in an unconstitutional manner." State v. Mason, supra, 583. In its charge to the jury, the trial court instructed in a detailed and comprehensive manner concerning the presumption of innocence and the state's burden of proof, factors which remove the possibility that the jury shifted the burden of proof on the issue of intent to the plaintiff. Further, the court's charge with respect to intent made it clear that the jurors were permitted but not required to infer criminal intent from the petitioner's conduct and thus the instruction did not possess the potential for conclusiveness that was present in Sandstrom. See Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979); State v. Arroyo, 180 Conn. 171, 176-79, 429 A.2d 457 (1980). This "elaborate and precise language . . . [cures] the otherwise ambiguous use of [the word] 'presume . . . State v. Pina, supra, 264. Thus the challenged instruction, in view of the charge as a whole, could not be interpreted by a reasonable jury as either a burden-shifting or conclusive presumption. There is no error. In this opinion the other judges concurred. Because of this ease by ease approach, we are not pursuaded that affording Sandstrom retroactivity will result in a devastatingly adverse impact on the administration of justice. In any event, we note that "[w]e do not release a criminal from jail because we like to do so, or because we think it wise to do so, but only because the government has offended constitutional principle in the conduct of his case." Desist v. United Staes, 394 U.S. 244, 258-59, 89 S. Ct. 1030, 22 L. Ed. 2d 248, reh. denied, 395 U.S. 931, 89 S. Ct. 1766, 23 L. Ed. 2d 251 (1969) (Harlan, J., dissenting). "In these circumstances, factors such as prior reliance by state and federal authorities and the effect on the administration of justice are subsumed by the interest in maintaining the integrity of the criminal fact-finding process." Harris v. Israel, 515 F. Sup. 568, 572 (E.D. Wis. 1981). The trial court instructed in pertinent part as follows: "Now, the matter of presumption of innocence. Before I discuss the offense charged here, I should tell you what duty the State has in any criminal ease. "In this case, as in all criminal cases, it is the law that every man is presumed to be innocent until he is proved guilty. Thus, in the first instance, the defendant stands before you not as a guilty person, but as an innocent person until he is proved guilty under the law as I am about to explain it to you. "The fact that the defendant has been arrested or incarcerated or is brought in and out of court by Sheriffs or had this indictment returned against him by the Grand Jury charging him with murder should have, in the first instance, no effect at all upon your mind. None of these things can be considered evidence of guilt. He is innocent until and unless the State has proved him guilty beyond a reasonable doubt of the offense charged here. This is the burden that rests upon the State in this case as in all criminal eases, the burden of proving to you that the defendant is guilty. "In other words, the State must offer proof by sufficient evidence to overcome this presumption of innocence. The presumption of innocence requires that if evidence is offered which you believe and which is capable to two reasonable interpretations, one of which is consistent with innocence, it must be given that interpretation of innocence. This presumption of innocence is not, however, evidence in and of itself. It has no probative force, that is it does not prove anything. It simply means that the defendant stands here as an innocent man until it is found, if you do so find, that the State has proved his by sufficient evidence to be guilty and has thus overthrown his presumption of innocence. "Now, the question of reasonable doubt and burden of proof. In order to prove a defendant guilty in a criminal case, the State must not only prove him guilty, but must prove him guilty beyond a reasonable doubt. In a criminal case, the defendant has no burden of proof except in certain situations not applicable to this case. Hence, defendant has the right to rely upon the State's inability to meet its burden of proof beyond a reasonable doubt. "Every crime is made up of certain essential elements. What they are in this ease, I will explain as I proceed in this charge. But, for the present, it is enough to say that before a jury can find a defendant guilty of a crime, the State must have proved every essential element of the crime beyond a reasonable doubt. "Thus, as to the third element of the crime of murder, namely, intent to cause the death of another person, even if you were to find the defendant may have been intoxicated to some degree, if you find that the State has proved the defendant was still capable of forming the intent to cause the death of another person and that he had such an intent at the time the crime was committed, and if you find the State has proved all of the other essential elements of the offense, you must find the defendant guilty of murder as charged. "On the other hand, if you find that the State has failed to prove at the time of the commission of the offense that the defendant was capable of forming a specific intent mentioned and also has failed to prove that he had sueh specific intent, you must find the defendant not guilty of murder." Regarding intent, the trial court instructed as follows: "The third element which the State must prove is that the person causing the death of the person must have done so with intent to cause the death. In other words, the State must prove beyond a reasonable doubt that the accused shot Frosolone with the intent to cause his death. "Now, intent is a mental process. A person's intention may be inferred from his conduct. Every person is presumed to intend the natural and necessary consequences of his acts. It is often impos sible and never necessary to prove criminal intent by direct evidence. Ordinarily, intent can be proved only by circumstantial evidence, as I have explained that term to you. "What a person's purpose or intention has been is necessarily very largely a matter of inference. A person may stand and testify directly as to what his or her purpose or intention was, or was not, and that testimony you can believe or not, according to whether or not it warrants belief. But no one can be expected to come here and testify that he looked into another person's mind and saw therein a certain purpose or intention. The only way in which a jury can determine what a person's purpose or intention was at any given time, aside from that person's own testimony, is by determining what that person's conduct was and what the circumstances were surrounding that conduct and from those, infer what his purpose or intention was. "To draw such an inference, is not only the privilege but it is also the duty of the jury provided, of course, the inference drawn is a reasonable one. In this ease, therefore, it will be a part of your duty to draw all reasonable inferences from the conduct of the accused in the light of the surrounding circumstances as to what purpose or intention was in his mind at the time in question and considered all in the light of the entire testimony offered in this case by all the witnesses."

Bieluch, J. The defendant has appealed from the judgment rendered after his conviction by a jury of two counts of attempted murder in violation of General Statutes § 53a-54a (a) and 53a-49. He claims as error (1) the trial court's denial of his motion for acquittal based on the sufficiency of the evidence, and (2) its refusal to instruct the jury concerning lesser included offenses. The jury could reasonably have found the following facts. On December 20,1980, Detective Robert Kwet and Officer Kathy Sheehan, then Kathy Kwet, police officers of the city of Bridgeport and formerly husband and wife, were assigned to a special rape decoy detail. The special operation was designed to lure an unknown male, termed the "bumper rapist," who was sexually assaulting lone women whose cars were rammed from behind by him when they were stopped at stop signs. After they exited their vehicles in response to the intentional collision caused by him, they became his prey. Sheehan drove her personal car while Kwet was positioned in the back seat out of view. Shortly after midnight, Sheehan noticed that she was being followed by a car. After she stopped at a stop sign, the vehicle that was following her struck the back of her car. Sheehan stated to Kwet, "This must be him." At about that time, her car was bumped again. She then left the car holding her service weapon in her right hand behind her and concealed by a coat. Kwet was lying prone on the rear seat out of sight. The driver of the second car, a male, having left his car at the same time, approached her. When they were eight to ten feet apart, Sheehan saw that the individual was raising a revolver and pointing it at her. When Sheehan saw this, she felt that she was in immediate danger of her life. She and the man then fired at each other almost simultaneously. After firing her weapon once, Sheehan thought she had been hit. She noticed a hole in her car about six inches away from her leg, and then jumped back into the front seat of her car when she heard an exchange of gunfire between Kwet and the attacker. Kwet yelled to her to get down because they were still being fired upon. From his position in the back seat, Kwet observed the man coming at the car. Kwet then fired through the back window. The attacker retreated, but shots then rang out from in back of Sheehan's car. When Kwet was being fired upon, his head and shoulders were visible through the rear window. After receiving gunfire from the rear of Sheehan's car, Kwet smashed the rear window and saw the attacker, first, on the left side of his own car by the fender, and then in the car, bobbing his head up and down near the dashboard three or four times. The attacker then fled in his car and the police lost him. Sheehan described the individual who struck her car as being 5'9" or 5'10" inches tall, of medium build, dressed in dark clothing and wearing a ski hat pulled down over his face. Kwet described the man as having his face covered with a knit cap. He stated that two shots were fired by the assailant at his wife and two shots were fired at him. Kwet noticed ricochet marks on Sheehan's vehicle which resulted from the assailant's gunfire. Subsequently, a bullet was discovered in Sheehan's car. This was established as having been fired from a weapon that was proved to be in the possession of the defendant at the time of the incident. The defendant was identified as the person who stole the revolver in Bridgeport on November 28, 1980. The weapon was later found in the defendant's possession when he was arrested during a burglary at the Superior Court in Bridgeport almost three months after the shooting. We find no merit to the defendant's claim of error that there was insufficient evidence to convict him of two counts of attempted murder beyond a reasonable doubt. The jury, in finding the defendant guilty, reasonably found that the defendant stole a revolver, that a person similar in height and build to the defendant fired that same revolver approximately three weeks later during the shoot-out with Kwet and Sheehan, and that the defendant was still in possession of the weapon almost three months after the shooting when he was apprehended in the course of a burglary at the courthouse. "[I]n a criminal prosecution, the state has the burden of proving the case set forth in the information in all its material parts beyond a reasonable doubt, so that the court must find, in order to convict, that all the elements of the crime charged have been established beyond a reasonable doubt." State v. Johnson, 162 Conn. 215, 231, 292 A.2d 903 (1972); Lego v. Twomey, 404 U.S. 477, 92 S. Ct 619, 30 L. Ed. 2d 618 (1972); State v. Gallivan, 75 Conn. 326, 329, 53 A. 731 (1902). "In determining whether the evidence is sufficient to sustain a verdict, 'the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.' " State v. Giguere, 184 Conn. 400, 402-403, 439 A.2d 1040 (1981), quoting State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981). In ruling on such a motion, it is well settled that the evidence presented at the trial must be given a construction most favorable to sustaining the jury's verdict. State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978). The evidence in this case, both direct and circumstantial, reviewed in accordance with the above principles, fully supports the guilty verdicts of the jury. We also conclude that the court did not err in refusing to instruct the jury on lesser included offenses. The defendant requested in writing that the trial court instruct the jury on the lesser included offenses of reckless endangerment in the first degree; General Statutes § 53a-63; and threatening; General Statutes § 53a-62. The court declined to do so. "A defendant is entitled to an instruction on a lesser included offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) the evidence, introduced by either the state or the defendant, or by a combination of their proofs, justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser." State v. Tinsley, 181 Conn. 388, 396-97, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981); State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Our concern here lies with the second criterion of this lesser included offense test. The first count of the information upon which the defendant was tried in this case states, in pertinent part, that the defendant "with intent to cause the death of one Kathy Kwet, did shoot at and attempt to cause the death of said Kathy Kwet." This count sets forth the statutory elements of the attempted murder of Kathy Kwet. The second count alleges the same elements of the crime of the attempted murder of Robert Kwet. Reckless endangerment in the first degree, as defined in General Statutes § 53a-63, states that "[a] person is guilty pf reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person." Under General Statutes § 53a-3 (4), serious physical injury is defined as "physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ." A precise parallel to the case before us exists in the penal laws and judicial authority of New York. Under New York Penal Law § 125.25, "[a] person is guilty of murder in the second degree when: (1) With intent to cause the death of another person, he causes the death of such person or of a third person. ." This is the same definition of murder as exists in our penal code and as alleged in the two counts of attempted murder of which the defendant was convicted. New York Penal Law § 120.25 creates the crime of reckless endangerment in the first degree in these terms: "A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person." This definition of reckless endangerment in the first degree, while basically similar to that crime in our jurisdiction, is more confining objectively since it adds the element of "depraved indifference to human life" and does not reach below the creation of "a grave risk of death" to "a risk of serious physical injury." Under General Statutes § 53a-63, however, reckless endangerment in the first degree also exists when reckless conduct creates a risk of "serious physical injury to another person" which is also defined in General Statutes § 53a-3 (4) as "serious disfigurement, serious impairment of health or serious loss of impairment of the function of any bodily organ." The lesser included offense doctrine exists in our jurisdiction by judicial decision. State v. Tinsley, supra; State v. Whistnant, supra. In New York, this doctrine has been established by statute. McKinney's Criminal Procedure Law § 1.20, subd. 37. By this enactment, the term "lesser included offense" is defined as follows: "When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a 'lesser included offense.' " This definition comports with the second criterion of Tinsley and of Whistnant for a lesser included offense charge, the condition now on review. In People v. Ramirez, 79 App. Div. 2d 978, 434 N.Y.S.2d 281, rev'd, 55 N.Y.2d 708, 431 N.E.2d 623, 447 N.Y.S.2d 138 (1981), the New York courts had before them a defendant charged with seven crimes, including two counts of attempted murder in the second degree in violation of Penal Law § 125.25, subdivision 1, and 110.00. At the close of the state's case, the trial judge reduced one of the attempted murder counts to reckless endangerment in the first degree in violation of Penal Law § 120.25, and dismissed the remaining counts of the indictment. The defendant appealed on the ground that the conviction for reckless endangerment in the first degree was improper because that crime did not meet the statutory definition of a lesser included offense with respect to the crime of attempted murder in the second degree with which he had originally been charged. The Supreme Court, Appellate Division, Second Department, affirmed the ruling of the trial court. On further appeal to the Court of Appeals, the Appellate Division was reversed. In People v. Ramirez, 55 N.Y.2d 708, 431 N.E.2d 623, 447 N.Y.S.2d 138 (1981), the Court of Appeals relied upon the statutory definition of a lesser included offense, which is essentially equivalent to the second criterion of the Tinsley and Whistnant test of a lesser included offense under review before us, and overturned the defendant's conviction of reckless endangerment in the first degree as a lesser included offense. The court reasoned as follows: "The plain meaning of [the lesser included offense] statute is clear — that is, that one crime cannot be a lesser included offense of another if it is theoretically possible to commit the greater crime without concomitantly committing the lesser. . As the Appellate Division noted in the present case, it is theoretically possible to commit the greater crime of attempted murder in the second degree (Penal Law, § 110.00,125.25, subd. 1) without also committing the lesser crime of reckless endangerment in the first degree (Penal Law, § 120.25) since, if the attempt is rendered innocuous by some circumstance of factual impossibility, no grave risk of death to another person is created, as is required for the crime of reckless endangerment in the first degree. Accordingly, the crime of reckless endangerment in the first degree (Penal Law, § 120.25) is not a lesser included offense of attempted murder in the second degree (Penal Law § 110.00, 125.25, subd. 1)." Id., 710-11. The two counts of the information upon which the defendant in the present case was convicted alleged the offense of attempted murder in the manner specified in our penal code. The elements of these charges as described in the information are identical to those in the charge of attempted murder in the second degree before the New York courts in Ramirez. The elements of reckless endangerment in the first degree under our penal code, which the defendant requested be given by the trial court in its jury instructions as a lesser included offense, are similar to those of reckless endangerment in the first degree under the New York penal law which was rejected in Ramirez as a lesser included offense to attempted murder in the second degree, a charge identical to attempted murder under our statutes in § 53a-54a (a) and 53a-49. The statutory definition of a lesser included offense before the courts in Ramirez is identical to the second prong of the test for a lesser included offense charge set out in Tinsley and Whistnant and at issue before us. Under these circumstances, Ramirez is compelling and we follow its reasoning. It is possible to commit the crime of attempted murder under our penal code without first committing the crime of reckless endangerment in the first degree. The trial court, therefore, correctly refused to charge that reckless endangerment in the first degree was a lesser included offense of the principal charge of attempted murder alleged in the two counts of the information against the defendant. In this case, reckless endangerment in the first degree was not a necessary step in the progression to the crime of attempted murder as charged in the information. The defendant also claims that the trial court erred in refusing to instruct the jury on the lesser included offense of threatening. General Statutes § 53a-62 defines threatening, as relevant here, as follows: "(a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury. . . ." We disagree with this claim also. State v. Jacobowitz, 182 Conn. 585, 438 A.2d 792 (1981), is conclusive of this issue. In Jacobowitz, at the close of the state's case at trial, it requested and received the permission of the court to file a second substituted information. The new information deleted the charge of attempted murder and substituted for it the crime of threatening, a violation of General Statutes § 53a-62 (a) (1). The defendant excepted to this substitution. He later appealed from his conviction of the substitute charge of threatening, claiming error by the trial court in permitting the state, after the close of its case, to file a new information substituting the charge of threatening for attempted murder. The question of whether threatening is a lesser included offense to attempted murder arose in this context. Unless the original and amended informations charge the defendant with the same crime, amendment is permissible only to charge a lesser included offense. The constitutional right to notice is satisfied as to lesser included offenses because, " 'where one or more offenses are lesser than and included within the one charged, notice of the one charged constitutes notice of any lesser included offenses. . . . ' State v. Rodriguez, 180 Conn. 382, 402, 429 A.2d 919 (1980)." Id., 590-91. Consequently, the central issue before the court in Jacobowitz was whether the crime of threatening is a lesser included offense encompassed within the originally charged crime of attempted murder. Id., 591. Our Supreme Court found that the trial court erred in permitting the state to substitute a new information charging the defendant with threatening rather than with attempted murder, since the former is not a lesser included offense of the latter crime. "Although there is obvious overlap between the two crimes, each requires proof of different elements: attempted murder under General Statutes § 53a-49 (a) (2) and 53a-54a (a) requires the state to show intentional conduct constituting a substantial step toward intentionally causing the death of another person; threatening under General Statutes § 53a-62 requires the state to show that the defendant, by physical threat, intentionally placed or attempted to place another person in fear of imminent serious physical injury. It is not the danger or risk of injury, but the victim's perception, which is essential to the latter crime. As the defendant argues, attempted murder does not require placing in fear, and it is possible to imagine an attempted murder, such.as a shot from ambush, in which there has been no prior threatening act." Id., 592-93. The court then concluded that the information for attempted murder did not charge any prior threatening act, even though it might have done so. While recourse may be had to the evidence presented at the trial with regard to the consideration upon review of the third and fourth criteria of the test for a lesser included offense restated in State v. Tinsley, supra, and State v. Whistnant, supra, such evidentiary considerations do not enter into a consideration of the second criterion, which is limited to the contents of the information and the bill of particulars. Id., 593. The two counts of the information charging the defendant with attempted murder recite separately in the language of General Statutes § 53a-54a (a) and 53a-49 that "the said EDWARD PALMER, with intent to cause the death of one KATHY KWET, [and one ROBERT KWET, respectively,] did shoot at and attempt to cause the death of the said KATHY KWET, [and the said ROBERT KWET, respectively,]" in violation of the two statutes. There is no allegation in these counts within the ambit of the charge of threatening under General Statutes § 53a-62. The latter, therefore, is not a lesser included offense within the specifications of the counts alleging attempted murder. The trial court properly refused to charge on threatening as a lesser included offense. There is no error. In this opinion Borden, J. concurred. Our penal code was enacted by Public Acts 1969, No. 828, effective October 1,1971. Much of the code is based on comparable provisions of the New York Revised Penal Law, effective September 1, 1967. Commission to Revise the Criminal Statutes, Commentary on Title 53a, The Penal Code, p.l.

Per Curiam. The defendant is appealing from the judgment rendered after her conviction, by a jury, of the crimes of possession of cocaine with intent to sell in violation of General Statutes § 21a-279 (a), and possession of drug paraphernalia in a drug factory situation in violation of General Statutes § 21a-277 (c). The defendant claims that she was denied effective assistance of counsel and that the trial court abused its discretion when it failed to entertain the defendant's motion for a new trial. We will not review the defendant's claim of ineffective assistance of counsel. Our Supreme Court has emphasized the fact that habeas corpus proceedings rather than direct appeals are best suited to test the performance of counsel. That court stated that "[i]t is preferable that all of the claims of ineffective assistance [of counsel], those arguably supported by the record, as well as others requiring an evidentiary hearing, be evaluated by the same trier in the same proceeding." State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). In State v. Aspinall, 6 Conn. App. 546, 554-55, 506 A.2d 1063 (1986), we stated that "[w]hen confronted with a claim of ineffective assistance of counsel, we are placed in a position where we are viewing the performance of trial counsel after the fact with limited hindsight. We are further hindered because, generally, the record on appeal is devoid of objective factual evidence by which we can measure and evaluate the performance of counsel. Trial counsel's motivation and reasoning governing his or her acts are highly subjective and are not readily ascertainable by us in the absence of a trial court hearing where the facts and circumstances of the case may be focused upon and illuminated. What may facially appear to us as a dereliction by counsel might in the context of the trial be a proper or purposeful tactic." A defendant's ineffective assistance claim should be resolved as a totality after an evidentiary hearing in the trial court, and not in piecemeal fashion on appeal. State v. Leecan, supra, 542. The defendant's second claim of error, that the court abused its discretion in not entertaining her motion for a new trial based on ineffective assistance of counsel, is without merit. The motion was not timely filed. Practice Book § 903 provides that "[ujnless otherwise permitted by the judicial authority in the interests of justice, a motion for a new trial shall be made within five days after a verdict or finding of guilty or within any further time the judicial authority allows during the five-day period." (Emphasis added.) The defendant's motion was not filed within the time specified. Even if the motion had been filed timely or if the court had decided that in the interests of justice such a motion should have been heard, the granting of a motion for a new trial is wholly discretionary. State v. Asherman, 193 Conn. 695, 735, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). The court's ruling on a motion for a new trial should stand unless it is shown that the court abused its dis cretion. Kubeck v. Foremost Foods Co., 190 Conn. 667, 669-70, 461 A.2d 1380 (1983). Here, the defendant has failed to demonstrate such abuse. There is no error.

Callahan, J. The defendant, Donald Smith, was charged in an indictment with kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). He was convicted by a jury of that charge. The same jury convicted him of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A) and of assault in the third degree in violation of General Statutes § 53a-61 (a) (l), crimes that were charged in an information and which stemmed from the same incident as the charge of kidnapping. The defendant was sentenced by the trial court to consecutive terms totaling twenty-eight and one-half years to life imprisonment. The defendant has appealed his conviction claiming that: (1) the trial court erred in "accepting" the jury's verdict of guilty of the charge of kidnapping because there was a variance between the charge as set forth in the indictment and the proof at trial; (2) the trial court erred in denying the defendant's motion "to limit the state's proof to the allegations of the indictment"; (3) he was denied effective assistance of counsel; and (4) the trial court erred in certain rulings on the evidence. From the evidence adduced at the trial the jury could reasonably have found the following relevant facts: On May 22,1981, the victim was sixteen years old and lived in West Haven. That afternoon, at about 2:30 p.m., she went to visit a girl friend who lived four houses away from her. During the visit, she met some of her friend's relatives, including the defendant, who was her friend's uncle. The defendant was forty-two years old at the time of the incident and resided in Massachusetts. During the afternoon, the defendant drove the victim and his niece in his pickup truck from his niece's home to a house several blocks away where his niece had to care for some cats. While his niece fed the cats, the victim remained in the truck with the defendant. On the return trip, the defendant drove past the victim's house and dropped his niece off at her house. The defendant had said earlier that he was returning to Massachusetts as soon as he dropped his niece off. He also had told the victim that she was a "pretty girl" and a "very attractive girl" and had asked her to return to Massachusetts with him. She declined the invitation. After leaving his niece at her house, the defendant drove the victim the short distance to her home. He parked and asked her for directions to the highway, interstate 95. The victim gave the requested directions, but the defendant said he wanted her to go with him to show him the entrance. He told her that once he had located the highway he would turn around and bring her back home. The victim informed the defendant that she did not have time because she had to get ready to go to a funeral. The defendant insisted, however, that she accompany him, and when she opened the door to exit the truck the defendant accelerated and the door flew shut. At this point, the victim acquiesced in the defendant's request and remained in the truck while she directed the defendant to interstate 95. During the ride the defendant told the victim that he would turn around and bring her home when they reached the City Point Yacht Club. The defendant, however, continued driving when he reached the entrance to interstate 95 and then drove onto the highway. Once on the highway, the victim repeatedly asked the defendant to take her home, but he ignored her or told her to "shut up" and continued driving. During the ride the defendant threatened her with a gun which she described as silver with a black piece on the handle. He also showed her pornographic magazines. Eventually the defendant brought the victim to a dirt road in a wooded area off East Johnson Road in Cheshire. Once there, he ordered her to take off her clothes. When she refused he struck her, held a knife to her throat and cut and tore her clothing. In the face of the defendant's threats, the victim removed most of her clothing and the defendant sexually abused her. He then choked her until she was unconscious and left her partially clothed in the wooded area. When the victim regained consciousness, she made her way to East Johnson Road where a passing motorist picked her up and gave her a ride back to her parents in West Haven. The victim's mother testified that, when she saw her daughter, she appeared to have been "terribly beaten" and her clothes were torn. John Loeffler, a physician who examined the victim at Yale-New Haven Hospital that evening, testified that she was "tearful," that she had "a number of injuries" and that she appeared to have been strangled. The victim identified the defendant as her abductor. The indictment accused the defendant of kidnapping in the first degree and charged that, "at the City of West Haven on May 22, 1981," (emphasis added) the defendant abducted the victim and restrained her with the intent to inflict physical injury upon her and to violate and abuse her sexually in violation of General Statutes § 53a-92 (a) (2) (A). The defendant first claims that there was a variance between the indictment and the proof offered at trial and that he was prejudiced thereby. He argues, therefore, that the court erred in "accepting" the jury verdict of guilty to the charge of kidnapping. This claim is premised on the defendant's view that the victim originally agreed to accompany him and that she did not protest her presence in his truck or request to be returned to her home until his truck was on the entrance to interstate 95 in New Haven. Therefore, he claims that she was not restrained and abducted in the city of West Haven as alleged in the indictment. The defendant does not claim, as indeed he cannot, that the court lacked jurisdiction. General Statutes (Rev. to 1981) § 51-344 (4), 51-352c. "This court will construe the evidence in the light most favorable to sustaining the [jury's] verdict and will affirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom." State v. D'Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982). The court correctly charged the jury that the "restraint" which is the basis of the crime of kidnapping must have been imposed on the victim without the victim's consent and that acquiescence secured by fraud or deception is not deemed consent. See General Statutes § 53a-91 (1) (a). The fact that the victim did not affirmatively and vocally protest her continued presence in the defendant's truck and request him to return her to her home until the truck entered upon interstate 95 in New Haven has no effect on the validity of the jury's verdict in this case. The jury could reasonably have found proved beyond a reasonable doubt that, while parked in front of her home in West Haven, the defendant requested the victim to accompany him to show him the entrance to interstate 95 and he promised to return her to her home when that was accomplished. The jury could also have found proved beyond a reasonable doubt that the defendant's request and promise were a ruse employed to lure the victim into his control and that she was therefore deceived into remaining with him. People v. Valero, 120 Misc. 2d 539, 542, 466 N.Y.S.2d 600 (1983). The fact that the victim did not know that she was being restrained is of no consequence. See United States v. Hoog, 504 F.2d 45, 51 (8th Cir. 1974); State v. Colbert, 221 Kan. 203, 557 P.2d 1235 (1976); State v. Alston, 294 N.C. 577, 588-89, 243 S.E.2d 354 (1978). The word "deception" as used in General Statutes § 53a-91 (1) (a) implies that the victim did not know she was being restrained. See State v. Colbert, supra, 209. It is the intent of the accused which the state has to prove, not that of the victim. The jury therefore could have found that the victim was restrained and abducted in West Haven. There was no variance between the indictment and the proof adduced at trial. Even if there had been a variance, the defendant has failed to demonstrate any resulting prejudice. "The defendant can gain nothing from his present claim without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done him because of the language of the [indictment]." State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979). The defendant's claim of prejudice is that he was prevented from properly defending the indictment because the allegation that the kidnapping took place in West Haven prevented him from arguing that the restraint of the victim did not constitute kidnapping but rather was merely incidental to the crimes charged in the information which occurred in Cheshire. See State v. Lee, 177 Conn. 335, 343, 417 A.2d 354 (1979); State v. Chetcuti, 173 Conn. 165, 170, 377 A.2d 263 (1977). "[T]he accused in a criminal proceeding has the right to be informed of the nature and cause of the accusation against him, and that the offense should be described with sufficient definiteness and particularity to apprise the accused of the nature of the charge so he can prepare to meet it at his trial." State v. Sumner, supra, 166. It is inconceivable to us how the defendant could have been misled as to the offense with which he was charged. Nor does his brief enlighten us as to why the allegation that West Haven was the place where the kidnapping occurred prevented him from making the claim he now asserts. Further, if the indictment had alleged that the kidnapping occurred in New Haven as the defendant seems to claim, we fail to understand how that would have benefited him in arguing that the kidnapping was merely incidental to the other crimes charged. The defendant also claims that he was prejudiced because he was forced to structure his case, particularly cross-examination, on the basis of the allegation in the indictment. The bare assertion of prejudice, however, does not make it so. The defendant has failed to demonstrate how he was in fact prejudiced. The defendant also claims that the court erred in denying his motion to limit the state's proof to the allegations of the indictment. He argues that the court should have excluded evidence of restraint of the victim which occurred outside the geographical boundaries of West Haven because the indictment alleged the victim was abducted and restrained in West Haven. He contends, therefore, that such evidence was "outside the scope of the indictment" and "irrelevant." We disagree. "The state had to prove beyond a reasonable doubt that the defendant possessed the intent to commit the crime charged." State v. Haddad, 189 Conn. 383, 398, 456 A.2d 316 (1983). The burden of proof on intent "can be borne only by the presentation of circumstantial evidence, because intention is a mental process that neces sarily must be proved through inferences drawn from the defendant's statements and actions." State v. Harrison, 178 Conn. 689, 695, 425 A.2d 111 (1979). The state was required to prove that the elements of kidnapping in the first degree existed when the defendant abducted the victim. That is, the state was required to prove that the defendant abducted the victim intentionally and unlawfully with the intent to inflict physical injury upon her or to abuse her sexually. The defendant's activities during the entire course of the incident were obviously relevant and probative and hence admissible for that purpose. Further, kidnapping by its nature is a continuing crime. People v. LaMarca, 3 N.Y.2d 452, 460, 144 N.E.2d 420, 165 N.Y.S.2d 753 (1957). The trial court therefore did not err in allowing evidence of restraint outside the confines of West Haven. The defendant's claim of ineffective assistance of counsel is based on his assertion that his trial counsel failed to make any requests to charge or to take exception to the trial court's charge concerning his claim that the proof at trial did not conform to the allegations of the indictment. He also claims that trial counsel was ineffective because he failed to move for a judgment of acquittal challenging the sufficiency of the evidence to sustain a verdict on the indictment, apparently for the same reason. In view of our ruling on the defendant's first claim of error, it would appear that his claim of ineffective assistance of counsel is wholly without merit. State v. McCarthy, 197 Conn. 166, 177-78, 496 A.2d 190 (1985). A claim of ineffective assistance of counsel, however, is more appropriately the subject of a writ of habeas corpus or a petition for a new trial. While the defendant concedes this, he claims that the appellate record in this case supports a finding of ineffective assistance of counsel. We disagree. State v. Vitale, 197 Conn. 396, 497 A.2d 956 (1985). The defendant's final claim is that the trial court erred in admitting into evidence the testimony of witnesses concerning an incident which occurred in the late evening of May 22 and the early morning of May 23 at Maggie's Bar in New Haven. Testimony was elicited by the state that the defendant was in Maggie's accompanied by another man. While there he became embroiled in an altercation with the owner, a customer and the bartender. Each was called as a witness and testified that during the course of the dispute the defendant displayed a gun and threatened the owner with it. They described the gun variously as a small silver automatic and a small silver handgun. They further testified that they saw the defendant with the gun inside the bar, but at one point he was taken outside with his companion and the gun disappeared. The bartender, Brian Doonan, also testified that the defendant, although he appeared to have been drinking, was in control of his faculties. As a result of the disturbance the New Haven police were called. Officer Robert Benson responded and arrested the defendant for breach of the peace and threatening. Benson testified that after he arrested the defendant he searched him and found a pocket knife on his person. He identified it as the same knife which had earlier been identified by the victim as the knife with which the defendant had threatened her. The defendant objected to the admission of the testimony concerning the incident at Maggie's and his arrest on the ground that it was irrelevant and that, even if relevant, its prejudicial effect outweighed its probative value. The rule concerning admission of evidence of other crimes is a rule of evidence and not of constitutional law. State v. Periere, 186 Conn. 599, 610, 442 A.2d 1345 (1982). "The state may introduce all legally competent evidence which aids the trier of fact in determining the relevant issues." State v. Howard, 187 Conn. 681, 688 n.4, 447 A.2d 1167 (1982). "As a general rule, evidence of guilt of other crimes is inadmissible to prove that a defendant is guilty of the crime charged." State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961). Evidence that tends to prove the commission of other crimes by the accused is not, however, inadmissible if it is otherwise relevant and material and if its probative value outweighs its prejudicial effect. State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). If the trial judge, in the exercise of his judicial discretion, determines that the evidence is relevant and that its probative value outweighs its prejudicial effect, his decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. State v. Johnson, 190 Conn. 541, 549, 461 A.2d 981 (1983). The fact that, within hours after the crime, the defendant had on his person a gun similar to that described by the victim and was in possession of the knife identified by the victim was certainly corroborative of the victim's testimony at trial; State v. Brown, 169 Conn. 692, 701, 364 A.2d 186 (1975); and was also relevant to establish the identity of the defendant. Also, the defendant's gun was never found and the incident at Maggie's tends to explain its disappearance. Further, there had been testimony at the trial that the defendant had been drinking throughout the day. Testimony that he was in control of his faculties late in the evening at a bar bore some relevancy to his condition earlier in the day. His condition was relevant to his ability to form an intent and intent was an element of the crimes with which the defendant was charged. Obviously, the testimony of the witnesses concerning the gun, the knife and the defendant's condition had to be placed in some framework. Unfortunately, the witnesses did not meet the defendant at a church social. They had contact with him and gained the information to which they testified because of a fight in a bar which resulted in the defendant's arrest. There was no way the information which the witnesses possessed coüld be conveyed to the jury and make sense unless it was placed in context. The trial court considered this when it ruled on the defendant's objection and allowed the testimony. The trial court also instructed the jurors that they were not to consider evidence that the defendant was involved in the incident or arrested for breach of the peace and threatening as evidence that he was a bad person or was guilty of the crimes for which he was on trial. Because the admission of such evidence involves judicial discretion, "[o]ur review is limited to whether [the] ruling exceeded the latitude accorded to the exercise of [such] discretion." State v. Ibraimov, supra. It did not. There is no error. In this opinion the other judges concurred. General Statutes § 53a-92 (a) (2) (A) provides: "Sec. 53a-92. jutonapping IN THE first degree, (a) A person is guilty of kidnapping in the first degree when he abducts another person and when: (1) His intent is to compel a third person to pay or deliver money or property as ransom, or to engage in other particular conduct or to refrain from engaging in particular conduct; or (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . ." General Statutes § 53a-72a (a) (1) (A) provides: "Sec. 53a-72a. sexual ASSAULT IN THE THIRD DEGREE: CLASS D FELONY, (a) A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person . . . ." General Statutes § 53a-61 (a) (1) provides: "Sec. 53a-61. assault in the third degree: class A misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . . ." General Statutes (Rev. to 1981) § 51-344 (4) provides: "Sec. 51-344. judicial districts established. For purposes of establishing venue, the superior court shall consist of the following judicial districts . . . (4) The judicial district of New Haven: The towns of Bethany, New Haven, Woodbridge, Cheshire, Hamden, Meriden, North Haven, Wallingford, Branford, East Haven, Guilford, Madison, North Branford and West Haven." "[General Statutes (Rev. to 1981)] Sec. 51-352c. (Formerly Sec. 54-41). jurisdiction of various offenses. No criminal prosecution shall fail by reason of the fact that the evidence may disclose the crime to have been committed in a town or judicial district adjoining that alleged in the indictment or information; and when any person is accused of committing any offense on the boundary or divisional line between any of the towns or judicial districts in the state, or so near thereto as to render it doubtful in which town or judicial district the offense was committed, the town or judicial district which first assumes jurisdiction by issuing process for the arrest and prosecution of the offender, whether the name of such offender is known or unknown, shall have exclusive jurisdiction to charge, present, indict, try, convict and sentence; and in such case it shall only be necessary for the state, judicial district, town, city or borough to establish the venue alleged in the information, complaint, warrant or indictment by proving that the offense alleged was committed on the boundary of the judicial district or town wherein the accused is being tried or so near thereto as to render it doubtful in which town or judicial district the offense was committed. No provision of this section shall impair the right of the accused to obtain a change of venue." "[General Statutes] Sec. 53a-91. definitions. The following definitions are applicable to this part: (1) 'Restrain' means to restrict a person's movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. As used herein 'without consent' means, but is not limited to, (a) deception . . . ."

Dupont, C. J. After a trial to a jury, the defendant was convicted of the crime of manslaughter in the first degree, a violation of General Statutes § 53a-55 (a) (1) and (3). On appeal, the defendant claims that the trial court erred: (1) in giving unrecorded instructions, in a jury indoctrination session held the day before the defendant's trial began, to all jurors who had been summoned for jury duty; (2) in excluding evidence concerning protection sought by the defendant from the victim; (3) in excluding evidence about the defendant's previous approval of the victim's application for accelerated rehabilitation; (4) in restricting the cross-examination of the prosecution's key witness as to her knowledge of the victim's reputation for violence; (5) in allowing the introduction of a photograph of the victim dressed in a tuxedo; and (6) in admitting the testimony of a rebuttal witness who claimed that the victim told her three months prior to the stabbing that he was afraid of the defendant. The jury reasonably could have found the following relevant facts based upon the evidence presented. At the time of the incident, the defendant was fifty-one years of age and the victim was nineteen. The two parties had a history of "bad blood" between them, which included the exchange of threats and acts of violence. The victim had previously been arrested for assaulting the defendant's daughter, the victim's former girlfriend. Approximately one year after that assault, the defendant became engaged in an altercation with the victim at the entrance of a bowling alley. Blows were exchanged, and the defendant received five to six hits to his head which necessitated subsequent medical attention. During the course of the struggle, the defendant stabbed the victim in the chest with a knife, causing his death. The defendant claimed that he had acted in self-defense. I The defendant's first claim of error is that the trial court's indoctrination of potential jurors prior to the commencement of the trial violated his constitutional rights to an impartial jury, to have counsel present at "important" proceedings, and to have a public trial. He also claims that the failure to record the indoctrination remarks interfered with his appellate rights. Such indoctrination of jurors is routinely given on the day that they report for jury duty, and consists of preliminary instructions which outline their primary duties and responsibilities. Neither the prosecution nor defense counsel is ordinarily present during such indoctrination procedure, and the proceedings are not usually recorded or transcribed. The defendant failed to object to the indoctrination process at trial. Although the defendant concedes that this issue was not properly raised at trial, he argues that it is nonetheless reviewable because it involves fundamental constitutional rights. See State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). A three-pronged analysis must be undertaken in an Evans review. State v. Cosby, 6 Conn. App. 164, 167, 504 A.2d 1071 (1986). That analysis necessarily includes consideration of "(1) whether the record supports the defendant's claim that the trial court's action raises a question of fundamental constitutional dimension; (2) if so, whether the trial court's action was erroneous; and (3) if there was error, whether it requires reversal." Id.; see also State v. Grant, 6 Conn. App. 24, 27, 502 A.2d 945 (1986). If the first test is not met, the issue is not reviewable under Evans and it is not necessary to reach the analysis required by the other two tests. Our first inquiry, therefore, centers upon a determination of whether the record in this case supports the defendant's claim that the indoctrination of the jury raises an issue of constitutional dimensions. It is undisputed that the rights enumerated by the defendant concerning the right to an impartial jury, the right to have counsel present at critical stages in the criminal proceedings against him, and the right to an open court and public trial are all fundamental constitutional rights guaranteed by the federal and state constitutions. Merely because the defendant asserts these constitutional rights, however, does not necessarily mean that such constitutional rights are in fact involved in a particular case. It is not unknown for a defendant on appeal to "put a constitutional tag on a nonconstitutional claim." State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). Appellate counsel has sufficiently reconstructed the record for purposes of review under the first test of Evans. A review of that record indicates that the trial judge made general comments regarding the general duty and obligations of the jurors, as well as general remarks regarding the burden of proof. There is not even a hint of prejudice to this particular defendant demonstrated in the court's reconstruction of its remarks. Although the record is sufficient for review, the second half of the first part of the Evans test has not been met. No fundamental constitutional right is involved. The defendant claims that the jury indoctrination deprived him of an impartial jury panel because the court's statements were improper ex parte communications between the judge and members of the jury panel. He relies on State v. Altrui, 188 Conn. 161, 182, 448 A.2d 837 (1982). That case, however, provides him no support. There, during the trial, the court met privately with one juror. Here, the court spoke to all prospective jurors before any one of them had been assigned to any particular case. At this stage, the trial judge had no realistic way of knowing which jurors would be selected for the defendant's trial. Moreover, because such indoctrination occurs before the trial begins, the potential for prejudice is greatly diminished in light of the instructions given to the jury by the trial judge in open court subsequent to the indoctrination. The possibility of the survival of any prejudicial remark is slight. See Jones v. State, 482 N.E.2d 243, 245 (Ind. 1985). A review of other jurisdictions which have considered this issue supports this conclusion. The prevailing rule of law that has emerged regarding jury indoctrination is that such unrecorded remarks made to potential jurors at an indoctrination proceeding in which neither the defendant nor defense counsel are present is not prejudicial or a deprivation of a defendant's constitutional right to an impartial jury. See, e.g., People v. Izzo, 14 Ill. 2d. 203, 151 N.E.2d 329 (1958); Jones v. State, supra; Brown v. State, 29 Md. App. 1, 349 A.2d 359 (1975); State v. Stroud, 683 P.2d 459 (Mont. 1984); State v. Vance, 162 W. Va. 467, 250 S.E.2d 146 (1978). The rationale behind this principle is that "[n]o litigant has a right, constitutional or otherwise, to have his case tried before ignorant jurors. To acquaint the juror with his duties and responsibilities in a new environment and to increase his understanding of the processes of a trial can hardly be objectionable in itself." People v. Izzo, supra, 334. In light of these principles, the defendant's claim that his fundamental constitutional right to an impartial jury is involved is not supported and an Evans review is not required. The defendant also asserts that the jury indoctrination procedure is reviewable under Evans because it involves a deprivation of his constitutional right to be present with the assistance of counsel at an important stage of his trial. The record reveals that the defendant was not present at the indoctrination. The constitutional right to be present in court with the assistance of counsel under the sixth amendment applies only to certain crucial proceedings. See State v. Falcon, 196 Conn. 557, 561, 494 A.2d 1190 (1985). There is no violation of the sixth amendment, however, when the accused and counsel are not present at noncritical stages "since there is minimal risk that . . . absence at such stages might derogate from [a defendant's] right to a fair trial." United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). The jury indoctrination proceeding does not constitute a critical stage of the criminal process against a defendant, nor has his trial even begun. See, e.g., Brown v. State, supra, 363; State v. Vance, supra, 151. Equally without merit is the defendant's claim that he has been denied a constitutional right to an open and public trial through the use of the indoctrination procedure. Contrary to the assertions of the defendant, the trial that the defendant received was both open and public, which is all that the constitution requires. A defendant has no constitutional right to an open and public jury indoctrination, a noncritical stage of the defendant's trial. We are precluded, therefore, from reviewing this claim of constitutional deprivation under the first test of Evans. Neither will we review the defendant's claim that the unrecorded jury indoctrination proceeding deprived him of a full record and transcript in order to pursue his appeal. There is no constitutional right to appeal; rather, a right to appeal exists only if one has been created by statute. Gaines v. Manson, 194 Conn. 510, 515, 481 A.2d 1084 (1984). Without issues of constitutional dimensions required by the Evans bypass, we will not consider the defendant's first claim of error. II The defendant's next claim of error was properly presented at trial and involves the trial court's exclusion of certain evidence proffered as part of the defendant's claim of self-defense. In order to establish his state of mind, and whether he was the aggressor, the defendant sought to introduce evidence regarding his alleged fear of the victim. In his offer of proof, the defendant asserted that three weeks prior to the stabbing incident, he had sent his wife to the state's attorney's office to seek protection for his family from the victim. The wife informed an assistant state's attorney that the family was in fear, and requested assistance in keeping the victim away from her family. The wife also inquired about the possibility of getting the state's attorney's office to recommend some sort of psychological evaluation of the victim. During the course of this meeting, the defendant's wife expressed concern over what the defendant would do regarding the situation. The assistant state's attorney informed the defendant's wife at that time that there was nothing that the state's attorney's office could do in the way of affording the family protection. Counsel for the defendant sought to introduce this evidence through the testimony of the defendant, the defendant's wife, and the assistant state's attorney. All such testimony regarding this evidence was excluded by the court as being collateral and confusing to the jury. The defendant claims that such evidence was relevant to his state of mind, and was necessary to present to the jury his reason for carrying a knife on the particular night of the stabbing incident. The defendant argued strenuously to the trial court that the defendant's self-defense theory was premised on the fact that following the meeting between the defendant's wife and the state's attorney's office, the defendant believed that the law could not afford him any protection prior to any affirmative adverse action on the part of the victim. The defendant thus claimed that he felt compelled to seek other means to protect himself and his family from the victim. This court has previously recognized that "[n]o precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to reason and judicial experience." State v. Aspinall, 6 Conn. App. 546, 554, 506 A.2d 1063 (1986). In each case, we recognize that it is the trial court which is in the best position to view the evidence in the context of the case as a whole, and its rulings on the admissibility of evidence are given great deference. "On appeal, we are limited in our review to a determination of whether, under the circumstances of the case, in exercising its broad discretion, the trial court could legally act as it did, and not whether we, under the same circumstances, would make the same ruling." Id. We disagree, however, under the facts of this case, with the trial court's evidentiary ruling on this issue. The evidence was crucial to the defendant's claim of self-defense and the court should not have excluded it in its entirety. It was not irrelevant or collateral to the defendant's case. The state argues that such testimony amounted to hearsay, and was thus not admissible. It is an elementary premise of evidentiary law, however, that testimony is considered to be hearsay only when it is an out-of-court statement "offered to establish the truth of the matters contained therein." State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985). If such testimony is offered, instead, as it was here, to show the defendant's reasonable apprehension of danger or state of mind, it is not offered for its truth. See McCormick, Evidence (3d Ed. 1984) § 249, p. 734. Since the proffered testimony of the defendant, the defendant's wife, or the state prosecutor sought to be introduced on this issue was not hearsay, and was not irrelevant or collateral to an issue in the case, it should have been admitted. See State v. Silveira, 198 Conn. 454, 503 A.2d 599 (1986). Our determination that the trial court erred in the exclusion of such testimony does not necessarily require reversal unless such exclusion "was so prejudicial to the rights of the defendant as to deprive him of a fair trial. . . . " State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). The crucial and controlling inquiry in such a determination is "whether the claimed erroneous action of the court would have been likely to affect the result." State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976). Our review of the record indicates that the exclusion of such evidence was likely to affect the result. It is a fundamental facet of due process that a defendant charged with a crime be afforded the right to establish and present a defense. State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). The defendant's state of mind when he stabbed the victim was crucial to the finding of intent required to prove the commission of the crime of which he was found guilty. His state of mind was also essential to his claim of justification. Under General Statutes § 53a-19, a defendant may be found to be justified in using deadly physical force in order to defend himself or others when there is a reasonable belief that such force was necessary. The test for the degree of force in self-defense is subjective-objective. "The jury must view the situation from the perspective of the defendant. Section 53a-19 (a) requires, however, that the defendant's belief ultimately must be found to be reasonable." State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984). The testimony excluded by the trial court was necessary to establish the reasonableness of the defendant's belief to the jury. In the present case, the defendant was entitled to present his version of the events, and to present such evidence to support his version in as full a manner as possible to the jury. The nature and extent of the evidence that was excluded was of a distinct and different order than other testimony which was admitted and which may have reflected on the aggressive nature of the victim. All other evidence presented regarding the victim's aggressive behavior concerned incidents occurring in the remote past. The excluded testimony concerned events which took place three weeks before the commission of the crime. The defendant's entire defense was premised on the assertion that he was desperately afraid of the victim and had taken positive steps to seek protection for himself and his family. Most importantly, the defendant was told that the state's attorney's office had informed his wife that the state could offer no such protection. The defendant had a right to inform the jury why he felt a need to carry a knife. Although a new trial must be ordered because of the exclusion of this evidence, the remaining claims of error presented by the defendant are considered since they are likely to recur on retrial. Ill The defendant's third claim of error also involves the trial court's ruling on evidence relating to the defendant's state of mind. The defendant sought to introduce the victim's application for accelerated rehabilitation regarding the victim's arrest for the assault of the defendant's daughter, which was agreed to by the defendant a year prior to the stabbing incident. The defendant alleges that this evidence was relevant to the defendant's state of mind by illustrating that he displayed a forgiving attitude towards the victim, and did not bear a grudge towards the victim because of this assault. The trial court excluded the evidence, ruling that it was collateral and irrelevant. The admissibility of this evidence raises a close ques-. tion. A review of the record indicates that although this evidence was excluded on direct examination of the defendant, the state was permitted to conduct a cross-examination of the defendant which included questions regarding whether or not he had harbored angry feelings stemming from the assault of his daughter. He denied that he did. The exclusion of evidence tending to show the defendant's state of mind a year prior to the alleged crime was within the broad discretion of the trial court, particularly where other evidence was introduced to show that state of mind. The court did not abuse its discretion in excluding it. IV The defendant's next assignment of error involves the trial court's restriction of the cross-examination of the prosecution's key witness regarding her knowledge of the victim's reputation as a fighter. The defendant claims that the court's ruling violated his constitutional right of confrontation. During the cross-examination of the victim's girlfriend at the time of the stabbing incident, the defense counsel asked her whether she knew anything about such reputation. The trial court sustained the state's objection to this question on the ground that the defendant had not yet asserted a self-defense claim. In its ruling, the trial court noted that up to that point in the trial, the defendant had asserted that he did not commit the act. The court expressed its concern over admitting such evidence if a self-defense claim would not, in fact, be asserted. The court expressly stated, however, that when such evidence of a factual situation supportive of self-defense was presented, the defendant would be given an opportunity to bring forth evidence relating to the violent traits of the victim. Although the trial court recognized that its restriction would result in probable procedural confusion, it nonetheless sustained the state's objection as the more prudent course to follow. A defendant may introduce evidence of the violent character of the victim when a sufficient foundation for self-defense has been asserted. State v. Miranda, 176 Conn. 107, 405 A.2d 622 (1978). The defendant does not claim that he was prevented from introducing such evidence altogether, but, asserts instead, that he was prevented from doing so during the cross-examination of the state's witness. The function of cross-examination is to test the credibility of the witness. State v. Denby, 198 Conn. 23, 31-32, 501 A.2d 1206 (1985). Thus, the question in determining the relevancy on cross-examination is not "whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness. . . ." Id. Although testimony relative to the defendant's defense of justification, which he indicated would be made, is a main issue, it was not relevant to the credibility of the witness. The relevance of cross-examination is within the trial court's discretion. State v. Vitale, supra, 402. Cross- examination is sufficient to satisfy the sixth amendment "when defense counsel is permitted to expose to the jury the facts from which the jurors, as the sole triers of the facts and credibility, can appropriately draw inferences relating to the reliability of the witness." Id., 402. As long as the trial court has allowed sufficient cross-examination to satisfy the sixth amendment requirements, this court will apply every reasonable presumption in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion. The trial court's restriction of the cross-examination of the state's key witness in this case was not constitutionally defective. The defendant was not attempting with this evidence to discredit the reliability of the witness, but rather, to introduce evidence relating to a self-defense claim. The record reflects that, contrary to the defendant's assertions, the testimony of the state's witness did not portray an image of the victim as the nonaggressor. In fact, her testimony indicated that not only was there mutual "bad blood" between the parties, but that the victim carried knives in his car. Moreover, the witness testified that she saw the victim punching the defendant. She also stated that she knew that the victim would fight the defendant. Because her testimony indicated that the victim had an aggressive character, the defendant's cross-examination of the witness as to whether the witness was aware of the victim's reputation as a fighter was irrelevant as to the motive, bias, or interest of the witness. There was no deprivation of the constitutional right of the defendant to cross-examine a witness. Evidence of the reputation of the victim as a fighter was elicited during the subsequent testimony of the defendant, the defendant's wife, and the defendant's daughter. Most importantly, the defendant was able to recall the state's witness in order to establish such reputation after his self-defense claim had been raised by the introduction of his own evidence, but failed to do so. There was, therefore, no error in the trial court's limitation of the cross-examination of the state's witness. V The defendant next claims that the trial court erred in admitting a photograph of the victim into evidence over his objection. The photograph depicted the victim in a tuxedo, and was introduced by the prosecution for the purpose of identification. The defendant offered to stipulate to the identification of the deceased as the victim, and contends that such photograph was thus devoid of any probative value, and its admission could only arouse the sympathy of the jurors. The general rule adhered to regarding the admissibility of photographs is that they " ' "are admissible in evidence when otherwise properly admitted if they have a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. Note, 73 A.L.R.2d 769, 787. A photograph, the tendency of which may be to prejudice the jury, may be admitted in evidence if, in the sound discretion of the court, its value as evidence outweighs its possible prejudicial effect. Thibodeau v. Connecticut Co., 139 Conn. 9, 14, 89 A.2d 223 (1952) State v. DeJesus, supra, 381. Moreover, potentially inflammatory photographs need not be absolutely essential to the prosecution's case in order to be admissible, but must merely be found to be relevant. State v. Piskorski, 177 Conn. 677, 701, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). Thus, as long as the photograph is shown to be relevant to the prosecution's case, the trial court can exercise its discretion in admitting such evidence, as long as its probative value outweighs any prejudicial effect. State v. DeJesus, supra, 381-82. As in all such evidentiary rulings, the trial court exercises broad discretion in admitting such photographs into evidence, and its determination will not be disturbed on appeal unless a clear abuse of that discretion is shown. State v. Piskorski, supra, 700-701. We have examined both the photograph and the record and find no abuse of discretion in this case. The exhibit in question was a three and one-half inch by five inch color photograph depicting the victim only from the chest up, dressed in a tuxedo. The state was entitled to introduce all legally competent evidence which could aid the jury in determining relevant issues. The photograph was clearly relevant and probative on the issue of the identification of the victim. Although the defendant conceded to the identification of the victim as the deceased, the photograph was nonetheless admitted so that other witnesses to the incident who were not familiar with the victim could identify the victim and then adequately testify to his actions on the night of the stabbing incident. The picture was not inflammatory, not prejudicial and was relevant. The trial court did not abuse its discretion in admitting it into evidence. VI The defendant's final assignment of error concerns the trial court's admission into evidence of the testimony of the state's rebuttal witness who claimed that the victim told her three months prior to the stabbing that he was afraid of the defendant and was in fear for his life. The defendant acknowledges in his brief that such statements are admissible under the state of mind exception to the hearsay rule. The defendant, however, asserts that under the circumstances presented in this case, the trial court abused its discretion in admitting such evidence because of the prejudice resulting to the defendant from the trial court's prior exclusion of the application for accelerated rehabilitation and the testimony regarding the meeting between the defendant's wife and the state's attorney's office in which the fears of the defendant's family were discussed. Our conclusion that the exclusion of the latter evidence of the defendant was error and that such evidence should have been admitted effectively disposes of the defendant's final claim. On retrial, both the defendant's evidence as to that meeting and the evidence of the state's rebuttal witness should be admitted. There is error, the judgment is set aside and the case is remanded for a new trial. In this opinion the other judges concurred. Following the trial and conviction of the defendant, the trial judge who presided at the trial and at the indoctrination session provided a general outline of the comments made to the jurors during the indoctrination procedure in response to the defendant's motion to construct a transcript and record. The trial judge noted that the same format is given routinely whenever potential jurors are indoctrinated. In its memorandum, the trial court provided the following reconstruction of the comments made: "Following a preamble outlining the general nature of a jury trial and the relative functions of the court and jury the jury was specifically instructed that it must accept the law as given by the court. "With respect to criminal cases the jury was told: "(1) The fact the accused has been arrested, indicted or is the defendant in a criminal case does not carry any stigma of guilt. "(2) An accused person is presumed to be innocent. "(3) The state has the burden of proving guilt beyond a reasonable doubt. "(4) The accused person is not required to prove his innocence; he is not obliged to testify in his own behalf and if he exercises his privilege in this respect the jury may draw no adverse inference therefrom. "(5) The credibility of witnesses presents an issue for decision by the jury. The testimony of a police officer is not cloaked with any special sanctity and is to be subjected to the same tests as the testimony of other witnesses. "The jury was also instructed that the remarks of the court were not intended to be a full and complete statement of all applicable rules of law but simply comments which hopefully would assist it in understanding its most important task." The record also reflects that references were made to what was discussed at the jury indoctrination in open court, after the jury had been selected and sworn. The following soliloquy was presented by the trial court: "As I indicated to you at the outset the other day when I was conducting the indoctrination upstairs, the law does not require an accused to prove his innocence. . In this case, as in all jury cases, as I told you yesterday upstairs and indicated in my preliminary comments concerning this matter at the outset, that you as the Jury and myself as the Court have rather separate and distinct, but equally important parts and functions. . . . Also, it's most important that you keep an open mind. As I said to you yesterday I believe, that is, those that were in the group I spoke to, don't be the kind of a person who hears what one witness has to say and then immediately jumps to a conclusion that you know all that there is to know about the case." It has been noted that such jury indoctrination procedures are customarily used to acquaint jurors with their prospective duties and responsibilities in several states. See annot., 89 A.L.R.2d 197 (1963). "All authorities and commentators are thus in agreement that there is a need for and it is proper to initiate the jury panel at the beginning of the term by informing them of their duties and responsibilities." State v. Vance, 162 W. Va. 467, 475, 250 S.E.2d 146 (1978). There may be cases where the reconstructed record of the jury indoctrination may indicate such a grossly erroneous statement of the law that a defendant might have been denied a fair trial even though the indoctrination is not a critical stage in the criminal proceedings or part of a trial against a particular defendant. This is not such a case. General Statutes § 54-56e requires that notice be given to the victim and that the victim have an opportunity to be heard on defendant's motion. The state was permitted to conduct the following cross-examination of the defendant: 'Q. Is it fair to say, Mr. Delgado, that based on the incident between Michael and your daughter, and the other run-ins you had with Michael, that you were angry at him? "A. No, sir. "Q. You were not mad. "A. No, sir. "Q. You did not wish to take the law into your own hands concerning Michael Keating?" "A. No, sir." The trial court's ruling on the exclusion of such evidence included the following: "I think I ought to indicate for the record, so as to afford Mr. Goldblatt an opportunity to have a record in the event of an appeal. That I am going to exclude at this stage of the proceedings, any evidence relating to any trait of character. For instance, for violence, if that's what is sought to develop. And the reason for that is this. And I don't think it necessary to develop this concept anymore than has already been developed. The position of the accused in the case from the very outset has been, and even up through and including the time that this trial started, that he did not do this. And as it was pointed out with that contention having been asserted that would be no basis for the defense of justification, or self-defense. And I feel therefore that the safer and more prudent course to follow is to eliminate any evidence at this time with respect to the character trait of the decease[d] which might otherwise be involved in the self-defense case. Until such time as there has been evidence of a factual situation supportive of self-defense. And if indeed that develops, then of course I will award Mr. Goldblatt an opportunity to approach the matter in terms of traits of character as provided for in the evidentiary rules relating to this case. Now, I understand that this creates a modest problem in terms of procedure. On the other hand I just feel that this is the safer course to pursue. So, the objection which was interposed to the question directed to Miss Condon is sustained. And you may have an exception." Prior to the court's ruling on the state's objection and out of the presence of the jury, the defendant specifically alerted the court to the fact that a defense of self-defense would be used.

Cotter, C. J, The plaintiffs, Anthony and Sara Vecchio, owners of land in Branford, appealed to the Court of Common Pleas from an assessment of benefits levied by the defendants for the construction of a town sewage system. The defendant filed a plea in abatement alleging that the court was without jurisdiction to entertain the appeal because the plaintiffs failed to file their appeal within twenty-one days of the filing of the assessment as required by § 7-250 of the General Statutes. The trial court sustained the plea in abatement and, from the judgment rendered thereon, the plaintiffs have appealed. The court found the following relevant facts: The plaintiffs, by a deed dated September 3, 1974, acquired title to the property in question "subject to . . . sewer assessments, if any; and taxes on the list of 1973, which taxes and sewer assessments the grantees . . . assume and agree to pay as part of the consideration." A few months prior to the closing, Anthony Vecehio visited the property in question where he observed sewers being installed in the area. On December 5 and 12, 1974, a legal notice was published in the Branford Review, a local weekly paper, advising that a public hearing was to be held regarding the proposed assessments. Additionally, prior to the public hearing, the defendant mailed notices of the hearing to the owners of the properties affected. That notice was mailed to the plaintiffs at their address as shown on the last completed grand list in the Branford tax assessor's office. On December 23 and 30, 1974, following the public hearing, lists of the sewer assessments levied were filed with the town clerk; and on December 26, 1974, and January 2, 1975, the lists of assessments for residential and commercial properties, respectively, including the property of the plaintiffs, were published in the Branford Review. The defendant also published legal notices on January 16 and 23, 1975, in the Branford Review notifying the public as to when the assessments became due and payable. The plaintiff Anthony Vecehio, who resides with his wife in Woodbridge, received two bills for the assessments on February 26, 1975, at his Branford mailing address, which was the address of the plaintiffs as listed in the assessor's records. The bills received in the mail on February 26 were the first mail notices the plaintiffs received from the defendant relating to the sewer assessment. Thereupon, the plaintiffs immediately commenced the present action challenging the assessment and claiming damages. Since the plaintiffs' appeal from the assessment was not taken within twenty-one days after the filing as required by § 7-250 of the General Statutes,, the trial court sustained the defendant's plea in abatement and dismissed the plaintiffs' action. The plaintiffs' special defenses to the defendant's plea in abatement may be summarized as follows: (1) Notice by mail of the hearing on the proposed assessment was never given to the plaintiffs as required by § 7-250, and the provision for newspaper publication of notice was not satisfied in this case by publication in the Branford Review; and (2) although the appeal admittedly was not filed within the statutory period, this defect was cured by a special act of the General Assembly which was motivated and justified by equitable considerations. In view of the fact that the plaintiffs conceded, as they must, that their appeal was not timely filed, our review of the trial court's action sustaining the plea in abatement is limited to a determination of the validity of either or both of the special defenses noted above, since the statutory remedy for review must be pursued unless the assessment is void. See Vaill v. Sewer Commission, 168 Conn. 514, 518-19, 362 A.2d 885. Failure to take a timely appeal from a sewer assessment can only be upheld generally on the grounds of lack of jurisdiction or want of power to make the assessment. Meriden v. Camp, 46 Conn. 284,290. I General Statutes § 7-250 provides that, prior to the levy of a sewer assessment, a public hearing shall be held at which the owners of the property affected shall have an opportunity to be heard concerning the proposed assessment. Notice of the scheduled public hearing is to be given through publication "in a newspaper having a circulation in the muniei pality," and by mailing a copy of such notice to the property owner's address "as shown in the last-completed grand list of the municipality." Once the amount of the assessment to be levied is determined, the sewer authority is required to file a copy of the assessment in the office of the clerk of the municipality and, within five days, to publish notice of the assessment in a newspaper having a circulation in the municipality. The action initiated by the plaintiffs in the present ease was an attempted appeal from the defendant's assessment by which they sought a reduction in the amount of the assessment and other relief pursuant to §7-250. As such, the plaintiffs were required to file their appeal within twenty-one days of the date the assessment was filed. General Statutes § 7-250. Since the plaintiffs admittedly failed to comply with this statutory directive, and because no claim is made that the actual filing of the assessment or subsequent notice thereof was, in any way, insufficient, the plaintiffs' appeal was fatally defective. By way of special defense, however, the plaintiffs claimed that the appeal period provided by § 7-250 did not begin to run until the bills for the assessment were actually received since notice of the public hearing held prior to the actual filing of the assessment was not given to them in the requisite manner. Although such an allegation would be relevant in a collateral action brought by the plaintiffs claiming that, due to insufficient notice, the defendant was without jurisdiction to levy the assessment in the first instance; see Vaill v. Sewer Commission, supra, 518-19; Schwartz v. Hamden, 168 Conn. 8, 14, 357 A.2d 488; Meriden v. Camp, 46 Conn. 284, 290; where, as here, the validity of the assessment is conceded and the proceedings initiated merely seek an alteration of the amount of the assessment through the remedy of a statutory appeal, challenges directed at the assessment procedure itself cannot operate to validate an otherwise untimely appeal. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. In re Nunez, 165 Conn. 435, 441, 334 A.2d 898; Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337; 4 Am. Jur. 2d, Appeal and Error, §4." Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 6, 363 A.2d 1386. Since such provisions are mandatory, a failure to comply with them renders the appeal subject to abatement. Norwich Land Co. v. Public Utilities Commission, supra, In any event, the subordinate facts contained in the finding of the court below amply support its conclusion that the defendant fully complied with the requirements of § 7-250 regarding notice of the hearing concerning the proposed sewer assessment to be levied against the plaintiffs' property. Since the plaintiffs do not dispute that the Branford Beview is a "newspaper having a circulation in the municipality," the defendant's compliance with the statutory directive regarding newspaper publication was, on its face, sufficient. The defendant was only required to comply with the provisions of the statute —the fact that these plaintiffs may have been more likely to have acquired knowledge of the proposed assessment through publication in another newspaper with a broader circulation in no way vitiates the sufficiency of the notice given here. Similarly, the court could have properly concluded that the statutory requirement of notice by mail was satisfied in the present case. There was evidence presented to support the court's finding that notice of the public hearing regarding the proposed assessment was sent by mail to the plaintiffs at their Bran-ford address as shown on the last completed grand list in the tax assessor's office of the town of Bran-ford. Failure to receive that notice did not preclude the court from making a determination that it was, in fact, actually sent in accordance with the provisions of the statute. II While the defendant's plea in abatement was pending, a special act was enacted by the General Assembly declaring the plaintiffs' appeal in this ease sufficient and purporting to bar the defendant from pleading the time limitation provided in § 7-250 of the General Statutes. This special act was pleaded by the plaintiffs as a special defense to the defendant's plea in abatement. The trial court, however, decided that the legislation was unconstitutional and concluded that the attempted validation by special act was ineffective to reinstate the plaintiffs' right of appeal under § 7-250. Our determination of the validity of the special act in question involves the consideration of article first, § 1, of the constitution of the state of Connecticut which provides: "All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community." In support of their claim that the special act in the present ease does not violate the above constitutional provision, the plaintiffs, citing our decision in Tough v. Ives, 162 Conn. 274, 294, 294 A.2d 67, contend that, in this case, "at most the remedy, rather than the grounds of the action," was affected by the special act. We cannot agree with this claim since it is clear that the special act extending the time within which the plaintiffs could commence their statutory appeal affected the right, and not merely the remedy, afforded the plaintiffs by § 7-250. See Hillier v. East Hartford, 167 Conn. 100, 104-105, 355 A.2d 1. It is the general rule that "where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone." DeMartino v. Siemon, 90 Conn. 527, 528-29, 97 A. 765; American Masons' Supply Co. v. F. W. Brown Co., 174 Conn. 219, 224, 384 A.2d 378; Hillier v. East Hartford, supra, 106. Section 7-250 of the General Statutes provides persons aggrieved by an assessment of the sewer authority with the right to secure judicial review of its action. The right to appeal the decision of this administrative body exists only under statutory authority; Tassa v. Planning & Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393; East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 560, 290 A.2d 348; and is not founded upon principles of equity embedded in the common law. But see Karp v. Urban Redevelopment Commission, 162 Conn. 525, 528-30, 294 A.2d 633. Consequently, compliance with the time requirement for taking an appeal pursuant to § 7-250 is a prerequisite to the existence of the right itself; the remedy comes into existence only when the condition precedent imposed by the statute creating it has been complied with. Hillier v. East Hartford, supra; Diamond National Corporation v. Dwelle, 164 Conn. 540, 546-47, 325 A.2d 259. The passage of the special act under consideration, therefore, cannot be sustained on the ground that it affected only the remedy and not the right of the plaintiffs in this ease. "It established a right available only to two persons, designated by name"; Tough v. Ives, supra, 293; and was not merely a curative act affecting a remedy otherwise available to these plaintiffs. Although we conclude that the special act in question granted to the plaintiffs alone a personal right not generally available to others similarly situated, the plaintiffs argue that such an enactment may be sustained where the existence of moral or equitable grounds can be found which justify the enactment of such special legislation. The plaintiffs rely upon Sanger v. Bridgeport, 124 Conn. 183, 198 A. 746, in. which this court upheld the constitutionality of a special act validating a defective notice to the defendant municipality of an injury caused by a defective sidewalk. In Sanger, the plaintiff filed a timely notice which was deficient in form by reason of its preparation by a city employee upon whom the plaintiff relied. Under those circumstances, this court sustained the special act, stating (p. 189): "Municipalities may be compelled not only to recognize their legal obligations but also to discharge those of an equitable and moral nature." We have since limited Sanger to the compelling equitable circumstances discussed therein; Hillier v. East Hartford, supra, 110; and have restricted these "equitable and moral" considerations to cases where the passage of a special act is based upon the state's recognition of "an honorary obligation." Hillier v. East Hartford, snpra, 104; Tough v. Ives, snpra, 294. This is not the situation in the present case. No evidence was introduced to show that the plaintiffs were misled by the defendant authority or any municipal employee, and the trial court found that the defendant fully complied with the requirements of § 7-250 of the General Statutes. The claim of the plaintiffs that they did not receive actual notice of the assessment, although the statutory requirements were followed, fails to establish such a compelling equitable situation envisioned by our holding in Sanger v. Bridgeport, supra. "No enactment creating a preference can withstand constitutional attack if the sole objective of the General Assembly is to grant personal gain or advantage to an individual." State ex rel. Higgins v. Civil Service Commission, 139 Conn. 102, 106, 90 A.2d 862. In Tough v. Ives, supra, 292-94, for example, we held that the validating act did not serve any public purpose; that it was for the personal benefit of the plaintiff; that it was unavailable to others similarly situated and was based on an unreasonable classification; and thus had no effect. Accordingly, we hold Special Act No. 76-35 to be in violation of article first, § 1, of our state constitution. The defendant's plea in abatement was, therefore, properly sustained by the court below. There is no error. In this opinion the other judges concurred. "[General Statutes] See. 7-250. public hearing, appeal. No assessment shall be made until after a public hearing before the sewer authority at which the owner of the property to be assessed shall have an opportunity to be heard concerning the proposed assessment. Notice of the time, place and purpose of such hearing shall be published at least ten days before the date thereof in a newspaper having a circulation in the municipality, and a copy of such notice shall be mailed to the owner of any property to be affected thereby at such owner's address as shown in the last-completed grand list of- the municipality or at any later address of whieh the sewer authorities may have knowledge. A copy of the proposed assessment shall be on file in the office of the elerk of the municipality and available for inspection by the publie for at least ten days before the date of such hearing. "When the sewer authority has determined the amount of the assessment to be levied, it shall file a eopy thereof in the office of the clerk of the municipality and, not later than five days after such filing, shall cause the same to be published in a newspaper having a circulation in the municipality. Such publication shall state the date on which such assessment was filed and that any appeals from such assessment must be taken within twenty-one days after such filing. Any person aggrieved by any assessment may appeal to the court of common pleas for the eounty or judicial district wherein the property is located and shall bring any such appeal to a return day of said court not less than twelve nor more than thirty days after service thereof and sueh appeal shall be privileged in respect to its assignment for trial. . . ." A copy of the proposed assessment is also required to be on file in the office of the clerk of the municipality and available for inspection by the publie for at least ten days before the date of the public hearing. See footnote 1, supra. It is interesting to note, however, that the court also found, and the plaintiffs have not disputed, that the Branford Beview is the only Branford newspaper, that it contains all legal notices for both probate and political activities in the town, and that in the last thirteen years sewer assessments have been published fourteen times and always in the Branford Beview. "[Special Act No. 76-35 (1976)] The appeal of Anthony Vecchio and Sarah Vecchio of the town of Woodbridge, from an assessment by the Branford Sewer Authority on certain land owned by said Anthony Vecchio and Sarah Vecchio in the town of Branford, otherwise valid except that said appeal was not instituted within the time specified by section 7-250 of the general statutes because aetual notice of the assessment was not received during such period, is validated and declared sufficient to permit said Anthony Vecchio and Sarah Veechio to maintain and prosecute said appeal to final judgment, insofar as said appeal was not instituted within the time specified in said section 7-250. Said Branford Sewer Authority shall be barred from setting up the failure to eomply with the provisions of said section 7-250 with respect to the time within which an appeal is required to be instituted and shall also be barred from denying that said appeal was instituted within such time." In Karp v. Urban Redevelopment Commission, 162 Conn. 525, 294 A.2d 633, we held (pp. 528-30) that the time limitation imposed in § 8-132 of the General Statutes for appeals to the court from a statement of compensation filed in connection with an eminent domain proceeding was only a limitation on the remedy analogous to the usual statute of limitation. That determination, however, was based upon a recognition that common-law remedies existed to secure just compensation in such cases. The appeals statute under consideration, therefore, did not create a right that would not otherwise be available. Karp v. Urban Redevelopment Commission, supra, 530. A special or local assessment, on the other hand, is generally recognized to be an exercise of the taxing power rather than of the power of eminent domain. Wight v. Davidson, 181 U.S. 371, 21 S. Ct. 616, 45 L. Ed. 900; 70 Am. Jur. 2d, Special or Local Assessments, § 5. There is neither a common-law basis nor a constitutional necessity for review of such levies provided the statutory procedure for imposing the assessment complies with the mandates of due process and equal protection. See Hibben v. Smith, 191 U.S. 310, 24 S. Ct. 88, 48 L. Ed. 195; 70 Am. Jur. 2d, supra, § 154.

Peters, C. J. The principal issue in this appeal is whether the defendant had a reasonable expectation of privacy, protected by the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution, in a rented two-car garage. After a trial to the jury, the defendant, Judson Brown, was convicted of larceny in the first degree, in violation of General Statutes (Rev. to 1979) § 53a-119 (2) and 53a-122 (a) (2), and of falsely reporting the theft of a motor vehicle, in violation of General Statutes § 14-198, and was sentenced to a total effective term of imprisonment of from four to eight years. He appeals from this conviction. The jury could reasonably have found the following facts. On the evening of January 11, 1980, a New Haven police officer discovered a partially stripped, white 1974 Mercedes Benz automobile abandoned in a parking lot. It was owned and had earlier been reported stolen by the defendant. At the time of its discovery, the car was missing a number of parts, including its two front doors and its marker plates. The defendant subsequently retrieved the recovered vehi ele and filed a claim with his insurer, the Fireman's Fund Insurance Company. After inspecting the car, the insurance company deemed it a total loss, paid the defendant its fair value, and took possession of the car and its title. When the insurance company subsequently had the car sold at auction, the defendant submitted the highest bid to repurchase the car, but never took possession of it. In October, 1980, the police discovered a number of the missing car parts in a garage rented by the defendant. The defendant was subsequently arrested and convicted of larceny. On appeal from his conviction, the defendant raises two claims of error. He claims that: (1) the evidence presented was insufficient to support the verdict of guilty of larceny; and (2) the trial court should have granted his motion to suppress evidence seized from his rented garage pursuant to a warrant because the seizure was the result of an earlier illegal search. We find no error. I The defendant's first claim of error is that the evidence presented at trial was insufficient to support the jury verdict of guilty of larceny in the first degree. The defendant was charged by information with violating General Statutes § 53a-119 (2) and 53a-122 (a) (2) by obtaining over $2000 from the Fireman's Fund Insurance Company by fraud. The defendant concedes that there was sufficient evidence to establish that he had filed a claim with the Fireman's Fund Insurance Company and that it in turn had issued checks payable to him in excess of $2000. He argues, however, that there was no evidence that he ever actually received either the checks or the money. Since obtaining the money is an essential element of the crime of larceny in the first degree, the defendant claims that his conviction on this count cannot stand. The defendant properly raised this claim before the trial court by a timely motion for acquittal which was denied. Appellate review of such a claim requires us to undertake a two step analysis. "We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury's verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt." State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). In this analysis, we make no distinction in probative force between direct and circumstantial evidence. State v. Sinclair, supra; State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). "It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence." State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). We conclude that the evidence presented was sufficient to support the jury's verdict. At trial, the state presented the following evidence relevant to this issue. After the defendant's 1974 Mercedes Benz automobile had been recovered with parts missing, the defendant retrieved it, brought it to his home and filed a claim with his insurer. In settlement of the claim, the insurance company declared the car a total loss and issued checks payable to the defendant and to the first lienholder on the car in the aggregate amount of $12,265.50, the fair market value of the car. After paying the defendant's claim in full, the insurance company received title to the car from the defendant, took possession of the car, and, pursuant to its regular practice in such cases, turned it over to a salvage company. In light of this evidence, we conclude that the trial court properly denied the defendant's motion for acquittal. The jury could reasonably have concluded that the checks issued to the defendant had been received by him, and that he would not have turned over the car and its title to the insurance company if he had not received payment for it. The fact that other, more direct evidence on this issue might have been produced by the state, as the defendant suggests, does not in any way diminish the validity of the jury's verdict. The jury considered the evidence as presented and drew a reasonable inference from it. Construed in the light most favorable to sustaining the verdict, the evidence was sufficient to support the jury's conclusion. II The defendant's next claim of error maintains that evidence seized from his rented garage pursuant to a search warrant should have been suppressed because the affidavit which supported the warrant had been tainted by an earlier illegal warrantless search. During the trial, the defendant moved to suppress this evidence. Testimony which preceded this motion established the following relevant facts. In August, 1980, a state police officer investigating a matter unrelated to the present case went to the defendant's residence to interview him. At the time, the defendant was renting a second floor apartment in a two-family house. Another tenant lived in the first floor apartment. After receiving no answer at the front door, the police officer walked to the rear of the house and knocked on the back door. Again receiving no response, the police officer walked to a two-car garage on the property located approximately thirty feet behind the house. After calling out the defendant's name and knocking on the garage door without receiving any response, the officer looked through one of the windows in the garage door to see if "there might have been somebody inside." Although he saw no one there, he did notice "several white doors that appeared to be from a Mercedes and other auto parts." The officer then left the premises. Approximately two months later, on October 21,1980, after further investigation, the police officer prepared an application for a search and seizure warrant to search the defendant's garage. One fact used to establish probable cause in the application was the officer's earlier observation of the white doors and auto parts in the defendant's garage. The defendant argues that the police officer's initial observation of the auto parts through the garage window violated the defendant's reasonable expectation of privacy in the interior of the garage and thus constituted a warrantless search without justification. Because the probable cause supporting the warrant was based in part on this illegal search, the defendant argues that all tangible evidence seized pursuant to the warrant should have been suppressed. At trial, in denying the defendant's motion to suppress this evidence, the trial court found that the defendant did not have a reasonable expectation of privacy in the garage. Such findings by a trial court will not be upset unless they are "legally or logically inconsistent with the facts found or unless they involve application of an erroneous rule of law material to the case." Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978). For the defendant to prevail on his claim we must resolve three issues in his favor: (1) that the defendant had a reasonable, constitutionally protected expectation of privacy in the two-car garage; (2) that the police officer's action in looking through the window violated that expectation and constituted an illegal search; and (3) that this illegality tainted the subsequent warrant. Because we conclude that the defendant cannot prevail on the first of these issues, we need not address the latter two. The defendant's claim that he had a constitutional right to suppression of incriminating evidence depends upon a showing that the challenged search by the police violated the defendant's rights under the fourth amendment to the United States constitution or article first, § 7, of the Connecticut constitution. Because the constitutional prohibition against unreasonable searches and seizures affords protection only against invasions of reasonable expectations of privacy; Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), reh. denied, 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1979); Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring); State v. Zindros, 189 Conn. 228, 236-39, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984); our threshold inquiry is whether the defendant in fact possessed a reasonable expectation of privacy in the garage. Dow Chemical Co. v. United States, 749 F.2d 307, 311-12 (6th Cir. 1984); United States v. Bellina, 665 F.2d 1335, 1339 (4th Cir. 1981). Absent such an expectation, the subsequent police action has no constitutional ramifications. The burden is on the defendant to prove that he had a reasonable expectation of privacy in the place that he alleges to have been unconstitutionally searched. Rawlings v. Kentucky, 448 U.S. 98, 104-105, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); Rakas v. Illinois, supra, 130 n.1; United States v. Gomez, 770 F.2d 251, 253 (1st Cir. 1985); United States v. Torres, 720 F.2d 1506, 1510 (11th Cir. 1983); United States v. Bellina, supra, 1340; United States v. Arboleda, 633 F.2d 985, 992 (2d Cir. 1980); State v. Callari, 194 Conn. 18, 23, 478 A.2d 592, cert. denied, 469 U.S. 1210, 105 S. Ct. 1178, 84 L. Ed. 2d 327 (1984); State v. Ford, 71 N.C. App. 748, 751, 323 S.E.2d 358 (1984); Abell v. Commonwealth, 221 Va. 607, 614, 272 S.E.2d 204 (1980). To sustain his burden in this case, the defendant must prove first, that he had an actual subjective expectation of privacy in the garage and, second, that his expectation was reasonable under the circumstances. Rakas v. Illinois, supra, 143; Katz v. United States, supra; State v. Zindros, supra, 239. Whether a defendant has established the reasonableness of his expectation of privacy requires a fact-specific inquiry into all the relevant circumstances. Oliver v. United States, 466 U.S. 170, 177-78, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984); Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S. Ct. 153, 75 L. Ed. 374 (1931); State v. Zindros, supra, 239-40. Although "the Fourth Amendment protects people, not places"; Katz v. United States, supra, 351; expectations of privacy in some places are afforded greater constitutional legitimacy than in others. Oliver v. United States, supra, 180-81 (no expectation of privacy in open fields); United States v. Chadwick, 433 U.S. 1, 12, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977) (lesser expectation of privacy in automobile); United States v. Bellina, supra, 1341 (lesser expectation of privacy in airplane). Privacy expectations are normally highest and are accorded the strongest constitutional protection in the case of a private home and the area immediately surrounding it. Oliver v. United States, supra, 178. Even in a private home, however, there is no absolute protection of privacy. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, supra. Objects or activities located within a home which are visible to others in areas expressly or impliedly open to the public are not accorded fourth amendment protection because any privacy expectation in such exposed areas would be unreasonable. Lorenzana v. Superior Court, 9 Cal. 3d 626, 629, 511 P.2d 33, 108 Cal. Rptr. 585 (1973); 1 LaFave, Search and Seizure (1978) § 2.3 (c), pp. 301-303. The search whose constitutionality is questioned in this case occurred in a garage in the proximity of a two-family house. Reasonable expectations of privacy are necessarily diminished in multi-family homes and multiunit buildings, by virtue of the presence in common areas of other tenants and their visitors; United States v. Holland, 755 F.2d 253, 255 (2d Cir. 1985); 1 LaFave, supra, pp. 306-309; but such expectations are not entirely extinguished. On the contrary, we recognize that, even in a multi-unit building, an individual tenant may have a constitutionally cognizable expectation of privacy in areas where his use is exclusive, that is, where he has the legal right to control access and to exclude others. See United States v. Holland, supra, 255-56 (legitimate expectation of privacy of apartment tenant exists only in an area subject to the tenant's exclusive control); United States v. Arboleda, supra, 991 (apartment dweller's legitimate privacy expectation exists in area where tenant has the right to exclude others); State v. Ragsdale, 381 So. 2d 492, 497 (La. 1980) (apartment dweller had reasonable expectation of privacy in completely enclosed patio outside his apartment unit); Commonwealth v. Hall, 366 Mass. 790, 794-95, 323 N.E.2d 319 (1975) (tenant has expectation of privacy in areas over which he can control access). In the present case, however, the defendant has failed to sustain his burden of establishing that he had a legitimate privacy interest in the rented, two-car garage. The garage was rented by the defendant in conjunction with his rental of the second floor of the appurtenant two-tenant house. The defendant presented no evidence to show that his use of this garage was exclusive or that he exercised sole control oyer it. He established only that he rented the garage and that he had access to it. There was no evidence that his rental included both bays of the garage. There was likewise no evidence whatsoever concerning the relative rights of the landlord, of the first floor tenant, or of visitors to use the garage or the driveway leading up to it. Similarly, there was no evidence concerning the ownership of the car seen in the garage. In short, there was no evidence presented to establish that the defendant could reasonably have expected that objects placed in the garage would remain private. In denying the defendant's motion to suppress the seized auto parts, the trial court found that the defendant did not enjoy a reasonable expectation of privacy in the garage. In view of the defendant's failure to establish that he was entitled to the exclusive use and control of the garage, we conclude that the trial court did not err in denying the defendant's motion. There is no error. In this opinion Shea, Santaniello and Callahan, Js., concurred. The fourth amendment to the United States constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Article first, § 7, of the Connecticut constitution provides: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation." At the time of the offense, General Statutes § 53a-119 (2) provided: "Sec. 53a-119. larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to . (2) Obtaining property by false pretenses. A person obtains property by false pretenses when, by any false token, pretense or device, he obtains from another any property, with intent to defraud him or any other person." At the time of the offense, General Statutes § 53a-122 (a) (2) provided: "larceny in the first degree: class b felony, (a) A person is guilty of larceny in the first degree when . (2) the value of the property or service exceeds two thousand dollars." General Statutes § 14-198 provides: "false report. A person who knowingly makes a false report of the theft or conversion of a vehicle to a police officer or to the commissioner shall be fined not more than five hundred dollars or imprisoned not more than six months or both." We reject the state's argument that the defendant waived his right to make this claim because he had failed to object to earlier testimony by the police officer concerning the circumstances of his observation of the interior of the garage. See State v. Girolamo, 197 Conn. 201, 207-208, 496 A.2d 948 (1985). The warrant application refers to a view of the garage by the police officer on September 4,1980, at which time he spoke to the defendant. It does not contain a reference to the view in August, 1980, which is at issue here. In view of our disposition of this claim, there is no reason to address the discrepancy. At oral argument before this court, defense counsel repeatedly stated that the record established that the defendant had the exclusive use of the garage. A review of the record provides no support for this claim. Counsel referred the court to testimony by the owner of the apartment house and garage: "Q. . . . Mr. Brazzell, do you own a property at 51 Frank Street in New Haven? "A. Yes, I do. "Q. And what [does] that property consist of? "A. It consists of a two-car garage, a two-family house. "Q. Do you rent that property? "A. Yes, I do. "Q. And to whom do you rent it? "A. To Judson Brown." Additionally, later testimony by the police officer revealed that, in September, 1980, the defendant "told me he had access to the garage." In view of testimony that someone other than the defendant occupied the first floor of the apartment house, the above statements can best be described as ambiguous. The trial court reasonably could have concluded that this evidence falls far short of establishing that the defendant had sole and exclusive use of both bays of the two-car garage. The police officer testified that, when he looked into the garage in August, he saw a "vehicle." However, he stated that he did not know who owned it. There was no further testimony concerning the ownership of this particular vehicle. The defendant also claims that his rights were violated because the garage was part of the curtilage of the house and thus entitled to special fourth amendment protection. The common law concept of curtilage, however, does not provide a separate basis for fourth amendment protection. It simply refers to areas immediately surrounding the home in which expectations of privacy are normally the greatest. Curtilage has been defined "by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private." Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). The focus remains the reasonable expectation of privacy which an individual possesses in the area. Our finding that the defendant failed to establish that he had a reasonable expectation of privacy in the garage defeats his claim regardless of how it is labeled.

Hull, J. The dispositive issues in this case concern the measure of damages for the negligent destruction of a beech tree and the adequacy of the evidence concerning such damages. The plaintiff brought a collection action against the defendant seeking some $5900 for excavation and related services it performed at the defendant's residential construction site. The defendant counterclaimed alleging, in part, that the plaintiff had negligently destroyed a beech tree in the process of excavating a driveway. Pursuant to a factfinder's findings, the trial court rendered, judgment for the plaintiff in the amount of $3065.44 on its complaint and for the defendant on his counterclaim in the amount of $5090. The plaintiff appeals from the judgment rendered in the defendant's favor on the counterclaim. The plaintiff objected to the factfinder's report asserting that he had not stated the underlying facts on which he based his finding that the tree had a value of $5090. This objection was upheld and the case was remanded to the factfinder on this issue. On remand, the factfinder filed a supplemental finding of facts including the following information: (1) that the defendant's witness, Oscar Stone, had worked as a horticultural consultant for two or three decades; (2) that he is a licensed arborist; (3) that based upon his observations and the use of a recognized formula, Stone was able fairly to approximate the value to particular real estate of trees of different kinds and sizes, predicated essentially on the aesthetic or environmental contri bution of the tree to the property; (4) that the value of the underlying real property is not a significant element in determining the value of a tree on the real property; and (5) that Stone concluded that the tree contributed $5090 to the value of the land. The plaintiff objected to the acceptance of the supplemental finding of facts claiming that the finding of damages was invalid because an incorrect measure of damages was used and because the aesthetic and environmental value of the tree was not pleaded by the defendant in his counterclaim. This objection was overruled by the court. The plaintiff now claims three grounds of error as follows: (1) that the court erred by failing to apply the appropriate measure of damages for destruction of the beech tree; (2) that the trial court erred by awarding any damages because there was an inadequate basis from which to measure them; and (3) the trial court erred by awarding damages based on the ornamental or aesthetic qualities of the tree because such damages were not specially pleaded. The plaintiffs third claim of error is without merit. We conclude that the counterclaim, taking the facts it alleged favorably to the pleader, and viewing it in a broad fashion including the facts necessarily implied and fairly provable under it, sufficiently put the plaintiff on notice that the ornamental and aesthetic value of the tree would be claimed as damages. See Schmidt v. Yardney Electric Corporation, 4 Conn. App. 69, 74, 492 A.2d 512 (1985). Accordingly, the trial court did not err in considering the tree's ornamental or aesthetic qualities. We consider the first and second grounds of error together. There are three possible measures of damages for loss of a tree in Connecticut. The distinctions between the measures are clearly stated in Maldonado v. Connecticut Light & Power Co., 31 Conn. Sup. 536, 537-38, 328 A.2d 120 (1974): "Our Supreme Court has clearly stated our rule applicable in this type of situation as follows: 'This is an action for a trespass to the land to which the trees in question were appurtenant. It is an appropriate remedy either for the recovery of damages for the mere unlawful entry upon the plaintiffs land; for the recovery of the value of the trees removed, considered separately from the land; or for the recovery of damages to the land resulting from the special value of the trees as shade or ornamental trees while standing on the land. For a mere unlawful entry upon land nominal damages only would be awarded. If the purpose of the action is only to recover the value of the trees as chattels, after severance from the soil, the rule of damages is the market value of the trees for timber or fuel. For the injury resulting to the land from the destruction of trees which, as a part of the land, have a peculiar value as shade or ornamental trees, a different rule of damages obtains, namely, the reduction in the pecuniary value of the land occasioned by the act complained of. Hoyt v. Southern New England Telephone Co., 60 Conn. 385, 390 [22 A. 957 (1891)].' Eldridge v. Gorman, 77 Conn. 699, 701 [60 A. 643 (1905)]. This is the common-law rule. Under the facts as disclosed by this record, the proper measure of damages is either the market value of the tree, once it is severed from the soil, or the diminution in the market value of the plaintiffs' real property caused by the cutting. Eldridge v. Gorman, supra." The plaintiff claims that the trial court erred by awarding damages based on the diminution of the market value of the defendant's land because there was insufficient evidence as to that diminution. The defendant concedes that Stone, who provided the evidence of value, was not a real estate expert but rather was an "expert in the appraisal of trees and the value which trees add to a piece of real estate." (Emphasis added.) Indeed, Stone testified clearly that he was not even aware of or concerned with the value of real estate but was a "horticultural appraiser." The defendant argues, however, that Stone's appraisal depended on the value which a tree of the size and species of the defendant's tree could add to the defendant's property and, therefore, also the value the site lost when the tree was destroyed. For this court to follow the circular reasoning urged by the defendant would constitute an end run around the long established rule set forth in Maldonado v. Connecticut Light & Power Co., supra, that "the proper measure of damages is . . . the diminution in the market value of the . . . real property caused by the cutting." Id., 538. The factfinder had no competent evidence of market values in the area and the effect of the destruction of the tree on the market value of the defendant's property. Accordingly, he clearly applied an improper measure of damages, and the judgment cannot stand. There is error in part, the judgment is affirmed except as to the amount of damages awarded on the counterclaim and a new trial is ordered limited to that issue. In this opinion the other judges concurred.

Callahan, J. The defendant was convicted of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). On April 20, 1981, he was sentenced to consecutive terms of four to eight years on each count, for a total effective sentence of eight to sixteen years imprisonment. The defendant appeals, asserting that the trial court erred in refusing to allow him to testify on redirect examination that he had reviewed and ratified notes made by his attorney. We find no error. From the evidence adduced at trial the jury could reasonably have found the following facts: On August 7, 1979, the defendant was arrested for two robberies. The first robbery was committed on June 9, 1979, at approximately 2 p.m., after the defendant entered Irene's Yarn Shop which is located at 560 North Main Street, Bristol. At the time, Irene Derosier, the proprietor, was alone in her store. After the defendant had been in the store for a short period of time, he produced a knife and asked Derosier for her money. She gave him about fifty dollars in cash and he fled. At the time of the robbery, the shop was well lit and the defendant was only a few feet from Derosier. On August 4, 1979, Derosier examined a series of photographs shown to her by the Bristol police and identified the defendant as the man who had robbed her. During the trial, she made an in-court identification of the defendant as the robber. On June 13, 1979, at approximately 1:15 p.m., the defendant entered the Dairy Farm Store located at 104 Wolcott Street, Bristol. Barbara Huntley was the manager of the store and was working there alone although there were two children in the store when the defendant entered. After the children had left, Huntley asked the defendant if she could help him. The defendant pointed a knife at her and told her to give him the store's money. Huntley opened the cash register and gave him all the five and ten dollar bills that were in the drawer, which amounted to approximately sixty dollars. He then demanded that she give him the twenty dollar bills that were under the tray in the drawer. Huntley said that there were no twenty dollar bills in the drawer and she picked up the tray and threw it at the defendant. The defendant fled and Huntley chased him across the street, but then gave up the chase. Huntley had seen the defendant for the first time the day before the robbery when he entered the store and made a purchase. During the robbery, she had a clear view of the defendant's face. Huntley examined a series of photographs shown to her by the Bristol police and identified the defendant as the man who had robbed her. She also made an in-court identification of the the defendant during the trial. The defendant presented an alibi defense. He testified on direct examination that on June 8, 1979, he returned to Bristol, having just been discharged from the army, and that on June 9,1979, at the time of the yarn shop robbery he was at his mother's home with his mother and sister. He further testified that he had slept until about 2 p.m. on June 13, 1979, the day of the Dairy Farm Store robbery. On cross-examination, the state's attorney questioned the defendant extensively about his actions on June 9, 1979. He was able to recall the events of that day in great detail. The state's, attorney then asked the defendant for details of his activities for days selected at random. The defendant repeatedly objected to this line of questioning but his objections were overruled. The defendant was finable to recall his activities on those days. On redirect examination the defendant explained that he was able to recall the events of June 9, 1979, because it was his first day home after his having been discharged. He was unable to explain why he remembered the events of June 13, 1979. On recross-examination the state's attorney asked the defendant if he had ever written down the details of his activities on the dates of the robberies. The defendant responded that he had not. Subsequently, defense counsel, on redirect examination, asked the defendant, "When you talked to the lawyers who represented you, including myself, did we write down things while we were talking with you?" The defendant replied in the affirmative. The state's attorney then made an objection which the trial court apparently sustained. The defendant now argues that the sustaining of this objection constituted reversible error. The defendant argues that the trial court erred in refusing to allow the defendant to testify, on redirect examination, that his attorney had made interview notes in the defendant's presence, which the defendant had reviewed and ratified. This court has made it clear that a witness is permitted on redirect examination to explain or clarify any relevant matters in his testimony which may have been weakened or obscured by his cross-examination. State v. Graham, 186 Conn. 437, 448, 441 A.2d 857 (1982). The extent and scope of redirect examination, however, may be limited within the discretion of the trial judge. State v. Reed, 174 Conn. 287, 301, 386 A.2d 243 (1978). In order to determine if the trial court properly sustained the state's objection during defense counsel's redirect examination of the defendant, it is necessary to examine the record. During the redirect, immediately preceding the state's objection, defense counsel had asked the defendant, "When you talked to the lawyers who represented you, including myself, did we write down things while we were talking with you?" The defendant responded in the affirmative. The state's attorney then objected. The record discloses that this objection was made while there was no question pending. It is therefore difficult to determine what the trial court sustained an objection to. The previous question had been asked and answered at the time of the state's objection and no request had been made to strike the answer. No other question was asked to which objection was taken. After the state objected, the trial judge, without making a ruling, excused the jury. In their absence, there was a colloquy between defense counsel, the state's attorney, and the court in which the court said that "the witness can testify as to notations he made, but not as to notations that [his attorney] made." Defense counsel argued hypothetically that if he showed the defendant his notes and went over the notes with him, the defendant should be allowed to testify to that. He did not ask the defendant whether he had, in fact, reviewed any notes of counsel. Obviously, the defendant could not testify as to notes taken by defense counsel unless, at a minimum, there was testimony that he had seen those notes. At no time did defense counsel make an offer of proof as to what had actually occurred. At the end of the colloquy, the trial court sustained the state's objection. It is impossible to ascertain from the record whether the line of questioning which defense counsel apparently wished to pursue was admissible. "The short answer to this claim is that no offer of proof appears in the record as to the . . . content of the testimony the [defendant] sought to introduce. 'Without knowing the answer that might be forthcoming we are unable to rule on this assignment of error.' " Jacobsen v. Jacobsen, 177 Conn. 259, 267, 413 A.2d 854 (1979), quoting Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 776 (1971). "It is the appellant's burden to ensure that we are provided with an adequate appellate record to support his claim of error." Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407, 480 A.2d 552 (1984). The defendant in the present case has not met this burden. Under the circumstances outlined above, if he wished to preserve this claim of error for appellate review, he should have presented an offer of proof. "An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates a record adequate for appellate review." Mad River Orchard, Inc. v. Krack Corporation, 89 Wash. 2d 535, 537, 573 P.2d 796 (1978). "The significant gap in the record . . . limits our review and presents obstacles to reviewing the defendant's claim of error on this appeal." Barra v. Ridgefield Card & Gift Gallery, Ltd., supra. In the absence of a proper offer of proof, this court cannot speculate as to what actually took place at the conference between the defendant and defense counsel or what line of questioning defense counsel intended to follow. We will not base a claim of error on an assumption that the trial court acted incorrectly. Id., 407-408; Giamattei v. DiCerbo, 135 Conn. 159, 162, 62 A.2d 519 (1948). Without an adequate record to review the ruling of the trial court, this court must assume that the trial court acted properly. Barra v. Ridgefield Card & Gift Gallery, Ltd., supra; Jacobsen v. Jacobsen, supra, 263; Giamattei v. DiCerbo, supra. There is no error. In this opinion the other judges concurred. "[General Statutes] Sec. 53a-134. bobbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument . . . ."

Daly, J. The plaintiffs instituted this action against the defendants to recover for injuries and damages sustained by the named plaintiff as a result of an intersection accident involving a bicycle operated by the named plaintiff and an automobile operated by the named defendant. The plaintiff has appealed from the refusal by the trial court to set aside the jury verdict rendered in favor of the defendant. The plaintiffs sole claim of error is that the trial court failed to charge the jury in accordance with her requests to charge. The jury could reasonably have found the following facts. On June 27, 1979, the fifteen year old plaintiff, Danielle R. Hurder, was riding her bicycle in an easterly direction on New Street in Bristol with a friend, Heidi Bishop. The two were approaching the intersection of New Street and Andrews Street. The defendant, at that time, was operating a motor vehicle at a speed below the posted speed limit in a southerly direction on Andrews Street. While there was a stop sign on New Street, there was no stop sign on Andrews Street at the intersection. Bishop stopped at the stop sign on New Street before reaching the intersection. The plaintiff, however, rode her bicycle past the stop sign without stopping and into the intersection where she was struck by the defendant's motor vehicle and sustained severe injuries as a result of the collision. The plaintiff alleged that the defendant was negligent in several respects in the operation of her motor vehicle, inter alia, in failing to keep a proper lookout; in failing to sound her horn; in failing to stop her motor vehicle in time to avoid the collision; and in travelling at an excessive rate of speed. The defendant pleaded contributory negligence on the part of the plaintiff. "The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered." Practice Book § 315. While the plaintiff filed written requests to charge in accordance with Practice Book § 315, she violated the mandate of Practice Book § 318 which enjoins a party from filing more than fifteen requests "unless, for good cause shown, the court permits the filing of an additional number." The plaintiff filed twenty-six requests, without seeking leave of the court to do so. Filing more than fifteen requests to charge relieves the trial court of the duty to choose any of them. "In these circumstances the trial judge is under no duty to select [the plaintiffs] fifteen finalists among the [twenty-six] contestants." Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 527 n.2, 457 A.2d 656 (1983). The trial court did not, therefore, err in refusing to give any of the instructions which the plaintiff had requested. There is no error. In this opinion the other judges concurred. We will refer to the parties as the plaintiff and defendant because the coplaintiff is the father of the named plaintiff and the codefendant is the owner of the car the defendant was operating.

Parskey, J. This appeal concerns a disputed ruling by the election moderator of the town of Westport with respect to the results of an election for positions on that town's board of education. The germane facts are revealed by the trial court's memorandum of decision. Three vacancies on the five member board were to be filled by an election held on November 6, 1979. In accordance with the town charter, the Eepublican and Democratic parties each nominated two candidates. In addition to these four party-endorsed candidates, a fifth candidate, a registered Eepublican who was unsuccessful in gaining her party's endorsement, ran as a petition candidate. The three registered Eepublicans garnered the most votes, but the election moderator certified the Democrat with the most votes, who finished fourth overall, as the winner of the third position on the board in place of the Eepublican who finished third. The moderator's decision was predicated on his belief that the applicable minority representation laws precluded all three registered Eepublicans from being elected. Herbert M. Lobsenz, the Eepublican displaced by the moderator's action, brought this suit against the Democratic candidate certified as the winner of the third position, Jerry Davidoff; the election moderator, Nicholas Thiemann; and the town clerk, Joan Hyde. Eelying on General Statutes § 9-328, the plaintiff sought first a writ of mandamus ordering the defendants Thiemann and Hyde to declare the plaintiff elected to the board rather than the defendant Davidoff, and second, a court certification stating that the plaintiff had been elected to the board. Other claims for relief, including a declaratory judgment and a quo warranto determination, were not pursued to judgment below and play no role in this appeal. The trial court found the issues for the plaintiff and certified him the winner of the third position on the hoard. On appeal, only the named defendant attacks the trial court's decision on the merits. Both the named defendant and the defendant Hyde, however, have raised a threshold question: Did the trial court have subject matter jurisdiction over this dispute? The defendants maintain that jurisdiction was lacking because the two candidates receiving the largest number of votes overall were not notified of the pendency of the proceedings below. Connecticut law governing hearings on disputed municipal elections requires notice "to be given to any candidate or candidates whose election or nomination may be affected by the decision upon such hearing." General Statutes § 9-328. That law also confers authority on the trial court to order a new election. Id. Because a new election for all three positions would affect all candidates, including the top two, the defendants argue that the trial court did not comply with the statute and did not have the proper parties before it. Thus, the defendants conclude that the court never had jurisdiction to hear this matter. We reach the opposite conclusion. As noted earlier, no declaratory relief was granted in this ease. Therefore, to the extent that the defendants rely on the holding of State ex rel. Kelman v. Schaffer, 161 Conn. 522, 290 A.2d 327 (1971), their claim fails because Kelman concerned a declaratory judgment and the particular notice requirements applicable thereto. Id., 526. See Practice Book, 1978, § 390 (d). A review of the defendants' broader claim, that the court had no jurisdiction under § 9-328 absent notice to the other candidates, demonstrates that it too is unsound. We accept the premise "that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard." State ex rel. Kelman v. Schaffer, supra, 527. Section 9-328 particularizes this principle by requiring notice "to be given to any candidate or candidates whose election or nomination may be affected by the decision upon such hearing." (Emphasis added.) We conclude that the election of the two candidates with the highest vote totals would not be affected by the court's decision because, under the circumstances and pleadings in this case, the court's decision would not include an order for a new election. Neither the plaintiff's complaint nor the court's order for a show cause hearing indicated that a new election was among the forms of relief sought. "Jurisdiction is the power in a court to hear and determine the cause of action presented to it." Mazzei v. Cantales, 142 Conn. 173, 175, 112 A.2d 205 (1955). "'To constitute this there are three essentials: first, the court must have cognizance of the class of cases to which the one to be adjudged belongs; second, the proper parties must be present; and third, the point decided must be, in substance and effect, within the issue.' " Case v. Bush, 93 Conn. 550, 553, 106 A. 822 (1919). The only matter before the court was whether the election moderator's interpretation of the minority representation laws was correct. If so, the plaintiff would not be entitled to relief; if not, the plaintiff rather than the defendant Davidoff would be declared elected. The only issues presented to the court concerned these two individuals. It is not claimed that the votes were not accurately-canvassed, tabulated and reported nor is it claimed that any, much less a significant number, of the votes were fraudulently cast. Because there was no issue before the court which involved the validity of the election the court would have lacked authority to order a new election despite the general availability of such remedy under § 9-328 in cases where such remedy is applicable. New Haven Sand Blast Co. v. Dreisbach, 104 Conn. 322, 329-30, 133 A. 99 (1926). Thus, on the basis of the issues properly before the court, the two candidates with the highest number of votes would retain their office irrespective of how the court held. This conclusion remains unchanged by the presence, in § 9-328, of authority for the trial court to order a new election. The bare existence of this remedy in the statute does not require that, in a case where a new election is not sought by the parties and not contemplated by the court, the court must nevertheless proceed as if that remedy were to be implemented. The proper parties in this case were before the court and it had subject matter jurisdiction over the controversy before it. A more detailed factual picture is necessary to decide this case on the merits. In the November 6, 1979 election, only three out of five of the positions on the board were to be filled. Of the two positions not up for election, one was occupied by a Republican, one by a Democrat. The Westport town charter provides that "[n]o political party shall nominate more candidates than the number which, if elected, will give that party a bare majority of the members of the board. No elector shall vote for more candidates than the largest number that any one political party may nominate." 28 Spec. Acts, No. 348, c. 5, U (b). Respecting this limitation, the Republican party nominated two candidates, Dorothy A. Lyne and Herbert M. Lobsenz; the Democrats nominated Jerry Davidoff and Robert Davis. An extra wrinkle was added when Audrey Hanson, a registered Republican, ran as a petition candidate. The final vote tally showed Lyne with 3640, Hanson with 3283, Lobsenz with 3243, Davidoff with 2544, and Davis with 1733. Apparently on the basis of his interpretation of the town charter and of General Statutes § 9-167a, 9-204 and 9-204a the election moderator indicated that Democrat Davidoff rather than Republican Lobsenz won the third position on the board. We agree with the trial court that this decision was incorrect, and that none of the cited provisions operates to deny the plaintiff the position he won by virtue of the number of votes he received. As indicated earlier, chapter 5 section 1 (b) of the town charter limits both the number of candidates each party may nominate and the number of votes each elector may cast. The Hanson candidacy did not offend this provision because she was not nominated by the Republican party. With respect to the charter, her Republican registration is of no moment because the charter does not purport to limit directly the number of board members who belong to any one particular political party. It only controls the number of party nominations. Compare General Statutes § 9-167a (directly limiting the number of board members who may belong to one political party). In construing provisions which regulate the electoral process for the purpose of securing minority representation one must differentiate between those which limit the number of candidates which a political party may nominate or for whom an elector may vote and those which limit the number of members of one party who may serve on a public body. The focus of the former provisions is on the road to the forum whereas that of the latter is on the forum itself. We must therefore examine the provisions as we find them. We must assume that if one method is chosen rather than the other the provision chosen was intended to act in accordance with the plain meaning of its language. Baston v. Ricci, 174 Conn. 522, 528, 391 A.2d 161 (1978). General Statutes § 9-204 also aims at ensuring minority representation on local boards of education. The vehicle chosen by the legislature in this instance was to limit the number of votes each elector may cast. When combined with another statute limiting nominations, the overall effect in the present case was to allow each major party to nominate, and each elector to vote for, two candidates. Like the town charter, these statutes do not attempt to control directly the composition of the hoard by political party affiliation. Instead, they operate indirectly, through the nomination process. The last line of defense against the plaintiff's assumption of the third position on the board is General Statutes § 9-204a. The plaintiff concedes that this section, if applicable, bars his election. Section 9-204a applies to an election for the board of education only if a town has authorized (1) "the nomination by any political party of candidates for election as members of tbe board of education of such town equal to the number of members of said board to be elected at such election" and (2) "the electors of such town to vote for the full number of such members to be elected." General Statutes § 9-204a. The defendant first hypothesizes some situations where the Westport town charter would sanction such a result. For instance, in years when two positions on the board of education are to be filled, the minority party may nominate, and the voters may vote for two candidates. In all years, a third party, without incumbent representation on the board, may nominate, and the voters may vote for, the full number of members to be elected. The defendant completes his argument by urging us to interpret the words "any political party" as meaning "some political parties" rather than "all political parties." The plaintiff, on the other hand, contends that "any political party" in § 9-204a must be held to mean "all political parties." Both meanings have been attributed to the word "any." See Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 328-29, 142 A.2d 524 (1958). To find the sense in which it is employed in § 9-204a, we look to the wording of the statute, its legislative history and its basic policy. Id., 329. During the legislative debate on the bill that was later enacted as Public Acts 1973, No. 73-266 and codified as § 9-204a of the General Statutes, Bepresentative Albert W. Cretella, Jr., noted that under state statutes then in effect, no political party could nominate more than one-half of the number of vacancies on a board of education if the number of vacancies was even, or, if the number of vacancies was odd, no more than a bare majority. 16 H. R. Proc., Pt. 8, 1973 Sess., pp. 4101-4102. He then went on to explain that in order to take advantage of the new option provided by the bill under consideration, a town would have to choose affirmatively to do so by way of a referendum. If "any" as used in the statute means "some," as the defendant maintains, there would be no need for Westport, or any town with a similar charter provision, to take special action to opt for the new nomination guidelines because the statute would apply by its own terms. We conclude that the meaning of "any" intended by the legislature was "all." It is clear that the Westport town charter does not allow all political parties to nominate a number of candidates equal to the number of vacancies even though it does allow some parties to do so. Further, the charter does not generally authorize the electors to vote for the full number of vacancies. It does so provide under the same circumstances posited above in which a minority party could conceivably nominate a number of candidates equal to the number of vacancies, but this limited authorization does not satisfy the requirement of § 9-204a. Because the threshold requirements for the section's applicability have not been met, the section, by its own terms, does not apply. Thus the second sentence of the section, which contains the operative provisions ensuring minority representation by detailing how board positions are to be filled in a town that has opted for the § 9-204a nomination procedures, never comes into play. The trial court properly concluded that no statute or charter provision operated to bar the plaintiff from assuming the board position to which he was duly elected. There is no error. In this opinion Cotter, C. J., Bogdanski and A. Armentauo, Js., concurred. [General Statutes] See. 9-328. contests and complaints IN ELECTION OF MUNICIPAL OFFICERS AND NOMINATION OF JUSTICES OF the peace. Any elector or candidate claiming to have been aggrieved by any ruling of any election official in connection with an election for any municipal office or a primary for justice of the peace, or any elector or candidate claiming that there has been a mistake in the count of votes cast for any such office at such election or primary, may bring a complaint to any judge of the superior court for relief therefrom. If such complaint is made prior to such election or primary, such judge shall proceed expeditiously to render judgment on the complaint. If such complaint is made subsequent to such election or primary, it shall be brought within ten days of such election or primary to any judge of the superior court, in which he shall set out the claimed errors of the election official or the claimed errors in the count. Such judge shall forthwith order a hearing to be had upon such complaint, upon a day not more than five nor less than three days from the making of such order, and shall cause notice of not less than three nor more than five days to be given to any candidate or candidates whose election or nomination may be affected by the decision upon such hearing, to such election official and to any other party or parties whom such judge deems proper parties thereto, of the time and place for the hearing upon such complaint. Such judge shall, on the day fixed for such hearing and without unnecessary delay proceed to hear the parties. If sufficient reason is shown, he may order any voting machines to be unlocked or any ballot boxes to be opened and a recount of the votes east, including absentee ballots, to be made. Such judge shall thereupon, if he finds any error in the rulings of the election official, or any mistake in the count of the votes, certify the result of his finding or decision to the secretary of the state before the tenth day succeeding the conclusion of the hearing. Such judge may order a new election or primary or a change in the existing election schedule. Such certificate of such judge of his finding or decision shall be final and conclusive upon all questions relating to errors in the ruling of such election officials, and to the correctness of such count, and shall operate to correct the returns of the moderators or presiding officers, so as to conform to such finding or decision, except that this section shall not affect the right of appeal to the supreme court and it shall not prevent such judge from reserving such questions of law for the advice of the supreme court as provided in section 9-325. Such judge may, if necessary, issue his writ of mandamus, requiring the adverse party and those under him to deliver to the complainant the appurtenances of such office, and shall cause his finding and decree to be entered on the records of the superior court in the proper judicial district." It is not claimed that the provision governing the number of votes each elector may cast was violated. General Statutes § 9-167a limits the composition of the board in the present case to no more than four members from the same political party. If the plaintiff were declared elected, there would bo four IJepublieans on the board, thus satisfying the statute. " [General Statutes] Sec. 9-204. minority representation on board op education. When the number of members to be elected to the board of education for the same term at any election is even, no elector shall vote for more than half that number. When the number of members to be elected to the board of education for the same term at any election is odd, no elector shall vote for more than a bare majority of that number." "[General Statutes] Sec. 9-414. nominations not to exceed PLACES TO BE pilled; municipal primaries. No town committee, caucus or convention shall endorse and certify to the clerk of a municipality, and no primary shall choose, more candidates for nomination to municipal office or more persons as members of a town committee or as delegates to a convention than an elector may vote for in each such case." "[General Statutes] Sec. 9-204a. nomination and voting for FULL NUMBER OF BOARD MEMBERS TO BE ELECTED AUTHORIZED. Notwithstanding the provisions of sections 9-204 and 9-414 and of any special act or town charter, any town may, by charter, or by referendum vote taken at any regular election in such town pursuant to either a vote of its legislative body or a petition signed by at least five per cent of the electors of such town as established by the last-preceding registry list of such town, authorize the nomination by any political party of candidates for election as members of the board of education of such town equal to the number of members of said board to be elected at such election, and authorize the electors of such town to vote for the full number of such members to be elected, provided not more than one-half of the members of said board declared elected to the same term at such election shall be of the same political party if the number to be elected is even and not more than a bare majority thereof shall be members of the same political party if the number to be elected is odd. If the number of candidates, sufficient to fill the offices voted on, receiving the highest number of votes at any such election are of the same political party, those persons sufficient to fill one-half or a bare majority of such offices, as the case may be, who received the highest number of votes among such candidates shall be declared elected and those persons receiving the next highest number of votes who do not belong to such political party, sufficient in number to fill the remaining offices, shall be declared elected." Representative Albert W. Cretella, Jr., remarked as follows: "This bill if adopted, will allow towns at a local option the right to have a political party if they so choose nominate as many persons as there are vacancies to fill and allow an elector to vote for as many vacancies as there are to fill. "The action comes about in a town only after a town has either amended its charter to permit it, and you will note that a charter change requires a referendum, or in the absence of a charter change the local option will be in the form of a referendum. In either case the town can only adopt the provisions of this bill if a referendum is held, either a charter referendum or a referendum authorized by the legislative body of the town, or a referendum authorized by a petition. "The amendment which was offered clearly is to indicate that there must be a referendum in either case. If the town adopts the referendum, then the party can nominate as many vacancies as there are to be filled." 16 H. R. Proc., Pt. 8, 1973 Sess., p. 4102. See footnote 6, supra.

Shea, J. The defendant has appealed from his conviction upon a conditional plea of nolo contendere to an indictment charging him with fourteen counts of arson murder in violation of General Statutes § 53a-54d, one for each of the victims who died in the fire of an apartment building in Waterbury. The trial court imposed on each count the statutorily mandated sentence of life imprisonment without eligibility for parole and structured the sentences on the fourteen counts as consecutive or concurrent to result in an effective sentence of two consecutive life terms, 120 years of imprisonment pursuant to General Statutes § 53a-35b, without eligibility for parole. The defendant has raised three claims of error: (1) the denial of his motion to suppress his statement to the police after he had been arrested at the scene of the fire; (2) the denial of his motion to dismiss which he based upon the claimed unconstitutionality of our arson murder statute, § 53a-54d, by virtue of its inclusion of reckless as well as intentional conduct as a sufficient basis to satisfy the "arson" element of the offense; and (3) the imposition of two consecutive terms of life imprisonment. We reach only the third of those issues, because on the record before us the condition upon which the plea was entered, that the defendant obtain review by this court of the rulings upon his motions to suppress and to dismiss, cannot be fulfilled. Accordingly, we remand the case to the trial court with direction to vacate the plea and for further proceedings. The state recited the following factual basis for the defendant's plea at the time it was accepted by the trial court: In the early morning hours of July 5,1982, the defendant visited the apartment of his niece at 45-47 Prospect Street in Waterbury. The defendant argued with his niece concerning his drinking and also about a fire he had started, by his carelessness with a cigarette, on the couch in her apartment. After the defendant complied with her request to leave the apartment, he returned to borrow some matches. A short time later, the defendant set fire to some papers on the stairway of the building. Although the police and fire units of the city of Waterbury arrived on the scene quickly, the blaze had already consumed the building. The defendant was arrested at the scene of the fire at approximately 2 a.m. He was advised of his constitutional rights in English and asked if he understood them. The defendant replied that he did. The defendant was informed that he was under arrest and that he was accused of setting the fire. The defendant denied the accusation. The defendant was then transported to the Waterbury police station and again advised of his constitutional rights. He continued, when questioned, to maintain his innocence. Following this second inquiry, he became ill and fell to the floor of his cell. He was taken to the emergency room at St. Mary's Hospital in Waterbury. The defendant's condition was diagnosed by a staff physician at the emergency room as an "anxiety reaction" and he was discharged from the hospital. The defendant was advised of his rights for the third time at approximately 9 a.m., and he again denied that he had set the fire. After spending the remainder of the day in his cell, he was summoned for further questioning at approximately 8 p.m. The defendant was again advised of his rights. He indicated that he understood them, and that he wished to make a statement, expressly waiving his right to have a lawyer present. Because the defendant had some difficulty describing the incident in English, a Spanish speaking officer was instructed to assist him. At this time he was advised of his rights in Spanish, and he once again indicated that he understood them. At approximately 8:30 p.m., the defendant confessed to starting the fire by igniting some papers on the apartment stairway. His entire statement was given in English. After the statement was transcribed, he signed it and also initialed an additional paragraph noting that the document had been read back to him in both Spanish and English. The defendant also signed a form acknowledging that he had waived his constitutional rights. The defendant filed a motion to suppress his confession. At the hearing on the motion he claimed that the state had failed to meet its burden of proving by a preponderance of the evidence that he had effectively waived his Miranda rights and that his confession was voluntary. In relation to those issues he presented psychiatric testimony concerning his mental condition. The trial court denied the motion. The defendant also filed a motion to dismiss the indictment claiming that the arson murder statute violates the federal constitution insofar as the arson which is an element of the crime of arson murder may be arson in either the second or third degree. He claimed that the statutorily mandated sentence would be disproportionate to the crime charged, violating the eighth amendment prohibition against cruel and unusual punishment. The trial court denied the motion to dismiss, concluding that the defendant's motion was premature because it was based upon the speculative assumption that any verdict in this case would be predicated on either second or third degree arson. On September 8, 1983, the defendant entered pleas of nolo contendere to each of the fourteen counts of arson murder, reserving his right to appeal the court's denial of his pretrial motions under General Statutes § 54-94a. I As a general rule, an unconditional plea of guilty or nolo contendere, intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings. Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973); Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458, 25 L. Ed. 2d 785 (1970); McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Brady v. United States, 397 U.S. 742, 757, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); State v. Martin, 197 Conn. 17, 25, 495 A.2d 1028 (1985); Consiglio v. Warden, 160 Conn. 151, 166, 276 A.2d 773 (1970). Therefore, only those issues fully disclosed in the record which relate either to the exercise of jurisdiction by the court or to the voluntary and intelligent nature of the plea are ordinarily appealable after a plea of guilty or nolo contendere. Boykin v. Alabama, 393 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Godek, 182 Conn. 353, 357, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981); see also Practice Book § 712. The legislature in 1982 altered the broad waiver of constitutional rights implicit in a plea of guilty or nolo contendere. Public Acts 1982, No. 82-17. General Statutes § 54-94a allows a defendant to enter a plea of nolo contendere, conditional on the right to take an appeal from the trial court's denial of a motion to suppress evidence based on an unreasonable search and seizure, or from the denial of a motion to dismiss. See State v. Martin, supra, 25 n.12; State v. Ross, 189 Conn. 42, 50 n.4, 454 A.2d 266 (1983); State v. Satti, 2 Conn. App. 219, 222, 477 A.2d 144 (1984). The defendant entered his plea under this statute. The record reveals that neither the trial court nor the state had any objection to this procedure. The threshold question on this appeal is whether the issues reserved for review by this court are within the ambit of § 54-94a. The defendant reserved two claims, one relating to the voluntariness of his confession, the other attacking the constitutionality of the arson murder statute. Clearly, the former is not within the purview of the statute. Under § 54-94a, an appeal is permitted from the denial of a motion to suppress "evidence based on an unreasonable search and seizure" only. The defendant in this case argues that his confession was illegally obtained because his lack of facility with the English language, as well as his alleged mental impairment, made it impossible for him to relinquish his rights effectively. Such a basis for a motion to suppress, implicating the fifth and sixth amendments, is not included in the statutory language allowing appeals only from the denial of a motion to suppress evidence obtained from an illegal search or seizure in violation of the fourth amendment. Moreover, there is nothing in the legislative history of the statute that would suggest such an intention. The question remains whether we should exercise our inherent supervisory authority over the administration of justice; State v. Cohane, 193 Conn. 474, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984), citing United States v. Butler, 567 F.2d 885, 893 (9th Cir. 1978); and adopt a procedure that would allow criminal defendants to enter pleas based upon conditions other than those specified in § 54-94a. Prior to the advent in 1983 of federal rule of criminal procedure 11 (a) (2), which allows a conditional plea of guilty or nolo contendere with a reservation of the right to appeal rulings on "any specified pretrial motion," the federal courts were divided on the permissibility of such a plea. (Emphasis added.) Although the adoption of the rule appears to have quieted some concerns that had arisen; United States v. Morrison, 449 U.S. 361, 363 n.1, 101 S. Ct. 665, 66 L. Ed. 2d 564, reh. denied, 450 U.S. 960, 101 S. Ct. 1420, 67 L. Ed. 2d 385 (1981); cf. Lefkowitz v. Newsome, 420 U.S. 283, 292, 95 S. Ct. 886, 43 L. Ed. 2d 196 (1975); McMann v. Richardson, supra, 770 n.13; it has not entirely stilled objections that the procedure (1) encourages appellate litigation; (2) militates against achieving finality in the disposition of criminal cases; (3) reduces the effectiveness of appellate review because of the absence of a full trial record; and (4) compels decisions on many issues, constitutional or otherwise, that would often be obviated by applying the harmless error doctrine in the light of a full trial record. Comment, "Conditional Guilty Pleas: Post Guilty Plea Appeal of Nonjurisdictional Issues," 26 U.C.L.A.L. Rev. 360, 375 (1978). Balanced against these considerations is the obvious gain in judicial efficiency that is realized whenever a full trial can be avoided as well as the opportunity afforded to defendants to enter a plea without foregoing substantial constitutional claims. Lefkowitz v. Newsome, supra, 292. The conditional plea is susceptible to abuse, however, unless its use is carefully limited to significant issues the determination of which on appeal is likely to be dis-positive of the case. See United States v. Lace, 669 F.2d 46, 53 n.5 (2d Cir. 1982) (Newman, J., concurring). For this reason, the recent federal rule provides that the reserved issues must be specified in writing and that consent of the prosecutor as well as approval by the court are necessary for entry of a conditional plea. Fed. R. Crim. P., rule 11 (a) (2). Our statute, § 54-94a, does not contain these safeguards against potential abuse. The inherent power of the trial court to reject such a plea where it is clearly inappropriate affords some protection against misuse of the statutory procedure, but the court is not in a position to evaluate adequately such prosecutorial concerns as the significance of a particular ruling to the ultimate disposition of a case or the problems entailed by delaying a trial for the period necessary to obtain appellate review. The prosecutor is ordinarily much more familiar with the evidence to be presented that may not be affected by the ruling and also with the effect of delay incident to an appeal upon the availability of witnesses. Even where the prosecutor looks favorably on the conditional plea, as the state apparently does here, the parties, as well as the trial court, must be sure that the issues reserved can properly be reviewed on the record available. Though we perceive no problem in reviewing the ruling upon the admissibility of the defendant's confession in this case, we have concluded, for reasons explained in part II of this opinion, that the issue of whether the arson murder statute violates the constitutional prohibition against cruel and unusual punishment cannot be properly resolved at this stage of the proceeding. The improvident reservation of that issue under the plea has resulted in a delay of more than two years in the ultimate disposition of this case. We are not inclined, therefore, on this occasion to resort to our general supervisory powers over appellate procedure; Practice Book § 3096, 3063, 3164; State v. Cohane, supra, 499; to allow the reservation under a conditional plea of rulings on pretrial motions beyond those expressly permitted by the statute. It would be unwise to invoke our authority by reviewing the denial of the motion to suppress the confession because the condition of the defendant's plea was that he obtain an appellate determination on the merits both of that ruling and of the denial of his motion to dismiss which, as we have indicated, the record does not permit. We also are of the view that until a rule has been fashioned containing safeguards similar to those embodied in federal rule 11 (a) (2), the trial courts should not employ this procedural innovation except in situations plainly within the provisions of § 54-94a. II Because § 54-94a permits a defendant to reserve for appeal the denial of a motion to dismiss, the second claim reserved by the defendant, attacking the constitutionality of the arson murder statute, appears to fall within the scope of the conditional plea statute. We conclude, nevertheless, that the contemplated appellate determination of that issue on the merits cannot be had on the state of the record before us. The defendant moved to dismiss the indictment insofar as the arson murder charges were predicated upon his commission of arson in the second or third degree rather than arson in the first degree. He claimed that, since such offenses are designated as class B and C felonies and require a less culpable state of mind than arson in the first degree, a class A felony, the penalty provided for arson murder is unconstitutionally disproportionate to the crime and, therefore, constitutes cruel and unusual punishment prohibited by the eighth amendment to our federal constitution. See Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). In denying this motion to dismiss, the trial court distinguished the Solem precedent relied upon by the defendant because of the more serious nature of the offenses charged in this case, but ultimately held that, regardless of the merits of his unconstitutionality claim, the defendant could not before trial assume that a guilty verdict would necessarily be based upon arson in the second or third degree. The defendant has at no time raised a constitutional challenge to a conviction of arson murder predicated upon arson in the first degree. At the plea proceedings the state's narrative of the factual basis for the plea indicated that the defendant had intentionally ignited some papers that he had spread on a stairway of an apartment building occupied by his niece as well as others and thus started a conflagration that resulted in the deaths of fourteen persons. The state referred also to the confession of the defendant in which he admitted visiting the apartment of his niece and starting a fire on a couch within the apartment because of his carelessness with a cigarette. In its response to a motion for disclosure of uncharged misconduct, the state had declared that evidence would be offered that the defendant had started a fire on the couch in the apartment of his niece shortly before he started the fire on the stairway that consumed the premises. The state has contended that the second fire was the sole cause of the death of the fourteen victims. The defendant, however, has argued that, since he does not dispute negligently starting a fire on the couch in the apartment of his niece, which may not have been wholly extinguished when he left the apartment and might have later flared up and consumed the building, a jury might find his conduct with a cigarette to constitute the recklessness required for arson in the third degree. Thus he maintains that, if the arson murder statute is construed to allow a person to be convicted for merely reckless conduct in causing a fire that results in a death, it is unconstitutional because the severe penalties provided are greatly disproportionate to the offense. This court does not embark upon the resolution of questions involving the validity of a statute in the absence of a practical necessity for their determination in the case presented and a sufficient factual background for their adjudication. Alexander v. Robinson, 185 Conn. 540, 548, 441 A.2d 166 (1981). "The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity." Parker v. Los Angeles, 338 U.S. 327, 333, 70 S. Ct. 161, 94 L. Ed. 144 (1949); see Moscone v. Manson, 185 Conn. 124, 134, 440 A.2d 848 (1981) (Healey, J., concurring); State v. DellaCamera, 166 Conn. 557, 560, 353 A.2d 750 (1974). Appropriate deference to a coordinate branch of government exercising its essential functions demands that we refrain from deciding constitutional challenges to its enactments until the need to do so is plainly evident. See Poe v. Ullman, 367 U.S. 497, 503-506, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961); Tribe, American Constitutional Law § 3-10. The defendant never attempted in his motion for a bill of particulars to ascertain whether the state would rely upon the fire of the couch as the predicate for the arson murder charged in the indictment. It appears quite unlikely, nevertheless, that any occasion will arise in this case to require a determination of the constitutional issues raised by the defendant. The state declared at the plea proceeding that the arson relied upon in the indictment was based upon the fire the defendant had intentionally started on the stair way for the purpose of destroying the building, a position it has also maintained on appeal. Such a scenario, involving intentional conduct solely, would not implicate the recklessness that .is the gravamen of arson in the third degree. "Our penal code . . . expressly defines the terms 'intentionally' and 'recklessly' in such manner as to render them mutually exclusive." State v. Ruiz, 171 Conn. 264, 271, 368 A.2d 222 (1976); see General Statutes § 53a-3 (11) and (13). Thus it appears that no occasion amounting to a "practical necessity" will arise in this case to require a determination of the constitutional issues raised by the defendant. Furthermore, the defendant cannot mount a constitutional challenge to a statute on the basis of its possible applications in circumstances not presented by his own case, unless first amendment freedoms are affected, a situation not claimed to exist here. State v. Pickering, 180 Conn. 54, 57-58, 428 A.2d 322 (1980); State v. Cuvelier, 175 Conn. 100, 111-12, 394 A.2d 185 (1978). "According to well-established principles, a [party] who challenges the constitutionality of a statute must prove that the statute has adversely affected a constitutionally protected right 'under the facts of his particular case and not merely under some possible or hypothetical set of facts not proven to exist.' " Weil v. Miller, 185 Conn. 495, 501, 441 A.2d 142 (1981). "[Judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action." Poe v. Ullman, supra, 504; United Public Workers v. Mitchell, 330 U.S. 75, 90, 67 S. Ct. 556, 91 L. Ed. 754 (1947). In the absence of a clear indication in the record that the state is relying upon a claim that the defendant "recklessly" caused the destruction of the apartment building and thus committed arson in the third degree as the predicate offense for arson mur der, the defendant is not entitled to an adjudication of the constitutional claims raised in his motion to dismiss. As we have noted, the present record discloses that the state asserts the contrary, relying wholly upon a claim that the defendant intended to destroy or damage the apartment building when he started the fire on the stairway. Because the defendant's appeal from the denial of the motion to dismiss, as well as his appeal from the motion to suppress his statement, are not properly renewable by this court, we are unable to fulfill the plea agreement entered into between the defendant and the prosecutor. The defendant expressly bargained for appellate review of both rulings of the trial court "on the merits." Our inability to comply with this agreement constitutes a failure of consideration in the plea bargaining process. See Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). Such a failure requires this court to vacate the defendant's pleas on the ground that they did not "constitute knowing and intelligent voluntary waivers of constitutional rights made with sufficient awareness of the relevant circumstances and likely consequences." United States v. Cox, 464 F.2d 937, 946 (6th Cir. 1972); see Boykin v. Alabama, supra; Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). A plea induced by a court-approved promise that could not be fulfilled cannot be viewed as voluntary. United States v. White, 583 F.2d 819, 826 (6th Cir. 1978); United States v. Swann, 574 F.2d 1316, 1318 (5th Cir. 1978); United States v. Hill, 564 F.2d 1179, 1180 (5th Cir. 1977). Because the defendant is foreclosed from raising the reserved issues before this court, and because the plea was given in reliance on his ability to pursue his appellate remedy, the judgment of conviction must be set aside and the matter remanded to the Superior Court for further proceedings. Ill The remaining claim of error, that the court imposed two consecutive terms of life imprisonment on the defendant, though presenting a constitutional question, does not involve the validity of the arson murder statute but the application of it by the trial court. The statute does not specify whether sentences imposed for its violation under separate counts must be consecutive or concurrent, leaving that determination to the judicial discretion of the court pursuant to General Statutes § 53a-37. The defendant contends that consecutive life sentences based upon a single act of arson violate the double jeopardy clause of the eighth amendment to the federal constitution as well as the prohibition against being "punished, except in cases clearly warranted by law" of article first, § 9, of our state constitution. Our reluctance to decide constitutional issues in advance of a present need for their determination is overcome in this instance by three factors: (1) the issues do not involve the invalidation of any legislative enactment; (2) there is a practical necessity to resolve the issues at this time, because they are likely to arise once more at the sentencing proceeding, even though the trial court is not obligated to impose the same sentence, in the event of another conviction of the defendant; and (3) ample precedent supports our practice of reviewing claims of error not essential to the disposition of the appeal that will probably recur when a case is remanded for further proceedings. State v. Morrill, 197 Conn. 507, 509, 498 A.2d 76 (1985); Maltbie, Conn. App. Proc. § 341; see State v. Couture, 194 Conn. 530, 566, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). The defendant's claim that the two consecutive life sentences imposed on him violate the double jeopardy clause of our federal constitution invokes the protection afforded by that provision against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). "With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). As the defendant recognizes in his brief, the issue, though essentially constitutional, becomes one of statutory construction. We recently rejected a double jeopardy challenge to consecutive life sentences imposed for the felony murder of two of the victims of the same robbery on the ground that the reference to the death of "a person" in General Statutes § 53a-54c, our felony murder statute, was in the singular. State v. Couture, supra, 565. The same language, "causes the death of a person," is used in the arson murder statute, § 53a-54d, to describe that element of the crime. "A fundamental purpose of the criminal law is to protect individual citizens from the criminal conduct of another. People are neither fungible nor amorphous. Where crimes against persons are involved, a separate interest of society has been invaded for each violation. Therefore, when two or more persons are the victims of a single episode there are as many offenses as there are victims." State v. Couture, supra, 565-66; State v. Gunter, 132 Ariz. 64, 70, 643 P.2d 1034 (1982); State v. Irvin, 603 S.W.2d 121 (Tenn. 1980); Vigil v. State, 563 P.2d 1344, 1351 (Wyo. 1977). The defendant argues that an intention to impose the same punishment for the single act of arson regardless of the number of deaths caused may be gleaned from the legislative history of § 53a-54d as well as of the provision of our capital felony statute; General Statutes § 53a-54b (8); that makes a person susceptible to punishment by death who is convicted of the "murder of two or more persons at the same time or in the course of a single transaction." We are unpersuaded. Nothing in the legislative history is of such significance as to overcome the reference in § 53a-54d to the death of a single person as an essential element of the crime of arson murder, a consideration we found persuasive in the parallel situation of felony murder. State v. Couture, supra, 565. The express reference to multiple murders in § 53a-54b as a basis for a capital felony does not militate against treatment of a single act of arson resulting in the death of multiple victims as separate offenses under § 53a-54d. There is error in accepting the plea of nolo contendere with conditions that could not be fulfilled under our procedures, the judgment is set aside and the case is remanded to the trial court for further proceedings. In this opinion the other judges concurred. "[General Statutes] Sec. 53a-54d. arson murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits arson and, in the course of such arson, causes the death of a person. Notwithstanding any other provision of the general statutes, any person convicted of murder under this section shall be punished by life imprisonment and shall not be eligible for parole." The court made the life imprisonment terms in counts three to eight concurrent with that imposed in count one. A consecutive life imprisonment term was imposed in count two and the terms imposed in counts nine to fourteen were concurrent with that count. General Statutes § 53a-35a, effective July 1,1981, and applicable to crimes committed after that date, "instituted definite sentencing and effectively eliminated parole in Connecticut . The effect of General Statutes § 53a-35a is to put the arson murder statute in the context of a definite sentencing scheme and to render the phrase 'shall not be eligible for parole' in the statute meaningless . General Statutes § 53a-54d remains effective to make arson murder a crime and to require anyone convicted of that offense to receive a life sentence." State v. Dupree, 196 Conn. 655, 659-60, 495 A.2d 691 (1985). In view of the result we reach that further trial court proceedings are necessary, we need not consider the effect of § 53a-35a upon the sentences imposed in this case, the defendant having raised no claim of error in that respect. See Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). "[General Statutes] Sec. 54-94a. conditional nolo contendere plea, appeal of denial of motion to suppress or dismiss. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court's denial of the defendant's motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution." "A plea of nolo contendere has the same legal effect as a plea of guilty on all further proceedings within the indictment. North Carolina v. Alford, 400 U.S. 25, 35-36 n.8, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); Lawrence v. Kozlowski, 171 Conn. 705, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977); see State v. Godek, 182 Conn. 353, 363-64, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981). The only practical difference is that the plea of nolo contendere may not be used against the defendant as an admission in a subsequent criminal or civil case. 4 Wigmore, Evidence (Chadbourn Rev. 1972) § 1066 (2), p. 81; Lenvin & Meyers, 'Nolo Contendere: Its Nature and Implications,' 51 Yale L.J. 1255 (1942)." State v. Martin, 197 Conn. 17, 20-21 n.7, 495 A.2d 1028 (1985). It is clear, however, that a nolo contendere plea also constitutes a waiver of all nonjurisdictional defects in a manner equivalent to a guilty plea. Lott v. United States, 367 U.S. 421, 81 S. Ct. 1563, 6 L. Ed. 2d 940 (1961); United States v. DePoli, 628 F.2d 779, 781 (2d Cir. 1980). A plea, whether conditional or unconditional, does not preclude review of "jurisdictional defects." Those defects have been characterized as those which would prevent a trial from occurring in the first place. Saltzburg, "Pleas of Guilty and the Loss of Constitutional Rights: The Current Price of Pleading Guilty," 76 Mich. L. Rev. 1265, 1285-86 (1978). Thus, after an unqualified plea of guilty or nolo contendere, a defendant may challenge his conviction if the conviction is in violation of the double jeopardy clause; Menna v. New York, 423 U.S. 61, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975); if the court lacks subject matter jurisdiction over the case; Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974); or if the statute under which the defendant is charged is unconstitutional. Haynes v. United States, 390 U.S. 85, 87 n.2, 88 S. Ct. 722, 19 L. Ed. 2d 923 (1968); see 1 Wright, Federal Practice and Procedure: Criminal 2d (1982) § 175, pp. 624-28. During the regular session of the senate, Senator Howard T. Owens, Jr., moved for acceptance of the joint committee's report and the passage of the bill. 1982 Sess., S.B. 20. In describing the function of the bill, the senator gave an example involving a defendant charged with possession of cocaine who wants to challenge the search and seizure warrant as ineffective. The senator explained that in the absence of a conditional plea procedure, the defendant is forced to go through the entire expense of trial, merely to appeal an unfavorable ruling on his motion to suppress. Nowhere in the legislative history is it suggested that § 54-94a could be used to challenge a motion to suppress anything other than evidence obtained contrary to search and seizure principles. See 25 S. Proc., Pt. 2, 1982 Sess., pp. 350-53; 25 H. R. Proc., Pt. 3, 1982 Sess., pp. 587-91. Rule 11 (a) (2) of the federal rules of criminal procedure provides: "With the approval of the court and the consent of the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, he shall be allowed to withdraw his plea." Two circuits had approved the entry of conditional pleas; United States v. Moskow, 588 F.2d 882 (3d Cir. 1978); United States v. Burke, 517 F.2d 377 (2d Cir. 1975); while two others had merely praised the concept. United States v. Clark, 459 F.2d 977 (8th Cir. 1972); United States v. Dorsey, 449 F.2d 1104 (D.C. Cir. 1971). Three circuits had concluded that the use of the conditional plea in the absence of statutory authority or court rule is improper. United States v. Brown, 499 F.2d 829 (7th Cir. 1974); United States v. Sepe, 474 F.2d 784, aff'd en banc, 486 F.2d 1044 (5th Cir. 1973); United States v. Cox, 464 F.2d 937 (6th Cir. 1972); see generally United States v. DePoli, 628 F.2d 779, 781 (2d Cir. 1980). We need not consider whether General Statutes § 54-94a is a rule of practice or procedure not binding upon the Superior or Supreme Courts of this state; State v. Clemente, 166 Conn. 501, 507, 353 A.2d 723 (1974); since the trial court implicitly acquiesced in the statutory procedure. See Adams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49 (1968). This court also approves the conditional plea procedure set forth in the statute subject to the general authority of the trial court to refuse to accept such a plea where it is inappropriate, as in this case. We are not presented in this case with claims of the inadmissibility of statements of a defendant to the police that are intertwined with a motion to suppress evidence based on an unreasonable search and seizure, as in our recent decision of State v. Torres, 197 Conn. 620, 500 A.2d 1299 (1985). In that case the ruling on the motion to suppress had been properly reserved under General Statutes § 54a-94a. Considerations of fairness and judicial economy dictated that the closely related issues concerning the statements of the defendant made during the search as well as afterward should also be resolved. In the case on appeal, the issues concerning the confession are not related to a claim of an unlawful search. Furthermore, as discussed in part II, the remaining issue reserved involving the constitutionality of General Statutes § 53a-54d, our arson murder statute, cannot be reviewed on the present record. Thus none of the issues reserved under the nolo contendere plea is properly before us. In the defendant's motion to dismiss, he challenged the constitutionality of an arson murder conviction predicated on both second and third degree arson. It appears, however, that he has abandoned his claim as to second degree arson, as it was addressed neither in his brief nor during oral argument. It should be noted that both first and second degree arson require a specific intent "to destroy or damage a building." General Stat utes § 53a-lll, 53a-112. Arson in the third degree occurs where a person "recklessly causes destruction or damage to a building . . . by intentionally starting a fire or causing an explosion." General Statutes § 53a-113. The written plea of nolo contendere provided as follows: "Upon the acceptance of this plea and the entry of judgment of guilty by the Court, the defendant will seek appellate review of the denial of these motions. Should the Court's rulings on these motions be affirmed on the merits, and there be no other change in the pretrial rulings and determinations made to date, then this plea of nolo contendere will become final. Should the Supreme Court fail to affirm any or all of this Court's rulings on these motions on the merits, however, this plea of nolo contendere will be withdrawn." In view of these conditions of the plea it is curious that the state, though agreeable to review of the motion to suppress the confession, opposes review of the defendant's constitutional claims on the merits on the ground that the issue is not properly before us on the present record, a contention we have found persuasive. The claim that the sentences imposed violate our state constitution was not included in the motion to dismiss filed in the trial court. In this court, the defendant's brief refers to article first, § 9, without any analysis of its language in relation to his double jeopardy claim. Article first, § 9, provides as follows: "No person shall be arrested, detained or punished, except in cases clearly warranted by law." In the absence of some explanation, we find it difficult to understand the application of this provision to the issues before us. State v. McNally, 152 Conn. 598, 602, 211 A.2d 162 (1965). It is, perhaps, possible that the defendant was referring to article first, § 8, of our state constitution which has been interpreted to include the double jeopardy protection as an element of due process. See Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626 (1962).

O'SULLIVAN, J. This is an appeal by several property owners from the action of the Board of Adjustment of the City of New Britain in permitting Anthony Venkunas to estab lish a funeral home and embalming parlor on Stanley Street. The portion of the street involved in this controversy is within a zone in which such establishments are not permitted. On September 13, 1937, a hearing was held by the Board upon the application of Mrs. Venkunas for a special exception, provided for by law, to maintain a funeral home at 663 Stan' ley Street. The application was denied. On December 3rd, Mrs. Venkunas, together with her husband, Anthony Venkunas, petitioned the Board to reconsider its former action. This the Board did and, after a full hearing, it vacated its order and granted the applicants their petition to establish the home. The evidence heard by the Board on December 3rd was identical with that presented at the original hearing, with one exception hereinafter stated. There was an absence, at the hearing in December, of any change since September 13th in conditions in the neighborhood or in the property itself where the applicants desired to establish the home. The sole question involved on this appeal is whether or not the Board of Adjustment, in reconsidering and rescinding its action of September 13 th, acted unreasonably, arbitrarily and beyond the legal limits of its discretion. A Court cannot set aside the decision of a public administrative body, such as the Board of Adjustment of the City of New Britain, unless compelled to the conclusion that it has no foundation in reason or is a mere arbitrary or irrational exercise of power having no sub' stantial relation to the public health, public morals, the public safety or the public welfare in its proper sense. DeFlumeri vs. Sunderland, 109 Conn. 583, 145 Atl. 48. The situation disclosed by the events in this case is not one presenting the problem of the power and duty of the Board to hear and determine successive applications for special exemption from the zoning law. St. Patrick's Church Corporation vs. Daniels, 113 Conn. 132, 137, 138. However, even if the application of December 3rd be deemed a new application, the result would be the same, because it must appear, as the test requires, that new or additional facts have been presented showing a change in conditions or other considerations materially affecting the merits, intervening since the former decision. St. Patrick's Church Corporation vs. Daniels, supra, at page 138. The only evidence heard by the Board on December 3rd which it did not have on September 13th was that, while on the latter date it was stated that the applicant might be forced to discontinue a funeral home on October 1st at the place where it was then located at another site on Stanley Street, the evidence, on De' cember 3rd was that the home had in fact been discontinued. To hold that this insignificant change would support the action of the Board in reversing a former decision gives too broad a scope to the question of material changes or considerations. Burr vs. Rago, 120 Conn. 287. The whole scheme of zoning is not to assist.an individual, who unfortunately may have lost the situs of his business, but rather to promote the general welfare of the community. However, far stricter must the action of the Board be ex' amined in the instant case, because, as indicated, this involves a reconsideration and reversal of a decision upon the same application. As to this, it appears to be well established that a zoning board of adjustment should not ordinarily be per' mitted to review its own decisions and revoke action once duly taken. Otherwise there would be no finality to the proceed' ing. The result would be subject to change at the whim of members, or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and im' permanence. People ex rel. Swedish Hospital vs. Leo, 198 N. Y. S. 397; Baker, Legal Aspects of Zoning (1927) 92. Consequently, in its order of December 3rd, the Board acted illegally, unreasonably, arbitrarily and abused its discre' tion. Accordingly judgment may enter sustaining the appeal and vacating the order complained of.

ELLS, J. There was a motion for deficiency judgment. The appraisers were appointed, and have filed their report. Judgment was for $3,572.65, and the appraisal was $7,000. There is a first mortgage for $5,000. The answer sets up a special defense to the effect that the •defendant's obligation was one of guaranty; that the maker died; that his estate is being settled as an insolvent estate; that commissioners found the security was equal to the debt; that in the Probate Court the plaintiff did not file a certificate of •election to relinquish his security; that the plaintiff's claim against the maker is discharged, and that the guarantor is therefore discharged. "Commissioners on an insolvent estate are a special tribunal provided by law to ascertain the debts against the estate, for the sole and exclusive purpose of furnishing to the court of probate a rule for its guidance in the application of the assets of the estate to the payment of the debts. Their proceedings and decisions therefore can only affect the debt in its relation to the insolvent estate itself. Loomis vs. Eaton, 32 Conn. 550. Aside from that they have no binding effect, either upon the debt or the parties." Bailey vs. Bussing, 37 Conn. 349, 353. This in itself is enough to dispose of the claim. It is also apparent that there was no discharge of the primary obligation, the guaranty. The estate is not even discharged. There is merely a bar. If the claim is that because the plaintiff cannot collect from the maker, he cannot collect from the surety, the case of Terrell vs. Smith, 8 Conn. 425, 429, is enlightening. "The terms of the guaranty are, that the note shall be paid; and nothing short of actual payment, or some act or neglect of the creditor, by which the guarantor is prejudiced, will discharge the liability. This is the principle established by all the cases." It is very doubtful, anyway, whether there was any satisfaction of the debt. The demurrer is sustained.

O'SULLIVAN, J. The highlight of the plaintiff's case is the splendid brief submitted by its counsel, who, in true Ham.' erslian style, has drafted so thorough a summary of the legal phase of his position that one becomes almost convinced of the soundness of his views. Unfortunately for counsel, as well as for his client, the facts are such as to bar the applica' tion of those principles to which the brief calls attention. This is an appeal from the Board of Relief of the Town of Manchester, taken under authority of section 374c of the Cum' ulative Supplement to the General Statutes (1935). Plaintiff claims that it has been assessed on nursery stock to the amount of $20,253 which is exempt from taxation; that the assessors of the town improperly and illegally added the amount to the plaintiff's tax list; and that the Board of Relief improperly re' fused to remove this additional assessment. The nub of the controversy is simply this: In 1935, was nursery stock exempt from taxation? The plaintiff claims it was and relies on paragraph 33 of section 1163 of the General Statutes, Revision of 1930, which provides that produce of a farm, actually grown, growing or produced during the season next preceding assessment day shall be exempt from taxation. To be within the scope of this paragraph, nursery stock must be classified as farm produce. The intention of the Legislature must be sought and this is easy to ascertain from the attitude expressed by the General Assembly at various sessions. For example, in 1923, chapter 255 of the Public Acts was enacted which read: "Produce or products grown or growing in any nursery or greenhouse or under glass and any shrub, or any forest, ornamental or fruit tree while in a nursery, shall be exempt from taxation." Obviously this Public Act would have been unnecessary if plaintiff's position is sound, because at the time of its passage paragraph 33, supra, was in effect. In 1927, the Assembly repealed the act of 1923, thus indicating an intention to return nursery stock to the burden of taxation. In 1937, which was subsequent to the year of assessment involved in this case, the Assembly again made exempt from taxation all produce or products growing in any nursery (Supp. [1937] §239d). This sequence of legislative enactment demonstrates conclusively that farm produce, as stated in paragraph 33, supra, was never intended to include nursery stock. Consequently, there having been no exemption available in 1935, the assessors and the Board of Relief of the Town of Manchester acted in conformity with law in assessing the plaintiff on its nursery stock. Accordingly, the appeal is dismissed.

ELLS, J. This is an action against the State Highway Com' missioner for reconstructing and maintaining a public highway which unnecessarily discharges surface water through a ditch and a concrete pipe into and upon plaintiff's land. • The defendant has demurred on the ground that the defend' ant is engaged in a public governmental duty in its sovereign capacity and that it does not appear in the complaint that any authority or consent was granted by the State to institute this action. The defendant is W. J. Cox, Highway Commissioner of the State of Connecticut. The principal claim for relief is an injunction restraining a public officer from continuing to dis' charge water into and upon the plaintiff's land. There is also á claim for damages. If an injunction could be granted in such a case, the complaint as a whole is not demurrable. The general law indicates that this may be the situation here. Going directly to the larger issues involved, we find that section 1473 of the General Statutes, Revision of 1930, which gives the Highway Commissioner the power to lay out, construct and maintain highways, contains this final sentence: "He shall use care so that no unnecessary damage shall result, and the state shall be liable_to the owner of any property for any damage he may cause such owner." Unnecessary damage is here specifically alleged. Section 1428 of the General Statutes, Revision of 1930, provides that persons authorized to construct or repair highways "may make or clear any watercourse or place for draining off the water therefrom into or through any person's land so far as necessary to drain off such water." The complaint specifically alleges the defendant is "unnecessarily" doing this, in violation of this statute. My conclusion is that the complaint is so worded as to be safe at least against demurrer. Upon argument I suggested to counsel that this was a case which might well be settled. I now find high authority for this idea. In Salzman vs. New Haven, 81 Conn. 389, 392, our Supreme Court says: "Whatever may be the constitutional limit of the powers of towns under General Statutes, §2031, respecting the drainage of highways, they certainly have no right to collect in ditches alongside the highway the surface-water flowing from lands above it, and discharge such water, by means of sluices across the road, upon the lower premises of an adjoining owner, when by a moderate expenditure of money the water could have been carried off so as not to injure such premises. One principle enunciated by this decision is that a municipal corporation has no right to collect surface-water from adjoining lands and from its streets, into an artificial channel, and then discharge it upon the land of an adjoining proprietor." The demurrer is overruled.

DWYER, J. The plaintiff, a young man of twenty-one years, has instituted this action against his mother to recover the total of various deposits made in account No. 18658 in the American Bank & Trust Company, which account stood in the name of "Isabella Opdenbrouw in trust for Bruce Op' denbrouw." On January 2, 1919, when the plaintiff was less than three years of age, his mother opened this account by making a deposit of one dollar. Other small deposits were made from time to time over a period of about twelve years, including a deposit of $25.71 transferred from the plaintiff's school sav' ings account on September 12, 1925, so that, on February 3, 1931, there was a balance of $366.10 in the account, which sum, on said day, the defendant transferred to an account in her own name. It is the contention of the plaintiff that the various amounts deposited represented sums earned by him as a result of work performed by him during his boyhood, in addition to various sums given to him from time to time by relatives and friends. Conceding the legal proposition that said earnings during his minority became the property of his parents, the plaintiff claims upon an alleged promise made by the defendant to him when he was six or seven years of age, and reiterated at various times thereafter, to the effect that this account had been opened for the purpose of providing an account wherein his earnings and savings would be deposited for his future benefit. Mrs. Opdenbrouw denies that the deposits made to this fund were from her son's earnings and explains that the vari' ous deposits represent small sums saved by her from amounts given to her by her husband for the household account or taken from her own earnings. She denies that she ever made a gift of the whole or any part of the bank account to her son and maintains that it was her intention at all times to retain control of the account during the entire period of her life, and intended a gift to be effective upon her death when, under the law, any balance remaining in the account would pass immediately to her son without the necessity of probate proceedings. The court is not satisfied that the plaintiff has proved the basis of his claim. It is hardly conceivable that this young man can now remember with exactness words spoken to him when he was but six or seven years of age, or that his mother intended at that time or later to transfer to him a present interest in whatever amount was then on deposit in the bank, or which she would thereafter add to it. Little or no weight is given to the testimony of the father of the plaintiff who, it appears, was in litigation with the defendant in this state a few years ago, and who afterwards obtained a divorce in another jurisdiction, and who, in 1931 or 1932, deducted from the weekly allowance which he was giving for the support of his family, the sum of three dollars which his wife had collected from the earnings of the boy during a particular week, and who, at another time, sought to obtain control of the bank account now in dispute. The evidence that large amounts were deposited from gifts to the boy is not sufficiently strong to be convincing. Under the law of this State a deposit of funds in a savings account in the name of the donor as trustee for another, coupled with an intention to make a gift of the deposit to take effect at that time would amount to a completed gift at the time of the deposit. Minor vs. Rogers, 40 Conn. 512. The question of intention is one of fact, to be determined upon a consideration of all of the evidence. D. M. Read Co. vs. American Bank & Trust Co., 110 Conn. 461. Such a gift may be found to have been established even though the donoi retains possession of the bank book. Meriden Trust & Safe Deposit Co. vs. Miller, 88 Conn. 157. In this case, the evidence of Mrs. Opdenbrouw is considered worthy of belief, .and, as she stated emphatically that she never intended a present completed gift of the whole or any part of the deposit in the bank account, it cannot be found that any completed gift has been satisfactorily proved. Another contention of the plaintiff is that an irrevocable trust was set up by the defendant for the benefit of her son. This has not been established, for where a person makes a deposit in a savings account in her own name, as trustee for another, intending to reserve a power to draw any part of the deposit during her lifetime, and to use as her own whatever she may withdraw, or otherwise to revoke the intended trust, it is enforceable by the beneficiary upon the death of the depositor only as to such part as remains on deposit at that time. If such a deposit is made, the intention may be to create either a revocable trust, an irrevocable trust or no trust at all. A determination of the donor's intention in this situation is likewise a question of fact. In the absence of evidence of a different intention, a revocable or tentative trust is created when one makes a deposit in the name of the depos itor as trustee for another. Restatement, Trusts, Vol. 1, §58. It is concluded therefore that Mrs. Opdenbrouw intended to create a trust revocable by her during her lifetime, and, as she exercised the power of revocation by withdrawing the whole fund, the plaintiff is not entitled to any recovery upon this ground, since this withdrawal was not in conflict with any earlier intent on her part to create an irrevocable trust. Actually, parts of the fund were used for the benefit of the plaintiff to provide him with necessary surgical care as well as the expenses of his vacation, and, on at least one occasion, his school savings were disbursed by his mother to meet another urgent expense which was contracted for his protection. His father, on whom he now relies in prosecuting this case, was not his protector on that occasion. It is the young man's contention that he followed his mother's advice in adopting the virtues of industry, thrift, and saving, as he was conscious always that the fruits of these habits in life would be available to him at some time and for his own uses. Such guidance by a parent is to be commended, but if the acceptance thereof by the child was purely in the hope of later pecuniary profit to himself, his virtues were not well planted in his soul. While the plaintiff is insistent upon collecting the money debt which he claims to be owed to him by his mother, he makes no mention of the debt of gratitude and honor which he owes to her for the sacrifices she made for him or for the care and nurture she bestowed on him in his immature years. Debts of the latter kind are readily overlooked (though it would seem impossible that they could be forgotten) as a result of family grievances, either real or fancied. Perhaps it will not be considered inappropriate here to remind the plaintiff that, in spite of the present unpleasantness: "A mother is a mother still, The holiest thing alive." The issues are found in favor of the defendant, and judgment may be entered for her to recover taxable costs.

QUINLAN, J. The motion to set aside the verdict is based exclusively on the charge to the jury. It is claimed chiefly that there was no evidence that the plaintiff was a trespasser and that an instruction on that principle was erroneous. All the questions of fact were left to the jury on the evidence. In the evidence it appeared that Brennan had prior to this accident been employed by Mahan, and during his confinement following his injury was also employed by him. On the night of the accident the plaintiff went to Brennan's house to obtain the key to the Ehrsam home, and was advised by Brennan's mother that Brennan was at the Ehrsam home. These were among the evidential facts, together with the further fact that he called to Brennan while in the house and went to the rear of the house, thinking he might be about in that location. If the jury believed that he went to the house to look at the desk I think there is little question that under Ehrsam's testimony he was an invitee, at least up to the time he examined the desk. However, Ehrsam's testimony does not amount to a judicial admission under the language of King vs. Spencer, 115 Conn. 201, 204. If the jury did not believe that he went there to look at the desk, but he went to see Brennan (who did not own the house nor dwell there) then plaintiff may have been given a more favorable charge than he was entitled to, when the jury was told by way of illustration that he was a licensee. It was also claimed that whatever might have been his purpose in going there, he had no occasion to go into the rear of the premises. One exceeding the limits of his invitation or license may become a trespasser, and the questions were left to the jury as questions of fact. Katsonas vs. Sutherland Building Contracting Co., 104 Conn. 54, 62. Also note, Knapp vs. Connecticut Theatrical Corp., 122 Conn. 413, 416: "One may be an invitee as to a portion of a building and not enjoy that status as to other portions thereof. That status does not exist when the invitee is using a portion of the premises to which the invitation has not been extended, either expressly or impliedly, and which the owner would not reasonably expect the invitee to use in connection with the conduct of the business on the premises. \A business invitation includes ah invitation to use such part of the premises as the visitor reasonably believes are held open to him as a means of access to or egress from the place where his business is to be transacted.' . In most of the cases of this character the question of the status of the visitor has been determined as one of fact... .Amer. Law Inst. Restatement, Torts, Vol. 2, §343, Comment b." If the jury did not find him to be an invitee, whether he was a licensee or a trespasser, the duty owed him was the same, so he was not, harmed by the charge. Bunnell vs. Water bury Hospital, 103 Conn. 520, 524. In this latter connection it is claimed that specifically the Court failed to define the duty attaching to a licensee. As has just been said, having defined licensee and trespasser and instructing the jury that the duty toward him was the same in either case, and then pointing out the duty toward a trespasser, he was not harmed. The motion to set aside the verdict is denied.

MUNGER, J. It is conceded that the defendants jointly own the tenement building described in the complaint. On the ground floor there are two tenements. Upon the upper floor there is a tenement which, at the time of the injuries described in the complaint, was occupied by a Mrs. Bryan. She did laundry work. Access to this tenement was provided by a flight of stairs on the outside of the building shown in Plaintiff's Exhibit B. It is not disputed that the defendants had control of these stairs. Neither during the trial nor in any portion of the brief filed has this claim been made, so retention of control of these stairs by the defendants is to be taken as established. There can be no possible doubt as to the law defining the defendants' duty to keep the stairway in repair. As respects the plaintiff, who was an invitee, it was the duty of the defendants to use reasonable care to keep the stairway in a reasonably safe condition. This is established law .in Connecticut. Reardon vs. Shimelman, 102 Conn. 383. The plaintiff went up these stairs to call on Mrs. Bryan for the purpose of getting some laundry which she had left there. She had been up the stairs many times before. She talked with Mrs. Bryan and then started to descend the stairway. When her foot was placed upon the third step, something happened. The plaintiff says, and I find the fact to be, that the stair was springy. The only possible inference to be drawn from the evidence is that she lost her balance. Thereafter, she fell down the stairway and was precipitated over the right-hand side of it onto the ground, sustaining injuries for which she sues. It is conceded that at the time of the injury there was no railing of any kind on the left-hand side of the stairway as one went up the stairs. The right-hand side of the stairway had a sort of lattice work and what was claimed to be a handrail, as appears by Exhibit B and also as appears by a section of such rail introduced as an exhibit in court. The sole question is one of fact. The plaintiff claims that the handrail, if it can be called such, on the right-hand side of the stairway going up was not reasonably sufficient to serve as a protection to persons using the stairway by reason of its construction and design. The plaintiff says she was not able to grasp this railing as she went down the stairway because it was too wide and would not fit her hand in such a way that she could save herself in her fall. The evidence abundantly supports the probability of this claim. A section of the railing is in court. Two expert witnesses, the building inspector of Norwalk, and Mr. Woods, with very wide experience indeed in the construction of buildings, testify that this was not a reasonably sufficient railing and its presence did not make the stairway reasonably safe for use so far as protection by it is concerned. I do not see how there can be any sound dissent from this view. There was no railing on the right-hand side of the stairs going down and it seems to be certain if there had been one, the plaintiff might have had a reasonable chance, after losing her balance and falling, to save herself from being cast over the side of the stairway from which she fell to the ground. Both on account of the presence of a railing on the left-hand side not reasonably sufficient to provide for the safety of pedestrians, and also by reason of the absence of any railing whatever on the right-hand side going down, in my opinion this stairway was exceedingly unsafe and the conclusion must be reached that the defendants were negligent and did not use reasonable care to make the stairway reasonably safe for pedestrians. I find nothing in the case which indicates that the plaintiff was not in the exercise of due care. The defendants say that the plaintiff might have saved herself from injury because she fell from the third step of the stairway and they point out that nowhere is there any evidence establishing the fact that this step was defective or out of repair. That is true. There is no evidence that this particular step was in such a condition that it was dangerous to walk on it, nor, even if it had been, that the defendants had any actual or constructive notice of it. The defendants, however, say that the plaintiff might have saved herself by grasping the top of the overhang of the veranda, as it appears in Exhibit B, and they insist that at the point where she fell, that is to say, the third step, there was nothing at that point •which made the stairway defective. In my opinion this position cannot possibly be maintained. The plaintiff is a woman 5 feet, 4 inches in height and •weighs 212 pounds. If in the exercise of due care when going down the steps she lost her balance, there was nothing .at the point where she began to fall reasonably sufficient to :allow her, in the exercise of reasonable effort, to save herself •from injury. I think the defendants do not appreciate the true situation. It was not the defect in the stairway upon which she stepped that caused her injuries. What happened was this: The plaintiff for some reason, due to the fact the step was springy, lost her balance. It is from this point that the negligence of the defendants begins to operate and becomes a factor in the injury which she received and this, obviously, is because there was nothing reasonably provided by which she might have saved herself from the injury which followed. It seems to me to be unreasonable in the extreme to say that after she began to fall, she should have saved herself by reason of the presence of the overhang of the veranda or by reason of the fact that it might have been possible for her arm to reach the top beam which shows in Exhibit B along this overhang. I regret that I am unable to accept any portion of the testimony of Mrs. Bryan or her daughter as true. On the evidence I think, upon the question of intoxication, it is entirely in favor of the plaintiff and no testimony in the case appears which contradicts the medical testimony that the presence of liquor on the breath would have been noted upon such an examination as was made by the interne, if the plaintiff had been so highly intoxicated one hour before the examination that she staggered. I think the plaintiff was in the exercise of due care and the defendants were negligent as charged. The plaintiff was m the hospital for two weeks and was obliged to have an operation on her knee for the removal of a loose chip of bone in the knee cap, as narrated in the evidence. Her special damages, without including any loss of earnings, approximate $500. I do not find there is anything in the evidence which indicates that any permanent injury has been shown to be reasonably probable. Upon the whole case I think a just award of damages would be $1,250. Judgment is to be entered for such amount.

QUINLAN, J. A stipulation of facts embodies the essential facts in the case. The issues may be succinctly stated as follows: What is the effect of a taxpayer's having placed valuations on certain items contained in his tax list at the time of filing said list in a subsequent appeal to the Superior Court from the action of the Board of Relief in valuing said items? (a) Does it prevent the taxpayer from showing that the true and actual value is less than the valuation placed by him against these items in the "Valuation per owner" column of his tax list? (b) Does it prevent the Superior Court from reducing the assessed valuation of these items to their true and actual valuation where such valuation is less than the valuation placed against said items by the taxpayer in his tax list? The rule of valuation is stated in section 1149 of the General Statutes, Revision of 1930, to wit: The present, true and ac' tual value of any estate shall be deemed by all assessors and boards of relief to be the fair market value thereof, and not its value at a forced or auction sale. Among the stipulated facts it appears that "the fair value for assessment purposes of the land owned by plaintiff on Oc' tober 1, 1920 and set forth in its tax list, was $490,282 and it was assessed at said figure on the tax lists of 1921, 1922, 1923." There are cited in support of the defendant's position, to wit: It is the claim of the City of Bridgeport that because the taxpayer placed a lump sum valuation on the item of land and buildings at the time of filing its list, the Superior Court, in an appeal from the Board of Relief, cannot reduce the valúa' tion placed upon the item of land by the Board of Relief to its true and actual value, where the effect of such reduction will be to reduce the total valuation of land and buildings to a sum which is less than the valuation placed thereon by the taxpayer in his tax list. The cases of Randall vs. City of Bridgeport, 63 Conn. 321 and Greenwoods Company vs. Town of New Hartford, 65 Conn. 461. The Randéll case presented such a situation as to put the Supreme Court, as that court said, "in a dilemma." I do not think it is authority for the proposition stated, in view of the facts of this case. The owner placed no valuation on the land in this case, and the total assessed valuation of plaintiff's prop' erty will not be reduced by the requested reduction below the total valuation placed thereon by the plaintiff. I speak of a requested reduction. In fact the reduction was granted and the tax paid in pursuance of a certificate of error and the relief sought here is under section 6 of Special Act No. 299, Special Laws 1925. In the Greenwoods case the Court said (pp. 464, 465): "The appeal in this case is taken from the assessment as a whole, not from any one or more items in the list. The issue is whether or not the total valuation of the applicant's prop' erty, as fixed by the board of relief, is too great." Certainly the issue was not as to a reduction below the owner's valúa' tion. If the Supreme Court was "in a dilemma" in the Randell case, isn't any trial tribunal in a dilemma if it undertakes to follow the statutory rule for value, which is defined to be the present, true and actual valuation, and is confronted by the contention that while that may be the law, you cannot reduce below the owner's valuation? Here we have the additional inescapable fact that the fair value for assessment purposes is $490,282 (see agreed statement of facts). Again, there is nothing in the law requiring an owner to state a valuation. Moreover, there are the guiding, though not controlling, memoranda of Judges Dickenson and McEvoy. Pope Foundation, Inc. vs. New York, N. H. & H. R. Co., 106 Conn. 423. Memorandum of decision, Dickenson, J., Records 8s? Briefs, 1st District, May Term, 1927, part page 578: "That the prop' erty in question had a market value cannot be disputed, for both parties have offered evidence of such value. . It is perhaps to be expected that a real estate owner will be modest in estimating the value of his property for purposes of taxation, but when he or his authorized agent swears to a valuation he can hardly complain if his estimate is given some probative effect." Is, then, an owner's valuation anything more than evidential? And again, in Schlaet vs. Board of Relief, Town of Westport, 1 Conn. Sup., 112, McEvoy, J., citing the Randell & Greenwoods cases, said (p. 113): "It is true that, in the Randell case, our Supreme Court said: 'Inasmuch as the appellant valued the property for the purposes of taxation at $68,750.00, we advise the Superior Court not to reduce the assessment below that amount.' If the only evidence before this Court upon the question of the value of the land was that of the witnesses who testified in behalf of the appellant and if they had limited their entire testimony to a value of $120,000.00, the court should ta\e that into consideration, but it would not be entirely bound by it." This suggests the evidential idea to which I have referred. But in the end the Court comes to the solemn task of performing a statutory duty. This it cannot avoid. Extreme cases could be thought of, viz.: A scrupulous person who loaned against himself, an inexperienced woman, or the opposite type of person who sensed a public improvement and grossly overvalued his property preferring to pay heavy taxes for a year or so, with the fixed thought that his property would have to be acquired at high or exorbitant figures. Must it be said that the Court should abide by such a valuation? In my opinion, the history of this assessment, the issuance of the certificate of error, the payment of the tax thereon, furnish considerations, in the light of the law, dictating that justice and equity require plaintiff's assessment be reduced by the amount fixed in the certificate of error, to wit: $75,000. Judgment for plaintiff.

BOOTH, J. The motion as filed seeks in the first place to have the defendant adjudged in contempt of this Court for failure to comply with an order to pay alimony, and in the second place to have a motion for the modification of alimony dismissed. The matter was heard ex parte as neither the defendant nor his counsel appeared, and the evidence offered consisted of statements by the plaintiff concerning claimed arrearages in alimony augmented by a letter sent to the plaintiff by the de' fendant, and a written statement of the defendant's employer concerning his recent earnings. It appeared that on January 19, 1934, this Court rendered judgment for the plaintiff decreeing a divorce of the plaintiff and the defendant, awarding the custody of two minor chib dren to the plaintiff, and ordering the defendant to pay the plaintiff ten dollars weekly as alimony. On February 4, 1938, an attorney purporting to represent the defendant filed a mo' tion wherein it was sought to secure a modification of the aforesaid order concerning alimony. On February 9, 1938, the present motion was filed. So far as appeared no copy of this latter motion was served on the defendant or his counsel, nor was any notice of any kind given them thereof except perhaps that which his purported counsel might have received: in the Short Calendar list which carried a legend that the motion was pending. Such being the situation, the motion that the defendant be adjudged in contempt of Court must be denied at this time. Before a person can be found guilty of contempt not committed in the presence of the Court he must have due and reasonable notice of the proceedings. A rule, to show cause or other process should issue. 13 C.J., pp. 68, 69; 2 Swift's Digest, 358; Church vs. Pearne, 75 Conn. 350; Sherwood vs. Sherwood, 32 id. 1; Lyon vs. Lyon, 21 id. 185. It is the opinion of the Court that to proceed otherwise would be in violation of article 1, sections 8, 9 and 10 of the Constitution of Connecticut. It cannot be said- that the defendant by filing his motion, for modification of alimony submitted himself to the jurisdiction of the Court for the purposes of the plaintiff's motion., If he had actually appeared in court at the present hearing a. different situation would have been presented, but as he did not and apparently had no notice to appear, he cannot legally' be adjudged in contempt upon the facts presented. In so far as the motion to dismiss the defendant's motion, for modification is concerned, this must likewise be denied at this time for this latter motion was not before the Court for action, it not being upon the Short Calendar at the time. If disposition of this motion is desired it should be claimed for the Short Calendar, and if the plaintiff desires to proceed, upon her motion for contempt she need only apply for a citation and order which, if properly served upon the defendant, will afford a sufficient basis for future action but, as the matter now stands, all parts of the present motion are denied. without prejudice to proceed as above outlined.

CORNELL, J. This is an appeal from the action of the Commissioner of Labor and Factory Inspection, acting in the capacity of administrator of unemployment compensation under the provisions of chapter 280a of the Supplement to the General Statutes (1937), in determining that an additional amount of contribution is due from the plaintiff for the contribution period of the second, third and fourth quarters of 1937, in the sum of $252.53, plus interest in the amount of $21.12, 'or a total of $273.65. The essence of plaintiff's claimed aggrievement is that the administrator's determination is erroneous in that it is predicated upon the earnings of persons who were not, within the concept of the statute named, employees of the plaintiff. Insofar as is material here, the statute (Supp. [1937] §803d, subsec. [a]) defines employment as the term is therein used, to be "any service. . .performed under any express or implied contract of hire creating the relationship of master and servant . . " In making the ruling complained of, the administrator acted in an administrative capacity. The function of the Court in the instant proceeding is not to determine the issue according to its own view, if that differ from the administrator's, but only to ascertain whether the administrator's conclusion was unreasonable, arbitrary or illegal. Grady vs. Katz, 124 Conn. 525, 530; Loglisci vs. Liquor Control Commission, 123 id. 31, 36; Huntington Telephone Co. vs. Public Utilities Comm., 118 id. 71, 80; Brein vs. Conn. Eclectic Examining Board, 103 id. 65, 87; DeFlumeri vs. Sunderland, 109 id. 583, 585; Conn. Mutual Life Ins. Co. vs. Rogers, 113 id. 14, 18. The relationship under examination was initiated as the result of written agreements, all in the same form, substance and intendment, made between the plaintiff and the persons selling its ice cream merchandise upon whose earnings the additional contributions complainéd of are based. Without attempting to fully summarize the provisions of these, certain of their terms must be noticed. The plaintiff is engaged in the sale of certain ice cream products and ice-cream to the public. It owns a number of light trucks upon which is displayed the distinguishing designation "Jack & Jill." These vehicles are equipped with refrigerating facilities. Its method of distribution is to load these with its merchandise and place them in charge of young men who drive them to certain sections of a town and there station them at advantageous places, or circulate about, attracting attention to them thereby. The written agreements which the drivers of these cars are required to, and have signed, provide in substance (1) that the plaintiff shall loan to an operator (described as a 'Purchaser') one of the motor trucks; (2) sell to the purchaser on consignment all of the ice cream and ice cream products required by the latter in the ice cream business to be conducted by him under the agreement; (3) accept without charge to the purchaser at the end of each business day all goods so furnished and returned which are in good condition and sell to him all not so returned at certain stipulated prices; and (4) loan to the purchaser "one 'Route' " and "List of Customers" to be returned to the plaintiff at the termination of the relationship. The engagements made by such drivers in such agreements are, in effect, these: (1) that the purchaser shall sell plaintiff's ice cream and ice cream products exclusively and not have any other merchandise on the truck at any time; (2) that at the end of each business day he will pay the plaintiff "in full and in cash", on the stipulated basis, "for the merchandise purchased from Jack & Jill" with the right to return without charge all unsold goods delivered to him on taking the load out, if undamaged; (3) to supply all motor oil and gasoline required for the operation of the truck at his own expense; (4) to be liable for all repairs to the truck supplied him and for all injuries to persons or damage to property caused by it while in his possession or control, the plaintiff, however, being "irrevocably authorized" by him to settle any such claim, in which event the purchaser agrees to reimburse plaintiff therefor; (5) to deliver up the truck to plaintiff at any time or place that the plaintiff may demand; (6) at the termination of the relationship to return to the plaintiff the "list of customers" furnished; (7) and thereafter to refrain for a period of two years from engaging "directly or indirectly, either for himself or in a partnership with others, or in a corporation, or become employed by any person, partnership, firm or corporation in the retail ice cream business on the whole or any part of said route or in any part of the country in which said route lies, nor solicit any of the customers on said 'List of Customers' "; (2) to furnish the plaintiff with a cash bond in a stipulated sum as security for the faithful performance of the agree ment; (9) other agreements of no particular materiality here. In the performance of the agreements summarized, supra, certain incidents occurred. Among these, the plaintiff maintained a supply of freshly laundered white trousers, coats and hats. While, occasionally, on hot days, the coat or hat was removed after the trucks had reached the "route", it seems evident that the plaintiff insisted that those be usually worn when plaintiff's merchandise was being offered for sale. Plaintiff furnished those without charge to the drivers. Other details of evidence need not be referred to except, possibly, as incidental to the observations hereinafter made. Plaintiff claims that the relationship defined by drivers executing the agreement described is that of an independent contractor. The "accepted general definition" of an independent contractor is adopted by both parties and their arguments are built thereupon, viz., one who exercises an independent employment and contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work. Cumbo vs. McGurk, Inc., 124 Conn. 433, 435; Caraher vs. Sears, Roebuck & Co., 124 id. 409, 413; Francis vs. Franklin Cafeteria, Inc., 123 id. 320, 323; Welz vs. Manzillo, 113 id. 674, 679; Lassen vs. Stamford Transit Co., 102 id. 76, 79; Kinsman vs. Hartford Conrant Co., 94 id. 156, 159; Alexander vs. Sherman's Sons Co., 86 id. 292, 297. The difficulty is in the practical application of this general statement. The controlling consideration is, however, held to be whether the employer has general authority to direct what shall be done—the right of general control of the work. Welz vs. Manzillo, supra, p. 680; Morganelli vs. Derby, 105 Conn. 545, 551; Lassen vs. Stamford Transit Co., supra., 79; Aisenberg vs. Adams Co., Inc., 95 id. 419, 421; Thompson vs. Twiss, 90 id. 444, 447. Certain salient considerations only, need be noticed in the instant case. The contract here did not provide that a driver devote any specified number of hours to the sale of merchandise nor any particular number of days per week. In practice, a driver was not required to take out a load on a rainy day and often failed to do so. While there was no formal rule enunciated, drivers, •nevertheless, reported to plaintiff's place of business during the warm season about a certain hour in the forenoon and were expected not to return earlier than about 11:00 o'clock p.m., when die weather was fair. Certain representatives of the plaintiff, however, exercised a certain inspection, if not supervision, over the trucks during the selling hours, at least to the extent of motoring about the various routes to learn if the trucks were stationed there. While all this, together with other details, did not, in itself, evince an actually exerted control, it can hardly be said that if the administrator concluded that it was some evidence, indicative of a right to exercise control, when considered in the light of the agreement, such a conclusion would not be unreasonable. Again, the agreement could be terminated at any instant by either party without any notice to the other. In this circumstance there was present, or at least, could be found to be present, a potential power of control, in that a driver would be at all times aware that if he did not obey any order which the plaintiff might issue, whether relating to the place where, or the days or hours during which he would be required to sell its products, he might be at once discharged. The retention of this right in the plaintiff, existent not because of any express provision of the agreement, but by reason of the silence of the contract, comes close to, if it is not decisive of the presence in the plaintiff of the "right of general control of the work." The decisive factor is the existence of the right of general control; it is immaterial whether it is actually exercised. Caraher vs. Sears, Roebuck & Co., 124 Conn. 409, 414; Cumbo vs. McGurk, Inc., 124 id. 433, 436. To it may be added another, viz., the provision of the restrictive covenant in the agreement. This is explicable only on the theory that the goodwill developed by the sale of plaintiff's products is plaintiff's. But if the drivers are independent contractors, the business is their own and the goodwill, too, as an inseparable part of it, if not, indeed, its entirety. It must be assumed that the plaintiff intended that the restrictive agreement protect something which it had a right to protect. That could only be the goodwill arising from the sale of and public demand for its own particular merchandise. This, obviously, presupposes that it owned the goodwill thereby produced. If it owned the goodwill, then it owned the business, which is but to say that the business was not that of the driver and so the latter was not an independent contractor in fostering and nurturing it. Other phases of the subject need not be discussed. It is evident that no one factor is decisive of the question, as may be seen by an examination of the pronouncements in the following cases in this jurisdiction, viz., Caraher vs. Sears, Roebuck & Co., 124 Conn. 409, 413, 414; Francis vs. Franklin Cafeteria, Inc., 123 id. 320, 325, 326; Welz vs. Manzillo, 113 id. 674, 681; Tortorici vs. Mossup, Inc., 107 id. 143; Norwalk Gaslight Co. vs. Borough of Norwalk, 63 id. 495, 525. If the right of general control exists in the employer, whether it be, or however it be exercised, the relationship is that of master and servant, as the authorities cited supra, demonstrate. See cases cited supra. In the instant case, the administrator, notwithstanding the forms of the agreement and the use of certain terms connotative of different relationships, might not unreasonably have concluded, in the light of the circumstances surrounding the parties when they executed the agreement and their conduct in and incident to the performance of it, that it contemplated nothing more than a contract of employment under which the services to be rendered should be compensated in the equivalent of what might otherwise have been denominated commissions, and hence, that the relationship of master and servant within the meaning of the statute arose and subsisted at the time liability for the contributions in question occurred. As the question discussed is the only one raised or urged, it is concluded that the administrator's order is not unreasonable, arbitrary or illegal and must, hence, stand. Judgment accordingly.

CORNELL, J. It is not disputed on the evidence that the plaintiff sustained personal injuries and that his car was damaged as a result of a collision of the latter with the defendant's trailer truck on the northerly side of the Boston Post Road at Southport, on the night of November 18, 1936; nor that at the time of the impact between the two vehicles, the defendant's truck was standing on its extreme right hand side of the highway headed west, and that the plaintiff's car, proceeding west, also, on the same panel, collided with it, striking it in the rear. The negligence alleged consists of the violation of two statutes, vi?., section 1598 of the General Statutes,-Revision of 1930, subsections (a) and (f), and section 611c of the Cumulative Supplement to the General Statutes (1935), subsection (a). The first mentioned of these, provides, inter alia: "Each motor vehicle so operated shall display a red light from behind and a white light shall be so arranged as to illuminate a rear number plate as provided by law; provided any commercial motor vehicle shall, in addition to such rear lights, be equipped with a reflector of such sise, color and type as shall be approved by the commissioner, so located at the rear of such vehicle as to reflect rays of light thrown upon such reflector." Subsection (f) of the same statute reads: "Each motor vehicle, when standing upon a public 'highway during the period from one-half hour after sunset to one-half hour before sunrise, shall show at least one light in front, such light to be on the side nearest to the center of the road and shall display at least o.ne red light.in the rear, but. this provision shall not apply to any motor vehicle in ,a place and under conditions where there is sufficient artificial light to make such motor vehicle clearly visible from a distance of not less than two hundred feet in every direction." Subsection (a) is mentioned because of the allegation included in paragraph 4 of the complaint to the effect, that there were no "reflectors showing upon the rear of said truck." It is found that the plaintiff has failed to sustain the burden" of proof with respect to this. Plaintiff lays his chief reliance not upon a lack of lighting equipment on defendant's truck, but upon a neglect to have the lights with which it is equipped, illuminated. This, of course, is a question of fact. Baldwin vs. Norwalk, 96 Conn. 1, 7. The weight of the evidence is against plaintiff's claim that the trailer was without such lights or reflectors as is required by statute when such a vehicle stands on the highway and, on the contrary, tends to rebut the contention. Without indulging in a complete analysis of the evidence on the point, the following may be noted: At 10:00 o'clock P.M., when Officer Fratino passed defendant's truck, its lights were aglow; between 10:15 P.M., and up to about five minutes before the instant of impact, Mr. Walter had observed that the headlights were burning, at various intervals; immediately after the accident when plain' tiff's car was still behind the defendant truck, the Commette car passed and its driver observed that the line of lights along the left side of the trailer were lit and that one tail light was aglow. His view of the other tail light, as well as that of his mother was obstructed by the position of plaintiff's car. All of this is, so far as the evidence discloses, the testimony of disinterested witnesses. When to it is added the undis' puted statements of the driver of the defendant's vehicle, that "all of the lights were hooked on a single unit and you cannot operate any independent of the others" and that "the parking lights put the whole circuit on—all together", the conclusion is quite compelling that the plaintiff is mistaken in his im' pression that the trailer truck was not lighted in accordance with the requirements of the statute immediately before and at the time of the collision. The other statute claimed to have been violated (viz., Cum. Supp. [1935] §611c), requires that the operator of a commer' cial vehicle shall set out flares, etc., visible at least two hundred feet in front and rear of such a truck on a highway, in the period between one'half hour after sunset and one'half hour before sunrise, "when such vehicle has become stalled or is in such condition that it cannot be operated." There is no evidence that the defendant truck was either "stalled" or in' capable of operation and was halted for either of these reasons. The driver's testimony is that he stopped the truck because, by reason of the temperature, his view was being obscured be' cause of water being dashed upon the windshield from the radiator since, due to the presence of a blanket over the radh ator, the water in the circulating system was boiling. The purpose of the halting of the truck was to remove the blanket, cleanse the windshield of ice formed thereon from the spray and to allow the water in the radiator to cool. It is not perceived that such a situation falls within the statutory concept of an incapacity of operation. It is, hence, concluded that there was no violation of the statute, under the circumstances de' tailed in that respect. On the other hand the plaintiff was guilty of negligence in that, according to his own testimony, the forward lights which he displayed were sufficient to disclose objects and ve' hides upon the highway in front of him to a distance of about 50 feet (deposition, p. 21), which was in violation of the statute (Cum. Supp. [1935] §608c); and in that (if, as found here) in not observing the presence of defendant's trailer truck with its lights aglow, he failed to maintain a reasonably vigb lant lookout and a proper control over the speed and move' ments of his car. The former might not be accounted a proximate cause of the collision if, as determined, the defend' ant truck was alight, but the latter, on the same premise must be found to have been. It results that the driver of the de' fendant truck was not negligent as alleged and that the sole proximate cause of the collision was negligence on the part of the plaintiff. Judgment for the defendant.

O'SULLIVAN, J. The offense charged against the accused is that on November 25, 1938, and for a long time prior thereto, they neglected and refused to abide by and carry out the terms of a decision and order of the Board of Zoning Appeals of the town of Old Saybrook, made on January 21, 1938, by which a permit issued to them on December 13, 1937, was rescinded and they were ordered to remove a certain building on the land of one of them before May 1, 1938. The accused have demurred on the broad ground that these alleged acts of illegal conduct do not constitute a criminal offense. In this contention they are correct. The authority for instituting a criminal proceeding for matters concerning zoning rests on the provisions found in section 430 of the General Statutes, Revision of 1930. That section makes a prosecution possible in Old Saybrook whenever one has violated any regulation found in the ordinance adopted by the town in furtherance of zoning. If one disobeys an order either of the Commission or of the Board of Appeals, he may or he may not be justified in so acting. Using an extreme illustration, it is perfectly obvious that if the Commission or the Board of Appeals ordered these accused to put a Chinese flag upon the building'in question, no criminal action would lie even though the order was disobeyed. For obviously, the power to pass any order can extend no further than the limit of the authority conferred by the ordinance. Hence, if an order is disobeyed, it is necessary to allege that the accused is charged with a violation of some provision of the ordinance, such as, for example, that he erected a gas station in a restricted zone, or that he has used a building erected after the passage of the ordinance without first obtaining a certificate of occupancy, or the like. If these accused have violated any regulation set out in the ordinance, they may be successfully prosecuted under a proper information. To allege that they disobeyed an order of the Board of' Appeals is far from alleging a violation of a regulation found in the ordinance. Accordingly, the demurrer is sustained.

CORNELL, J. First Count—The rule seems to be well established that the validity of the method of transfer of stock in a corporation is governed, not by law of the place where the act of transfer occurs, but by the law of the state or country under which the corporation is incorporated. State vs. Dunlap, 28 Idaho 784, 156 Pac. 1141, 1145, Ann. Cas. 1918A, 546; Husband vs. Linehan, 168 Ky. 304, 181 S.W. 1089, 1092, Ann. Cas. 1917D, 954. The complaint does not allege in what state the Northern Pacific Railroad Company was incorporated and so it cannot be said as a matter of law that the alleged means of transferring title to the stock of that company did not comply with the law of such state. The demurrer to this count is, consequently, overruled. Second Count—It was represented by counsel upon the argument that this count will be withdrawn. Third Count—Paragraph 1 of the demurrer to this count states that an assignment of "all claims and demands made by Amelia Prowitt, of which she was possessed against Henry T. Prowitt, is void because "executed" on a Sunday. Where an in' strument depends for its operative force upon delivery and the delivery takes place on a week day, it would seem obvious that rhe validity of the transaction cannot be affected by the circumstance that the instrument was executed, though not delivered on a Sunday. It appears that the assignment described was dated April 19, 1936, but there is no allegation of the date when it was delivered. 60 C.J. 1099, §66 and notes. See, also, Greathead vs. Walton, 40 Conn. 226. The second ground of demurrer states that an assignment is set up without consideration and without sufficient allegations to establish a gift. Since neither an assignment upon and for a consideration nor an assignment as a gift is alleged, the facts stated are sufficient to permit the plaintiff to prove either, especially in the absence of a motion for a more particular statement designed to elicit facts indicative of whether one or the other is relied upon. The fact that the assignment recites a consideration when in fact none passed is merely an evidential element and not a basis upon which to predicate a demurrer in the light of the other allegations of the complaint. The subject matter of paragraph 4 is argumentative only. If it is claimed that the facts stated in it—which also makes it a "speaking" demurrer-—-furnish the basis of an equitable es' toppel, that is matter of defense. The demurrer to the first count and that to the third count, are each overruled on all grounds.

McEVOY, J. This action was instituted by the plaintiff, who applies for a temporary injunction, by writ dated August 11, 1938, returnable to the Superior Court within and for the county of Hartford, on the first Tuesday of September, 1938. The plaintiff is a manufacturing corporation located in the town of Rocky Hill, Hartford County, Connecticut. The defendant is a corporation acting under the provisions of its private charter, the terms of which are to be found in 12 Special Laws (1897), p. 896, as amended by 20 Special Laws (1927), p. 466. The pertinent provisions of the original act, under the terms of which the defendant was incorporated, are found in sections 5, 6, 7 and 8. In section 6 it is provided, substantially, that the company may "construct, build . . . and maintain . . . reservoirs . . . and also . . . take water from any pond, springs, brooks, or streams in . . . the town of Cromwell . . . and . do any other thing necessary or convenient for the purpose of carrying out the provisions of this act . . ." In the amendment to the charter, 20 Special Laws (1927), p. 467, the following appears: "provided no rights herein granted shall be so exercised as to in any way adversely affect the vested rights of any person or corporation existent at the time of the passage of this act in or on the brook now or formerly known as Dividend brook." It should be observed that this action is brought by the rayon company to restrain action on the part of the defendant water company, as is alleged in the complaint. It is to be distinguished from an application for an injunction made by an owner after condemnation proceedings have been instituted. The terms of the charter as to the procedural requirements must be carefully considered. In the instant charter it is provided that the defendant "can do any other thing necessary or convenient for the purpose of carrying out the provisions of this act." 12 Special Laws (1897), §6, p. 897. In Water Commissioners vs. Johnson, 86 Conn. 151, 153, (1912) the Water Commissioners of the City of Norwich, acting under the charter, voted "to adopt a plan . . . and to proceed as speedily as possible to acquire by purchase or condemnation the land, water, water rights and other property . . . to carry out the project and execute the work . . ." As a result of that application the Water Commission made application to the Superior Court for the determination of the amount of compensation to be paid to certain owners of land. In that case, at page 157, our Supreme Court said: "Among the conditions which were prerequisites to the exercise by the board of the power thus conferred upon it, was the existence of a necessity, within the meaning which the law attaches to that word when used in this connection, for the proposed taking, and a determination of its existence." The defendant contended that the burden was upon the plaintiff water commissioners both to allege and prove the "existence of a necessity." At page 159 of that opinion our Supreme Court said: ". . . we regard the better law, that the decision of the condemnor that a necessity exists for the taking of particular property is one open to judicial review to discover if it was unreasonable . . . and . . . the question of necessity is one which under the conditions named is to be determined primarily by the party empowered to condemn, and . . . the determination made by it will be conclusive unless and until it is successfully attacked for unreasonableness, bad faith, or abuse of power." The Court said further, at page 160, "that the condemnor in such case may rest upon it until the attack upon it is made . . . and that the burden of any attack upon it rests upon the attacking party." In the instant case the defendant water company has instituted no proceedings to condemn any of the water rights-claimed to be owned by the plaintiff. Under these circumstances, in the absence of such action, the plaintiff has nor has had no opportunity to attack, in a court of law or equity, the claimed right of the defendant to proceed as the plaintiff' alleges the defendant intends to do. In Bridgeport Hydraulic Co. vs. Rempsen, 124 Conn. 437, 200 Atl. 348, the plaintiff, the water company, brought an action for condemnation of land. In the charter under which the water company proceeded, it was authorised to take such land or waters or rights or interests therein "as it may deem expedient or necessary for any of its corporate purposes." 20 Special Laws (1927), p. 398. Section 2541 of the General Statutes, Revision of 1930, provides that a municipal or private water corporation, authorised by law to supply water for power or domestic use, may take lands or waters on such rights or interests therein "as the su perior court, or any judge thereof in vacation, may, on application, deem necessary for the purposes of such supply." While in the Rempsen case, supra, this delegation of authority to the Hydraulic Company was held constitutional, affirming the decision in the Johnson case that "the party to whom is delegated the right to determine whether particular land is necessary for a public use need only allege in its application to the court that he has so determined, leaving the burden of attack upon the adverse party", in the Rempsen case our Supreme Court said that "The Johnson case (p. 159) contains the suggestion that the way to make such an attack is by an action to restrain the taking of the property. But we see no reason why, where the application has been made to the court for the appointment of appraisers, the question might not be raised by answer." In the present case no application has been made by the defendant water company and therefore the opportunity for the present plaintiff to make such attack in a pending action brought by the water company is not available to the present plaintiff. In the absence of the existence of such pending action brought by the defendant water company, the plaintiff makes its own attack by bringing an action in which it seeks to restrain the defendant before it has taken any action. The defendant claims that it may proceed either under its charter or under the special law by virtue of which it was incorporated. It further claims that it is not necessary for it to bring any action or proceeding but that it may, first, proceed with its work and, after having done so, or while doing so, it may then move under sections 7 and 8 of its charter (12 Special Laws [1897], p. 896) for the appointment of a committee of three "who, after being sworn and giving reasonable notice, shall hear the parties, view the property in question, assess just damages, if any . . . and report their doings to the court, and such report may be rejected in the discretion of the court." The defendant further claims that the only time when the present plaintiff may be heard is upon the presentation of this report to the Court, and that then it may, for the first time, make the claims which it now makes. In this connection it should be observed that, in the amend ment to its charter (20 Special Laws [1927], p. 466, at page 467), it is provided that "no rights herein granted shall be so exercised as to in any way adversely affect the vested rights of any person or corporation existent at the time of the passage of this act in or on the brook now or formerly known as Dividend brook." The plaintiff, in its complaint, alleges substantially that it and its predecessors have been "engaged since 1924, in extern sive manufacturing" (paragraph ? of the complaint), and further, that "the waters of said pond, brook and watershed have been used in various mercantile processes since ancient times" (paragraph 6 of the complaint). And in paragraph 7 of the complaint, further allegations are made about the rights of the plaintiff and its predecessors in the watershed "since ancient times." In Water Commissioners vs. Johnson, 86 Conn. 151, at page 166, et seq., appears a 14 page dissenting opinion concurred in by two of the justices. There are also very interesting opinions in the cases of New Haven Water Co. vs. Wallingford, 72 Conn. 293; Gorham vs. New Haven, 82 id. 153, and Kelly vs. Waterbury, id. 255. In addition to these questions of law, there are disputed questions of fact involving the determination of questions as to whether or not the proposed action by the defendant will, in any way, affect or invade the claimed rights of the plain' tiff. In view of all the questions of fact and law which are involved, it would seem equitable to both the parties that the defendant should be enjoined from proceeding as it proposes to do until after both parties have had a fair opportunity to be heard upon pleadings to be framed by them and upon a trial of the action based upon the pleadings so framed and the issues so resolved. The application for temporary injunction is granted, and the plaintiff is enjoined from (a) building a well, or wells, on said watershed in the towns of Cromwell or Rocky Hill, or both, for the purposes of apprehending, collecting and selling any of the surface or subsurface waters of said watershed or of Dividend brook and its tributaries; (b) apprehending and collecting any of the surface and subsurface waters from said watershed, and from Dividend brook and its tributaries; and (c) transporting, conducting and selling same to the town of Cromwell, the inhabitants thereof and of its vicinity for public, domestic, manufacturing and other uses, until the third Tuesday of September, 1938, and until the further action of the Court, or of a Judge, in the premises.

Memorandum of decision in automobile negligence action. QUINLAN, J. Under the conditions prevailing at the time of the accident the defendant was operating his automobile at a speed that was improper, and so as not to have it under proper control, in addition to other negligent acts within the allegations of the complaint. The plaintiff did not create any emergency and was not negligent' in his operation of his automobile. Immediately after the collision the plaintiff's face and lips were bleeding, he had numbness and pain in the hip and sternum, his knee was cut, he limped and was nauseated. His back and chest were strapped. He was given sedatives for a week and a half. He slept on a fracture board from eight to ten days in the hospital after June 30th, and finally, on July 8th, was put in a body cast from above the arm pit to below the hip. This was removed on October 8th. The cast was cut down to permit of treatment for skin irritation. The doctor was in attendance until September 10th, regularly. He has a permanent condition in the lower back but is wearing a sacro-iliac belt and returned to work September 2, 1941, although not at the same kind of work. He can do no heavy lifting. He has physiotherapy treatments and diathermy is indicated for a dull ache on exertion which becomes acute. Heat is no relief permanently. He still sleeps with board under mattress. He has sustained special damages for hospitals, doctors, belt, loss of time and automobile damage of $1,390. Judgment may enter for the plaintiff to recover $6,390 with costs.

Memorandum of decision in action agáinst owner and lessee of premises for injury sustained in fall. MUNGER, J. The complaint a'lleges that the Cutler Realty Company was the owner of record of the premises described and the other defendant, The Lerner Shops, was the lessee. The defendants say that no evidence of any kind has been offered to show who had control or possession of the premises where the plaintiff fell. I think this position is sound and it would follow that no judgment can be rendered against either defendant. Quite aside from that, however, it is impossible to'find that there existed any notice of the defective condition. No actual notice is claimed but constructive notice merely. The plaintiff finished work at 9 p.m. on the night of the injury and says she fell about 9:45. There were many hours of sunshine on the day of the injury. The day was cloudy. A light precipitation of snow began at 8:12 p.m. It is conceded that the store of the defendant The Lerner Shop closed that evening at 6 o'clock. It cannot be held that the defendants or either of them had any notice of any defective condition of the area where the plaintiff fell. In Jainchill vs. Schwartz, 116 Conn. 522, 525, it is said with respect to notice a municipality of a defect: "The notice which a municipality must receive as a condition precedent of liability for injuries received by reason of a defective highway, must be notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it." This case has been followed by several other later .cases. The principle involved is quite the same as far as notice must be established as a condition of liability in the instant case. The court is obliged to find that the plaintiff has been unable to prevail. Judgment for the defendants.

Memorandum of decision in election contest involving validi' ty of absentee voting. McEVOY, J. The petitioner was an elector and a candi' date for first selectman at the town meeting held on the 5th day of October, 1942, at the Town of Westport, Connecticut. Prior to that date, Willard R. Williams talked with various electors who then expressed their belief that they would be absent from Westport and would not be able to vote, person' ally, at the town meeting on the 5th day of October, 1942. By reason of these various conversations, Mr. Williams procured blank instruction certificates; caused the blank spaces on the certificates to be typewritten in light blue letters with full directions as to how the absent voter desired his vote to be cast and leaving only the signature blank to be filled in by the absent voter. In this form these instruction certificates were mailed or delivered to the absent' voter. These absent voters signed these certificates; made an affidavit in each case upon each such certificate and returned them to the town clerk at West' port, Connecticut. These certificates were then delivered by the town clerk to the moderator, who, in turn, delivered them to the electors, John H. Mountain and Harry R. Sherwood, who had been • duly designated by the moderator to cast the votes of each of the absent voters. One of the electors, Harry R. Sherwood, protested to the moderator that 32 of these certificates of instruction designated as "ballots" were not made out in accordance with the provisions of the law, since it appeared that .these ballots were not made out or prepared, personally, by the voter in each case, but that they were made out by Mr. Williams in all respects except as to the signature which was made by the voter. Notwithstanding this protest, the moderator ordered that these ballots be, and they were, cast in favor of Albert T. Scully for the office of first selectman. Of all of the votes as cast, Albert T. Scully was declared to have received 1,555 votes and King W. Mansfield was de' dared to have received 1,538 votes. By reason of the declared votes and of the inclusion of the protested 32 ballots it was declared that Albert T. Scully was elected as first selectman. If the protest as to the casting of the 32 ballots had been sustained then King W. Mansfield would have received 1,538 votes and Albert T. Scully would have received 1,523 votes— which would have resulted in the election of King W. Mansfield as first selectman of the Town of Westport, Fairfield County, Connecticut. The exercise of the franchise, by way of voting, is a privilege. It is not a right. Since it is a privilege the General Assembly may prescribe the manner and form in which the privilege may be exercised. Until very recently, electors were required to vote in person. Until recent years an elector was not permitted to vote in any way except by direct act exercised by him. "The General Assembly has power to provide by law regarding the conduct of elections. Such conduct is an administrative exercise of a political power." Meigs vs. Theis, 102 Conn. 579, 594. "Further, it is to be observed that, in its statutes regarding elections, the General Assembly provides by way of elections a mode of expressing determinations and exercising powers on the part of the whole electorate, the instrument of the sovereignty of the people, and as incidental thereto proceedings to secure the revision of any errors occurring in the elective process." Id. p. 597. "In the days before the adoption of the Constitution in Connecticut, elections were simple affairs. Ballots were not required by law in town elections until long after the adoption of the Constitution. The electors of that time voted in such manner as they by their own resolution provided. The electors probably stood up and were counted; they 'divided the house.' If ballots were used, they were of the simplest kind, an open ballot." Id. p. 596. The fundamental purpose for many years has been, and still is, to so provide that each qualified voter may be permitted—and indeed, required—to secretly prepare and, in so far as circumstances permit, cast his own ballot. At the January session of the General Assembly in 1941, the then existing statutes which prescribed and regulated the method of voting were amended, in part, viz: "Sec. ' 108f. Absentee Voting, (a) Any qualified elector of this state who shall be absent from the state during the entire day of any national or state election, or who, because of illness or physical disability, shall be unable to appear at the polling place on such date, or any qualified elector of this state who shall be absent from the state during the entire day of any town, city- or borough election because of his being in active service with the army, navy, marine corps or coast guard of the United States, may cause his vote to be cast at such national or state election, or such town, city or borough election, in the manner and subject to the conditions hereinafter stated. (c) The blank form of affidavit and voting instruction shall be in the form prescribed by the secretary of the state, who. shall cause to be printed a sufficient supply of such blanks and furnish to each town clerk such number as he may request or as the secretary shall think sufficient. It shall contain blank spaces for the full name of the applicant, a statement that he is a citizen of the United States, a resident of the town in which he desires to vote, and the ward, precinct or voting district in such town in which he is entitled to vote, if he knows, and that he is registered on the last completed registry list of such town, ward, precinct or voting district, and is. not registered on any other voting list; it shall also state that he expects to be absent from the state on the day of election on account of imperative or urgent reasons requiring his presence eleswhere, and shall state such reasons, or that he anticipates that he will be unable to appear at the polling place by reason of illness or physical disability, or that he shall be absent from the state due to his being in active service with the army, navy, marine corps or coast guard of the United States, and shall state where he is stationed in such service and with which branch of the armed forces of the United States he is connected, and that he has not been paid or promised, and that he does not expect to receive, any re' ward or compensation for his vote. Such blank form shall also-contain instructions to the voter for casting his vote. Upon such form shall be printed the following directions to the voter: If you wish to vote a straight party ticket use form (1), inserting in the blank the name of the party whose ticket you. wish to vote, and do not mark or use form (2) or (3);,if you wish to vote the party ticket as a whole, but to vote against one or more of your party candidates, fill up form (2) so as to express clearly your desire, and do not mark or use form (1) or (3); if you do not wish to vote any party ticket but to vote for certain persons for particular offices, fill up form (3) so as to express clearly your desire and do not mark or use form (1) or (2). (e) The voter, having procured said form, shall fill out the blanks therein, which state his citizenship, right to vote and residence and the other facts required by subsection (c), and shall fill up such of the blanks for instructions as shall clearly state the manner in which he wishes his vote to be cast, and shall sign and swear to such statements and instructions before an official authorized to administer oaths, provided, in the case of any qualified elector of this state who shall be absent from the state during the entire day of any town, city or borough election because of his being in active service with the army, navy, marine corps or coast guard of the United States, such oaths may be taken by an official authorized to administer oaths or by any commissioned officer of the army, navy, marine corps or coast guard of the United States. He shall also, unless he is personally known to such magistrate or commissioned officer, prove to the satisfaction of such magistrate or commissioned officer that he is the person named in said form. Such magistrate or commissioned officer shall then fill out his certificate in the form following, and shall sign such certificate and attach thereto, or impress thereon, unless he is a judge, justice of the peace, town clerk, commissioner of the superior court holding said office and residing in this state, or a commissioned officer in the army, navy, marine corps or coast guard of the United States, his official seal. State of...................... ss. (month, day and year) County of.................... Then appeared before me . personally known or satisfactorily identified to me as being the person bearing such name, and signed and swore to the above affidavit and voting instruction; and I certify that I did not solicit or advise such voter to vote for or against any political party, or for or against any candidate or measure, and that I have not disclosed and will not disclose to any person, unless required to testify thereto in some competent court, how such voter instructed his vote to be cast. Effective March 17, 1941." In 14 places the statute, as amended, prescribes that the voter shall fill out the blanks. Obviously, it was the expressed intention of the General Assembly • that the voter, and not someone purporting to act. for him, should actually fill out the blanks, as well as that the voter should sign them. Section 11 of 247 of the Public Acts of 1889 (p. 157) provided as follows: "No official or other person at any election held under the provisions of this act shall, ip the enclosure or room where the ballot-box is placed, or in the rooms or booths prescribed by section four of this act, suggest the name of any political party or candidate for any office to any elector, or assist or offer to assist any elector in the preparation of his ballot." This section was the predecessor of the present section 611 of the General Statutes, Revision of 1930, which provides as follows: "Interference Prohibited. No official or other person at any election shall, in the inclosure where the ballot box and stub box are placed, or in any room or booth herein mentioned, suggest to any elector the name of any political party or candidate for any office. No person shall assist or offer to assist any elector in the preparation of his ballot to be used in voting, unless appointed for that purpose by the moderator of the meeting. No elector shall receive such assistance unless he shall be physically incapable of preparing his ballot, and the moderator shall be the sole judge of such physical disability. In case of such physical disability, the moderator shall, upon the request of the elector, appoint two electors, one from each of the dominant parties, and such persons shall render such assistance as the elector may require in the preparation of his ballot." This provision was in force and governed the conduct of the electors and the election held in Westport on October 5, 1942. The very obvious purpose of that provision was to see to it that the elector did,-in fact, prepare and cast his own ballot free from interference by any volunteer and that, in case of his inability, any «assistance' rendered to him should be in accordance with the direction of, and under the supervision tof the moderator. It will thus appear that the well-defined policy of the law of Connecticut in this respect was declared and has been ad' hered to for more than half a century. By subsequent amendments the original section has been expanded to its present form so as to permit the rendering of assistance to the voter—but only in the manner specifically prescribed by the statute. In each of the revisions of the statutes subsequent to 1889, that is in 1902 (§1652); in 1918 (§601); and in 1930 (§611), the heading has been entitled, "Interference Prohibited." The use of these two words clearly evinces the legislative intent to permit—and indeed to require—that the voter make up his own ballot and that the decision as to the content of the ballot be that of the voter and not of any one who purports to assist him. No ballots, as the term is usually understood, were used in the town election at Westport. The voting was done by the use of voting machines. The votes of the electors who were absent and who chose to exercise the privilege of voting in accordance with the then existing law, were "cast" by the act of the electors in indi' eating the wish of the absent electors as expressed in the "certificates of instruction" by use of levers on the voting machines. Obviously, the absent electors could not physically operate the voting machines. Under these circumstances the "certificates of instruction", in connection with the use of the voting machine, constituted the "ballots" of the absent voters. Section 108f of the 1941 Supplement to the General Statutes, in effect on October 5, 1942, contains amendments of former sections and these amendments were enacted so as to specifically include, as absent voters, those enrolled or absent in war service. In the last paragraph of this section, there is retentive repetition of the provision that the voter "shall sign and swear to" the statements and instructions in the certificate of in' struction before "an official authorised to administer oaths." By virtue of the amendment to the previous legislation the authority to administer the oath is extended to include "any commissioned officer of the army, navy, marine corps or coast guard of the United States." As if to confirm the legislative intent and to confine the statement of the intention to the personal act of the absent voter, this section requires the officer to certify that he "did not solicit or advise such voter to vote for or against any political party, or for or against any candidate or measure." The continuity of the letter and spirit of this legislation simplifies its interpretation. "In determining the legislative intent, we must look beyond the literal mfeaning of the words to the history of the law, its language considered in all its parts, the mischief it was designed to remedy and the policy underlying it." Chambers vs. Lowe, 117 Conn. 624, 626. "The language used is so singularly clear and unambiguous that it might well be said to fall within the rule that 'it is not allowable to interpret what has no need of interpretation.' " O'Brien vs. Wise & Upson Co., Inc., 108 Conn. 309, 315. In construing a statute, the legislative intent rather than the letter should prevail, and to give effect to that intent, the statute should be read in the light of its object and the nature and reason of the remedy it provides; when one construction will lead to a public mischief which another construction will avoid, the latter will be favored unless absolutely forbidden by the terms of the statute. Bridgeman vs. City of Derby, 104 Conn. 1. "Statutes similar to that under review providing for a recount of votes result in their action in a certificate of election; they do not put the contestor into the office nor remove the contestee. The former must actually gain possession of the office by some further proceeding. The contest is not one for the possession of an office, it is to determine the result of an election, its legality and fairness." Meigs vs. Theis, 102 Conn. 579, 593. Prior to October 5, 1942, when Mr. Williams sent certificates of instruction to absentee voters, before sending them, he placed on each certificate of instruction a small "v" or check mark opposite the line provided for the signature of the absentee voter. On two 'of the certificates of instruction the oath was ad ministered and so noted by Mr. Williams, before whom the voter in each case appeared, and certified that this was his intention. Before either of these voters signed the certificate of instruction a small "v" or check mark was made by the attesting officer beside the line upon which the voter was required to sign. Such "v" or check mark constituted such a mark or device as is prohibited by the provisions of section 606 of the General Statutes, Revision of 1930, which provides: "If any ballot shall contain any mark or device other than as hereinbefore provided, so that the same may be identified in such a manner as to indicate who might have cast the same. . .the ballot shall not be counted, but shall be kept by the moderator and returned to the town clerk in the ballot box in' a separate package from the ballots counted at such election." Upon the pleadings and the evidence it is concluded that each of the 32 certificates of instruction was made out and filled in, contrary to and in violation of the then existing law; that the protest of the objecting elector against the casting of 32 votes, based upon the 32 certificates of instruction, should have been sustained; that each of these certificates of instruction should have been rejected and that the 32 "votes" based upon these certificates of instruction should not have been cast in favor of the respondent, Albert T. Scully, for the office of first selectman of the Town of Westport. It is further found that at the town election held at West-port, Connecticut, on the 5th day of October, 1942, of the votes lawfully cast, the petitioner, King W. Mansfield, received 1,538 votes for the office of first selectman and that the respondent, Albert T. Scully, received 1,523 votes for the office of first selectman and that the moderator should not have declared these votes in the numbers in which he declared them but the moderator should have declared that the petitioner, King W. Mansfield, was duly elected as first selectman of the Town of Westport, in Fairfield County, Connecticut. The prayers of the petitioner's petition are granted and decree and judgment may enter in accordance with the terms of the decision in Denny vs. Pratt, 104 Conn. 396, 398. The judgment file may be drawn up and recorded when signed and, thereafter, a certificate of election of King W. Mansfield as first selectman of the Town of Westport, Fairfield County, Connecticut, based upon the judgment then filed, shall be issued under the seal of the court. Decree and judgment may enter accordingly.

DICKENSON, J. The briefs of the parties are so exhaus' tive that little may be added by way of precedent or authority. It is illuminating however to consider the rules relating to the appointment of receivers. Section 238 of the Practice Book (1934) requires that "such inquiry as is practicable shall be made by the judge or court relative to the solvency of the estate", and if "it appears to the judge or court that the estate is insolvent, the estate shall be promptly liquidated and no further continuance of business, except for the purpose of liquidation, shall be permitted, unless, because of exceptional circumstances, it shall be otherwise ordered." The appointment of a receiver terminates the right of the corporation to carry on its business as such. It may only con' tinue it by order of Court and then does so "solely under the law and the orders and direction of the court, and not under the corporate franchise." Shippee vs. Commercial Trust Co., 115 Conn. 313, 325. The State, through its legislative branch, has given a corporate franchise to do business. Through its judicial branch it has taken it away. There is nothing antagonistic in this. The State speaks in each instance through different departments. When, therefore, the State through its legislative branch says that the word "taxpayer" and "company" shall include any corporation, and that in turn shall include a receiver thereof, and that corporations, and so receivers carrying on or having the right to carry on business, shall be taxed, it means corporations given the right to carry on business by legislative act, and receivers carrying on the business of a corporation through the order of its Courts. A common sense definition of "carry on" used in connection with section 238, supra, would not seem to include liquidation. The statute (Supp. [1937] §255d) contemplates going, not expiring corporations. Working through its judicial branch the State purposes to tax business carried on in corporate form through order of Court, along with other corporations, but not corporations whose right to carry on business has been terminated by the Courts. The State says, in effect, that a corporate franchise may be exercised under the general corporate law until that right has been taken away by its judicial branch, and when it has been taken away and has not been extended by the Courts the corporation has no right to carry on business and is therefore not taxable for such a right. In the instant case it appears that the Emerald Corporation was not authorised to carry on business in 1937, nor did it attempt to. The Bridgeport Land and Title Company carried on business until May 3, 1937, and was authorised, i.e., had the right to carry on business, until October 1, 1937. The advice and order of the Court is that no taxes be paid by the Emerald Corporation receiver and that taxes be paid by the Bridgeport Land and Title Company receiver to October 1, 1937.

FOSTER, J. The plaintiff claims that on the evening of" November 4, 1937 he entered a club in New Haven where the defendant was playing cards with two other men, others-being present; that conversation arose in which the defendant's name was mentioned in a manner annoying to him; that the defendant arose from the card table, advanced ten or fifteen feet to the plaintiff and struck him a blow with his-left fist, causing a fracture of the plaintiff's right lower jaw. The defendant admits striking the plaintiff. His explanation is that he was annoyed by remarks made by the plaintiff' and advanced toward the plaintiff to peaceably persuade him to desist from making such remarks; that the plaintiff struck him and that he thereupon struck the plaintiff. While one may take proper measures in self-defense, the law permits one to use no more force in self-defense than is necessary to avoid harm and injury. Both the plaintiff and defendant are professional boxers. The plaintiff weighs about 150 pounds and the defendant weighs about 175 pounds. The defendant is a very strong man. The blow struck by the defendant was described as a short arm jab. As illustrated by the defendant from the witness stand, it was exceedingly quick, with perfect timing and the full force of the body back of it. The defendant admits that when the plaintiff struck him, as he claims, he did not "put up his guard." He did not have to do so. Such of the witnesses to the incident as testified support the claim of the plaintiff. If the account given by the defendant were to be accepted it would be necessary to find that the defendant used much more force than was necessary for self-protection. The plaintiff suffered a comminuted fracture of the right lower jaw. He went to a hospital, where the parts were brought together and rendered immobile with wire, and the wire was removed at the end of five weeks. The plaintiff did not remain at the hospital, but visited the clinic there for treatment many times. He still suffers some limitation of use of the jaw, from which in time he will recover, and he may yet lose one tooth, which is loose. The plaintiff has suffered much pain and discomfort. The plaintiff's testimony as to loss of earnings is not credited by the Court. His hospital bill was twenty-seven dollars. No further special damages were proved. Judgment is rendered that the plaintiff recover from the defendant damages of twenty-five hundred and twenty-seven dollars.

Memorandum of decision in action on insurance policy covering damage to automobile truck load by collision. BORDON, J. The plaintiff seeks to recover the value of furniture, in transit, damaged on its truck when it jammed under an underpass near Altoona, Pennsylvania. . A policy issued by the defendant insured it against such loss if the vehicle in which the goods were being transported was in collision with any object, but excluded coverage "for loss or damage caused directly or indirectly by the load or any portion thereof coming in contact with any other object unless the carrying vehicle also collides with such object." The insured truck consisted of a Mack chassis, a body especially designed for hauling furniture, and a carefully measured and fitted removable canvas which stretched along the entire top of the. truck. The body had walls on all sides equipped with loops and other devices designed to receive the cords attached to the canvas, thus securing it to the body. The removable top facilitated loading, but when affixed and fastened, after loading, became as much an integral part of the truck as if inherent in its construction. The collision complained of ripped the canvas and damaged the furniture but no other part of the truck collided with any object. If it is held that the canvas is a part of the vehicle the defendant is liable under its contract; however, if it is held that only the furniture, and no part of the vehicle, collided there is no liability. Mendelsohn vs. Automobile Ins. Co. of Hartford, 290 Mass. 228, 195 N.E. 104. Courts have been unanimous in construing the provisions in insurance policies liberally in favor of the assured. If there is ambiguity in the contract it should be resolved in favor of the plaintiff. Where words are so used in a contract of insurance that their meaning is ambiguous, or susceptible of two interpretations differing in import, that interpretation which will sustain the claim of the policyholder and cover the loss should be adopted. If the policy is not entirely clear and two interpretations, equally reasonable, can be applied, the interpretation most favorable to the assured is sustained. American Surety Co. vs. Pauly, 170 U.S. 133; Illinois Automobile Ins. Exchange vs. Southern Motor Sales Co., 207 Ala. 265, 92 So. 429, 24 A.L.R. 734; Kartinos vs. Walker Co., 227 Ill. App. 289; Griffin vs. General Casualty & Surety Co., 231 Mich. 642, 204 N.W. 727; Sunderlin, Automobile Insurance (1929) p. 25; Bell vs. American Insurance Co., 173 Wis. 533, 181 N.W. 733; C. & J. Commercial Driveway, Inc. vs. Fidelity & Guaranty Fire Corp., 258 Mich. 624, 242 N.W. 789. The court finds that the collision between the canvas top and the underpass was a collision of the carrying vehicle with it and that the resulting loss is covered by the policy. The issues are found and judgment may be entered for the plaintiff to recover the sum of $450.36, together with interest amounting to $57.42, or a total of $507.78 and costs.

CORNELL, J. A decree of divorce was granted the plaintiff from the defendant on April 16, 1937, by the Superior Court. • In this it was ordered that the care, custody and education of an adopted child be committed to plaintiff. On September 24, 1937, the judgment was modified to include a provision that the defendant pay the plaintiff for the support of the child, the sum of $7.00 per week until the first Tuesday of February, 1938, which order, on January 28, 1938, was extended to comprehend the minority of the child. On September 20, 1938, the plaintiff made a motion that the defendant be found in contempt for failure to comply with that part of the decree requiring him to make weekly payments for the support of the child, alleging that he is in arrears in an aggregate sum of $119.00 because of his failure in that respect. The matter was continued from time to time, the defendant-respondent being without counsel, until finally counsel appeared for him. At the hearing then had, it appeared that the child in question is the natural child of the plaintiff by a former marriage and that after the intermarriage of plaintiff and defendant, the plaintiff gave it in adoption to the defendant and herself. The Court then on its own motion raised the question whether counsel had considered if the Court had jurisdiction incidental to a petition for a divorce to make an order that the defendant support an adopted, as distinguished from his natural child, calling attention to the applicable provision of the statute which refers to "a minor child of such marriage", i.e. of the marriage which is dissolved. A decision on the question can be obtained only by the presentation of a motion to revoke the orders in question and as that may be preferred to the Court as presided over by a different judge, it would be quite improper to express any opinion whatever as to whether such a motion, if and when filed, should be granted. It will not be inappropriate, however, to refer to certain aspects of the matter for such assistance as that may be to counsel in presenting the subject, in view of such authority as there is. At the outset it must be agreed that the question involved is not whether the defendant-respondent is under the legal obligation to support the child. His duty to do so follows inevitably from the relationship that arose when he adopted it and may be effectuated by criminal proceedings. The problem is whether his liability can be enforced by contempt proceedings in this Court and that, in turn, depends upon whether the Court had jurisdiction to make the order which has been violated. If it be assumed that the Court's only power in the premises was such as is conferred by the statute (Gen. Stat. [1930] §5187), the question arises whether such power is restricted to children of the marriage, or extends to include those not of the marriage but as respects whom the parents or either of them sustain the obligations of parenthood, derived from a distinctly different legal relationship. It is well settled in this state that the power of the Superior Court to dissolve marriages emanates wholly from statute (Steele vs. Steele, 35 Conn. 48, 54; Davis vs. Davis, 119 id. 194, 196) and that its jurisdiction to make and enforce orders concerning the care, custody and education of children stems from its jurisdiction over a petition for divorce (Dunham vs. Dunham, 97 Conn. 440, 443, 445; Morrill vs. Morrill, 83 id. 479, 483; Pfeiffer vs. Pfeiffer, 99 id. 154, 157), and so is not, otherwise, existent (Morgan vs. Morgan, 103 Conn. 189, 197). The extent of the power to make and enforce an order for the support of a child where jurisdiction of a petition for divorce exists, is, perforce, limited or unlimited, as the case may be, according as may be revealed by the language of the statute if that be plain, or if it be ambiguous, then by attributing a meaning to the doubtful phrase according to the usual rules for statutory construction. Whether the phrase "minor child of such marriage" as employed in the statute is so plain in its intendment as not to admit of any but a literal construction may, itself, be moot. Much depends upon the personal judgment of the member or members of a Court which may have it under advisement. In the only jurisdiction where my own research had revealed a decision on a statute comparably worded, the qualifying phrase "of the marriage" seems to have been ignored and all of the emphasis placed upon the words "such children." Burk vs. Burk, 222 Mich. 149, 192 N.W. 706, 707; Hendrick vs. Hendrick, 247 Mich. 327, 225 N.W. 483. Again, too, another statute involved, it would seem in the decisions referred to, conferred authority on the Court to make such "further decree as it shall deem just and proper concerning the care, custody and maintenance of the minor "children of the parties"—a phrase sufficiently comprehensive, it would seem, to include adopted children. Burk vs. Burk, 222 Mich. 149, 151, 192 N.W. 706, 707. Whether and, if so, to what extent the authority mentioned can be said to be effective in the construction of our own statute is a matter to be determined by the Court upon a motion to revoke the orders in question. On the other hand, for such persuasiveness as it may possess is the statement made in Wood vs. Wood, 61 App. Div. 96, 99, to the effect that: "The statutory authority conferred upon the court in actions for divorce or separation to require the husband to provide for the support of his children before final judgment is limited to the issue of the marriage (Code Civ. Proc. §1769), and the authority of the court conferred by statute to provide by order or judgment for the custody and future support of children in such action is likewise limited." That case did not have to do with an adopted child, but was concerned with a stepson. The foregoing is written for such aid as it may be, if any, to counsel in presenting the matter in event that a motion to revoke the orders referred to be filed. Obviously, pending such a contingency, no decision should be made upon the pending motion. In view of the delays which have ensued, the motion to revoke should be filed within five days next following the filing of this memorandum in the office of the clerk. If not done before the expiration of that period, the matter may be brought to my attention by counsel for the plaintiff.

Memorandum of decision on appeal from the action of the Board of Zoning Appeals of the City of Stamford, denying the appeal of the plaintiffs from the refusal of the building inspector to grant a building permit. CORNELL, J. Plaintiffs are co-partners in the business of instructing students in flying light seaplanes. For this purpose, they have leased a tract of land located on the east branch of Stamford harbor. The planes used by them are equipped with pontoons, and land on and take off from the adjacent harbor waters. When not in use they are stored on the grounds referred to. On April 9, 1941, plaintiffs applied to the building inspector of the City of Stamford for a permit to construct a railway to facilitate the movement of such planes from the land into, and onto it, from, the water. This, it was proposed, would consist of two rails with cross-bars between them laid on the surface of the leased land, extending from the mesne high water line to the channel. On April 10, 1941, the building inspector denied plaintiff's application. Thereupon, plaintiffs appealed to the Board of Adjustments or Appeals (hereinafter referred to as "the board"), under the provisions of paragraph 1 of section XV of the Zoning Regulations of the City of Stamford which authorise the board to "hear and decide appeals where it is alleged there is error in any order, requirement or decision made by the building inspector in the enforcement of [the} regulations." On June 4, 1941, the board advertised, and held, a hearing upon what they mistakenly considered to be plaintiffs' complaint, viz., an application that the body vary some requirement of the regulations under paragraph 11 of section XV of the Zoning Regulations, to permit construction of the mentioned railway, and under that misapprehension denied the same. Plaintiffs, on the erroneous assumption that the board had acted on such appeal, appealed to this court, stating their grievance to be the action of the board in sustaining the building inspector in his refusal to issue the building permit to them. When, during the trial, it developed that the board had not made any decision upon the subject-matter of plaintiffs' appeal to them but instead had denied them relief for which they had not applied, the court suggested that the proceedings suspend and that the board hear and decide the appeal preferred to them which was still pending before them. Counsel for the parties then orally stipulated in open court that (a) the Board of Appeals should forthwith call a meeting, preceded by due notice thereof to consider and determine plaintiffs' appeal from the refusal of the building inspector to issue the building permit applied for; (b) that in event that the board should sustain the action of the building inspector the plaintiffs should forthwith appeal from such decision to this court and, the defendant then waiving all formalities and procedural requirements, the matter should be brought to the attention of the same judge who presided over the trial so interrupted, who should hear it as soon as possible thereafter; and, (c) that at such hearing, the evidence already presented which was -addressed to the validity of the board's assumed action in sustaining the building inspector, should be received in so far as material and relevant on such appeal. The trial was then suspended and the court ordered the partially heard cause to remain on the docket awaiting further developments. Thereafter, at a meeting held by the Board of Appeals on March 4, 1942,'upon notice duly given, the board, after hearing had, denied plaintiffs' appeal from the refusal of the building inspector to issue to them the building permit in question. Prior to the 1941 session of the General Assembly, the Superior Court, conformably to the provisions of section 429 of the General Statutes, Revision of 1930, had jurisdiction of appeals from zoning boards of appeals, concurrently with "the Court of Common Pleas." Berigow vs. Davis, 116 Conn. 553, 556, 165 Atl. 790. The "Court of Common Pleas" therein mentioned meant each of the several courts of Common Pleas of which there was one in each of the counties of Hartford, New Haven, Fairfield, New London and Litchfield, and another in the Judicial District of Waterbury. All of these tribunals possessed purely local jurisdiction, territorially, being limited to the trial of causes in which one of the parties, at least, was a resident of a county or judicial district where such court was established. In an act passed at the 1941 session of the General Assembly (An Act Creating a Court of Common Pleas for the State of Connecticut. Conn. Public Acts, 1941, vol. 1, chap. 286, p. 869), section 429 of the General Statutes, supra, was amended as appears in section 50f of the 1941 Cumulative Supplement to the General Statutes, to provide that after July 1, 1941, all appeals from the doings of zoning boards of appeals should be taken to the court therein created, exclusively. In the face of this provision plaintiffs appealed from the decision of the board made March 4, 1942, to such Court of Common Pleas (hereinafter referred to as the "State Court of Common Pleas") holden in Fairfield County, which cause has been duly returned and now pends there. This done, counsel for plaintiffs and defendant entered into a stipulation in writing which they filed in this court. The purport of so much of this as is of immediate importance is (1) the parties are mutually desirous of having the issues decided in the Superior Court on their merits, unaffected by any merely procedural considerations; (2) in lieu of commencing a new proceeding by way of appeal to the Superior Court, the plaintiffs, with the consent of the defendant, are to file an amendment to the appeal taken from the action of the board of June 4, 1941 (that is, the instant appeal) and thereby present the same question of the validity of the action of the board of March 4, 1942, as if a formal appeal were taken therefrom to the Superior Court; that the cause then be proceeded with and decided in the same manner as if an appeal had been formally instituted; that if in view of the provisions of section 5 Of of the 1941 Cumulative Supplement to the General Statutes, it is determined by the Superior Court, or in event that its decision be appealed, then by the Supreme Court of Errors, that the Superior Court has jurisdiction to hear and determine the question, the appeal taken from the action of the Board of Appeals to the Court of Common Pleas shall thereupon be withdrawn; that if it shall be determined by the Superior Court, or in case of appeal from its decision, then by the Supreme Court of Errors, that the Superior Court is without jurisdiction, then the plaintiffs may pursue their appeal in the Court of Common Pleas unprejudiced by the proceedings in the Superior Court; that all of the testimony already presented in the trial thus far in so far as it may be material and relevant shall be considered in determining the question of the validity of the action of the Board of Appeals of March 4, 1942, each of the parties saving their rights under any exceptions taken to its admissibility. The plaintiffs then filed a "second count" containing allegations appropriate to an appeal from the decision of the board made March 4, 1942, together with various exhibits sufficient, with the evidence stipulated to be consulted, to permit a decision on the questions presented. The remaining subject matter of the stipulation need not be noticed. The imminent question, of course, is whether the Superior Court, in view of the provisions of section 5 Of of the 1941 Cumulative Supplement to the General Statutes, the effect of which is to confer exclusive jurisdiction of appeals from zoning boards of appeal on the State Court of Common Pleas, insti,'ituted after July 1, 1941, may entertain jurisdiction to determine the validity of the action of the board of March 4, 1942. The proceedings had concerning the matter as detailed, supra, must be regarded for all intents and purposes as an appeal therefrom under the provisions of section 429, supra. When the power of a court to hear and determine a cause is questioned, or doubt of it exists, that matter must be determined before it decides the merits. Palmer vs. Reeves, 120 Conn. 405, 410, 182 Atl. 138; Marcil vs. Merriman & Sons Co., 115 Conn. 678, 682, 163 Atl. 411; Woodmont Association vs. Milford, 85 Conn. 517, 524, 84 Atl. 307; Crandall vs. State, 10 Conn. 339, 365. In no case can the parties, by their mere stipulation, acquiescense or consent, confer jurisdiction of any cause upon any court. Marcil vs. Merriman & Sons Co., supra, p. 682; McDonald vs. Hugo, 93 Conn. 360, 364, 106 Atl. 347; Savings Bank, of Danbury vs. Downs, 74 Conn. 87, 89, 49 Atl. 913. These principles denote that if the amendment mentioned in Cum. Supp. (1941) §5Of, taking away the jurisdiction to hear and decide appeals from boards of appeal on zoning conferred upon the Superior Court by section 429, supra, is valid, the Superior Court may not determine the matter presented here, notwithstanding the mutual desire of the parties that it do so. The subject matter of section 50f is the condification of the provisions of section 63 of the Act creating the State Court of Common Pleas referred to, supra, and the question of its validity is inseparable from that of that legislation. The latter depends upon whether such Act was within the power granted the General Assembly in the State Constitution, to ordain and define the jurisdiction of inferior courts. Ordinarily, the constitutionality of a legislative act will not be considered unless it is pointedly raised "by someone whose rights will be directly affected. . " by it. Rindge vs. Holbrook, 111 Conn. 72, 76, 149 Atl. 231, and cases cited in opinion therein; and, then, only if such party has not become estopped to urge, or has not waived, it. Coombs vs. Larson, 112 Conn. 236, 245, 152 Atl. 297; Chudnov vs. Board of Appeals, 113 Conn. 49, 57, 154 Atl. 161, and cases cited; Appeals, 113 id. 49, 57, 154 Atl. 161, and cases cited; Lathrop vs. Norwich, 111 id. 616, 626, 151 Atl. 183. When, however, as here, the court's jurisdiction to hear and determine a cause is dependent upon the constitutionality or lack of it, of a statute, a decision concerning its validity in that respect is unavoidable. Here, it is directly suggested by the subject matter of the stipulation of the parties. In making such an examination, a court is enjoined "to approach the question with great caution, examine it with infinite care and make every presumption and intendment in its favor and to sustain it in the absence of a reasonable doubt of its validity." State vs. Muolo, 119 Conn. 323, 325, 326, 176 Atl. 401; State ex rel. Bush vs. Sixth Taxing District, 104 id. 192, 205, 132 Atl. 561; Baker vs. West Hartford, 89 id. 394, 398, 94 Atl. 383; State vs. Lay, 86 id. 141, 145, 84 Atl. 522; Beach vs. Bradstreet, 85 id. 344, 349, 82 Atl. 1030. This, to the end that the Act may be upheld so long as it may stand upon any theory not inconsistent with constitutional provisions or the principles which they express or imply. Antman vs. Conn. Light & Power Co., 117 Conn. 230, 237, 167 Atl. 715; Connelly vs. Deconinck, 113 id. 237, 240, 155 Atl. 231; Shelton vs. City of Shelton, 111 id. 433, 437, 150 Atl. 811; Conn. Light & Power Co. vs. Southbury, 95 id. 242, 247, 111 Atl. 363. Equally imperative, however, is the duty to view such a question forthrightly, without compromise with principles that arc fully as binding upon the court as they are upon the other departments of government, and unaffected by considerations of expediency or in the spirit of noblesse oblige. The Act in question introduced a novel and theretofore unknown feature into, and made a radical change in, the judicature of Connecticut. Until it became effective, the chief characteristics of this had been, a court of last resort on appeal, a single trial court of statewide jurisdiction and inferior courts consisting of county Courts of Common Pleas in five of the eight counties and a Court of Common Pleas having jurisdiction of territory embracing certain towns in New Haven and Litchfield Counties (the Court of Common Pleas of the District of Waterbury), together with city, town, borough and certain juvenile courts. The latter is a court of limited juris diction. All of the others had general jurisdiction limited in their respective original jurisdictions, pecuniarily in civil and in criminal matters to cognizance of minor offenses. By its provisions, the existence of the county Courts of Common Pleas and that established in the District Court of Waterbury was ended and there was created a State Court of Common Pleas with jurisdiction throughout the entire State, which was required to hold terms in all of the eight counties, inclusive of Middlesex, Windham and Tolland, in none of which last .named three had there been any court intermediate the local town or city tribunals or justices of the peace and the Superior Court since the County Courts were abolished in 1855. The Act provided for 14 judges who were put on circuit sitting in named places in the several counties and in the District of Waterbury according to allotments made at an annual meeting. In practically all respects the structure and characteristic features of this tribunal were identical with and, in general, the Act made it, in these respects, a replica of the Superior Court. Only in its jurisdiction of causes is there any material difference. The Act gives the court which it so creates exclusive jurisdiction in all civil actions demanding relief at law in amounts above $100 and not exceeding $2,500; in equity, in which the value of the matter or thing in demand does not exceed $2,500, and in causes claiming both legal and. equitable relief, where that separately and distinctly demanded is not in excess of $2,500, although there is ground for questioning whether the jurisdiction given while sitting in the District of Waterbury is other than not in excess of $2,500 concurrent with the Superior Court there. (Compare Cum. Supp. {1941} §808f with idem §8Ilf); also suits for the foreclosure of mortgages wherein the matter in demand does not exceed $2,500; in .all appeals from the doings of any municipal board, officer or commission, from the doings of the Liquor Control Commission and as, already noted, from boards of appeal on zoning; and while sitting in the territory embraced by the District Court of Waterbury, all appeals from assessments of 'benefits and damages made by the City of Waterbury or the Borough of Naugatuck. Unlimited jurisdiction concurrently with that of the Superior Court is conferred upon it in actions for the foreclosure of mortgages. In criminal matters, juris•diction was vested in it while sitting in the counties of New Haven,' Fairfield, New London and Litchfield to hear and •determine all causes appealed from any municipal court or justice of the peace and all cases charging non-support in which the accused is bound over to such court; likewise, while .sitting in the District Court of Waterbury, with respect to appeals from any town court or justice of the peace in any of the towns within the judicial district. The jurisdiction so described identifies the State Court of Common Pleas as a tribunal of general jurisdiction for the whole State, limited in criminal matters by the nature of offenses of which cognizance is bestowed on it and in civil matters in pecuniary •extent, only." Cinque vs. Boyd, 99 Conn. 70, 90, 121 Atl. 678. Unlike the constitutions of a great number of states, that •of Connecticut is construed "as a grant, and not as a limitation of power." Bridgeport Public Library & Reading Room vs. Burroughs Home, 85 Conn. 309, 319, 82 Atl. 582; Norwalk Street Railway Co.'s Appeal, 69 id. 576, 37 Atl. 1080, 38 id. 708. Accordingly, the whole judicial power vests in the judicial department; none resides in the General Assembly. Bridgeport Public Library & Reading Room vs. Burroughs Home, supra, p. 319; Norwalk Street Railway Co.'s Appeal, supra, 576. Having none, the Legislature can delegate the exercise of none to any court which it may create. The only power which it possesses as respects the judiciary is that conferred upon it in Article Fifth of the State Constitution. That, insofar as the creation of courts is concerned is limited to "inferior" tribunals only. And as respects these it can grant no powers or jurisdiction to them; it may only "define" these. Styles vs. Tyler, 64 Conn. 432, 452, 30 Atl. 165. As it is by virtue of the provisions of section 1 of Article Fifth that the General Assembly possessed the authority to ordain the State Court of Common Pleas, if any it had, resort must be had to the content of that Article to discover it. The text of Article Fifth as it appears in the Revised Statutes of 1875 and all revisions since then differs from the form in which it was submitted to the people for their acceptance or rejection in that the words "supreme court of •errors" and "superior court" as they appear therein are capitalized, and so treated as the titles of these tribunals whereas the same terms are not capitalized in that instrument as engrossed, authenticated by the president and clerks of the convention which framed it and as deposited with the Secretary (Journal of the Convention, pp. 71, 72), and as it appears in all of the revisions of the statutes up to that of 1875. To some extent, at least, it would appear that this departure from the exact context of the instrument, as adopted by the people enters into the controversy apparent in the opinion in Styles vs. Tyler, supra, which had not been stilled at the time Enfield vs. Ellington, 67 Conn. 459, 34 Atl. 818, was decided. The question assumed to be involved in the first mentioned case was whether the General Assembly possessed power to alter the jurisdiction rf the Supreme Court of Errors by requiring it to correct errors of fact as well as of law. The majority opinion, in the discussion, quoted Article Fifth of the Constitution in the form in which it appears in the revision of 1875 and in those since that time, in which the designation of the court of last resort by appeal is written "a Supreme Court of Errors", Styles vs. Tyler, supra, p. 442. That opinion, though not entirely predicating on the circumstances mentioned, is based on the assumption that that tribunal is not only created by the Constitution, but, also, that it is therein "established" and named and its jurisdiction defined, and that it is, in effect, therefore, the reincarnation of the "Supreme Court of Errors" ordained by the pre-constitutional General Assembly. On this reasoning, the name "Supreme Court of Errors" as employed in Article Fifth describes a court of'precisely the same character and jurisdiction as existed under the identical title when the Constitution was adopted. By the same token the term "a Superior Court" which occurs in the same context and relation in section 1 of Article Fifth signifies the tribunal of the same name in the judicature which preceded that created by the Constitution and by like logic it, too, is established, named and its jurisdiction defined as the same as that possessed by the tribunal of that title in such judicature. A like conclusion has been reached with respect to the Supreme Court of New York which, also, was created by a statute adopted by the colonial legislature and is held to have been incorporated into the judicature when the Constitution of that state was adopted. Decker vs. Canzoneri, 9 N.Y.S. (2d) 210, 214, 256 Appel. Div. 68, and cases collected in opinion. And see, Conger vs. Convery, 52 N.J.L. 417; Mott vs. Commissioners, 126 N.C. 866, 36 S.E. 330. While the conclusion reached here would be the same on either theory, it is believed that the character and distinctive features of a court are to be determined from its place in the judicature of which it is a component element rather than from its name alone. This in so far involves a departure from the premise adopted in Styles vs. Tyler, supra, that the words'" "a supreme court of errors" and "a superior court" as they appear in section 1 of Article Fifth are names of courts and the adoption of the premise in its stead that such language is descriptive of the types of tribunal which the General Assembly is required to establish. This, it is believed, bears close fidelity to the text of Article Fifth, which in its adopted form (Journal of the Convention, p. Ill) is as follows: ARTICLE V. OF THE JUDICIARY DEPARTMENT Section 1. The judicial power of the state shall be vested in a supreme court of errors, a superior court, and such inferior courts as the general assembly shall from time to time, ordain and establish: the powers and jurisdiction of which courts shall be defined by law. Sec. 2. There shall be appointed, in each county, a sufficient number of justices of the peace, with such jurisdiction in civil and criminal cases as the general assembly may prescribe. Sec. 3. The judges of the supreme court of errors, of the superior and inferior courts, and all justices of the peace, shall be appointed by the general assembly, in such manner as shall by law be prescribed. The judges of the supreme court, and of the superior court, shall hold their offices during good behavior; but may be removed by impeachment; and the governor shall also remove them, on the address of two'thirds of the members of each house of the general assembly; all other judges and justices of the peace shall be appointed annually. No judge or justice of the peace shall be capable of holding his office after he shall arrive at the age of seventy years. Under this section of the Constitution, the judicial power of the State is vested in courts of the characters named therein, that is, a Supreme Court of Errors, and a Superior Court, together with such others as the General Assembly is empow' ered to create from time to time. Brown vs. O'Connell, 36 Conn. 432, 446; Styles vs. Tyler, supra, pp. 449, 450; Norwalk Street Railway Co.'s Appeal, supra, 576, 583; Bridgeport Public Library & Reading Room vs. Burroughs Home, supra, 309, 319; Ansonia vs. Studley, Judge, 67 Conn. 170, 177, 34 Atl. 1030. The power of the General Assembly to ordain and establish courts in addition to those of the characters specifically described is subject, however, to the limitation that such tribunals be "inferior" to' the Superior Court. . La Croix vs. Commissioners, 49 Conn. 591, 596; Styles vs. Tyler, supra, 432, 452, id. (dissenting opinion), p. 468; Ansonia vs. Studley, Judge, supra, 170, 177. The term "inferior courts" is one that appears quite generally in state constitutions and in the organic .law of territories, but nevertheless, admits of no general or /'comprehensive definition; This is due to the fact that the provisions contained in such constitutions and in the congressional acts creating territories differ from each other to so .great an extent in substance and. phraseology, that it is not inconceivable that a court may be inferior to another in one or more respects while co-equal with it in others. In consequence courts which have had occasion to deal with the subject have been content to determine only that phase of the matter presented to them, and to abstain- from rationalisation beyond the needs of the instant problem. This is true, also, in Connecticut. The term "inferior courts" admittedly includes "the Courts of Common Pleas, the District Court of Waterbury, and the town, borough, city and police courts." Alcorn, State's Attorney vs. Fellows, 102 Conn. 22, 30, 127 Atl. 911. But neither in the opinion quoted from nor in any other has any common criterion been furnished by which it may be determine what constitutes an inferior court within the meaning of section 1 of Article Fifth of the State Constitution. Thus it has been said that a county criminal Court of Common Pleas is an inferior court, established by the Legislature, State vs. Campane, 76 Conn. 549, 57 Atl. 164; that a county Court of Common Pleas "is so far inferior to the Superior Court that a writ of mandamus may be issued by that court to the Court of Common Pleas which it would be the duty of the latter court to obey." Ansonia vs. Studley, Judge, supra, 177; that a county Court of Common Pleas is amenable to a writ of prohibition issued against it by the Superior Court, though the jurisdiction to issue it derives from statute. Fayerweather vs. Munson, 61 Conn. 431, 439, 23 Atl. 878; Sherwood, Rec. vs. New England Knitting Co. et al., 68 id. 543, 548, 37 Atl. 388; and during the period when appeals were required to be taken from the county Courts of Common Pleas to the Superior Court where they were tried de novo, such county Courts of Common Pleas were said to be "inferior", to the Superior Court, in the sense that their judgments might be annulled as a result of a retrial in the latter court. LaCroix vs. Commissioners, supra. Nothing said in the opinions in any of these cases' is of assistance in resolving the instant question, which is: whether within the meaning of section 1 of Article Fifth of the Constitution a court of general, though limited, jurisdiction at law and in equity throughout the State is an inferior court which the Legislature may "ordain and establish." The standard by which it is to be determined whether this is so or not are the powers and jurisdiction of "a superior court" for it is by comparison with that, as a trial tribunal* that the relative inferiority of such -a tribunal is to be gauged. LaCroix vs. Commissioners, supra, p. 496; Styles vs. Tyler, supra, p. 452, id. p. 468; Ansonia vs. Studley, Judge, supra, p. 177. Certain distinguishing features possessed by a "superior court" as connoted by the tribunal established in fulfillment of the requirement that there shall be such a court (that is, the Superior Court) which contrast with those of "inferior courts", may be noticed. Among these is that of its permanence. Referring to section 1 of Article Fifth of the State Constitution: "Undoubtedly this provision requires that there shall always be in the State, two courts, one known as a Supreme Court of Errors, and one as a Superior- Court. Undoubtedly, also, the Supreme Court of Errors must always be the court of last resort for the correction of errors of inferior judicial tribunals and the Superior Court must be a court of superior jurisdiction to such inferior courts as may from time to time be established." Styles vs. Tyler, supra, p. 468. (Dissenting opinion of Judge Baldwin.) By contrast, inferior courts, as creatures of the Legislature are inherently impermanent, since "one legislature cannot control the exercise of the powers of a succeeding legislature." Preveslin vs. Derby & Ansonia Developing Co., 112 Conn. 129, 140, 151 Atl. 518. Another of its characteristics is its universality. It is one court throughout the State. Fine vs. Wencke, 117 Conn. 683, 684, 169 Atl. 58; Mower vs. State Department of Health, 108 id. 74, 77, 142 Atl. 473; Allis vs. Hall, 76 id. 322, 327, 56 Atl. 637; Smith vs. Hall, 71 id. 427, 42 Atl. 86; Styles vs. Tyler, supra, p. 450. No such quality attaches to inferior tribunals. Yet another feature by which it is characterised is that as a court of law it "is a court of general jurisdiction." Ansonia vs. Studley, Judge, supra, p. 177; Cocking et al. vs. Greenslit, 71 Conn. 650, 651, 42 Atl. 1000. This applies not only to the amount of damages demanded or the value of the matter or thing in demand (Cocking et al. vs. Greenslit, supra, p. 651; Town of Bridgeport vs. Blinn, 43 Conn. 274), but, also, to the character of the alleged wrong and proceedings to remedy it, State ex rel. Morris vs. Bulkeley, 61 Conn. 287, 374, 23 Atl. 186; and to criminal, as well as civil matters. Crandall vs. State, supra, p. 365; State vs. Gorham, 11 Conn. 233; State vs. Carroll, 97 id. 598, 600, 117 Atl. 694; State vs. Chin Lung, 106 id. 701, 719, 139 Atl. 91, and see, State vs. Elbert, 115 id. 589, 599, 162 Atl. 769; Perell vs. Warden of State Prison, 113 id. 339, 343. In their very nature, inferior courts cannot possess this attribute" since their jurisdiction rests .with the General Assembly, subject to constitutional limitations. The question whether the State Court of Common Pleas is an "inferior court" within the meaning of section 1 of Article Fifth of the Constitution presents itself in two different aspects, each of which involves the exercise of distinct powers delegated to the General Assembly. One of these relates to the authority reposed in the legislative branch to define the powers and jurisdiction of inferior courts validly created by that body; the other refers to the power to ordain courts. Since the answers to both of these require an interpretation of the Constitution they pose judicial questions. State vs. Main, 69 Conn. 123, 127, 128, 37 Atl. 80; Preveslin vs. Derby & Ansonia Developing Co., supra, p. 144. The quest is the sense in which the framers of the Constitution employed the term "inferior courts" as it appears in the context of section 1 of Article Fifth. Water Commissioners vs. Curtis, 87 Conn. 506, 509, 89 Atl. 189. The meaning to be sought is that which the language was intended to have when the Constitution was framed and adopted (Borino vs. Lounsbury, 86 Conn. 622, 627, 86 Atl. 597), in its then established significance. Styles vs. Tyler, supra, p. 450. The Constitution (Article Second) divides the powers of government into three distinct departments—legislative, executive and judicial—and confides each to a separate magistracy. The legislative (Article Third) vests in a then unorganized General Assembly; the executive (Article Fourth) in a then unelected governor, and the judicial (Article Fifth) in a then unestablished judiciary. The instrument describes the character and composition of the bodies which together shall make up the General Assembly and exercise, when its membership is chosen, the legislative power. Palpably, a House of Repre sentatives and Senate were not created as ends in themselves, but only as they constitute the agencies by which the legislative power may be exercised. Similarly, the intention of Article Fifth is not primarily the creation, or the making of provision for the ordination, of courts. The obviously principal purpose is the creation of a judicature to receive and hold and which, when established, shall administer the judicial power of the State. Courts, as such, enter into this design only as they are instrumentalities essential to the exercise of such power. 14 Am. Jur. §3, p. 248. Article Fifth, however, is more than architect of the structure which it'designs to house the deposit of judicial authority. It creates "a supreme court of errors" and "a superior court" (Dexter Yarn Co. vs. American Fabrics Co., 102 Conn. 529, 538, 129 Atl. 527), and thereby builds into the edifice two elements which give it that form and character which is the realization of the constitutional conception. In this view the term "superior court" is not the name of a tribunal but the description of one of a character connoted by the adjective "superior." The establishment of such a court was an act that could only be performed by the General Assembly. "It is by legislative enactment alone that courts with their constituent elements of time, place and officers arc brought into actual and real existence as contra-distinguished from their existence solely under constitutional provisions." 14 Am. Jur. §21, p. 255; White County vs. Gwin, 126 Ind. 562, 577, 36 N.E. 237, 22 L.R.A. 402; and see, Alcorn vs. Fellows, supra, p. 29. The Constitution was adopted by the people at an election held on the first Monday of October, 1818, and at the session of the General Assembly convened immediately afterward in that month and year "a superior court" since known as the Superior Court was established. This was accomplished by the passage of an act' entitled "An Act Constituting and Regulating Courts" (October Session, 1818, Chapter I) which, in substance, reduced the number of judges comprising the bench of the pre-constitutional, superior court so that after "the first day of June next", ilj should consist of one chief judge and four assistant judges td be appointed for that purpose, who as a body should, also, constitute the Supreme Court of Errors (§1); and providing (§3) that the sessions of the Superior Court should be held at such times and places as "now by law provided" but by a single judge only. Public Acts of Connecticut, 1808-1820, p. 311. The characteristic features of "a superior court" as that designation is used in Article Fifth are not those connoted by such words in any abstract Sense, but, such as derive from their presence in the judicature of which a court of that description is made an essential part. Quite obviously, the-judicature created in Article Fifth is the replica of that which existed when the Constitution was adopted. That, too, was-composed of a Supreme Court of Errors, a Superior Court and inferior tribunals consisting of county, town and city-courts and justices of. the peace. In every material particular,, the judicature visualized in Article Fifth is identical with that of immediately preceding pre-constitutional days which under, the government inaugurated pursuant to that instrument is-succeeded. The meaning of "a superior court" as it is used in section 1 of Article Fifth and the character and distinctive features of such a tribunal are to be found in that judicature of which it is a counterpart. "We are bound to interpret the-constitution in the light of the law as it existed at the time it was adopted...." State vs. Gaetano, 96 Conn. 306, 311, 114 Atl. 82. The judicature as it was when the Constitution became effective was completed when it was provided that the Supreme-Court of Errors after the June, 1807, session of the General Assembly should consist of "the judges of the Superior Court, for the time being" (Statutes'of Conn., 1808, Chapter XIV,. p. 218, entitled "An Act in further addition to and alteration of an Act for constituting and regulating courts", enacted' in 1806) instead of the "Governor, Lieutenant-Governor and Council" as was the case when it was originally created in 1784. Statutes of Conn. 1796 ("An Act for continuing' and regulating courts and appointing the Times and Places for holding the same") §19, p. 127. A superior court, however, had been in existence in that judicature under that designation since May 10, 1711 and a tribunal occupying a similar place in a judicature identical therewith, known as the Court of Assistants, which- such Superior Court succeeded, since the grant of the Charter of Charles II in 1662. The description of the character of this tribunal contained in Colonial Records; of Connecticut, vol. 5, pp. 238, 241, is that it shall be "a Superior Court of Judicature over the Colony.Its jurisdiction of causes was stated to embrace "all pleas, real, personal or mixt, as well as all pleas of the crown and all matters relating to the conservation of the peace and punishment of offenders, as civil causes, or actions between party and party, and between her Majestie or any of her subjects, whether the same do concern the realty and relate to any right of freehold and inheritance, or whether the same do concern the personalty and relate to matter of debt, contract, damage or personal injury; and also all mixt actions which concern both realty and personalty brought before them by appeal, review, writ of error or otherwise, as the law directs; (and generally of all other matters, as fully and amply to all intents and purposes whatsoever) as the court of assistants in this Colony heretofore might or could have; and are hereby impowred to give judgment therein and award execution thereon." The jurisdiction of causes exercised by the Court of Assistants to all of which the Superior Court thus succeeded was as follows: "... .unto wch said Courts shalbe liberty of appeals from ye respective County Courts. Wch said Courts of Assistants are impowred to heare and determine such appeales as shalbe orderly presented as before. And likewise all Capitall Crimes respecting life, limb or banishment shalbe tried at those said Courts of Assistants." Appeals lay from this tribunal to the General Assembly, "wch appeale shal come only and immediately from the Court of Assistants vpon the issue there made." And ".... in all appeales to ye Court of Assistants, the trialls there shalbe by a Jury if the nature of the case require... . " and ".... in appeales no evidence shalbe considered but such as have been presented at ye county Court." Colonial Records of Connecticut, vol. II, pp. 28, 29. To the powers and jurisdiction of the colonial Superior Court as so conferred upon it and as they descended to it from the Court of Assistants, were specifically added, that of issuing the Writ of Prohibition against "... . any other court held within the colony [which] do exceed their jurisdiction", and to render judgment in such a proceeding, ".... as fully, absolutely and intirely as the Court of King's Bench in that part of Great Britain called England by law may do"; Col. Rec., vol. VIII, pp. 360, 361; also in adultery with trial by jury or otherwise. Col. Rec., vol. XIII, p. 296; and in equity which theretofore had been exercised by the General Assembly, only, where the matter or thing in demand exceeded 100 pounds and did not exceed 400 pounds. Col. Rec., vol. XIV, p. 329. In the judicature as it was whe.n, and had been for almost one hundred and ten years before the Constitution was adopted, the character and distinctive features of "a superior court" are unmistakable. Aside from its greater prestige it was dis' tinguished from all others in. that (1) its jurisdiction of causes was general and embraced all in both criminal and civil mat' ters either original or by appeal from the county courts (to which latter courts appeals came from the judgments of justices of the peace and from town courts); (2) it was the only court in the judicature whose jurisdiction included the entire colony under the Royal Charter," and the whole State after the Declaration of Independence was proclaimed. Nor was this position in the judicature of the near pre' constitutional period a merely adventitious one. The essen' tial features of the judicature as it was when the Constitution became the organic law of the State were identical with those which marked it without deviation at any time, from 'the earliest beginnings of government in Connecticut. Until the colony, in company with the other 12, severed its political ties with Great Britain upon the proclamation of the Declara' tion of Independence, its affairs were at all times administered by an elective representative body. This during the period following the adoption of the Fundamental Orders on January 14, 1638, and ending with the acceptance of the Charter of Charles II, in 1662 was the General Court; under the Royal Charter, from 1662 until within October, 1776, it was the General Assembly and, thereafter, until the State Constitution was adopted in 1818, a like body of the same name which as' sumed to exercise authority like unto that conferred upon the General Assembly described in the Royal Charter even after that had been repudiated and, equally, without any sanction from the people except as may be inferred from their suffer' anee and acquiescence. In these several representative bodies throughout the entire period from 1638 to 1818, the complete nower of the State—legislative, executive and judicial—re' posed, and was by them exercised. The government, during all this time was a government of men—even though chosen by the people—and at times betrayed all of the tyranny which the possession of absolute power and the despotism ever as' .sociated with concentrated authority unlimited by organic law, has never failed to produce. The yearnings of the people for a government of law—or, at least, of men restrained by law—first shown by guessing flashes of timid Teachings and later by conceptualism translating into shaping policy for an orderly administration of the judicial power was reflected in a- tendency manifested by the General Court and continuing to assume more definite form as time passed in the policies of the representative assemblies which succeeded it, to delegate more and more of their judicial functions to bodies which they called courts. Throughout the whole period, however, while occasionally interfering directly, the General Court in its time and the General Assemblies thereafter, until the creation of the Supreme Court of Errors in its original form in 1784, reserved the exercise of the power to set aside and modify the judgments of the trial courts, to themselves. In this, they played the role of a court of final resort by appeal from what may be called the state trial court. This latter, in the days preceding the acceptance of the Charter of Charles II was known as the Particular Court and was established practically coincidentally with the adoption of the Fundamental Orders. Its jurisdiction of causes is difficult of definite ascertainment in extant records but according to historians of the period was broad. Below it were courts established in such communities as were organized as towns and justices of the peace. The same function was performed by a body called the Court of Assistants when the Royal Charter became the organic law—• and continued to be until it was succeeded by another described as a Superior Court in 1711. The judicature as it was when the Constitution was adopted was complete with the establish-neat of the Supreme Court of Errors in the form in which it was constituted in 1806. Thus, almost from the day that the separatists from the Massachusetts Bay Colony met to adopt Hooker's plan for self-governing commonwealth, the developing dicature followed a uniform plan, the chief and distinguishing characteristic of which was—one trial court of legal and, Ia"'r of both legal and equitable causes, of general jurisdiciion throughout the whole state; above it a court of final resort on appeal; and below it, courts having general, though restricted jurisdiction, civil and criminal in the local political s"i'-divisions where they had been established. On the preike stated, supra, that the judicature created in Article Fifth f 'he Constitution incorporates the distinctive features of the b'dicature existing when it was adopted, and that the term "a •i p 'rior court" therein signifies a tribunal of essentially'the r; e character and occupying the same position in the judica- " as in that which it succeeded, it is manifest that it de- 'bes a court of general jurisdiction for the whole State, 1 the only court of that ran\, and possessing these two fea tures in combination, in the judicature. The mere circumstance, in itself, that a constitution requires that there shall be a court of such grade and character in the judicature created by it does not necessarily preclude the presence of power in the legislature to ordain others of the same rank and identical jurisdiction of causes and in territory. But its authority in this respect derives from, and is limited by, the Constitution. Where such broad power is conferred, the state constitution usually vests it in a supreme court, one or more designated trial courts and such "other courts" as the legislature may create. Under provisions of such purport, it is held that the legislature is authorised to ordain such tribunals as it may deem desirable, the jurisdfc' tion of causes and in territory of which may be equal to any of the named courts except that of the Supreme Court. White County vs. Gwin, etc., 136 Ind. 562, 573, 36 N.E. 237, 22 L.R.A. 402; Mills vs. Brown, 31 Utah 473, 477, 88 Pac. 609, 120 Ann. St. Rep. 935; Woods vs. McCoy, Treas., 144 Ind. 316, 321, 322, 43 N.E. 269, 33 L.R.A. 97; Heirs of Ludlow vs. Johnston, 3 Ohio 553, 563, 17 Am. Dec. 609; Commonwealth ex rel. Attorney General vs. Hipple, 69 Pa. St. 9; Gottschall vs. Campbell, 234 Pa. St. 347, 351, 83 Atl. 286. So, also, where the constitutional provisions name or describe a court which shall be the supreme court and one or more trial courts in which the judicial power shall vest and empower the legis' lative body to create courts "inferior" or "others inferior" to the supreme court, as it may determine, it is the concensus of authority that the only limitation upon the exercise of such power is that the tribunals created be inferior to the supreme court. Within the bounds of such a delegation the legislative body may ordain any number of cqurts which it may deem necessary, any one or more of which may Be equal in jurisdiction of causes and territorially to any of the tribunals named or described in the constitution. Clark vs. Black, 136 Ga. 812, 815, 72 S.E. 751; Morris vs. Bunjan, 58 Kans. 210, 212, 48 Pac. 864; Burks vs. Walker, 25 Okla. 353, 356, 109 Pac. 544; State vs. Fuller, 147 Ala. 164, 171, 41 So. 990; Woods vs. McCoy, Treas., 144 Ind. 316, 321, 43 N.E. 269, 33 L.R.A. 97; Ex Parte Lothrop, 118 U.S. 113, 118, 30 L. ed. 108, 6 Sup. Ct. 984. But see, Rhyne vs. Lipscombe, 122 N.C. 650, 652, 653, 29 S.E. 57; Tate vs. Commissioners, 122 N.C. 661, 663, 665, 29 S.E. 60; Mott vs. Commissioners, 122 N.C. 866, 875, 876, 36 S.E. 330, and Jones vs. Standard Oil Co. of N. J., 202 N.C. 328, 334, 162 S.E. 741. Where, however, the constitution vests the judicial power, as does that of Connecticut, in a supreme court, a superior court, justices of the peace and such inferior courts as the legislature may create, the legislative body is without authority to create any court equal in rank with or such as infringes upon the jurisdiction and powers of the "superior court." State ex rel. Fugita vs. Milroy, etc., 71 Wash. 592, 120 Pac. 384; State ex rel. Lytle vs. Superior Court, 54 Wash. 378, 384, 103 Pac. 464; State ex rel. Rogers vs. Burton et al. (State vs. LaCross County Judge), 11 Wis. 50, 54; Conger vs. Convery, 52 N.J.L. 417, 443; People ex rel. Swift vs. Luce, 204 N.Y. 478, 99 N.E. 850, Ann. Cas. 1913c, 1151; Sill vs. Village of Corning, 15 N.Y. 297, 299, 300; Decker vs. Canzoneri, 9 N.Y.S. (2d) 210, 214, 215, 256 Appel. Div. 68; and see, State vs. Eychaner, 41 N.M. 677, 678, 679, 73 Pac. (2d) 805; same title, 41 id. 683, 73 Pac. (2d) 809. The conclusion is that the provisions of Article Fifth, in providing that the judicial power shall vest in part in a "superior court" means that there shall be in Connecticut but one and only one trial court of general jurisdiction of causes having territorial jurisdiction throughout the entire State. Smith vs. Hall, 71 Conn. 427, 431; State ex rel. Lytle vs. Superior Court, 54 Wash., supra, p. 384 (where the Constitution made the counties the judicial units and provided for "a .superior court" in each of them and it was held that the legislature was without power to create an additional superior court in any of them). The opinion in Sill vs. Village of Corning, 15 N.Y. 297, 299, 300, is very much in point in support of the conclusion stated. The constitution interpreted therein described the Supreme Court of that state as one of general jurisdiction at law and in equity. This tribunal occupied the same relative position in the judicature of New York as "a superior court" does under the Connecticut Constitution—that is, that of a trial tribunal of general jurisdiction throughout the whole State. Fine vs. Wencke, 117 Conn. 684; Mower vs. State Department of Health, 108 id. 77; Allis vs. Hall, 76 id. 327; Smith vs. Hall, 71 id. 427; Styles vs. Tyler, 64 id. 450. Of the character of such Supreme Court and its status in the judicature created in that constitution (p. 299) it was said: "I am of the opinion that the provision respecting the higher courts whose jurisdiction pervades the whole state is exclusive in its character and that no other courts of the same character can be added by the legislature. . " This was -followed and emphasised in People ex rel. Swift vs. Luce, 204 N.Y. 478, 486, 487, 99 N.E. 850. See, also, Landers vs. Staten Island R.R. Co., 53 N.Y. 450, and People ex rel. Ryan vs. Green, 58 N.Y. 295, 300. Specifically, it is held that under a constitution containing such provisions, "the legislature was without power to create a new court with statewide jurisdiction." People ex rel. Swift vs. Luce, 204 N.Y. 478, 486, 487; Decker vs. Canzoneri, 9 N.Y.S. (2d) 210, 214, 215, 256 Appel. Div. 68. However, the conclusion that the General Assembly is without power to ordain a court of general jurisdiction territorially co-extensive with the state boundaries need not rest alone on the historical or legal conclusions stated ante. The proceedings of the Convention which framed the Constitution disclose that a provision in substitution for section 1 of Article Fifth under which the general Assembly would have possessed power to create such courts as it might please, inferior only to "a supreme court of errors" was rejected. The draft of Article Fifth submitted by the committee charged with preparing it was presented for consideration on September 9, 1818 (Journal of the Convention, p. 39) and with the exception of the differences in capitalisation and punctuation as noted supra, read as finally adopted. At the session of the Convention held on September 15, 1818 (Journal of the Convention, p. 67), one of the delegates moved "....to amend the 1st section of the Fifth Article by striking out the words, of errors, a superior court" and to insert in lieu thereof the words "which shall consist of a chief judge and not more than four other judges." Had this proposed amendment prevailed, section 1 of Article Fifth would have read as follows: "The judicial power of the state shall be vested in a supreme court of errors which shall consist of a chief judge and not more than four other judges and such inferior courts as the General Assembly shall from time to time ordain and establish. The powers and jurisdiction of which courts shall be defined by law." Under such a provision, as previously noted, the relative inferiority of the courts which the General Assembly would have been authorised to create would be gauged by comparison with that established as a "supreme court of errors" instead of that of "fi superior court" and would, hence, include all of the trial courts. As the power of the Legislature concerning the necessity for such courts as it creates within the limits of the authority conferred upon it, is plenary, the General Assembly, under such a delegation of power, could ordain any number of tribunals which it might elect, confer upon them such powers and jurisdiction as it might see fit and among them create any number of courts of equal rank and grade and of statewide jurisdiction. The only limitation would have been that such tribunals be inferior to a supreme court of errors. The issue presented to the Convention by the offer of the amendment quoted, plainly left it to that body to determine whether the Constitution which they were formulating should repose in the General Assembly complete authority to deter' mine the character of the courts, as well as their powers and jurisdiction, which should compose the judicature under it or whether its power should be limited to the creation of such tribunals only as should be inferior to "a superior court." The proposed amendment was rejected and the design of the judff cature left it as it was in the original draft submitted to the Convention, which is as it appears in the Constitution as quoted supra. This, as is evident, provides for one State trial court, only (i.e. "a superior court") and reposes in the Legislature the power to ordain only such tribunals as are inferior to that. Implementing the provisions of section 1 according to the interpretation given it here, are the provisions of section 3 of Article Fifth. Therein it is provided that: "The judges of the Supreme Court of Errors of the superior and inferior courts and all justices of the peace shall be appointed by the General Assembly, in such manner as shall by law be prescribed." None of the amendments made to Article Fifth since the Constitution was adopted affect it in so far as the instant ques' tions are concerned, and so are not noticed. Under this sec' tion, the Legislature is authorised to prescribe the number of judges who shall compose the bench of "a superior court" from time to time, as well as to provide for the manner in which they shall be named. The power to increase or decrease and thus to regulate the number of these according as the demands upon the court expand or contract manifestly ob' viates all necessity for the creation and establishment of an' other court of the same character or jurisdiction. It has been held that the presence of such authority in the legislature as it respects a court created in a constitution deprives the legis' lature of the power to create a court additional to such con' stitutional tribunal in the same territory and restricts it to the appointment of additional judges to such constitutional court if the increase of litigation requires a greater number of court sessions. State ex rel. Lytle vs. Superior Court, 54 Wash. 384, and see, Rhyne vs. Lipscombe, 122 N.C. 658, 659. No other conclusion seems admissible than that in creating "a superior court" in section 1 of Article Fifth, the Constitution intends that such tribunal shall be one of general jurisdiction of criminal and civil causes at law and in equity throughout the whole State and that it shall be the only court of that character in the judicature; and that by the same token and necessary implication "such inferior courts" as the General Assembly is empowered to ordain and establish shall be solely such as the jurisdiction. of which, territorially, shall be local, only, as for example, restricted to a county, town or district where the tribunal is established. The State Court of Com' mon Pleas created in the act in question purports to be a court of • general and statewide jurisdiction and as such a counterpart of "a superior court." The fact that it is given a different name cannot change its character. Rhyne vs. Lipscombe, 122 N.C. 657. "It certainly was not contemplated that the legislature should be empowered to create any similar courts though with different names." People ex rel. Swift vs. Luce, 204 N.Y. 487. It differs from a superior court in its powers only in that its exclusive jurisdiction of the causes of which it is given cognizance is limited in the amount of damages demandable in actions at law and in the value of the matter or thing in demand in equity to $2,500. In its ex' elusive jurisdiction of appeals from zoning boards of appeal; i'from the Liquor .Control Commission and all appeals from the doings of any municipal board, officer or commission it exercises powers touching some of the most important matters which may be presented to any court while its exclusive juris' diction in foreclosures up to and inclusive of $2,500 and its unlimited concurrent jurisdiction in such actions above that figure encompasses the entire field of important causes of that ,kind. A court of this character is not an "inferior court" (within the intendment of section 1 of Article Fifth of the ¡Constitution and the General Assembly was hence without power to ordain and establish it. It follows that the act entitled "An Act creating a Court of Common Pleas for the State of Connecticut" (Conn. Public Acts, 1941, vol. 1, chapter 286, p. 869) is void in all of its provisions. The State Court of Common pleas for which it provides never, therefore, came into legal existence. There can be no such thing as a de facto court. Norton vs. Shelby County, 118 U.S. 425, 30 L. ed. 178, 6 S. Ct. 1121. It is evident, however, that the intention of the Act was not to terminate, in any event, the existence of the several Courts of Common Picas or that established in the District Court of Waterbury which existed when it was passed. The legislation makes it clear that the repeal of the statutes ordaining, establishing and constituting these was incidental only to the creation of the State Court of Common Pleas. Under such circumstances, since this essential objective of the Act failed of its purpose because of its unconstitutionality, those provisions in it which provide for the repeal of the statutes creating the several Courts of Common Pleas and all others relative thereto are ineffective. "Ordinarily where one statute specifically repeals another and attempts unconstitutionally to provide a substitute, the provision of repeal will fall with the act of which it is a part. The question in every case is whether the legislature intended that the repeal should take effect in any event; that is whether the repeal provision is severable." 102 A.L.R. Annotation, p. 803. '"Unless it employs language showing an intent to repeal in any event and irrespective of its unconstitutional provisions, an act which is invalid, or unconstitutional and void or inoperative does not repeal another valid act. . . .So where an act expressly repealing another act and providing a substitute therefor is found to be invalid, the repealing clause, must, also, be held to be invalid, unless it shall appear that the legislature would have passed the repealing clause even if it had not provided a substitute for the Act repealed." 59 C.J. §552, pp. 939, 940. To same effect, 25 R.C.L. §166, p. 913. This is, also, true of invalid repeals by implication. 59 C.J., supra. This, notwithstanding the provisions of section 6568 of the General Statutes, Revision of 1930, which palpably apply only to valid repeals. The courts in question, it follows, remain existent as functioning tribunals as they were before the passage of the Act and competent to exercise such jurisdiction as had then been validly conferred upon them. Patently, the rules quoted apply to section 5 Of of the 1941 Cumulative Supplement to the General Statutes which affects- to deprive the Superior Court of jurisdiction of appeals from zoning boards of appeal by amending section 429, supra, as contained in section 63 thereof. It follows that section 429, supra, re' mains as it was when the Act- in question was passed and that the Superior Court at all times since then had and now has jurisdiction, to hear and determine the issues involved in the instant proceeding. The foregoing is concerned with the power of the General Assembly to ordain a court of the same character, or one having its identifying features, as that of a superior court. The remaining question—which, if the conclusions reached supra, are sound, becomes academic-—is, whether, on the assumption that the Legislature had power to create the State Court of Com' mon Pleas, it, also, possessed authority, in defining the powers and jurisdiction of such a tribunal, to exclude a superior court from jurisdiction of appeals from zoning boards of appeal. There are two situations in either of which, if it existed, the General Assembly would have such power. Neither of them obtain under the Constitution of Connecticut. The first would assume that the general jurisdiction of a superior court is conferred by .the Constitution but would hypothesize that, since appeals from zoning boards of appeal are of statutory origin, such a proceeding may be made cognizable by any court which the Legislature may designate; the second would theorize that even though an appeal from the doings of a Zoning board of 'appeal is such a proceeding as falls within the cognizance of a court of general jurisdiction, nevertheless, the General Assembly possesses power to define what portion of the whole judicial power a superior court may exercise and' in the performance of that function may exclude it from juris' diction of such a proceeding. As concerns the first, there is this statement to which some of the cases subscribe: "Where the legislature creates special statutory proceedings involving rights previously unknown to law and equity and providing remedies therefor, the legislature may confer jurisdiction there' of on any court to the exclusion of others.... but it cannot in doing so take away the constitutionally protected jurisdiction of other courts in so far as it is applicable to the con' troversy involved." 21 C.J.S. §122, p. 187; Grimes vs. Department of Public Instruction, 324 Pa. St. 371, 377, 378, 188 Atl. 337. The expression quoted apparently rests upon the distinction which some courts make between jurisdiction of causes and proceedings known to the common law and those invented by legislatures for special purposes and which are hence, unknown to the common law. Ashlock vs. Ashlock, 360 Ill. 115, 121, 195 N.E. 657. It predicates on the conception that the general jurisdiction with which a court created by a state constitution is invested, means general jurisdiction, only, of causes at common law. The premise is not accepted in Connecticut. In this State, the principle of the common law that the courts afford a remedy for every wrong, is applied. When necessity arises for the intervention of the courts and there is no procedure of conventional character available to serve the exigency, the judicial function will not on that account, be frustrated—it will take cognizance of the wrong and prescribe a remedy appropriate and effective to enjoin its continuance or redress its consequences. But the pertinent consideration here is that the tribunal exercising jurisdiction under such circumstances is a superior court, because: "The Superior Court of this state, as a court of law, is a court of general jurisdiction. It has jurisdiction of all matters expressly committed to it and of all others cognizable by any law court of which the exclusive jurisdiction is not given to some other court. The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction over that matter." State ex rel. Morris vs. Bulkeley, 61 Conn. 374. The "right" involved in an appeal from a zoning board of appeal is one recognized by the common law. It has to do with one of the attributes which attend the ownership or possession of real property in the special aspect of interference with its use by public authority in administration of the police power. The jurisdiction of such a dispute, in Connecticut, is in a superior court. If this would not otherwise be so, it came to be there because that tribunal was created as a court of general jurisdiction. That character it acquired as held supra, because it occupies the same place under the constitution as the court which it succeeded did in the pre-constitutional - era. Specifically, this latter tribunal was vested with jurisdiction "of actions.... between her majestie or any of her subjects... .whether the same do concern the realty. . .or whether the same do concern the personalty. ." (Col. Rec., vol. 5, pp. 238, 241)— a plain delegation of power to determine the rights of individuals as against the sovereign. The jurisdiction to decide causes between persons and the State thus inheres in the Superior Court created by the Constitution in full measure as it existed in its predecessor of pre-constitutional days. It has been so frequently recognized that no citation of authorities is necessary. The right involved is that of freedom from the unwarranted aggressions of public officials in enforcing the police power. The test of its violation is whether the conduct complained of is arbitrary, illegal or unreasonable. When it is, the law will afford relief from its negative exercise by mandamus and will restrain its affirmative display by injunction. The appeal from the doings of zoning boards of appeal is effective to justify relief only where the same kind of violation of the identical right as defined by a similar test is found to occur, that is, where the conduct complained of is arbitrary, illegal or unreasonable. This identifies it as but a simpler, readier and equally as efficacious a remedy for the violation of the same right as the common law recognized and for the redress of any violation of which it was amply equipped with remedies of its own. The mere circumstance that the Legislature saw fit to provide a procedure of its own to aid in- its protection is incompetent to deprive a court having jurisdiction of such a wrong to hear and determine a cause involving it, unless the General Assembly possesses power to define the jurisdiction of such tribunals and the withdrawal of cognizance of it is referable to the exercise of such authority. Even if the right of appeal from zoning boards of appeal provided by section 429, supra, could be held to constitute a new right or cause of action, the same result would obtain. As observed, supra, the position of the Supreme Court in the judicature of New York was the same as the Superior Court in the judicature of Connecticut at the time that People ex rel. Swift vs. Luce, 204 N.Y. 478, was decided. It was there held (id. p. 488) in effect, that the tribunal by reason of its general jurisdiction of causes, acquired jurisdiction of every new right or cause of action, created by the legislature: "if a claim is made litigable at all, that is to say if made the subject of a suit or litigation in a court of law, then under the express provision of the Constitution, the jurisdiction of the Supreme Court attaches at once. . .Nor if it were conceded that a new cause of action has been created, would that empower the legislature to withdraw the cause of action from the Supreme Court and constitute another court for its determination. Doubtless, the legislature may create new causes of action, but when created, the jurisdiction of the Supreme Court attaches." To same effect, People ex rel. Crane vs. Hahlo, 229 N.Y. 309, 319, 127 N.E. 402; Conger vs. Convery, 52 N.J.L. 443; and see, Wheeler vs. N. Y., N. H. & H. R.R. Co., 70 Conn. 326, 328, 39 Atl. 443, and O'Briens Petition, 79 id. 46, 59, 63 Atl. 777; Waterbury Blank, Book Mfg. Co. vs. Hurlburt, 73 id. 715, 717, 49 Atl. 198. Whether, therefore, the appeal from zoning boards of appeal afforded by section 429, supra, be viewed as the creation of a right unknown to the common law or as a merely new procedure to effectuate a remedy for the violation of a right known to the common law, it constitutes in the one case, and in the other relates to, a cause of important and substantial character and is, hence, within the cognizance of a superior court as a court of general jurisdiction for the whole State. There is authority to the effect, generally, that a legislature may not confer upon a tribunal ordained by it, jurisdiction of causes concurrent with that of a constitutionally created tribunal to which it is made inferior by a constitution. Conger vs. Convery, 52 N.J.L. 443; Houston vs. Royston, 7 How. (Miss.) 543; State vs. LaCross County, Judge, 11 Wis. 50; Re Lothrop, 118 U.S. 113, 30 L. ed. 108, 68 S. Ct. 984, An. Cas. 1913C, 1161. The instant cause calls for no decision on that score. The inquiry here, as it is stated, supra, is not whether the General Assembly may so define the jurisdiction of inferior courts as to confer jurisdiction of causes upon them, concurrent with a state superior court of general jurisdiction, but solely whether the General Assembly in the exercise of its power to define the jurisdiction of courts established by it may exclude a superior court of cognizance of any cause forming part of its general jurisdiction. Obviously, that involves the query whether power to define the jurisdiction of the superior tribunal reposes in the Legislature. Palpably, in the absence of any judicial, power of its own, if the General Assembly has authority to define the jurisdiction of causes cognizable by a superior court it could acquire it only under the last phrase in section 1 of Article Fifth of the Constitution, viz., "the powers and jurisdiction of which courts shall be defined by law." Interpreting this provision in Styles vs. Tyler and again, in Enfield vs. Ellington, both supra, a majority held that it .did not apply to a supreme court of errors because that tribunal acquired its jurisdiction from the Constitution itself as identical with that exercised by the court of the same name which was in existence when the Constitution was adopted. The unavoidable implication of that hold ing is that the jurisdiction of a superior court, since, it, also, is created by the Constitution and the reference to it occurs in the same context and relation as does that to a supreme court of errors, is, likewise, defined therein as identical with that exercised by the tribunal occupying the same place in the preconstitutional judicature, viz., that of a court of general jurisdiction for the entire State. The connoted conclusion is that the phrase "the powers and jurisdiction of which courts shall be defined by law" in section 1 of Article Fifth, relates only to inferior courts which the General Assembly is empowered to "ordain and establish", and that that body has no authority to define the jurisdiction of a superior court. Even though, however, under the phrase mentioned it could be said that power is delegated to the Legislature to define the jurisdiction of a superior court it would be subject to the limitation that it be so exercised as not to affect the character or status of that tribunal as the Constitution fixes'it in the judicature as a court of general jurisdiction throughout the whole state superior to all others except that of a supreme court of errors. Styles vs. Tyler, 64 Conn. 470 (dissenting opinion of Judge Baldwin). On any theory, therefore, the General Assembly lacks power to define the jurisdiction of the Superior Court in such manner as to exclude it from cognisance of causes within the range of a court of general jurisdiction. While all this seems evident, the decisive consideration is not the conclusion reached in Styles vs. Tyler, supra, but the more fundamental one of that upon which the determination there arrived at, pivots. Patently, the perfection of a court as a functioning institution requires the coincidence of three elements. The first is its creation, which is its existence as a mere entity or conception; the second is its establishment which consists of the appointment of judges to preside over its sessions, and a specification of the times when and places where it is required to be open for the trial of causes, together with such procedural regulations as may be properly prescribed; the third is a description of its powers and jurisdiction. "Some constitutions establish a number of designated courts, vest them with judicial power and apportion jurisdiction among them. Such constitutional grants, except as they may reserve some of the judicial power and delegate its distribution or apportionment, dispose of the whole of such power residing in the sovereignty, leaving none at the disposal of the legislature and the courts so established constitute a coordinate and independent judicial department of the government." 21 C.J.S. §122, p. 181. Where, however, as in the case of the Connecticut Constitution, and in a great many throughout the country, certain courts are named or otherwise designated but the Constitution is silent as respect^ the powers and jurisdiction which each shall exercise, the source of these becomes a matter for interpretation of the particular instrument. Admittedly, a superior court is created by the Constitution; concededly, its establishment in the sense referred to, supra, depends upon legislative enactment; whether its powers and jurisdiction are granted to it in the Constitution which creates it or may only emanate from legislative enactment, depends upon the meaning and implications of the pertinent constitutional expressions. Such provisions, generally, and for present purposes, may be viewed as falling into two different categories which are: (a) those in which the courts named or described in the constitution as composing the judicature are created only in the sense of entities and are endowed with no faculties, except the capacity to receive jurisdiction from the legislature. Cummins vs. Kinsinger, 24 Ohio, N.P.N.S. 34; and (b) those in which the tribunals named or designated therein are not only created by, but are, also, granted the jurisdiction which may be exercised by them, directly from the constitu tion, whether expressly or by implication. Within the class first mentioned was the constitution of Ohio interpreted in Heirs of Ludlow vs. Johnston, 3 Ohio, 541, 563, in which that instrument vested the judicial power "in a supreme court of errors, courts of common pleas for each county, in justices of the peace and in such other courts as the legislature shall from time to time establish" and which, also, contained a provision to the effect that the several courts shall •have jurisdiction in such cases as may be specified by law. Of these provisions it was said: "Hence, it is manifest that although the constitution provides that there shall be a supreme court and courts of common pleas, yet it was not the intention of the framers of the instrument to organize these courts or confer upon them any specific jurisdiction. Their organization, the extent of their power, the nature of their duties and the manner in which this power and those duties are to be exercised and performed are all left to be provided for by future legislation." To same effect, Geiger vs. Geiger, 117 Ohio St. 451, 459, 160 N.E. 28; Commonwealth vs. Leach, 246 Mass. 470, 141 N.E. 301 (where the constitution interpreted confers the power to define jurisdiction upon the legislature in express terms); and see, First National Bank of Albuquerque vs. Dunbar, 32 N.M. 419, 425, 258 Pac. 817. The- other class is exemplified by the effect attributed to the constitutional provisions in point of not only creating the named or described courts, but, of, also, granting jurisdiction to them. Examples of state constitutional provisions having this effect as well as the reasons upon which the conclusions stated in them are based are among others illustrated in the excerpts from the opinions in the cases which follow: In Conger vs. Convery, 52 N.J.L. 417, 439: "By the Constitution of this state the judicial power is declared to be vested 'in a Court of Errors and Appeals in the last resort in all causes, as heretofore; a court for the trial of impeachments; a Court of Chancery; a Prerogative Court; a Supreme Court; Circuit Courts, and such inferior courts as now exist, and as may be hereafter ordained and established by law, which inferior courts the legislature may alter or abolish, as the public good may require.' It will be observed that, in this description, no attempt is made' to define the authority or jurisdiction of the several courts thus designated; and yet it is not to 'be denied that the boundaries of the power thus deposited in these several tribunals have always been deemed to be as plainly demarked, by implication, as they could have been by the most exact definition. And the reason of this is obvious, for each of these judicial institutions, with the exception of the county courts, and those subordinate establishments, styled inferior courts, has descended to us from the Proprietary and Provincial governments, with no observed change except as to their modes of procedure and inasmuch as each of them is the exact counterpart of an English original, the particular jurisdiction of each is readily ascertainable by the reference to the tribunal of which it is a copy. . . .In view of such a condition of affairs, it does not seem questionable that every one of these chief constitutional tribunals, as they at present exist in this state, has its powers defined with certainty and exactness." Of the grant of general jurisdiction to the Superior Courts of North Carolina as indicated by that name, in the constitution of that state examined in Mott vs. Commissioners, 126 N.C. 866, 870, 871, 36 N.E. 330, the opinion states: "The Constitution, Art. IV, sec. 2, establishes a Supreme Court, Superior Courts and Courts of Justices of the Peace. Article IV, sec. 8, defines the jurisdiction of the Supreme Court and Art. IV, section 27, defines the jurisdiction of courts of Justices of the Peace. But the jurisdiction of the Superior Courts is nowhere defined in the Constitution. . .Their constitutional jurisdiction, then, is to be found to include everything below the Supreme Court and above the Courts of Justices of the Peace. These courts are established by the Constitution, and have their constitutional jurisdiction defined, of which they cannot be deprived by the Legislature. . . But as there is no express grant of jurisdiction to the Superior Courts in the Constitution, it remains to be seen what that jurisdiction is. . . .This jurisdiction is to be found in the fact that these courts—Superior Courts—are not creatures of the Constitution,- but adoptions of the Constitution. The Constitution found them here, established institutions, with their jurisdiction well known and established, and the Constitution, not wishing to make any change as to the jurisdiction of these courts, simply adopted them as they were... .We say these courts—these Superior Courts—were here before the Constitution and became constitutional courts by adoption and without any change or modification as to jurisdiction... . " Of the manner in which the Supreme Court of New York came to have its general jurisdiction, it is written: "The original of the Supreme Court was through a statute passed by the legislature of the Colony of New York on the 6th day of May, 1691. 'This act founded the supreme court... .Not only did this act erect the tribunal which still continues the great law court of the state, but it vested in it a jurisdiction which change of government and constant reforms and revolutions in procedure have been powerless to abridge in any material respect....' The Constitutions of 1777 and 1821 did not create or continue the Supreme or Chancery courts but treated them as existing. In the Constitution of 1846, it was declared that there should be a Supreme Court 'having general jurisdiction in law and equity.' Art. 6, §3. In the Constitution of 1894, the Supreme Court was continued. . . The Constitution now in force provides: 'The Supreme Court is continued with general jurisdiction in law and equity State Constitution, section 1, Art. 6." Decker vs. Canzoneri, 9 N.Y.S. (2d) 214, 215. In Connecticut, as observed, supra, the Constitution adopted in 1818 created a judicature which was the counterpart of and characterised essentially by the features which-had distinguished the judicial system from the beginning of government here. The Legislature in establish ing the courts created therein—-that is a' Supreme Court of Errors and a Superior Court—simply continued in existence the pre-constitutional Superior Court. It made no change in it, except to provide tha.t from and after June 1, 1819, its business should be administered by "one chief judge and four assistant judges to be appointed for that purpose" who should, also, compose a supreme court of errors. (An Act constituting and regulating Courts, October Session, 1818, Chapter 1, Public Acts of Connecticut, 1808, 1820, Book II, p. 45.) No definition of the jurisdiction of either a supreme court of errors or of a superior court, was affected to be then made and no reference thereto appeared in any legislative act thereafter until the Revision of 1821. (Statute Laws of 1821, "An Act for constituting and regulating Courts and for appointing the times and places of holding the same." Title 21, p. 136.) The jurisdiction of a supreme court of errors as «therein described (section 3) is the same as the like tribunal possessed in the pre-constitutional judicature (Acts and Laws of the General Assembly, 1796, jp. 127), and that of a superior court, except for inconsequential differences, the same as that of the Superior Court created in 1711. The' significance of the conclusion reached in Styles vs. Tyler, supra, in so far as the question here examined is concerned, is not so much in its determination that the jurisdiction of a supreme court of errors is granted to it directly by the Constitution-—-though that implies much—but in the holding of which that conclusion is the consequence—that is the rejection of the conception that Article Fifth merely creates the Courts which it designates and delegates to the General Assembly the power of defining their jurisdiction coupled with the necessary conclusion that that Article not only ordains such tribunals but grants to each the jurisdiction which they shall respectively exercise. Styles vs. Tyler, 64 Conn. 443, 450. The principle, in so' far as it applies 'to a supreme court of errors, has been applied without qualification or modification since its announcement. Enfield vs. Ellington, 67 Conn. 466; Atwater vs. Morning News Co., 67 id. 504, 527, 34 Atl. 865; Nolan vs. N. Y., N. H. & H. R.R. Co., 70 id. 159, 174, 39 Atl. 115; Hoadley vs. Savings Bank of Danbury, 71 id. 599, 613, 42 Atl. 667; Dexter Yarn Co. vs. American Fabrics Co., 102 id. 538. Inevitably, it is determinative that the final phrase in section 1 of Article Fifth (that is, "the powers and jurisdiction of'which courts shall be defined by law") does not apply to a superior court, as a constitutionally created tribunal any more than it can to a supreme court of errors. It is, more' over, confirmed by the fact noted, supra, that the Convention which formulated the Constitution rejected provisions in sub' stitution for those which appear in section 1 of Article Fifth which would have delegated power to the General Assembly to create any, and any number of courts which it might deem necessary and to define their jurisdiction as it might see fit with no limitation upon the exercise of its discretion in that regard, except that any so ordained be inferior to a supreme court of errors. From which it obviously follows that since, as concluded, supra, appeals from zoning boards of appeal are within the general jurisdiction of a superior court as a con' stitutional tribunal, the General Assembly has no power to exclude that tribunal from cognizance of such proceedings by attempting to define the jurisdiction of that court. Jelke Co. vs. Beck, 208 Wis. 650, 660, 242 N.W. 576; Hedden vs. Hand, 90 N.J. Eq. 583, 595, 107 Atl. 285, 5 A.L.R. 1463; Conger vs. Convery, 52 N.J.L. 443; Aucutt vs. Aucutt, 122 Tex. 518, 523, 62 S.W. (2d) 77, 88 A.L.R. 1198 (where jurisdiction of actions for divorce was expressly conferred in the state constitution); DeHart vs. Hatch, 3 Hun. 375, 381; People ex rel. Swift vs. Luce, 204 N.Y. 187, 188; Decker vs. Canzoneri, 9 N.Y.S. (2d) 214; Mott vs. Commissioners, 126 N.C. 875. For reasons indigenous to the history and development of the pre'constitutional judicature of Connecticut and compar' able to the same considerations as led to like conclusions in Conger vs. Convery and Mott vs. Commissioners, both supra, the provisions of Article Fifth are identified as a grant of the whole judicial power to the courts named or described (according as it may be viewed) in section 1 of Article Fifth, except such as may be .within the cognizance of justices of the peace. "Two courts are established and the character of their jurisdiction described by the Constitution, itself; one with a supreme jurisdiction in the trial of causes (the Superior Court) and one with a supreme and final jurisdiction in determining in the last resort the principles of law involved in the trial of causes." Styles vs. Tyler, 64 Conn. 450; Enfield vs. Ellington, 67 id. 466; Dexter Yarn Co. vs. American Fabrics Co., 102 id. 529, 538; Washington District Theatre Co. vs. Moore, 249 Mich. 673, 680, 229 N.W. 618, 68 A.L.R. 105. The authori' ty to define the powers and jurisdiction of courts delegated to the General Assembly by the Constitution, relates to those tribunals which it is empowered to ordain. It is to the exer' cise of this function by that body that the phrase "the powers and jurisdiction of which courts shall be defined by law" in section 1 of Article Fifth alone has reference. As observed supra, the exercise of this authority involves no grant of judicial power, for the Legislature has none to bestow, but merely the apportioning of jurisdiction. The jurisdiction which the General Assembly is authorised to so allocate is that already vested by the Constitution in a superior court. Styles vs. Tyler, supra. If the Legislature were to fail to create any courts inferior to that tribunal the latter would be required to hear and determine all causes above the cognisance of justices of the peace everywhere throughout the State for in it the entire judicial power for the trial of causes reposes. The power of the Legislature to apportion some of this to other courts, ordained by it is not to be confoúnded with one to divest a superior court of jurisdiction. Since the Legislature bestows no jurisdiction on a superior court, obviously it can take none from it. The deposit of the judicial power in a department separate from that of the legislative is itself a refutation of any constitutional intention that having gone to such lengths to keep it free of legislative control, it at the same time beckoned to the General Assembly to appropriate it under the guise of apportioning it; or to so use that authority that by stripping the constitutional court of all but a vestige of jurisdiction and placing the powers taken from it in tri' bunals of its own creation, to subvert the whole constitutional design and structure and replace it with one' of its own de' vising. The indispensable requirement, which if observed, accompanies the apportionment of jurisdiction with no offense to the constitutional intendment is that the legislatively or' dained courts be inferior to a superior court. Manifestly a tribunal otherwise inferior but exercising a jurisdiction of causes equal to or greater than a superior court would violate the constitutional mandate. Just as the power in the General Assembly to ordain courts is limited to such as are inferior to a superior court, so, also is the authority to define the jurisdic' tion of those created in the exercise of it to such as is appropri' ate to the status, character and place in the judicature of such tribunals. These requirements, of course, are referable to the functions that such courts serve and the purposes that they are designed to achieve. The principal reason accounting for the establishment of inferior courts generally recognized is that of screening small causes from a court of general jurisdiction thereby preventing its dockets from becoming clogged with numerous proceedings of comparatively little importance and at the same time obviating the necessity of increasing the number of judges to hear matters of such a character which could as well and with greater despatch, under such conditions, be disposed of by a local tribunal. 21 C.J.S. §51, p. 56. All inferior courts in Connecticut up to the session of 1941 were adapted to fulfill this function. "County or inferiour courts" at the time the Constitution was adopted had ".... full power to hear, examine, try and determine by a jury or otherwise according to Law, all civil causes, real, personal or mixt and also all criminal matters not extending to life, limb, banishment, adultery or divorce, regularly brought before them; but said county, courts shall not have jurisdiction in any criminal matter where the punishment shall extend to confinement in Newgate, except only in the case of horse-stealing." In equity their jurisdiction was limited to causes "wherein the matter or thing in demand does not exceed the sum of three hundred and thirty-five dollars (excepting suits for relief against any judgment given or cause depending at law in the superior court)...." Statutes of Conn., 1808, Title XLII, Chapter 1, §42, 43, p. 207. This was practically as it had been from the time such tribunals were first established with the exception of their jurisdiction in equity and minor changes in actions of criminal cognizance. While the description of civil matters at law which they were authorized to entertain seems broad, these tribunals, both before and after the adoption of the Constitution collectively constituted "a convenient forum for the trial of lesser causes.... " Judicial and Civil History of Connecticut, Loomis 6? Calhoun, p. 135. The jurisdiction of the city courts which existed when the Constitution was adopted (by statutes originally enacted in 1784) was the same as that of the county courts then was or might thereafter be, except that none was conferred upon them where the title of land was involved (Hartford, Statutes of Conn., 1808, Title XXXIV, Chapter 1, p. 124); (New Haven, id.,. Title XXXIV, Chapter XI, p. 152); (New London, id., Title XXXIV, Chapter XVII, p. 164); (Middletown, id., Title XXXIV, Chapter VIII, p. 141), and (Norwich, Title XXXIV, Chapter XVIII, p. 175). After the adoption of the Constitution the powers of the county courts, and with them those of the city tribunals, were progressively contracted until at the time the county courts were abolished (An Act approved June 19, 1855, Chapter XXVI, §17, Public Acts, 1855-1860, p. 29), the causes of which they had exclusive civil cognisance at law were such as contained demands for not more than $100 and they had none in equity. Revision of 18'54, p. 75. Appeals lay from the county courts to the Superior Court in certain cases, except where the matter in demand did not exceed $200. Statutes of Connecticut, Compilation 1854, Chapter V, pp. 74, 75. From the city courts appeals in matters where the same were allowed were required to be taken directly to the Supreme Court of Errors (see Acts and Revisions cited supra' re: city courts in Hartford, etc., etc.). No mention need be made of town courts during the period referred to as their jurisdiction was such as comprehended matters involving only comparatively trifling sums. It is thus clear that all of the-inferior courts, following the adoption of the Constitution and up to the time that the existence of the county tribunals was terminated in'1855 conformed to the conventional conception of inferior courts in that (1) ngne had exclusive jurisdiction—particularly when the county courts were discontinued—of any but actions involving very small amounts in causes at law and no exclusive jurisdiction in equity and in addition the county courts, in so far as appeals lay to the Superior Court from its judgments and decrees were inferior in this second respect. LaCroix vs. Commissioners, 49 Conn. 596. When county courts were again created under the name of "Courts of Common Pleas" first for Hartford and New Haven Counties in 1869 (Public Acts, 1861-1869, "An Act to create and establish Courts of Common Pleas, in Hartford and New Haven Counties", Chapter XCII, p. 313); in Fairfield County ("An Act to create and establish a Court of Common Pleas in Fairfield County", Public Acts, 1870, Chapter XXII, p. 375, Public Acts 1870-1874); in New London County (Public Acts 1870, Chapter LXXXVII, p. 440, Public Acts 1870-1874); and the District Court of Litchfield ("An Act to create and establish a District Court in Litchfield County, Public Acts, 1872, Chapter LXXXIX, p. 83, Public Acts 1870-1874), exclusive civil original jurisdiction was conferred upon them in actions at law where the damages claimed and in equity the matter or thing in demand, in value, did not exceed $500, and of appeals from justices of the peace except in criminal matters. No criminal jurisdiction was then given any of them and no civil, concurrent with the Superior Court. Appeals lay from them directly to the Supreme Court of Errors. Whether the omission to provide that appeals from inferior tribunals go to a superior court lest these tribunals be held unconstitutional is not involved here since the question present' ly under examination calls for no attempt to prescribe the minimum requirements which must be met in order that a court created by the General Assembly may be found to be inferior in the constitutional sense, to a superior court, but only (1) whether the State Court of Common Pleas is a tribunal of such character and if it is then whether the ex-elusive jurisdiction of causes conferred on it—and especially that concerning appeals from the doings of zoning boards of appeal—is a valid definition of its powers and jurisdiction. However, it has been held that where a Constitution creates a trial court and by implication grants it general jurisdiction of all causes, civil and criminal, above that conferred on justices of the peace and also empowers the Legislature to create other courts inferior to the court of last resort by ap' peal: "That jurisdiction may be made largely appellate by conferring such part of its original jurisdiction on inferior courts as the General Assembly may provide, but it cannot retrench the extent of its jurisdiction which it must retain either by original or appellate process.... From the inferior courts, therefore, appeals must go to the Superior Court of the county and not direct to this Court. Subject to these constitutional restrictions, the General Assembly may allot the jurisdiction below the Supreme Court. It may create criminal courts or circuit courts, city courts or any other courts and give them all or such part as it thinks proper, of the original criminal or original civil jurisdiction above that given by the Constitution to Justices of the Peace... .but if it gives such courts concurrent jurisdiction, civil or criminal, of such portion of the original jurisdiction which is left to be exercised by the Superior Court, still in such cases an appeal must lie from such inferior or intermediate courts to the Superior Court as in all other cases in which there is a right of appeal for the General Assembly cannot "without conflict with the other provisions of the Constitution" either deprive the justices of the peace of the jurisdiction conferred on them by the Constitution or deprive the Superior Courts of their constitutional position as Superior Courts over all other in' ferior courts and with, at least, appellate jurisdiction of all matters from which appeals would lie to this court" Rhyne vs. Lipscombe, 122 N.C. 655, 656. It is unnecessary to de' termine here whether provision for appeals from the judgments of legislatively ordained courts to a superior court is an essen' tial feature of and without which they fail to qualify as in' ferior tribunals within the constitutional conception. Obviously, however, where that feature is lacking there is no other way in which such courts can meet the requirement that they must be inferior to a superior court except that the jurisdiction of causes exercisable by them be confined to such as involve little in the way of damages and small.values as respects the subject' matter in actions in equity. The characteristics of small exclusive, original jurisdiction with appeal direct to the Supreme Court of Errors where any is provided, first introduced when the city courts were estab' lished, has since featured practically all of the legislatively ordained tribunals since the old county courts were abolished. Before 1875, a policy was commenced, as evidenced by Acts then adopted, as well as at succeeding sessions of the General Assembly, of increasing the concurrent jurisdiction with that of the Superior Court of tribunals ordained by the legislature. It was initiated by conferring jurisdiction on the Court of Common Pleas in New Haven County concurrent with the Superior Court in causes demanding damages between $500 and $1,000 and where the subject'matter, in equity, was of a value between these amouhts. Rev. 1875, Chapter IV of Title 19, §3. And later made applicable to all Courts of Common Pleas with the exception of Litchfield and the District Court of Waterbury (the jurisdiction of which courts are noticed below). Gen. Stat. (1888), §723. The limit of such concurrent jurisdiction in legal find equitable matters reached $2,000 be' fore the revision of 1902, Gen. Stat. (1902) §5557, where it remained until the existence of all the county Courts of Common Pleas was ordained to be terminated at the 1941 session of the General Assembly and the State Court of Common Pleas •established. A notable exception to this policy of extending •concurrent jurisdiction of the county Courts of Common Pleas occurred in the case of the Court of Common Pleas for the District of Waterbury which was the successor of the District 'Court of Waterbury. The last named tribunal was established in 1881 (Public Acts, 1881, Chapter CXXI, Public Acts, 1881' 1887, p. 68). This court, which supplanted the City Court of Waterbury, and succeeded to the jurisdiction theretofore exercised by the latter, had no original exclusive jurisdiction whatever, but its cognizance of causes concurrent with the Superior Court embraced "all civil cases wherein the title of land is not concerned" and in equity (in common with a provision which appears in all acts establishing inferior courts) none of suits to enjoin actions pending in the Superior Court. The abolishment of the District Court of Waterbury in 1927 did not interrupt a policy of adding to its powers or that of its successor, (the Court of Common Pleas for the District of Waterbury) (Public Acts, 1927, Chapter, 181, §1) which made it unique among the legislatively created tribunals of the State. See: Public Acts, 1887, Chapter XXV, Public Acts, 1881-1887, p. 680; Public Acts, 1889, Chapter CXXII, Public Acts, 1889-1895, p. 68; Public Acts, 1893, Chapter II, Public Acts 1889-1895, p. 200; Public Acts, 1895, Chapter CLXXI, Public Acts, 1889-1895, p. 540; Public Acts, 1895, Chapter CCCXXII; Public Acts, 1889-1895, p. 666; Public Acts, 1895, Chapter CLXI, Public Acts, 1889-1895, p. 526; Public Acts, 1901, Chapter 148, Public Acts, 1897-1901, p. 1320. As a result of all these and other enactments the Court of Common Pleas of the District of Waterbury at the time is was abolished by the Act here under examination at the 1941 session of the General Assembly, had concurrent jurisdiction with the Superior Court "in all civil actions in which equitable relief only shall be demanded and of appeals from assessments of benefits and damages made by the City of Waterbury or by the borough of Naugatuck and....all other civil actions wherein the matter in demand shall exceed $100, provided the parties or either of them reside within the limits of the judicial district of Waterbury." Gen. Stat. (1930) §5440. The extension of jurisdiction concurrent with that of the Superior Court which began soon after the abolition of the old county courts in 1855 was not restricted to the county Courts of Common Pleas and the District Court of Waterbury. It became a marked characteristic of city courts. Without putting down here any analysis of this phenomena as it presented itself in each instance, reference may be made, as a fair example of the tendency, to the City Court of Waterbury which as noted, supra, was later succeeded by the District Court of Waterbury. That tribunal was established by an act approved June 29, 1866 (6 Special Laws, p. 68, amended as appears on pp. 251 and 441, respectively) as a result of which its jurisdiction comprehended "cognisance of all civil cases in which the debt, trespass, damage or other matter in demand, shall exceed the sum of $50" — an original jurisdiction almost completely concurrent with that of the Superior Court. The significant consideration here, however, is that in all of the history of legislation concerning inferior courts in Connecticut — and certainly so since long before (he abolition of the old county courts — research unearthed but one instance in which original exclusive jurisdiction has been given any tribunal created by the General Assembly exercising general jurisdiction of civil causes, in excess of $500. The lone exception is the District Court of Litchfield, the exclusive original jurisdiction of which when established (Public Acts 1872, Chapter LXXXIX, Public Acts, 1870-1874, p. 83) was $500 in both legal and equitable causes but appears in §724 of the Gen. Stat, Rev. of 1888, to have been increased to $1,000 in both instances. This may have been an error in the revision as no Act has.been found upon which to justify the change. At any rate, the departure was speedily corrected for it was provided in an Act passed at the session of 1889, in eifect, that the exclusive original jurisdiction should be the same as that of the county Courts of Common Pleas, namely not more than $500 in damages demanded or in the value of the subject-matter in any proceeding in equity. Public Acts 1899, Chapter 38, Public Acts 1897-1901, p. 1004. It so remained when the District Court of Litchfield ended its existence and was succeeded by the county Court of Common Pleas for Litchfield County (Public Acts 1883, Chapter CX, Public Acts 1881-1887, p. 289) and was so defined at the time its extinction took place at the 1941 session of the General Assembly. Gen. Stat. (1930), §5439. This long continued policy, consistently adhered to practically from the commencement of constitutional government in Connecticut is highly probative in its implications. The intelligence which it • conveys is, moreover, confirmed by the fact that the General Assembly at no time since the adoption of the Constitution has definitely essayed to define the jurisdiction of a superior court, until the passage of the Act of 1941 with which concern is had here, with one exception — and that quickly corrected: In 1871, ("An Act in Addition to 'An Act to create and establish a Court of Common Pleas in New London County," Public Acts 1871, Chapter III, p. 518) it was enacted (§2) that all of the criminal jurisdiction theretofore exercised by the Superior Court in New London County should thereafter be exclusively exercised by the Court of Common Pleas established there with the exception of crimes for which the punishment might be death or imprisonment for life. However, when the General Assembly next convened, it repealed that Act and provided that the cognizance of all criminal causes in New London County should be in the Superior Court. Public Acts 1872, Chapter LXXIV, p. 42. It is true that every revision and many acts passed in the intervals between them contain expressions to the effect (e.g. Gen. Stat. [1930], §5441) that all actions demanding damages and causes in equity, where the relief sought is above an amount elsewhere defined as the highest limit of the concurrent jurisdiction of another or other courts, "shall be brought to the superior court; and that all causes above the cognizance of justices of the peace shall be within the jurisdiction of the Superior Court in counties where there are no Courts of Common Pleas (id. §5438). In none of these, however, is there any provision affecting to prevent the filing of action in that tribunal in any cause claiming relief in any sum not lower than $500 which is an amount concededly within the exclusive jurisdiction of an inferior court. Such provisions are hence not definitive, but merely descriptive, of the proper jurisdiction of a superior court as conferred by the Constitution where, pursuant to the power delegated, the General Assembly has ordained inferior courts and defined their exclusive original jurisdiction appropriately to their status as such. As a merely declaratory legislative expression such provisions are neither an encroachment upon the judicial power nor competent to define it. Hoopes, Appeal vs. Bradshaw, 231 Pa. St. 485, 490, 80 Atl. 1098, 110 A.L.R. p. 57. In the opinions of some of the cases expressions occur which might indicate on superficial examination a tendency to view the source of the jurisdiction of a superior court as statutory. Of these the following, among others, may be cited. Town of Bridgeport vs. Blinn, 43 Conn. 274, 279, 280; Crandall vs. State, 10 id. 339, 365; State vs. Peck, 31 id. 466; State vs. Carroll, 97 id. 598, 599, 117 Atl. 694; State vs. Chin Lung, 106 id. 698, 719, 138 Atl. 804. It is sufficient to note that in none of them was the question involved here presented and, of course, was not even referred to. Likewise, it is possible that a minute examination of the statutes might reveal instances in which the General Assembly has legislated concerning matters within the exclusive purview of the judicial department. Of these and any other such instances the following is apropos: "But no dicta of judges, no doubtful or improper legislation, can alter the plain fact that in 1818 the people, in the exercise of their sovereignty, granted to the General Assembly then constituted the legislative power and forbade their exercise of other than legislative power (unless specially granted) and granted to this court and other courts then constituted the judicial department, the judicial power and forbade their exercise of other than judicial power." Norwalk Street Railway Co.'s Appeal, 69 Conn. 592. Considered together with the construction of Article Fifth of the Constitution accorded it here, the policy of the legislature in defining the exclusive original jurisdiction of courts created by it with which this is wholly consistent, while not conclusive is of most persuasive force. State vs. McCook, 109 Conn. 621, 649, 147 Atl. 126; Water Commissioners vs. Curtis, 87 id. 506, 511, 89 Atl. 189, and cases cited in the opinion. While' on the other hand even if it could be assumed that the intendment of such constitutional provisions is obscure, the departure from the practice and policy of prior legislatures in defining the exclusive original jurisdiction of the state Court of Common Pleas as five-fold of what it had ever done before is one of such short duration and so isolated as to be without any convincing quality. State vs. McCook, supra, p. 642. To hold that the Legislature has power to define the jurisdiction of a superior court either directly or under the guise of defining that of inferior courts by excluding that tribunal from jurisdiction of causes within the cognizance of a court of such general jurisdiction, would not only conflict with the conclusion underlying the holdings in the cases cited and discussed supra but would, also, nullify one of the important incentives for the adoption of the Constitution at all. While there were other influences demonstrative of the necessity for a written statement of organic law, one of the dominant, if not the most compelling, which led to the formulation of the Constitution was the generally recognized effects upon the legislatively made and endured judicature of the coincidence of both legislative and judicial powers in the one body — the pre-constitutional General Assembly. The evils which arose from that condition were largely of two species, but equally, actually and potentially disastrous in their effects upon the judicial power and the judiciary, itself. On the one hand, was the authority of the legislative body, and the temptation to exercise it, to interfere with judgments even after these had been reviewed by the Supreme Court of Errors of the period by setting them aside or modifying them. There were not a few instances of the exertion of this power but the dangers which arose from it were at no time more strikingly dramatized than in the case of Peter Lung referred to in Styles vs. Tyler, supra, p. 448, when, as a result of legislative interposition, Chief Justice Swift was moved to make pointed public protest. On the other hand, there was the menace to judicial decisions in the courts, themselves, with a resulting lack of public confidence in the established tribunals and no where less than in the pre-constitutional Supreme Court of Errors. The claim was current for 15 years before the Constitution was adopted that members of the Council who were either actually or potentially members of that tribunal pleaded cases, as lawyers before it. The existence of both the Supreme and Superior Courts was always tenuous and at the will of the legislative body which having created them, could effect their demise in the same way. The aim of the Constitution was not only to end this condition of affairs but to provide barriers to the recurrence of any fvhich might impeach the honesty of judicial determinations or threaten their sanctity and conclusiveness when once made. The integrity of judicial decisions is guaranteed in the Constitution by the complete separation of the judicial from the legislative and executive departments as provided in Article Second and the definite vesting of the judicial power in the courts created as provided in Article Fifth; while the complete independence of the judges of the constitutional courts making such determinations is removed from all danger of political, legislative or other reprisal by the provisions of section 3 of Article Fifth which confer life tenure upon them. (Since reduced to terms of eight years by amendment.) The framers of the Constitution, self-evidently intended that the benefits of the provisions noted should extend to all cases where issues of fact are to be decided, as well as those involving only questions of law whether the jurisdiction of such causes be original, or by appeal with trial de novo in a superior court. Obviously, the idea is untenable that the Constitution, while resorting to these elaborate and studiously planned devices at the same time provided for their nullification •— which latter would be the inescapable result if it conferred power on the General Assembly to withdraw, as it might please from time to time the jurisdiction of substantial causes from the power of the courts which it creates — whether under an assumption of authority to define the jurisdiction of a superior court or in the exercise of the power to define that of inferior courts ordained by it. An interpretation which would produce such consequences is hardly to be entertained — much less, afforded serious consideration. Manifestly it must yield to one which effectuates the unquestionably fundamental purposes to achieve which the Constitution was adopted. One last consideration may with propriety be adverted to. The courts are not the property of those who from time to time, as judges, are called upon to preside over them.' The safeguards provided in the Constitution to insure their independence and the sanctity of their decisions from all external interference and influence are not for the benefit or comfort of those who administer their proceedings or are responsible for such determinations. The tribunals created are for the benefit of those who may have occasion to vindicate their rights or privileges or to obtain relief against or as compensation for, their violation. Those who do so are entitled to have access to the tribunals provided for them by the people in and through the Constitution. They are deprived of that right when they are forbidden to enter such tribunals for redress of any substantial wrong and compelled to submit their causes to others created by the legislative body. The very fact that the Constitution has ordained one court of general jurisdiction throughout the whole State which it has surrounded with all of the devices humanly devisible to insure its permanence and to protect its character is in itself an admonition that what it has so solemnly done no other body shall have power either to undo by direct act or to destroy by attrition. The determination is that even though the General Assembly had power under the provisions of Article Fifth of the Constitution to ordain a court with jurisdiction over the entire States nevertheless, the jurisdiction of causes defined in the Act creating the State Court of Common Pleas is not the definition of the jurisdiction of an inferior court, but a division involving an appropriation of that constitutionally vested in a superior court; that as such it is in excess of the power of the General Assembly to confer on such a tribunal and such definition of jurisdiction is void and of no effect; and, particu larly that is true of the provisions of section 5 Of of the 1941 Cumulative Supplement to the General Statutes, which affects to withdraw from a superior court cognizance of appeals from Zoning boards of appeals. It results that the jurisdiction over such a proceeding remains unaffected by anything contained in that Act. As respects the subject'matter of the appeal: The site of plaintiffs' enterprise is located in an industrial zone. The only reason assigned for the refusal of the building inspector to issue to them the permit to construct the railway in question which is, also, the basis of the action of the board in sustaining that official, is the claim that the use would be noxious "by reason of the emission of odor, dust, noise, gas or smoke." (Building Zone Regulations, Section IV, paragraph 25.) Of the enumerated objectionable attendants, all may be eliminated from consideration except that of noise since there is nothing in the evidence worthy of consideration to indicate the presence of odor, dust, gas or smoke. As "noise", especially when considered as distinguished from sound is a relative quality, it is necessary to apply the pro' vision in question in the sense in which it is used in the regula' tions. While on the one hand it need not necessary connote such a condition as would constitute a nuisance per se (State vs. Hillman, 110 Conn. 92), on the other hand, it is» evident that the noise with which the regulation deals must be some' thing more, either in intensity, in prolongation, in volume or the times at which it occurs which sustains a rational relationship to the legitimate objects of zoning laws and regulations. State vs. Hillman, supra, p. 102. The particular kind of "noise" with which the content of the paragraph and section here invoked deals, is such as is "noxious." That means, in its most liberal definition, "hurtful, harmful, injurious...." Johnson vs. Northport Smelting & Refining Co. 50 Wash. 567, 97 Pac. 746. And this in the signification in which it appears in a zoning regulation must needs mean a noise or noises tending to frustrate the attainments of the objectives of a zoning ordinance. It would serve no purpose to review or analyze the evidence here. It demonstrably appears that such sounds — rather than noises — as accompany the taking off and landing from the water of the light sea-planes that are based on the premises in question all occur between 9:00 or' 9:30 A.M. and sun down, and are little, if any,' distinguishable from those emanating from outboard motors on boats and not nearly as continuously audible to the residents south of the area in question as are the latter. Certainly, they do not disturb the people in the plants in the industrial area where plaintiffs' leased property is located. A careful review of the evidence indicates that there is no rational basis upon which to predicate the conclusion reached by the Board' that either on the land which plaintiffs use as a base, or ori the water adjoining it, is there any "noxious" noise incident to the operation of the enterprise conducted there by plaintiffs or that there may reasonably be anticipated that any would accompany the use of the proposed railway. The cohclusion must be that the board's action in sustaining the building inspection in his refusal to issue to plaintiffs the building permit applied for was arbitrary and unreasonable. The plaintiffs', appeal is sustained and the board ordered to direct the-building inspector to issue to plaintiffs, the building permit sought.

BALDWIN, J. The plaintiff and the defendant were married to each other on June 3, 1937. Plaintiff was then a minor, eighteen years old. Defendant was twenty-two years old. They had known each other and had kept company together for quite some period of time and had been engaged to marry for a period of two months and were very much attached to each other at the time, according to the testimony of the plaintiff. At this marriage plaintiff was accompanied by a married sister. Her parents were not advised of the intended marriage and did not give any oral or written consent thereto. Application for a marriage license was made on the day of the marriage, June 3, 1937. On May 25, 1937, application was made to the probate court by the defendant for a decision in writing authorizing the marriage to be celebrated without delay, and on that day the probate court issued its decision that public policy requires the marriage to be celebrated without delay and without complying with the provisions of section 1595c of the Cumulative Supplement to the General Statutes [1935] in regard to blood test. Plaintiff claims that after the marriage defendant told her the reason which he 'gave to the probate court in order to secure the written decision from that court hereinbefore referred to and claims that the reason which was given by the defendant was untrue and it made her angry at the defendant and that they had not cohabited as man and wife and that the marriage had never been consummated by such cohabitation. This marriage was the result of no fraud or deception upon this plaintiff. She was misled in no way. For some time she had intended to marry the defendant and the evidence offered provides a basis for the reasonable inference that the reason given by the defendant upon which the probate court issued its written decision was honestly believed at the time by the parties. The facts do not present a case in which annulment should be decreed. Plaintiff's prayers for relief are denied.

BALDWIN, J. On May 27, 1936 the plaintiff was an employee doing stenographic work for the Colonial Beacon Oil Company at its office in Bridgeport. This was the fourth day of her employment. The room in which she was employed was approximately 18 by 36 feet, the entrance to which was at or near one corner at the front end of the room. In this room were six desks, and two tables and a cabinet file. One of these desks was located at the end of the room near the entrance. Another desk was located at this same end of the room in the corner opposite to the entrance. This desk was the one at which plaintiff worked, and when at work she occupied a swivel' desk chair with her back toward the rear end of the room. The filing cabinet and the other desks were arranged along' the same side of the room as plaintiff's desk extending back to the rear end- of the room. One of the tables was located on the opposite side of the room from that at which the five desks were located and the other table was located on the same side as the table referred to but at the rear end of the room. At the time of plaintiff's accident there were eight people. in this room, each of whom was engaged at his respective occupation at a desk or table, with the exception of two persons who were standing within an enclosure formed by a railing in which was a gate at the entrance corner. The Colonial Oil Company had requested the defendant company to give it an estimate of the cost of connecting an outside fuel oil tank with a heater located in the cellar under the room described and Mr. Easterbrook of the defendant company came to look over the situation and make such estimate. After looking over the outside location of the oil tank he came in to the office to look over the location of the heater. He inquired the way to the cellar of the plant superintendent, who told him of the location of a trapdoor in the floor of the room described. From underneath this door a ladder descended perpendicularly to the floor of the cellar. This door was flush with the floor of the room. It had no hinges and was opened by taking hold of a ring which was countersunk in its surface and by lifting it from its place, and on this occasion, when opened, it was laid flat upon the floor at the far side of the opening from plaintiffs desk. This door when opened left an open space in the floor 30 by 30 inches and it was located about 12 feet back from plaintiff's desk and about the same distance from the entrance to the room, being about midway between the sides of the room. Mr. Easterbrook went to this trapdoor, opened it, and descended into the cellar, and in doing this he failed to call attention to any of those engaged at their several employments that he had opened this door and was going to leave it open, while he was in the cellar, or to give any warning whatever of those facts or to place any guard or barrier about it to protect one from walking or falling into this opening. The plaintiff did not know that any trapdoor was located in this floor nor did she know that it had been opened. At the time that it was opened and until she got up from her desk, she was engaged at her typewriter with her back toward this door. Completing her work, which was upon paper of legal cap size and included several manifold copies, she took her work from her typewriter and proceeded diagonally across the room toward the rear end to the table at which sat an employee with whom her work was concerned, examining her papers as she proceeded. This opening in the floor was directly in her path and she had taken but a very few steps before she fell through this opening to the floor below receiving injuries for which this action was brought. Her fall occurred within a period of time estimated at five minutes, or less, from the time of the opening of this door. There was no contributory negligence on the plaintiff's part in proceeding across this office floor while examining the papers upon which she had been working. When Mr. Easterbrook opened this trapdoor and descended into the cellar, in the exercise of reasonable care as a reasonably prudent person he owed to the plaintiff and others engaged at their desks at work in the office the duty of cautioning them of the opening of this door and the danger incident thereto, or of taking some protective measures for their safety and in this he failed and this negligence was the cause of plaintiff's injuries. "Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so." Dean vs. Hershowitz, 119 Conn. 398, 407. Judgment for the plaintiff to recover from the defendant $1,500 damages and her costs.

CORNELL, J. The record shows that the Commissioner made an award to the claimant based upon an accident which caused the death of her husband. The respondent appealed and, in an exceptionally lucid memorandum filed January 25, 1938 the Court (John Rufus Booth, J.) held that upon the "facts found" that as claimant's decedent's employment was that of a relief worker, the claimant was not entitled to compensation, because, in effect, the employment did not arise out of contract. Accordingly, the appeal was sustained and the award made by the Commissioner vacated. As noted supra, Judge Booth's decision was predicated upon the Commissioner's finding that when claimant's husband received his fatal injuries he was working "on relief." The claimant, apparently, does not challenge the correctness of this decision as applied to the Commissioner's finding in the respect mentioned. Instead, she filed a motion with the Commissioner on or about January 27, 1938 alleging, in effect, that there was evidence before the Commissioner relating to her decedent's employment from which the Commissioner should have found that while the claimant's husband had been employed on "relief work", yet on the particular morning that the accident occurred, he was not so engaged but was working as an ordinary employee. She moved, therefore,, that the Commissioner correct his finding accordingly and by adding certain facts which she alleges are admitted or undisputed. The Commissioner denied this motion, stating: "This, matter has been heard and decided by the Superior Court on. the Commissioner's Finding and the Commissioner finds that consideration of further corrections and additions as requested, is not proper at this time." The instant appeal is from this ruling and presents an issue of law. Wysocki vs. Bradley & Hubbard Co., 113 Conn. 170. In the cases cited, it was held that the fact that an appeal had been taken and was pending from a finding and award, did not deprive the Commissioner of jurisdiction to reopen and modify the finding. In the instant case, however, a different situation is presented, for the matter has been finally determined on the appeal in this Court and there is now nothing pending here in respect to it upon which this Court may act. A correction of the finding which was the very basis of the Court's disposition of the matter would, of course, be a vanity under such circumstances. It is still open to the claimant, if she has ground therefor, to apply to the Commissioner to open and modify or vacate the finding and award under his continuing jurisdiction of the cause, and his refusal to entertain such a motion, or, if he entertain it, his decision upon it, may be the subject of review. Kowalski vs. N. Y., N. H. & H. R.R. Co., 116 Conn. 229; Kurzaji vs. Warner & Bowman, 106 id. 90. And see, Wysocki vs. Bradley & Hubbard Co., supra; Schmitt vs. American Brass Co., 109 id. 599. Compare, American Smelting & Refining Co. vs. Industrial Commission (Utah), 24 Pac. (2nd) 309. Appeal dismissed. Memorandum of decision on claimant's motion to reopen and recommit. CORNELL, J. Claimant makes this motion in conjunction with an appeal to this Court from the Compensation Commissioner's denial of her motion for correction of and additions to the finding. The effort is to have the Commissioner now find on the same evidence, that the claimant's decedent was not a "relief worker" but an employee within the meaning of the Act. The question of the legal relationship subsisting between •the claimant's decedent and the respondent was one essentially to be determined by the Commissioner. According to the finding it was determined and upon the basis of that finding the cause was disposed of and judgment entered on Janu ary 25, 1938. It would appear that the claimant relied upon such findings in urging before this Court that the award made should be sustained. The instant motion presents none of the reasons under the circumstances which would justify the Court in opening the judgment and vacating it. If a mistake was made by the Commissioner he will most likely be anxious to correct it if the proper motion is presented to him and such motion contains matter which would enable and justify him in doing so. Motion denied.

CORNELL, J. In accordance with oral stipulation of counsel in open court, the referee's report as amended is ordered accepted and the question is whether the facts disclosed in it sustain plaintiff's contention that the defendant Commission acted arbitrarily in revoking a restaurant permit issued to plaintiff. Gwiazda vs. Bergin, 121 Conn. 705, 707; Wilks vs. Liquor Control Commission, 122 id. 443, 445; Skarzynski vs. Liq uor Control Commission, 122 id. 521, 525; Melarose vs. Liquor Control Commission, 123 id. 318, 320. Plaintiff seems to contend that since the events upon which the Commission relied as justification for its action transpired sometime between September 24, 1935 and May 28, 1936 while the plaintiff was conducting a restaurant for which he had the permit, now revoked, at 327 Pine Street, in Bridgeport, and thereafter was granted a removal permit, since which he has been conducting a restaurant at his present location and pur suant to the granting of said certificate of removal expended considerable sums in fitting up his present place of business, that the action of the Commission in now revoking his permit must be considered arbitrary, particularly as it is found that since his removal the plaintiff has not been arrested for, nor been in, any trouble having to do with any violation of the law and bears a good reputation among his patrons and others with whom he has done business. These facts, however, are not potent to either restrain or restrict the Commission in the proper exercise of its functions. The removal permit could not enhance such rights as were conferred by the restaurant permit but merely made the latter applicable to the new location where plaintiff elected to com duct his business. The restaurant permit by the express pro' visions of the statute is a "purely personal privilege", is not "property" and has none of the usual incidents of property. Cum. Supp. (1935) §1026c. The Commission in performing the duties imposed upon it is in the exercise of the police power of the State and for injury sustained by a person incident to this, there is no remedy either in damages or by the processes-of equity—and, of course, none under any authorised statm tory proceeding. There is thus presented only an inquiry whether the Com/ mission in revoking the permit acted arbitrarily, and hence-illegally. Gwiazda vs. Bergin; Wilks vs. Liquor Control Commission; Skarzynski vs. Liquor Control Commission; Melarose vs. Liquor Control Commission, supra. In determining this, the Commission's action in revoking the permit is to be com sidered as though no removal permit had been granted. Under the facts reported by the referee the question is limited to whether the plaintiff could fairly and reasonably have been found "unsuitable" by reason of his record. As noted supra, his record was acquired while he was the holder of the permit, the revocation of which occasions this proceeding, but while conducting a restaurant at his former place of business. This record consists of his either having pleaded or having been found, guilty, of having a slot machine in his possession—which of the two does not appear, and, also, having been found guilty of assault "upon a woman of doubtful character while she was upon his restaurant premises." Fines were imposed in both instances. As to the first of these the referee finds facts which, at the least, relieve the plaintiff from any intent to violate the statute for which he either pleaded or was found guilty. Assuming that these circumstances were presented to the Commission, at the hearing upon the revocation, a somewhat narrow issue might be disclosed. But there is nothing suggested as concerns the conditions under which the assault was committed and the fact that the plaintiff was fined must be taken as an indication that it was unjustified. Under these circumstances, the court is not permitted to substitute its judgment, if it differs from that of the Commission, for the latter's and the facts are not such as to justify the conclusion that the Commission was actuated by improper motives or acted arbitrarily. There was evidence before the Commission of the effect of which as concerns the plaintiff's suitability, it, alone, could judge. There is nothing to indicate that its judgment is so offensive to the reasonable implications of the facts as to permit interference with it by this court. Judgment on the report as accepted in favor of the appellee (the Commission) dismissing the appeal.

Dupont, C. J. The defendants, George Zabrecky and his chiropractic practice, the Life Extension Center, appeal from a judgment rendered in accordance with jury verdicts for the plaintiffs, George Shegog, executor of Donald Pereyra's estate, and Barbara Pereyra, the decedent's widow. The plaintiffs sought damages for wrongful death caused by the negligence of the defendants, and for loss of consortium, respectively. The defendants claim that (1) the plaintiffs did not present sufficient expert testimony to prove that the defendants' actions were the proximate cause of the death of Donald Pereyra and (2) the jury's award for loss of consortium was excessive. The plaintiffs have filed a cross appeal, claiming that the trial court should have allowed the plaintiffs to prove proximate cause with medical reports of the decedent's treating physicians, as well as through expert testimony. We affirm the plaintiffs' judgment in the defendants' appeal and dismiss the plaintiffs' cross appeal. Barbara Pereyra and Donald Pereyra were married in January, 1987. Donald Pereyra first sought treatment for back pain from Zabrecky at the Life Extension Center in May, 1987. At that time, Zabrecky ordered X rays of Pereyra's spine. The X rays revealed that Pereyra was suffering from a fractured vertebra caused by a malignant tumor. Zabrecky immediately referred Pereyra to a surgeon in New York who, in June and July of 1987, performed two operations to stabilize Pereyra's spine and remove the tumor. Following the surgery, Pereyra began a course of radiation treatments from radiologist Craig Usas. A CAT scan revealed that the cancer had spread to Pereyra's lungs. Usas and other physicians consulted by Pereyra recommended that chemotherapy be considered once the radiation therapy had concluded, and advised Pereyra that given the form of cancer from which he suffered, his chances of survival with chemotherapy were 50 percent or better. During the summer of 1987, Pereyra continued to consult with a number of physicians regarding the treatment of his cancer. He also continued to see Zabrecky throughout the summer and fall of 1987. Pereyra and Zabrecky discussed treatment options, and Zabrecky recommended that Pereyra forgo the chemotherapy. Zabrecky recommended that Pereyra instead follow a course of treatment with two protein compounds manufactured in Germany, neytumorin and neythymin. The primary ingredient in both substances is animal protein. Neither drug is approved by the federal Food and Drug Administration (FDA), and chiropractors are prohibited by law from prescribing drugs. Nonetheless, Zabrecky prepared a treatment schedule for Pereyra that progressed from oral administration of neytumorin to injections of neythymin. Zabrecky provided Pereyra with an initial supply of the protein compounds along with instructions as to how to inject them, and arranged for further supplies of the compounds to be delivered directly to Pereyra's home. Pereyra took the neytumorin orally and then by injection until November, 1987, when he switched to injections of neythymin. The cancer continued to spread throughout Pereyra's ribs, spine, right femur, clavicle, and sacrum. In early November, after additional cancer was discovered, radi ation treatments were given daily. Pereyra's health began to deteriorate visibly at approximately the same time. The radiation treatments themselves left his skin red and tender. Pereyra's condition worsened between Thanksgiving and December 8,1987, when Usas admitted him to the hospital because of jaundice-like symptoms. His physicians determined that the cancer had not yet spread to his liver and that something else was causing the symptoms. Pereyra then admitted to his physicians for the first time, after considerable pressure from his wife, that he had been injecting himself with the German protein compounds provided by Zabrecky. Barbara Pereyra testified that Zabrecky had specifically instructed Pereyra not to tell his treating physicians that he was injecting the protein compounds. Pereyra died on December 17,1987, approximately six weeks after he had begun the injections of neythymin and approximately five months after he first took neytumorin orally. An autopsy revealed that he died of necrosis of the liver caused by a toxic reaction to a foreign substance. Zabrecky had performed an initial liver enzyme study on Pereyra prior to giving him the protein compounds, but did not perform further tests after the protein compound treatment began. The only drugs or medicine used by Pereyra between July, 1987, and his death were the protein compounds prescribed by Zabrecky. The plaintiffs filed a lawsuit against the defendants in March, 1990, in five counts, seeking damages for negligent treatment and care. They alleged a breach of the standard of care and treatment owed to Pereyra. The negligence alleged was the administering of drugs when statutorily prohibited, withholding of that fact from the treating physicians, the failure to diligently "follow" the decedent's chemical blood work, advising the decedent to use drugs that had "expired," administering therapy not approved by the FDA, engaging in the unlicensed practice of medicine, and inducing the decedent to forgo appropriate therapy. At trial, the plaintiffs were allowed to introduce into evidence reports from three of Pereyra's treating physicians, Robert Schneider, an oncologist, and Lawrence Alpert and Hans Popper, pathologists. The transcripts supplied by the parties do not include either the offers into evidence of these reports or the trial court's charge to the jury as to how to consider these reports. We presume that they were offered and admitted under General Statutes § 52-174 (b). The reports indicate that the treating physicians were all of the opinion that Pereyra died of liver failure and not cancer. None of the doctors examined the protein compounds to see if they were capable of causing injury to the liver. There was no analysis of Pereyra's liver tissue to see what substances had caused the fatal damage, but the liver was analyzed for evidence of cancerous tissue, and none was found. The plaintiffs also presented the report of an expert witness, Zalmen Arlin, who had been disclosed by the plaintiffs as an expert witness but had died prior to trial. His preliminary report was admitted into evidence, over the defendants' objection, pursuant to Gen eral Statutes § 52-174 (a). Arlin had reviewed Pereyra's medical records and autopsy reports and agreed with the diagnosis of liver failure. He related in his report that he had no information on the German protein compounds and was in the process of securing a translation of a German textbook that discussed them. He concluded that he assumed the German drugs to be toxic unless the contrary were shown to be true. The defendants moved to dismiss at the close of the plaintiffs' case for their failure to establish a prima facie case of proximate cause. The motion was denied, and the defendants proceeded with their case. The defendants called as their expert witness James Bidanset, a forensic toxicologist. Bidanset was the only witness who had analyzed the German drugs, and he testified that they were incapable of causing Pereyra's liver failure. The tests he performed were to determine whether the protein compounds were poisonous to the human body. The test results showed that they were not. Bidanset noted that the autopsy report did not contain a toxicology report, although such tests are usually performed. He also testified that the expiration date of the compounds had passed at the time Pereyra injected them, which could mean that the drugs had become less potent, and that it was standard medical procedure to monitor liver enzymes when injecting a patient with protein substances. He also testified, however, that necrosis of the liver can be caused by the injection of foreign protein substances, and that the normal reaction time of the human liver to a foreign protein is, on average, six weeks. The jury awarded the plaintiff executor $20,000 for economic damages, which included medical bills and related expenses and lost earnings, and $150,000 for noneconomic damages, which included permanent disability, pain and suffering, and loss of enjoyment of life's activities, and awarded the plaintiff wife economic damages of $500 and noneconomic damages of $150,000 for loss of consortium. The defendants filed a motion to set aside the verdict, which was denied. The defendants also filed a motion for remittitur, claiming that the noneconomic damages awarded for loss of consortium were excessive. That motion was also denied. Our standard of review differs for the defendants' two claims. With regard to whether the plaintiff executor had proved proximate cause for his negligence action, the "trial court's refusal to set aside the verdict is entitled to great weight in our assessment of the claim that its decision is erroneous. " Norrie v. Heil Co., 203 Conn. 594, 606, 525 A.2d 1332 (1987). "Our role in addressing this claim is extremely limited." Id. The defendants' claim that the amount of the verdict is excessive, however, raises a question of law and not of fact, and, therefore, the trial court's denial of the motion for remittitur is subject to our plenary review. Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978); Preston v. Phelps Dodge Copper Products Co., 35 Conn. App. 850, 855-56, 647 A.2d 364 (1994). I Proximate Cause We first address the defendants' claim that the plaintiffs failed to establish proximate cause. In every professional malpractice action, the plaintiff is required to prove that (1) the defendant was obligated to conform to a recognized standard of care, (2) the defendant deviated from that standard, (3) the plaintiff suffered some injury, and (4) the defendant's act in departing from the standard of care caused the plaintiff's injury. Pisel v. Stamford Hospital, 180 Conn. 314, 334-42, 430 A.2d 1 (1980); LaBieniec v. Baker, 11 Conn. App. 199, 202-203, 526 A.2d 1341 (1987). In the present case, prior to trial, the Connecticut board of chiropractic examiners found that Zabrecky had violated a recognized standard of care in prescribing the German protein compounds to Pereyra and accordingly suspended his license. Thus, the first two requirements were satis fied. The third requirement, evidence of an injury, is met by Pereyra's death. The defendants concede that the first three requirements for medical malpractice existed. The only element in dispute at trial was causation. No matter how negligent a party may have been, if his negligent act bears no relation to the injury, it is not actionable. LaBieniec v. Baker, supra, 206. In order for legal causation to exist, both actual cause and proximate cause must be present. Coste v. Riverside Motors, Inc., 24 Conn. App. 109, 113, 585 A.2d 1263 (1991). Actual cause requires evidence that the plaintiff's injury would not have occurred in the precise way that it did without the defendant's conduct. Id. Proximate cause is defined as an actual cause that is a substantial factor in the resulting harm. Doe v. Manheimer, 212 Conn. 748, 757, 563 A.2d 699 (1989). The "test" for proximate cause is whether the defendant's conduct was a "substantial factor" in producing the plaintiff's injury. Id., 758. This substantial factor test reflects the inquiry fundamental to all proximate cause questions, namely, "whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence. ." (Citations omitted; internal quotation marks omitted.) Id. The issue of proximate cause is ordinarily a question of fact for the trier of fact and becomes a question of law only when " 'the mind of a fair and reasonable person could reach only one conclusion . . . Coste v. Riverside Motors, Inc., supra, 114. Here, the defendants argue that the plaintiffs did not introduce sufficient evidence to allow the jury to find proximate cause because they did not present sufficient expert opinion evidence to show that the defendants' actions were the proximate cause of Pereyra's injuries. Expert medical opinion evidence is usually required to show the cause of an injury or disease because the medical effect on the human system of the infliction of injuries is generally not within the sphere of the common knowledge of the lay person. Aspiazu v. Orgera, 205 Conn. 623, 631, 535 A.2d 338 (1987); Collette v. Collette, 177 Conn. 465, 471, 418 A.2d 891 (1979). Expert medical opinion evidence is generally required in all cases involving professional competence and malpractice. Grody v. Tulin, 170 Conn. 443, 449, 365 A.2d 1076 (1976); Campbell v. Pommier, 5 Conn. App. 29, 32, 496 A.2d 975 (1985). Where expert medical opinion evidence is required in a medical malpractice case, "[t]he causal relation between an injury and its later physical effects may be established by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based upon a hypothetical question." Boland v. Vanderbilt, 140 Conn. 520, 525, 102 A.2d 362 (1953). The expert opinion cannot rest on surmise or conjecture because the trier of fact must determine probable cause, not possible cause. Aspiazu v. Orgera, supra, 632; Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 718, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991). In other words, the expert opinion must be based on reasonable probabilities. Struck-man v. Burns, 205 Conn. 542, 555, 534 A.2d 888 (1987). An expert, however, need not use "talismanic words" to show reasonable probability. Aspiazu v. Orgera, supra, 632. In other words, formulaic words are not essential when an expert renders an opinion as long as it is clear that the opinion of the expert is expressed in terms of probabilities. Struckman v. Burns, supra, 555. An exception to the general rule with regard to expert medical opinion evidence is when the medical condition is obvious or common in everyday life. State v. Orsini, 155 Conn. 367, 372, 232 A.2d 907 (1967); see also Parker v. Supermarkets General Corp., 36 Conn. App. 647, 652 A.2d 1047 (1995). Similarly, expert opinion may not be necessary as to causation of an injury or illness if the plaintiffs evidence creates a probability so strong that a lay jury can form a reasonable belief. Gannon v. Kresge Co., 114 Conn. 36, 38, 157 A. 541 (1931). Expert opinion may also be excused in those cases where the professional negligence is so gross as to be clear even to a lay person. Puro v. Henry, 188 Conn. 301, 305, 449 A.2d 176 (1982); Slimak v. Foster, 106 Conn. 366, 370, 138 A. 153 (1927). The defendants claim that Arlin's report and the reports of the treating physicians were insufficient expert opinion because the physicians assumed, without any toxicological analyses having been performed, that the German protein compounds caused the death of Pereyra, and did not rule out other possible causes of liver failure. The defendants claim that absent such tests, the reports are mere conjecture and speculation, lacking foundation and therefore insufficient to establish proximate cause. The defendants on appeal do not claim error because the court admitted the reports as expert medical opinion or because the jury should not have considered the cumulative effect of all of the reports together to establish causation. Rather, they claim that the reports, even when considered together, are insufficient to show causation because the protein compounds were not analyzed to determine if they were capable of causing injury to the liver and because Pereyra's liver tissue was not analyzed to determine whether the protein compounds caused the necrosis. The defendants, therefore, argue that the jury's finding that Zabrecky's negligence proximately caused Pereyra's death is unreasonable. The defendants also argue that this case does not fall within the narrow exception to the rule requiring expert medical evidence in medical malpractice cases because chemical toxicity and the origins of liver failure are not within a lay person's ordinary knowledge. The defendants conclude that since the only toxicological tests introduced into evidence, those performed by Bidanset, showed that the German drugs were nontoxic, the jury could not have reasonably found that the defendants caused Pereyra's injuries. The plaintiffs, on the other hand, argue that Arlin's report, together with the reports of the treating physicians, provided sufficient evidence from which the jury reasonably could have found proximate cause. We agree with the plaintiffs. We conclude that the contents of the reports, together with the inferences drawn most favorably to the plaintiffs from the other evidence, created such a strong probability that Pereyra's death was caused by the negligent administration of the German drugs that the jury could have reasonably found that Zabrecky's negligence proximately caused Pereyra's death. See Puro v. Henry, supra, 188 Conn. 308. One of the ways to establish the causal relationship between particular conduct of a defendant and a plaintiff's injury is the expert's deduction, by the process of eliminating causes other than the conduct, that the conduct was the cause of the injury. Boland v. Vanderbilt, supra, 140 Conn. 525. The submitted reports indicate that each physician deduced that the German drugs were the most probable cause of Pereyra's liver failure, even without analysis of the drugs. Arlin's report contained the following conclusions: "This patient was eligible for therapy which has a high response rate . [Hjowever, because of the encouragement of Zabrecky to stay away from this treatment, he undertook a course of action and treatment with drugs that have no known utility in this country . [Wjithin a short period, less than two months of starting with these therapies, the patient developed severe hepatic failure that ultimately led to his death . [T]here was no evidence of hepatic mestases . One must therefore assume, that some other material that the patient was exposed to was or could have induced the liver disease . The only known treatment which he received was the material imported from Germany . [Pereyra's] disease probably could have been controlled ha[d] he not taken the injections administered by Dr. Zabrecky." Schneider, one of the oncologists who treated Pereyra at the hospital, indicated in his report that he found "no evidence of mestases in the liver. The patient ultimately succumbed, died of liver failure. Autopsy revealed necrosis of the liver suggestive of possible drug toxicity and further history obtained after the patient died showed that he had been taking injections of a German made compound which was intended as some form of anti-cancer agent as well as taking this agent orally. This incident was reported to the [FDA] . The patient [h]as taken this so called medication . as far as we could tell not under the supervision of any physician and was certainly unknown to any of us. Therefore the cause of death was most likely the self-administration of so-called anti-tumor agent." Alpert, the pathologist who performed the autopsy, concluded that Pereyra's death was caused by "toxic centrolobular cholestatic injury to liver cells with hepatic failure, probably secondary to toxic reaction to IV anti-tumor preparation." Popper, another pathologist who reviewed Alpert's report, agreed with this diagnosis, concluding that Pereyra died of "toxic cholestatic liver injury which is probably an effect of the German anti-cancer agent." Finally, even the defendants' expert witness, Bidanset, a forensic toxicologist, testified that Zabrecky, according to standard medical procedure, should have been monitoring Pereyra's liver enzymes once the protein compound therapy had begun. He also admitted that necrosis of the liver can be caused by the injection of foreign protein substances, and that, on average, the reaction time of the human liver to such foreign substances is six weeks. This testimony bolsters rather than discredits the plaintiffs' medical reports because the only foreign substances taken by Pereyra were the German protein compounds, and because Pereyra died of liver failure almost exactly six weeks after he began injecting the compounds. Furthermore, we disagree with the defendants' claim that each of the reports submitted into evidence by the plaintiffs lacks foundation. As discussed previously, an expert opinion need not be phrased in "talismanic words" to show reasonable probability. Aspiazu v. Orgera, supra, 205 Conn. 632. Each of the reports indicates that the physician submitting the report concluded that the most probable cause of Pereyra's death was the German protein compounds. We therefore hold that each report contains an opinion based on reasonable probabilities, and therefore constitutes sufficient expert testimony. General Statutes § 52-174 (b) provides that a signed report of a treating physician may be used in lieu of the testimony of that treating physician. This is a case, however, where Zabrecky's actions so clearly constituted gross professional negligence that, even if we did not consider the medical reports of Pereyra's treating physicians as expert medical opinion testimony, the jury could have nonetheless reasonably found that Zabrecky's negligent actions were the proximate cause of Pereyra's death. While ordinarily a plaintiff cannot prevail unless there is positive evidence of an expert nature from which the jury could reasonably conclude that the defendant was negligent, and that the negligence was the proximate cause of the plaintiff's injury, there is an exception where, as here, "there is manifest such gross want of care or skill as to afford, of itself, an almost conclusive inference of negligence that the testimony of an expert is not necessary." Puro v. Henry, supra, 188 Conn. 305. The type of breach of the standard of care has an impact on the plaintiffs burden of proving proximate cause, because each inferential fact need not be proven by the quantum of proof required to find the ultimate fact. See id., 310. The reports and Zabrecky's grossly negligent actions, together with the circumstantial evidence introduced, prove proximate cause by a fair preponderance of the evidence. See id. II Loss of Consortium Loss of consortium is defined as the loss of services, financial support, and the variety of intangible relations that exist between spouses living together in marriage. Gurliacci v. Mayer, 218 Conn. 531, 562, 590 A.2d 914 (1991). The "intangible" components of consortium are the "constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage." (Internal quotation marks omitted.) Id. Damages awarded for loss of consortium include future as well as past suffering, and are measured by the extent of the loss incurred, to the extent that money can measure it. Keyes v. Churchward, 135 Conn. 115, 118, 61 A.2d 668 (1948). Since loss of consortium is incapable of precise measurement, considerable latitude is allowed a jury in estimating damages. Id. The defendants argue that the amount of noneconomic damages awarded to Barbara Pereyra for her loss of consortium was excessive because the Pereyras were married for less than one year, and also because by the fall of 1987, Pereyra had become so ill that even without liver failure, he would have lived only another two or three months. The defendants claim that under the circumstances of this case, the award is disproportionate to the injury, particularly because the same amount was awarded to the estate for noneconomic damages for loss of life's enjoyments. Where, as here, the trial court has denied a motion to set aside a verdict as excessive, we conduct a plenary review to determine whether the verdict shocks the sense of justice or is entirely disproportionate to the injury. Samose v. Hammer-Passero Norwalk Chiropractic Group, P.C., 24 Conn. App. 99, 108, 586 A.2d 614, cert. denied, 218 Conn. 903, 588 A.2d 1079 (1991). The "ultimate test which must be applied to the verdict by the trial court is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption. ." (Citation omitted; internal quotation marks omitted.) Champagne v. Raybestos-Manhattan, 212 Conn. 509, 556-57, 562 A.2d 1100 (1989). There is ample evidence in the record, particularly in the transcript of Barbara Pereyra's testimony, to support the jury's verdict. While the amount of damages awarded is generous, it cannot be characterized as unjust. Moreover, the amount of a damage award is a matter particularly within the province of the jury, and the assessment of damages always defies any precise mathematical computation. Hammer v. Mount Sinai Hospital, supra, 25 Conn. App. 724; Zarelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 326, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986). The trial court, not this court, had the opportunity to gauge the tenor of the trial and detect any factors that could have improperly influenced the jury. Donahue v. State, 27 Conn. App. 135, 140, 604 A.2d 1331 (1992). We see nothing in the record that would indicate that the trial court abused its discretion in denying the defendants' motion for remittitur, and, accordingly, we will not disturb that ruling. Ill The Cross Appeal Practice Book § 4005 requires that a cross appellant be aggrieved by the judgment or decision appealed from. The plaintiffs have not shown how they were aggrieved, particularly since they prevailed at trial, by what they characterize as the trial court's restrictive definition of "expert testimony." At oral argument, the plaintiffs argued that the issue of whether the reports of the decedent's treating physicians were the equivalent of expert medical opinion testimony could arise if this case was to be remanded for a new trial. Practice Book § 4013 (a) (1) (B) is the proper vehicle to "present for review adverse rulings or decisions of the court which should be considered on appeal in the event the appellant is awarded a new trial" rather than a cross appeal. We do not reach the issue because we affirm the trial court's judgment. The judgment is affirmed. In this opinion the other judges concurred. The plaintiff Barbara Pereyra testified that her husband had great confidence in Zabrecky, more so than in the physicians who were treating him, because it was Zabrecky who initially had discovered the tumor in his back. Since Pereyra died while undergoing radiation treatments, before receiving chemotherapy, we do not know for certain, if, as Barbara Pereyra testified, he would have followed Zabrecky's advice and forgone the chemotherapy. Barbara Pereyra testified that her husband, at Zabrecky's direction, began to take neytumorin orally in July, began to inject neytumorin in August or September, and began to inject neythymin in November. General Statutes § 52-174 (b) provides in pertinent part: "In all actions for the recovery of damages for personal injuries or death . . . any party offering in evidence a signed report and bill for treatment of any treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist may have the report and bill admitted into evidence as a business entry . The use of any such report or bill in lieu of the testimony of such treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist shall not give rise to any adverse inference concerning the testimony or lack of testimony of such treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist." Prior to trial, the defendants filed an objection to the plaintiffs' request to allow the report into evidence on the ground that the report was not the record of a treating physician, but was a letter expressing professional opinions and relying on the report of another physician, Eric Moskow, and therefore hearsay. The court ruled the report admissible but ordered the references to Moskow's report deleted. General Statutes § 52-174 (a) provides: "In all actions for the recovery of damages for personal injuries or death, (1) if a physician, dentist, chiropractor, osteopath, natureopath, podiatrist, professional engineer or land surveyor has died prior to the trial of the action, or (2) if a physician, dentist, chiropractor, osteopath, natureopath, podiatrist, professional engineer or land surveyor is physically or mentally disabled at the time of the trial of the action to such an extent that he is no longer actively engaged in the practice of his profession, the party desiring to offer into evidence the written records and reports of the physician, dentist, chiropractor, natureopath, osteopath, or podiatrist concerning the patient who suffered the injuries or death and the reports and scale drawings of the professional engineer or land surveyor concerning matter relevant to the circumstances under which the injuries or death was sustained shall apply to the court in which the action is pending for permission to introduce the evidence. Notice of the application shall be served on the adverse party in the same manner as any other pleading. The court to which the application is made shall determine whether the person is disabled to the extent that he cannot testify in person to the action. Upon the court finding that the person is so disabled, the matters shall be admissible in evidence as a business entry in accordance with the provisions of § 52-180 when offered by any party in the trial of the action." The «ampies tested were not taken from the actual drugs used by Pereyra. The defendants argued that the verdict was (1) contrary to law in that the plaintiffs had not proved proximate cause, (2) against the evidence in that the plaintiffs' expert opinion evidence was legally insufficient, (3) excessive as to the noneconomic damages awarded to the plaintiff wife for loss of consortium, and (4) improper because the court commented on the defendants' jury form. In November, 1990, Zabrecky was brought before the Connecticut board of chiropractic examiners to answer charges arising out of his treatment of Pereyra. After a hearing, the board found that Zabrecky had exceeded the scope of chiropractic practice and had rendered improper and incompetent care in prescribing the German protein compounds to Pereyra, in developing a course of treatment using the compounds, and in showing Pereyra how to inject them.

Per Curiam. The case is controlled by Staples v. Hendrick, 89 Conn. 100, 93 A. 5 (1915). The judgment is affirmed.

Borden, J. The issue in these appeals is whether a municipal police department arrest report must be disclosed by the police department to the public, pursuant to the Freedom of Information Act (act); General Statutes § 1-7 through 1- 21k; while the criminal prosecution that is related to the arrest report is pending. The defendants, the freedom of information commission (commission) and the Journal Inquirer newspaper and its news editor, Robert H. Boone, appeal from the judgment of the trial court. That judgment sustained the appeal of the plaintiffs, William H. Gifford and John M. Bailey, from the decision of the commission. The trial court concluded that the commission had improperly determined that such an arrest report must be disclosed to the public during the pendency of the criminal prosecution. We affirm the judgment of the trial court. The record reveals the following facts and procedural history. On September 12, 1989, a police officer from the Windsor Locks police department was dispatched to a restaurant in that town to investigate a report of a disturbance between the owner of the establishment and two young males. The owner of the restaurant informed the officer that two young males, one of whom was known to him, had threatened him with a knife and had given him anti-Semitic and racist literature. Shortly thereafter, the two males described by the owner were found nearby and transported to the police station for questioning. A witness to the incident also went to the police station and confirmed the store owner's account of the events. The witness also stated that one of the males, William Landers, had accused the store owner of selling drugs and had warned the owner that he "better watch this drug business." Both individuals were subsequently arrested on various charges. While being held for arraignment, Landers attempted to commit suicide. The investigating officer drafted an arrest report, dated September 12,1989, that records these events. The following day, a reporter from the Journal Inquirer requested a copy of the arrest report that had been prepared in connection with these arrests. William Gifford, the chief of police of the town of Windsor Locks, on advice from the state's attorney's office, denied the reporter's request for a copy of the report during the pendency of the criminal prosecution. Following the completion of the criminal prosecution that resulted from the arrest report, however, Gifford released a copy of the report to the Journal Inquirer. The Journal Inquirer and Boone lodged a complaint with the commission claiming that Gifford's refusal to release the arrest report during the pendency of the criminal case violated General Statutes § 1-19 (a). In response, the plaintiffs claimed that arrest reports are exempt from disclosure under General Statutes § 1-19 (b) (3) (B), 1-19b (b), l-20b, 1-19 (b) (4), l-19c and article twenty-third of the amendments to the Connecticut constitution. Specifically, the plaintiffs con tended that disclosure was not required by statute, and that nondisclosure was necessary: (1) to protect witnesses; (2) to protect juveniles; (3) to facilitate additional police investigations if requested by the state's attorney's office; (4) to minimize unfavorable pretrial publicity that would necessitate a change of venue; (5) to preclude any prejudice caused by publication of a defendant's confession or admission; (6) to avoid publication of inadmissible evidence; and (7) to avoid conflict with the rules of discovery set forth in General Statutes § 54-86b and Practice Book § 746, 752 and 753. Several witnesses testified at the administrative hearings on the complaint. First, Gifford testified that he had a long-standing policy of refusing to release arrest reports until the prosecution related to such a report was no longer pending. He testified that this policy was necessary to protect the identity of witnesses to the events culminating in the arrest, including the names of any police officers who were likely to be called to testify at trial. Then chief state's attorney John J. Kelly testified that the standard practice if an arrest is made is for the police department to prepare an arrest report that details the investigation that led to the arrest, and then to forward a copy of the document to the appropriate state's attorney's office. This document then serves as the basis upon which the prosecutor may make future decisions regarding the case, and, in particular, determine whether further investigation by the police is necessary. Kelly also explained that a typical arrest report contains the summary of events that resulted in the arrest, the names and addresses of witnesses and victims of the crime, information given by such witnesses, and any further police action corroborating the allegations of witnesses. In addition, Kelly testified that if police departments were obligated to disclose such reports during the pendency of a criminal case, witnesses could be located and intimidated, the identity of victims of sexual assault or of youthful offenders might become public, and the defendant's right to a fair trial could be damaged by any resulting publicity. Assistant state's attorney T.R. Paulding, who at that time was the supervising prosecutor for geographical area thirteen of the Hartford-New Britain judicial district, testified that a criminal case begins at the time of the arrest, and can be concluded only through a judicial resolution. He testified that the police report in this case had been used throughout the case for various pur poses, including assessing the validity of the charges, determining the strategy to be employed in the case and establishing in court that there was probable cause to arrest the defendant. Paulding also testified that the release of the arrest report in this case, while the prosecution was pending, could have jeopardized the defendants' fair trial rights and could have resulted in witness or victim intimidation. The commission concluded in its final decision on September 12,1990, that, during the pendency of a criminal prosecution, an arrest report must be disclosed upon request to the public pursuant to General Statutes § 1-15 and 1-19 (a) of the act. The commission stated that, except for the names and addresses of witnesses, such arrest reports were not exempt from disclosure and ordered Gifford to "comply with the disclosure requirements of § 1-19 (a)." The commission also "caution[ed] [Gifford] to take care to comply with the law in the future or [he] may risk further consequences for [his] continuing disregard of the law." The plaintiffs filed separate appeals in the trial court claiming that the commission had improperly concluded that the act required disclosure of an arrest report while the criminal prosecution is pending. The trial court sustained the plaintiffs' appeals concluding that: (1) pursuant to § l-19c, the division of criminal justice (division) is not a public agency while engaged in the investigation and prosecution of a criminal case; (2) the jurisdiction of the division attaches at the time of arrest; (3) the arrest report, although compiled by police, is, upon its completion, a record of the division; (4) disclosure of an arrest report during the pendency of a criminal prosecution, without permission of the division, constitutes a violation of § l-19b (b) and the specific statutory and Practice Book rules of discovery; (5) the premature release of an arrest report violates the rights of the division as a party to negotiations pursuant to § 1-19 (b) (4); (6) § l-20b limits the disclosure obligation regarding arrest reports to the "name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested"; and (7) law enforcement records as contemplated in § 1-19 (b) (3) (A) and (B) pertain to ongoing investigations and contemplated or prospective law enforcement proceedings such as an arrest to be made at a later date, and do not include already compiled arrest reports. Gifford v. Freedom of Information Commission, 42 Conn. Sup. 291, 300-301, 617 A.2d 479 (1992). These appeals followed. The commission claims that the trial court improperly concluded that the act does not require disclosure of arrest reports while the criminal prosecution is pending. We disagree. At the outset, it is useful to note several principles that guide our resolution of the issue raised by these appeals. First, the facts of this case limit our discussion of the commission's claim solely to the issue of whether arrest reports must be disclosed during the pendency of the criminal prosecution. The facts of this case do not raise, nor do we need to decide, whether a police report of any kind must be released before an arrest is made, or whether an arrest report must be released after the criminal case to which the report relates has been fully adjudicated. Second, we recognize, as a general matter, that "there is an 'overarching policy' underlying the [act] favoring the disclosure of public records. Chairman v. Freedom of Information Commission, 217 Conn. 193, 196, 585 A.2d 96 (1991); Hartford v. Freedom of Information Commission, 201 Conn. 421, 431, 518 A.2d 49 (1986); Maher v. Freedom of Information Commission, 192 Conn. 310, 315, 472 A.2d 321 (1984). Our construction of the [act] must be guided by the policy favoring disclosure and exceptions to disclosure must be narrowly construed. Ottochian v. Freedom of Information Commission, 221 Conn. 393, 398, 604 A.2d 351 (1992); Rose v. Freedom of Information Commission, 221 Conn. 217, 233, 602 A.2d 1019 (1992); Lieberman v. State Board of Labor Relations, 216 Conn. 253, 266, 579 A.2d 505 (1990); Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 188, 470 A.2d 1209 (1984)." Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 626, 609 A.2d 998 (1992). This rule of construction, however, is not determinative. Indeed, although the act was intended as a general matter to promote openness in government; see, e.g., Ottochian v. Freedom of Information Commission, supra, 398; the act itself recognizes competing interests, and the need for some governmental records to remain confidential, at least initially. See, e.g., Chairman v. Freedom of Information Commission, supra, 199. Third, although the act's general policy favoring public access to public records has strong constitutional underpinnings, the fact that the act implicates first amendment concerns of access to information does not control the interpretation of the act itself. Id., 198-99. Thus, the question of whether the legislature intended to compel disclosure of arrest reports during the pendency of a criminal prosecution presents an issue of statutory interpretation and, therefore, is a question of law. Connecticut Humane Society v. Freedom of Information Commission, 218 Conn. 757, 761, 591 A.2d 395 (1991). The objective of statutory construction is to give effect to the intended purpose of the legislature. State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981). Moreover, "[i]t is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. Charlton Press, Inc. v. Sullivan, 153 Conn. 103, 110, 214 A.2d 354 [1965]. [If] there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one case or subject within the scope of a general provision, then the particular provision must prevail; and if both cannot apply, the particular provision will be treated as an exception to the general provision. Kelly v. Dewey, 111 Conn. 281, 292, 149 A. 840 [1930]. Budkofsky v. Commissioner of Motor Vehicles, 177 Conn. 588, 592, 419 A.2d 333 (1979)." (Internal quotation marks omitted.) Gaynor v. Union Trust Co., 216 Conn. 458, 476-77, 582 A.2d 190 (1990); Galvin v. Freedom of Information Commission, 201 Conn. 448, 456, 518 A.2d 64 (1986). With these principles in mind, we turn to the act in order to determine whether the legislature intended that criminal arrest reports must be disclosed while the criminal prosecution related to the report is pending. We conclude that § l-20b governs such disclosure, and does not mandate disclosure of an arrest report in these circumstances. We begin our analysis by assuming, without deciding, that but for the language "[e]xcept as otherwise provided by any . . . state statute" in § 1-19 (a), an arrest report is a record "maintained or kept on file by any public agency" pursuant to that section. We also assume, without deciding, that, but for the language "[e]xcept as otherwise provided by any . . . state statute" in § 1-19 (a) and but for § l-20b, the plaintiffs have not demonstrated that this arrest report falls within any of the exemptions listed in § 1-19 (b). Nevertheless, we conclude that: (1) § l-20b governs; (2) it provides for both a requirement of disclosure and a limit on the extent of that disclosure; and (3) it does not require the full disclosure of arrest reports during the pendency of a criminal prosecution. We note, first, that § l-20b is itself part of the Freedom of Information Act. Although § l-20b was enacted six years after most of the act became law in 1977, that section is found in title 1, chapter 3 of our General Statutes. See, e.g., Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 686-88, 595 A.2d 313 (1991); Healy v. Freedom of Information Commission, 18 Conn. App. 212, 213, 557 A.2d 561 (1989). Consequently, this provision is part of the statutory scheme that regulates the circumstances under which a public agency must make its records available to the public for inspection or copying. We turn now to the specific language of § l-20b. That section states: "Notwithstanding any provision of the general statutes to the contrary, any record of the arrest of any person, other than a juvenile, except a record erased pursuant to chapter 961a, shall be a public record from the time of such arrest and shall be disclosed in accordance with the provisions of section 1-15 and subsection (a) of section 1-19. For the purposes of this section, 'record of the arrest' means the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested." (Emphasis added.) The language emphasized above indicates that a document falling within this section that would otherwise be governed by other portions of the act, or by any other provision of the General Statutes, is nonetheless governed, not by those other provisions, but by this provision. The first sentence of § l-20b, by itself, establishes a broad disclosure requirement: "[A]ny record of the arrest of any person, other than a juvenile, except a record erased pursuant to chapter 961a, shall be a public record from the time of such arrest and shall be disclosed . . . ." (Emphasis added.) The plain language of this sentence, therefore, must be read to include an arrest report. Certainly, an arrest report constitutes "any record of the arrest of any person." To hold otherwise would be to ignore the term "any" as it modifies the terms "record" and "person." Our interpretation of "any record" to include an arrest report is buttressed by the inclusion of the language "except a record erased pursuant to chapter 961a . ." General Statutes § 54-142a, which is part of chapter 961a of the General Statutes, requires that all police and court records and records of any- state's attorney pertaining to charges that have been dismissed must be erased, and the disclosure of such records by judicial or law enforcement personnel is pro hibited by that statute. See State v. Morowitz, 200 Conn. 440, 450, 512 A.2d 175 (1986). Consequently, if the language in § 1-20b, "any record of the arrest of any person," does not include an arrest report, then the language referring to the exception for records erased pursuant to chapter 961a would have been unnecessary. See Board of Education v. Freedom of Information Commission, 217 Conn. 153, 160, 585 A.2d 82 (1991) (no part of a statute should be treated as insignificant or unnecessary). Having established that the first sentence of § 1-20b includes an arrest report, we turn to the second sentence of that provision. The first sentence of § 1-20b cannot be read in isolation from the second sentence of that provision. See Peck v. Jacquemin, 196 Conn. 53, 68-73, 491 A.2d 1043 (1985). The second sentence limits the language of the first sentence by limiting the "record of the arrest of any person"—which we interpret to include an arrest report—to the "name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested." We conclude that this language must be read as a limitation on the broad disclosure requirement of the first sentence, because otherwise it would have been unnecessary for the legislature to have included such language. See Board of Education v. Freedom of Information Commission, supra. Moreover, this reading is consistent with the rule of statutory construction known as expressio unius est exclusio alterius; see, e.g., Chairman v. Freedom of Information Commission, supra, 200; which may be translated as "the expression of one thing is the exclusion of another." Black's Law Dictionary (6th Ed. 1990). In light of our linguistic analysis of both sentences, read together, we conclude that § l-20b exclusively regulates the disclosure of arrest reports, and obligates a police department to disclose such a report only to the extent provided by the second sentence of that provision. This conclusion is buttressed by reference to the legislative history of that section. The legislature enacted § l-20b in response to a growing concern that certain police departments were refusing to disclose even the names of persons who had been arrested by officers of those departments. See 26 H.R. Proc., Pt. 8,1983 Sess., p. 2772, remarks of Representative Richard D. Tulisano ("The purpose of the bill before us [is] to make sure when somebody was booked there would be no way that that could be hidden from the public. That everyone should know who's, in fact, been booked and put under custody."). Section l-20b, as enacted, implements this purpose because it obligates the disclosure of the name of any person who has been arrested. At the same time, however, we read this legislative history to support our interpretation that § l-20b does not require disclosure of an arrest report beyond the limited information listed in the second sentence of that provision. When the bill was drafted and debated, the legislature specifically addressed the issues and policy concerns related to the disclosure of arrest reports. In this regard, the legislative history indicates that the legislature, although addressing the problem of so-called "secret arrests," intended to limit the extent to which police were obligated to disclose an arrest report. First, as the provision was originally introduced in the House of Representatives, the bill provided in relevant part: "Notwithstanding any provision of the general statutes to the contrary, any record of the arrest of any person, other than a juvenile, shall be a public record from the time of such arrest and shall be disclosed in accordance with the provisions of section 1-15 and subsection (a) of section 1-19 of the general statutes." 1983 Substitute House Bill No. 5111. This ver sion of the bill, notably, did not contain any language limiting the provision to the "name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested." The House then amended the bill to read in relevant part: "Notwithstanding any provision of the general statutes to the contrary, any police blotter entry recording the arrest of any person, other than a juvenile, shall be a public record from the time of such entry and shall be disclosed in accordance with the provisions of section 1-15 and subsection (a) of section 1-19 of the general statutes." (Emphasis added.) 1983 Substitute House Bill No. 5111, § 1, as amended by House Amendment Schedule A. In favorably commenting on the amendment, Representative Francis X. O'Neill, Jr., stated: "Many years ago . in my years in . . . law enforcement, a record of an arrest included the affidavit to support an arrest, the arrest warrant itself, and the blotter record entry. If the bill, as written, went through, it would completely destroy every single undercover activity that any police department in this state attempted to go into. It would destroy all informants; quite frankly, it could be called a murder bill. It would kill informants. I personally have taken informants off meat racks who were dead. I have personally taken informants out of automobiles who were dead. They were police officers. They were individuals whose names had been disclosed either intentionally or unintentionally. A police officer puts his life oh the line; this particular amendment would save their lives." 26 H.R. Proc., Pt. 8, 1983 Sess., pp. 2772-73. This history suggests that, when the legislature considered passage of this bill, it was particularly cognizant of the policy concerns that militate against disclosure of arrest reports. Although the Senate rejected House Amendment A, the Senate later added language to the provision that is the functional equivalent of the "police blotter entry recording of the arrest" language of House Amendment A, namely, the "name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested." We read this history, therefore, as strong evidence that the legislature intended by the enactment of § l-20b to ensure that certain minimal information regarding arrests be disclosed by the police, but, at the same time, to ensure that the disclosure requirement did not include the entire arrest report. In sum, we read § l-20b as a salient example of the maxim of statutory construction that specific language covering the given subject matter, namely, the disclosure requirements for arrest reports, will prevail over general language of the same or another statute that might otherwise prove controlling. See Gaynor v. Union Trust Co., supra, 476-77; Galvin v. Freedom of Information Commission, supra, 456. That is what the legislature must have intended by stating: "Notwith standing any provision of the general statutes to the contrary, any record of the arrest of any person . . . shall be a public record . . . ." (Emphasis added.) General Statutes § l-20b. This reading of this language, moreover, dovetails with the language of § 1-19 (a) that provides for disclosure "[ejxcept as otherwise provided by any . . . state statute." See footnote 5. Section l-20b is such a "state statute." Finally, our conclusion is supported by reference to § l-19b (b), which provides in relevant part: "Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be deemed in any manner to . . . affect the rights of litigants . . . under the laws of discovery of this state . . . ." (Emphasis added.) As a general matter, it is undisputed that, absent an open file policy maintained by a state's attorney, a criminal defendant does not have immediate access to an arrest report. Such a report ordinarily need not be disclosed by the state except to the extent ordered by the court pursuant to the rules of discovery. See Practice Book § 746, 752 and 753; footnote 7; see also Practice Book § 740 through 745, 747, 749 through 750, and 754 through 755. Public access to arrest reports while the prosecution is pending would affect the rights of litigants under the laws of discovery because a defendant, as a member of the public, would have immediate access to docu ments otherwise unavailable under our discovery rules. On the other hand, the state's attorney's rights would be adversely affected, because the defendant would have immediate access to documents upon which the prosecutor relies to make strategic decisions regarding the prosecution and to decide whether to request further investigation by the police. Indeed, the commission itself has concluded that disclosure of arrest reports to criminal defendants while their prosecution is pending would conflict with the rules of discovery. See McIntosh v. Chief of Police, FOIC No. 91-11, p. 2 (September 25, 1991). In McIntosh, the commission denied the request of eight criminal defendants to compel disclosure of their arrest reports concluding that "an order of the commission requiring disclosure of the records requested by the complainant would affect the rights of litigants under the laws of discovery of this state." Id. In essence, the commission's claim, and the argument of the dissent, would transform the commission, an executive agency, into the overseer of criminal discov ery rules. In light of the clear expression of a contrary intent in § l-20b, we decline to read the act so as to require such an extraordinary result. The judgment is affirmed. In this opinion Peters, C. J., and Callahan, J., concurred. The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). John M. Bailey, the chief state's attorney, was substituted as a party for Richard N. Palmer, the former chief state's attorney, who, in turn, had been substituted for John J. Kelly, Palmer's predecessor in that position. We previously had concluded that the chief state's attorney was aggrieved by the decision of the commission and accordingly we ordered the trial court to grant his motion to be a party to these proceedings. See Kelly v. Freedom of Information Commission, 221 Conn. 300, 603 A.2d 1131 (1992). The witness' name has been redacted from the copy of the arrest report that was introduced as an exhibit at the administrative hearing in this case. The other individual who was arrested following the incident at the establishment was a juvenile at that time. Consequently, pursuant to General Statutes § 46b-124, his identity has not been disclosed. General Statutes § 1-19 provides in relevant part: "access to public records, exempt records, (a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any pub- lie agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the secretary of the state, as the case may be. . . ." General Statutes § 1-19 (b) provides in pertinent part: "Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (3) records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known, (B) information to be used in a prospective law enforcement action if prejudicial to such action . (4) records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled . . . ." General Statutes § l-19b provides: "agency administration, disclosure OF personnel, birth and tax records, judicial records and proceedings, (a) Sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be: (1) Construed as requiring each public agency to open its records concerning the administration of such agency to public inspection; and (2) construed as requiring each public agency to disclose information in its personnel files, birth records or confidential tax records to the individual who is the subject of such information. "(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be deemed in any manner to (1) affect the status of judicial records as they existed prior to October 1, 1975, nor to affect the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state or (2) require disclosure of any record of a personnel search committee which, because of name or other identify ing information, would reveal the identity of an executive level employment candidate without the consent of such candidate." General Statutes § l-20b provides: "record of an arrest as public record. Notwithstanding any provision of the general statutes to the contrary, any record of the arrest of any person, other than a juvenile, except a record erased pursuant to chapter 961a, shall be a public record from the time of such arrest and shall be disclosed in accordance with the provisions of section 1-15 and subsection (a) of section 1-19. For the purposes of this section, 'record of the arrest' means the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested." General Statutes § l-19c provides: "division of criminal justice deemed not to be public agency, when. For the purposes of subsection (a) of section l-18a, the division of criminal justice shall not be deemed to be a public agency except in respect to its administrative functions." Article twenty-third of the amendments to the Connecticut constitution provides in pertinent part: "There shall be established within the executive department a division of criminal justice which shall be in charge of the investigation and prosecution of all criminal matters. Said division shall include the chief state's attorney, who shall be its administrative head, and the state's attorneys for each judicial district, which districts shall be established by law. The prosecutorial power of the state shall be vested in a chief state's attorney and the state's attorney for each district. The chief state's attorney shall be appointed as prescribed by law. ." General Statutes § 54-86b provides: "right of accused to examine statements, (a) In any criminal prosecution, after a witness called by the prosecution has testified on direct examination, the court shall on motion of the defendant order the prosecution to produce any statement oral or written of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified, and the court shall order said statement to be delivered directly to the defendant for his examination and use. "(b) If the prosecution fails to comply with the order of the court, the court shall strike from the record the testimony of the witness and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared." Practice Book § 746 provides: "information not subject to disclosure Except for the substance of any exculpatory material contained herein, Sec. 740 does not authorize or require disclosure or inspection of: "(1) Reports, memoranda or other internal documents made by a prosecuting authority or by law enforcement officers in connection with the investigation or prosecution of the case; "(2) Statements made to prosecuting authorities or law enforcement officers except as provided in Sec. 748; "(3) Legal research; "(4) Records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of a prosecuting authority." Practice Book § 752 provides: "production following testimony "After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified." Practice Book § 753 provides: "delivery and excision of statements "If the entire contents of a statement requested under Sec. 752 relate to the subject matter of the testimony of the witness, the judicial authority shall order the statement to be delivered directly to the defendant or his counsel for his examination and use. If the prosecuting authority claims that any statement ordered to be produced under Sec. 751 contains matter which does not relate to the subject matter of the testimony of the witness, the judicial authority shall order the prosecuting authority to deliver such statement for the inspection of the judicial authority in camera. Upon such delivery, the judicial authority shall not disclose that portion of such statement which does not relate to the subject matter of the testimony of the witness. With such material excised or obliterated, the judicial authority shall then direct delivery of such statement to the defendant or his counsel for his use. If, pursuant to this procedure, any portion of such statement is withheld from the defendant or his counsel and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be sealed and preserved as an exhibit in the case, and, in the event that the defendant appeals, it shall be made available to the appellate court and, unless for good cause the trial court orders otherwise, to counsel for the parties for the purpose of determining the correctness of the ruling of the judicial authority." General Statutes § 1-15 provides: "application for copies of public records, certified copies, fees, (a) Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. The fee for any copy provided in accordance with this section and sections 1-18a, 1-19 and 1-19b, and sections 1-21 to 1-21k, inclusive, shall not exceed fifty cents per page. If any copy provided in accordance with said sections requires a transcription, or if any person applies for a transcription of a public record, the fee for such transcription shall not exceed the cost thereof to the public agency. "(b) The fee for any copy provided in accordance with subsection (a) of section l-19a shall not exceed the cost thereof to the public agency. In determining such costs for a copy other than a printout, an agency may include only: (1) An amount equal to the hourly salary attributed to all agency employees engaged in providing the requested computer-stored public record, including their time performing the formatting or programming functions necessary to provide the copy as requested, but not including search or retrieval costs except as provided in subdivision (4) of this subsection; (2) an amount equal to the cost to the agency of engaging an outside professional electronic copying service to provide such copying services, if such service is necessary to provide the copying as requested; (S) the actual cost of the storage devices or media provided to the person making the request in complying with such request; and (4) the computer time charges incurred by the agency in providing the requested computer-stored public record where another agency or contractor provides the agency with computer storage and retrieval services. Notwithstanding any other provision of this section, the fee for any copy of the names of registered voters shall not exceed three cents per name delivered or the cost thereof to the public agency, as determined pursuant to this subsection, whichever is less. The office of information and technology shall monitor the calculation of the fees charged for copies of computer-stored public records to ensure that such fees are reasonable and consistent among agencies. Notwithstanding any provision of this chapter to the contrary, (A) any person who requests computer-stored public records from an agency and is aggrieved by the agency's decision on the fee for such records may appeal to the secretary of the office of policy and management or his designee, (B) the secretary or such designee shall conduct a hearing on any such appeal in accordance with the provisions of sections 4-176e to 4-184, inclusive, and (C) any party aggrieved by the decision of the secretary or such designee may appeal therefrom, in accordance with the provisions of section 4-183. "(c) A public agency may require the prepayment of any fee required or permitted under this chapter if such fee is estimated to be ten dollars or more. The sales tax provided in chapter 219 shall not be imposed upon any transaction for which a fee is required or permissible under this section or section l-21c. "(d) The public agency shall waive any fee provided for in this section when (1) the person requesting the records is an indigent individual, (2) the records located are determined by the public agency to be exempt from disclosure under subsection (b) of section 1 -19, or (3) in its judgment, compliance with the applicant's request benefits the general welfare. "(e) Except as otherwise provided by law, the fee for any person who has the custody of any public records or files for certifying any copy of such records or files, or certifying to any fact appearing therefrom, shall be for the first page of such certificate, or copy and certificate, one dollar; and for each additional page, fifty cents. For the purpose of computing such fee, such copy and certificate shall be deemed to be one continuous instrument." At the time the commission released its final decision, the arrest report at issue in this case had been released to the public. Consequently, the specific relief sought by the defendants, namely, disclosure of the report, already had been granted. After seeking supplemental briefing on the issue of mootness, the trial court concluded that the issue was not moot. We agree. The order issued by the commission is prospective in nature and impacts the discovery obligations of the state's attorneys in pending criminal matters. Kelly v. Freedom of Information Commission, 221 Conn. 300, 313, 603 A.2d 1131 (1992). Consequently, we conclude that this appeal is not moot. Because we agree with the trial court that General Statutes § l-20b limits the scope of disclosure required under the facts of this case, we need not address the propriety of the trial court's reliance on other grounds. Despite the dissent's urging to the contrary, we leave those questions to a case in which it is necessary to decide them. The defendants filed separate appeals in the Appellate Court. Before the appeals were transferred to this court, however, the Appellate Court ordered the defendants to file a consolidated brief. The defendants Boone and the Journal Inquirer claim in this court that nondisclosure of arrest reports violates their common law and constitutional right of access to the courts and to court documents. The defendants did not raise these claims to the commission or in the trial court, nor did the trial court consider these principles in sustaining the plaintiffs' appeals. Consequently, as to the common law claim, we refuse to address it. As to the constitutional claim, Boone and the Journal Inquirer have not sought to prevail on the claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or plain error review. We therefore decline to address it. See State v. Cooper, 227 Conn. 417, 428 n.7, 630 A.2d 1043 (1993). Consequently, we also assume, without deciding, that a municipal arrest report is not a record of the division pursuant to General Statutes § 1-18a and 1-19. The dissent contends that our reliance on General Statutes § l-20b renders General Statutes § 1-19 (b) (3) superfluous, and that § 1-19 (b) (3) controls the disclosure of arrest reports. We disagree. We recognize that the language of § 1-19 (b) (3); see footnote 6; could be interpreted to include arrest reports. This language, however, does not explicitly include a reference to arrest reports, and could be interpreted to cover other documents besides arrest reports that are maintained by a law enforcement agency and are not otherwise available to the public. Although there is no need to hypothesize what other documents may be covered by § 1-19 (b) (3), we conclude that the explicit reference to arrest reports in § l-20b removes such documents from the coverage of § 1-19 (b) (3), and provides both the disclosure obligations for such reports and the appropriate limitations on that disclosure. As a result, our interpretation does not render § 1-19 (b) (3) superfluous because, absent some other statutory provision shielding law enforcement documents from disclosure, that provision continues to regulate the disclosure of law enforcement documents other than arrest reports during the pendency of a criminal case. It is useful in this regard to compare the "notwithstanding" language of General Statutes § 1-20b to the "notwithstanding" language contained within General Statutes § 1-19 (c), which provides in relevant part: "Notwithstanding the provisions of subdivision (1) of subsection (b) of [§ 1-19], disclosure shall be required of [certain documents] comprising part of the process by which governmental decisions and policies are formulated." This language suggests, in comparison to § l-20b, that the legislature knew how to describe a narrow limit on the disclosure exemptions in § 1-19 (b). Consequently, we read the emphasized language of § l-20b, namely, "[notwithstanding any provision of the general statutes to the contrary," as indicative of a legislative intent that § 1-20b constitutes a broad exception to the disclosure requirements of § 1-19. General Statutes § 54-142a provides: "erasure of criminal records. (a) Whenever in any criminal case, on or after October 1,1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state's attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken, or upon final determination of the appeal sustaining a finding of not guilty or a dismissal, if an appeal is taken. Nothing in this subsection shall require the erasure of any record pertaining to a charge for which the defendant was found not guilty by reason of mental disease or defect or guilty but not criminally responsible by reason.of mental disease or defect. "(b) Whenever in any criminal case prior to October 1,1969, the accused, by a final judgment, was found not guilty of the charge or the charge was dismissed, all police and court records and records of the state's or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased by operation of law and the clerk or any person charged with the retention and control of such records shall not disclose to anyone their existence or any information pertaining to any charge so erased; provided nothing in this subsection shall prohibit the arrested person or any one of his heirs from filing a petition for erasure with the court granting such not guilty judgment or dismissal, or, where the matter had been before a municipal court, a trial justice, the circuit court or the court of common pleas with the records center of the judicial department and thereupon all police and court records and records of the state's attorney, prosecuting attorney or prosecuting grand juror pertaining to such charge shall be erased. Nothing in this subsection shall require the erasure of any record pertaining to a charge for which the defendant was found not guilty by reason of mental disease or defect. "(c) Whenever any charge in a criminal case has been nolled in the superior court, or in the court of common pleas, if at least thirteen months have elapsed since such nolle, all police and court records and records of the state's or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased. However, in cases of nolles entered in the superior court, court of common pleas, circuit court, municipal court or by a justice of the peace prior to April 1, 1972, such records shall be deemed erased by operation of law and the clerk or the person charged with the retention and control of such records shall not disclose to anyone their existence or any information pertaining to any charge so erased, provided nothing in this subsection shall prohibit the arrested person or any one of his heirs from filing a petition to the court or to the records center of the judicial department, as the case may be, to have such records erased, in which case such records shall be erased. Whenever any charge in a criminal case has been continued at the request of the prosecuting attorney, and a period of thirteen months has elapsed since the granting of such continuance during which period there has been no prosecution or other disposition of the matter, the charge shall be construed to have been nolled as of the date of termination of such thirteen-month period and such erasure may thereafter be effected or a petition filed therefor, as the case may be, as provided in this subsection for nolled cases. "(d) Whenever prior to October 1, 1974, any person who has been convicted of an offense in any court of this state has received an absolute pardon for such offense, such person or any one of his heirs may, at any time subsequent to such pardon, file a petition with the superior court at the location in which such conviction was effected, or with the superior court at the location having custody of the records of such conviction or with the records center of the judicial department if such conviction was in the court of common pleas, circuit court, municipal court or by a trial justice court, for an order of erasure, and the superior court or records center of the judicial department shall direct all police and court records and records of the state's or prosecuting attorney pertaining to such case to be erased. Whenever such absolute pardon was received on or after October 1, 1974, such records shall be erased. "(e) The clerk of the court or any person charged with retention and control of such records in the records center of the judicial department or any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of the record, upon submission pursuant to guidelines prescribed by the office of the chief court administrator of satisfactory proof of the subject's identity, information pertaining to any charge erased under any provision of this section and such clerk or person charged with the retention and control of such records shall forward a notice of such erasure to any law enforcement agency to which he knows information concerning the arrest has been disseminated and such disseminated information shall be erased from the records of such law enforcement agency. Such clerk or such person, as the case may be, shall provide adequate security measures to safeguard against unauthorized access to or dissemination of such records or upon the request of the accused cause the actual physical destruction of such records. No fee shall be charged in any court with respect to any petition under this section. Any person who shall have been the subject of such an erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath. "(f) Upon motion properly brought, the court or a judge thereof, if such court is not in session, may order disclosure of such records (1) to a defendant in an action for false arrest arising out of the proceedings so erased or (2) to the prosecuting attorney and defense counsel in connection with any perjury charges which the prosecutor alleges may have arisen from the testimony elicited during the trial. Such disclosure of such records is subject also to any records destruction program pursuant to which the records may have been destroyed. The jury charge in connection with erased offenses may be ordered by the judge for use by the judiciary, provided the names of the accused and the witnesses are omitted therefrom. "(g) The provisions of this section shall not apply to any police or court records or the records of any state's attorney or prosecuting attorney with respect to any count of any information or indictment which was nolled if the accused was convicted upon one or more counts of the same information or indictment." Specifically, the Senate replaced House Amendment A with Senate Amendment A to Substitute House Bill No. 5111, which provided in relevant part: "Notwithstanding any provision of the general statutes to the contrary, any record of the arrest of any person, other than a juvenile, shall be a public record from the time of such arrest and shall be disclosed in accordance with the provisions of section 1-15 and subsection (a) of section 1-19 of the General Statutes. For the purposes of this section, 'record of the arrest' means the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested." In commenting on Senate Amendment A, Senator Howard T. Owens, Jr., stated: "The amendment really sets forth and clarifies the record that has to be set forth as meaning the arrest, the date, time and place of it as opposed to a blotter entry. I think it clarifies the bill and improves it substantially." 26 S. Proc., Pt. 7, 1983 Sess., p. 2293. Senate Amendment A was later replaced with Senate Amendment B, which retained the specific definition of "record of arrest" from Senate Amendment A but also added the exception for records erased pursuant to chapter 961a of the General Statutes. The bill was sent back to the House of Representatives for approval, and subsequently was passed by both chambers. See Public Acts 1983, No. 83-272. Practice Book § 741 provides: "information and materials discoverable BY DEFENDANT AS OF RIGHT "Upon a written motion made by a defendant within ten days after the entry of a plea, the prosecuting authority, within the time set by the judicial authority, shall disclose in writing the existence of and allow the defendant to inspect, copy, photograph and have reasonable tests made on any of the following relevant materials; "(1) Exculpatory information or materials; "(2) Books, tangible objects, papers, photographs, or documents obtained from or belonging to the defendant; "(3) Adequately identified books, tangible objects, papers, photographs, or documents which are within the possession, custody, or control of any governmental agency, and which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence in chief at the trial; "(4) Copies of records or reports of physical or mental examinations of the defendant made in connection with the offense charged which are within the possession, custody, or control of any governmental agency, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting authority, and which are obtainable with the permission of the defendant; "(5) Copies of the defendant's prior criminal record, if any, which are within the possession, custody, or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting authority; "(6) Copies of results or reports of scientific tests, experiments or comparisons made in connection with the particular case which are known to and obtainable by the prosecuting authority and within the possession, custody, or control of any governmental agency, and which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence in chief at the trial; or "(7) Buildings, places, or portions thereof, which are in the possession, custody, or control of any governmental agency and which are material to the defense or about which the prosecuting authority intends to introduce evidence in chief at the trial. "In addition to the foregoing, the defendant shall be entitled to disclosure of exculpatory materials in accordance with any applicable constitutional and statutory provisions." Practice Book § 743 provides: "names of witnesses "Upon motion made by the defendant, upon a showing of materiality to the preparation of the defense and a showing that the request is reasonable, the judicial authority may order the prosecuting authority at the commencement of trial to disclose to the defendant the names and addresses of all witnesses whom the prosecuting authority intends to call at trial, excluding those names already disclosed pursuant to Sec. 764. The fact that a witness' name is on a list furnished under this section shall not be a ground for comment upon a failure to call a witness." Practice Book § 744 provides: "prior record of witnesses "After a witness called by the state has testified on direct examination, the prosecuting authority shall disclose any record of felony convictions of the witness known to the prosecuting authority and any record of felony or misdemeanor charges pending against the witness known to the prosecuting authority." Practice Book § 745 provides: "additional disclosure "In addition to any other disclosure or inspection permitted by these rules, the judicial authority may, upon motion of the defendant and a showing of good cause, order such other disclosure, inspection, testing or copying of specific information and materials as the interests of justice may require." Practice Book § 747 provides: "sanctions for failure to comply "If the prosecuting authority fails to comply with Sec. 740, the judicial authority may, on motion of the defendant or on his own motion, grant appropriate relief, which may include one or more of the following: "(1) Requiring the prosecuting authority to comply; "(2) Granting the defendant additional time or a continuance; "(3) Relieving the defendant from making a disclosure required by Sec. 756, prohibiting the prosecuting authority from introducing specified evidence, or dismissing the charges; or "(4) Entering such other order as he deems proper." Practice Book § 749 provides: "definition of statement "The term 'statement' as used in Sec. 748 means: "(1) A written statement made by a person and signed or otherwise adopted or approved by him; or "(2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement." Practice Book § 750 provides: "discoverable as of right "Subject to the provisions of Sec. 784, upon written motion of the defendant the prosecuting authority shall disclose to the defendant and allow the defendant to inspect, copy or photograph any of the following items which are known to him and obtainable by him in the exercise of due diligence: "(1) Any relevant statements made by the defendant to any law enforcement officer of this state or his agent, or any copies of the same; "(2) The substance of any oral declarations of the defendant of which a written or other tangible recording has been made and which were made by the defendant, whether before or after arrest, in response to interrogatories by any person then known to the defendant to be a law enforcement officer or his agent or a prosecuting authority or his agent; or "(3) Any relevant statements of coconspirators which the prosecuting authority intends to offer in evidence at any trial or hearing." Practice Book § 754 provides: "request for recess "Whenever any statement is delivered to a defendant pursuant to Sec. 751, the judicial authority in his discretion, upon application of the defendant, may recess the proceedings for such time as he may determine to be reasonably required for the examination of such statement by the defendant and his preparation for its use in the trial." Practice Book § 755 provides: "failure to comply with order "If the prosecuting authority elects not to comply with an order of the judicial authority to deliver to the defendant any statement of a witness who has testified or such portion thereof as the judicial authority may direct, the judicial authority shall strike from the record the testimony of the witness, and the trial shall proceed unless the judicial authority, in his discretion, upon motion of the defendant, determines that the interests of justice require that a mistrial be declared." In this regard, because we conclude on statutory grounds that disclosure of the arrest report was not required, we do not reach the plaintiffs' claim that the commission's decision would conflict with the rules of discovery thereby violating the separation of powers provision of article second of the Connecticut constitution. The commission claims in this court that disclosure of an arrest report during the pendency of the criminal prosecution does not conflict with General Statutes § 1-19b (b) because: (1) discovery rights exist only between the parties; and (2) the Windsor Locks police department, from whom the information was sought, was not a party to the criminal prosecution. We are unpersuaded. The plain language of § 1-19b (b) simply states that nothing in the act shall be deemed to affect the rights of litigants under the discovery laws of this state. As we previously stated, the state's attorney and the defendant are both litigants, and the commission's proposed interpretation of the act would directly affect their rights under the discovery rules. We fail to divine the significance of the fact that the request for disclosure was made to the police department when the police department necessarily acts in conjunction with the state's attorney with regard to the contents of the arrest report.

The plaintiff's petition for certification for appeal from the Appellate Court, 34 Conn. App. 866 (AC 12706), is granted, limited to the following issue: "Was the Appellate Court correct in holding that the doctrine of parental immunity shielded the parent from liability to the minor child for damages under General Statutes § 22-357, the dog bite statute?"

The defendant's petition for certification for appeal from the Appellate Court, 33 Conn. App. 162 (AC 11515), is granted. It is further ordered that the matter be remanded to the Appellate Court for reconsideration in light of this court's decision in State v. Davis, 229 Conn. 285 (1994). In view of our remand without further proceedings in this court, the provisions of Practice Book § 4138 are waived.

O'Connell, J. This is a dissolution of marriage action in which the defendant appeals from the trial court's postjudgment order increasing his child support payments. He claims that the trial court improperly treated employer contributions to a corporate pension plan as includable in his income for purposes of determining his support payment obligations. The plaintiff filed a cross appeal, claiming that the trial court (1) improperly refused to order alternate security for child support and (2) improperly refused to award her counsel fees. We affirm the judgment of the trial court on both the appeal and the cross appeal. When the parties' marriage was dissolved on October 8,1992, the plaintiff was awarded custody of their minor child and $142 per week in child support. The defendant was ordered to post security for the support payments in the form of a lien against his shares in a closely held corporation. In May, 1993, the plaintiff moved for modification of child support based on a change of circumstances. Following an evidentiary hearing, the trial court increased the defendant's child support payments by $37 per week. The defendant appealed. The genesis of this proceeding was the plaintiff's five page, sixteen paragraph motion to modify. The plain tiff alleged, inter alia, that the defendant had filed a petition in bankruptcy (paragraph three), that the defendant had a new position as a corporate officer (paragraph nine), that the defendant was deferring compensation into pension funds rather than receiving additional income in order to avoid paying increased child support (paragraph ten), that the defendant had not noted the required lien on his corporate shares (paragraph twelve), that the defendant did not intend to note the lien on his corporate shares (paragraph twelve), that the defendant claimed that the bankruptcy code prevented the plaintiff from enforcing the lien (paragraph thirteen), that the defendant had testified in the bankruptcy proceeding that he did not own any shares in the corporation (paragraph fourteen), and that the lien ordered by the trial court in the dissolution proceeding was now of no value (paragraph fifteen). The plaintiff contended that the foregoing allegations constituted a substantial change of circumstances entitling her to an increase in child support as well as a bond for security for payment of child support and attorney's fees. Modification of support is governed by General Statutes § 46b-86 (a), which empowers a trial court to modify a prior order upon a showing of a substantial change in circumstances. "Once a trial court determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determine the initial award of . . . support are relevant to the question of modification. . . . These require the court to consider, without limitation, the needs and financial resources of each of the parties and their children, as well as such factors as health, age and station in life." (Citations omitted.) Hardisty v. Hardisty, 183 Conn. 253, 258-59, 439 A.2d 307 (1981). This court has repeatedly held that the trial court is not required to make specific, detailed findings on each of the statutory factors it considers. Askinazi v. Askinazi, 34 Conn. App. 328, 332, 641 A.2d 413 (1994). We do require, however, that the record contain some indication as to the reasoning of the trial court in exercising its discretionary powers. Ippolito v. Ippolito, 28 Conn. App. 745, 751, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992), citing Markarian v. Markarian, 2 Conn. App. 14, 17 n.2, 475 A.2d 337 (1984); Zern v. Zern, 15 Conn. App. 292, 295, 544 A.2d 244 (1988). In the present case, the trial court failed to set forth any reasoning whatsoever. Moreover, each of the allegations in the plaintiffs motion for modification is grounded on a factual basis requiring a finding of fact by the trial court. Practice Book § 4061 explicitly mandates that it is the responsibility of the appellant to provide an adequate record for review. The record here does not contain a written memorandum of decision, nor does the transcript contain a statement of the trial court's finding of facts and conclusions of law. The defendant did not seek articulation of the trial court's decision pursuant to Practice Book § 4051. Absent a memorandum of decision clearly stating the court's finding of facts and conclusions of law, we are left to surmise or speculate as to the existence of a factual predicate for the trial court's decision. "Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative." (Citations omitted; internal quotation marks omitted.) State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). In Holmes v. Holmes, 32 Conn. App. 317, 322-23, 629 A.2d 1137 (1993), we discussed the futility of our attempting appellate review when we have not been furnished with a proper record. Without a clear statement of the trial court's findings and its conclusions of law, we would have to resort to conjecture. Without a written memorandum of decision or a clear recitation in the record of the court's findings, we cannot determine if the court's conclusions were reasonable. Id., 322; State v. Rios, 30 Conn. App. 712, 718-19, 622 A.2d 618 (1993) (O'Connell, J., concurring). The defendant contends that he satisfied his obligation of furnishing a proper record when he supplied this court with a transcript of the trial court proceedings. This 146 page transcript of examination and cross-examination of witnesses and colloquies between counsel and the court is not a substitute for factual findings and conclusions of law. For us to study the conflicting testimony of witnesses and draw conclusions would make us fact finders — a role from which appellate courts are barred. Connecticut Resources Recovery Authority v. Connecticut Light & Power Co., 34 Conn. App. 246, 248, 641 A.2d 398 (1994). "[Ujnder normal circumstances we will not remand a case to correct a deficiency the appellant should have remedied." J. M. Lynne Co. v. Geraghty, 204 Conn. 361, 376-77, 528 A.2d 786 (1987); C. Tait, Connecticut Appellate Practice and Procedure (2d Ed. 1993) § 4.1 (a). The defendant was not alone in his failure to provide an adequate record for review. The plaintiff also failed to furnish any record on which we could base a proper review of her cross appeal. Because both parties have failed in their duty to furnish an adequate record for review, their claims must fail. Oakes v. New England Dairies, Inc., 219 Conn. 1, 16, 591 A.2d 1261 (1991). The judgment is affirmed. In this opinion the other judges concurred. Page two of the motion to modify, which apparently contained part of paragraph three and all of paragraphs four through eight, is missing from the record supplied to this court. Examination of the trial court file disclosed that it is missing there also. No motion to rectify the trial court file was made. Practice Book § 4051. We cannot speculate on the contents of the missing paragraphs. The relevant portion of Practice Book § 4051 provides: "Any motion seeking corrections in the transcript or the trial court record which depend on proof of matters not of record or seeking an articulation or further articulation of the decision of the trial court shall be determined by the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may make such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues . . . or the trial court may approve a stipulation of counsel that such a correction or addition be made, provided the motion or stipulation is presented before the appeal is ready to be assigned for hearing and only by leave of the supreme court or the appellate court thereafter. The action of the trial judge as regards such a correction or addition may be reviewed by the court in which the appeal is pending under Sec. 4054. . . ." Holmes and Rios were both based on a version of Practice Book § 4059 that did not apply to postjudgment modification orders at the time the present case was heard. The reasoning of both cases is relevant, however, to the § 4061 adequate record requirement. An amendment to § 4059 made it applicable to postjudgment modifications decided after May 31, 1994.

Norcott, J. The dispositive issue in this appeal is whether the exemption contained in General Statutes § 22a-40 (a) (2) for construction of residential homes in wetlands as of right, that is, without the approval of a local wetlands authority, includes an exemption for construction in a subdivision lot approved by a local planning commission prior to July 1, 1974, for which no building permit has ever been issued. The defendant, the conservation commission of the town of New Fairfield (commission), appeals from the judgment of the trial court sustaining an appeal by the plaintiff, Paupack Development Corporation (Paupack), from the denial by the commission of an application from Paupack. That application sought to construct a single family house on a subdivision lot located in a wetland. The commission claims that the trial court incorrectly determined that: (1) § 22a-40 (a) (2) provided an as of right exemption from wetlands regulation for Paupack to construct a home on a subdivision lot in existence prior to July 1, 1974, for which a building permit had never been issued; and (2) regulations promulgated by the commission were controlling over more restrictive provisions of the Inland Wetlands and Watercourses Act, General Statutes § 22a-36 through 22a-45. We reverse the judgment of the trial court and remand the case for further proceedings. The facts are not in dispute. In October, 1991, Paupack submitted an application for a wetlands permit to the commission to allow for the construction of a single family home and other improvements on certain property owned by Paupack in New Fairfield. The relevant property consisted of a lot in a subdivision that had been approved by the planning and zoning commission of the town of New Fairfield on August 5,1959. There are wetlands on the property. A building permit has never been issued for the property. Ninety-six percent of the lots in the subdivision in which the property is located have been improved. In short, the subject property is a lot that includes wetlands, in a subdivision approved prior to July 1, 1974, for which a building permit has never been issued. After several hearings, the commission denied Paupack's application. Paupack appealed to the Superior Court, which sustained its appeal. The commission appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to ourselves pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). The commission claims that the trial court improperly concluded that § 22a-40 (a) (2) provides an exemption from wetlands regulation for subdivision lots existing prior to July 1,1974, for which no building permit has ever been issued. It argues that certain language added to § 22a-40 (a) (2) by No. 87-533 of the 1987 Public Acts (P.A. 87-533) ended the as of right exemption for construction on preexisting subdivision lots. It argues that such an interpretation of the statute is consistent with the legislative purpose intended by the enactment of P.A. 87-533. We agree. The statutory history of § 22a-40 (a) (2) is helpful to our resolution of this issue of statutory construction. That history reveals a clear trend in the legislature's treatment of wetlands regulation: the inclusion of properties within the regulatory scheme by the narrowing of blanket exemptions from regulatory oversight. Prior to 1974, a landowner could build a residential home in wetlands as of right, that is, without requiring approval from an inland wetlands commission, so long as there was an existing subdivision lot that had been approved prior to promulgation of required municipal regulations governing wetlands. General Statutes (Rev. to 1972) § 22a-40 (g). General Statutes (Rev. to 1972) § 22a-40 was amended by No. 73-571 of the 1973 Public Acts (P.A. 73-571) to narrow this as of right exemption. As amended by P.A. 73-571, General Statutes (Rev. to 1985) § 22a-40 (a) (2) provided for construction of residential homes in wetlands as of right if (1) a building permit had been issued for the home, or (2) the construction was on an approved subdivision lot. Both of these exemptions were further qualified by the requirement that either the building permit had been issued or the subdivision had been approved by a municipal zoning board prior to the earlier of (1) promulgation of regulations by the municipality implementing the statute, or (2) July 1, 1974. The effect of this amendment of § 22a-40 was to establish July 1, 1974, as the latest date by which a building permit had been issued or a subdivision lot had been approved for such a property to be exempt from wetlands regulation. General Statutes (Rev. to 1985) § 22a-40 (a) (2) was amended to its present form by P.A. 87-533. The purpose of the Inland Wetlands and Watercourses Act was to provide for the protection, preservation and maintenance of inland wetlands. See generally General Statutes § 22a-36. Public Act 87-533 added an additional qualification to the as of right exemption under § 22a-40 (a) (2). As amended by P.A. 87-533, § 22a-40 (a) (2) provides: "(a) The following operations and uses shall be permitted in wetlands and watercourses, as of right . . . (2) A residential home (i) for which a building permit has been issued or (ii) on a subdivision lot, provided the permit has been issued or the subdivision has been approved by a municipal planning, zoning or planning and zoning commission as of the effective date of promulga tion of the municipal regulations pursuant to subsection (b) of section 22a-42a or as of July 1,1974, whichever is earlier, and further provided no residential home shall be permitted as of right pursuant to this subdivision unless the permit was obtained on or before July 1, 1987. . . .''(The emphasized language is the language added by P.A. 87-533, § 2.) The trial court determined, and Paupack argues, that the language added to § 22a-40 (a) (2) by P.A. 87-533 only limits subdivision (a) (2) (i), the building permit exemption, not subdivision (a) (2) (ii), the existing subdivision exemption. This interpretation of the language of P.A. 87-533 is erroneous as a matter of law. "We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. . . ." (Internal quotation marks omitted.)Fahy v. Fahy, 227 Conn. 505, 512, 630 A.2d 1328 (1993); Lauer v. Zoning Commission, 220 Conn. 455, 459-60, 600 A.2d 310 (1991). "In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. ." (Internal quotation marks omitted.) Fahy v. Fahy, supra, 512. The plain language of P.A. 87-533 provides that no residential home is permitted as a matter of right unless a building permit was obtained for that home on or before July 1, 1987. Were we to read P.A. 87-533 as suggested by the trial court, limiting its application to subdivision (a) (2) (i) of § 22a-40, rather than to subdivision (a) (2) (ii), it would have the effect of changing the date before which building permits were to have been issued for as of right construction from July 1, 1974, to July 1,1987. Construing the language of P.A. 87-533 to apply to subdivision (a) (2) (i) would have the perverse effect of increasing the potential universe of properties exempt from inland wetlands regulation as of right, from those properties for which a building permit had existed prior to July 1,1974, to those properties for which a building permit had existed prior to July 1, 1987. Such a reading of the language of P.A. 87-533 makes no sense. The original date of July 1, 1974, that was added to § 22a-40 (a) (2) by P.A. 73-571, applied to building permits in existence before the effective date of P.A. 73-571, thereby allowing construction as of right on land for which building permits had been issued prior to the effective date of P.A. 73-571. In contrast, the language of P.A. 87-533 added to § 22a-40 (a) (2) some thirteen years later could not apply to subdivision (a) (2) (i) because there were no building permits issued prior to the effective date of P.A. 87-533 that needed a grandfather clause to remain valid. Interpreting the language of P.A. 87-533 by applying it to subdivision (a) (2) (ii) of § 22a-40 is consistent with the rules of statutory construction. Fahy v. Fahy, supra, 227 Conn. 512. Public Act 87-533 sets a deadline of July 1,1987, for the issuance of a building permit, for as of right construction of a residential home in wetlands. The problem of preexisting building permits had been addressed by the legislature when it adopted the language of subdivision (a) (2) (i) pursuant to P.A. 73-571. The language of P.A. 87-533 sets another deadline, and by its plain language is applicable to statutory subdivision (a) (2) (ii), the existing exemption for the subdivision of real property. Such a reading of P.A. 87-533 eliminated the as of right exemption for undeveloped subdivisions existing prior to 1974 for which a building permit had not been issued. Furthermore, this reading of P.A. 87-533 is consistent with its legislative history. Commenting on the floor of the Senate concerning P.A. 87-533, Senator Michael P. Meotti remarked: "[The bill] also ends the grandfather clause subdivisions that were approved, but have never been built since the time of the adoption of this act in the early 70s." 30 S. Proc., Pt. 9, 1987 Sess., p. 3116. This legislative history is consistent with the policy goal of eliminating exemptions from wetlands regulation for land that had remained undeveloped long after adoption of legislation strengthening wetlands regulation. Although there were vested expectations in the ability to develop existing subdivisions when P.A. 73-571 became effective in 1974, any expectation of development for subdivisions existing prior to 1974 that had not been developed by 1987 was substantially diminished when P.A. 87-533 was adopted. Given the plain language of P.A. 87-533, which expressly applies to "this subdivision," i.e., subdivision (a) (2) (ii) of § 22a-40, and its legislative history, which clearly indicates a legislative intent to end the exemption for undeveloped subdivisions after July 1, 1987, we conclude that there is no as of right exemption from wetlands regulation pursuant to § 22a-40 (a) (2) for construction of residential homes on subdivision lots existing prior to July 1, 1974, unless a building permit had been issued for such a subdivision lot prior to July 1, 1987. The judgment is reversed, and the case is remanded for a new trial limited to the issue of whether the denial of the application was supported by substantial evidence. In this opinion the other justices concurred. General Statutes § 22a-40 (a) (2) provides: "(a) The following operations and uses shall be permitted in wetlands and watercourses, as of right . . . (2) A residential home (i) for which a building permit has been issued or (ii) on a subdivision lot, provided the permit has been issued or the subdivision has been approved by a municipal planning, zoning or planning and zoning commission as of the effective date of promulgation of the municipal regulations pursuant to subsection (b) of section 22a-42a or as of July 1, 1974, whichever is earlier, and further provided no residential home shall be permitted as of right pursuant to this subdivision unless the permit was obtained on or before July 1, 1987 . . . ." With regard to the second claim, the commission argues that because during the pendency of this appeal it has amended its regulations to be consistent with the requirements of state law, the amended regulations are controlling, and the determination of the trial court is moot. Paupack concedes that this issue is moot. We agree. General Statutes § 22a-42e provides: "application filed prior to CHANGE IN INLAND WETLANDS REGULATIONS NOT REQUIRED TO COMPLY WITH CHANGE. EXCEPTIONS. An application filed with an inland wetlands agency which is in conformance with the applicable inland wetlands regulations as of the date of the decision of such agency with respect to such application shall not be required thereafter to comply with any change in inland wetlands regulations, including changes to setbacks and buffers, taking effect on or after the date of such decision and any appeal from the decision of such agency with respect to such application shall not be dismissed by the superior court on the grounds that such a change has taken effect on or after the date of such decision. The provisions of this section shall not he construed to apply (1) to the establishment, amendment or change of boundaries of inland wetlands or watercourses or (2) to any change in regulations necessary to make such regulations consistent with the provisions of this chapter as of the date of such decision." (Emphasis added.) In McCallum v. Inland Wetlands Commission, 196 Conn. 218, 223-24, 492 A.2d 508 (1985), we held that the municipal regulations to be applied in a land use case are the municipal regulations in effect at the time the appellate court considers the dispute. Although McCallum was substantially overruled by § 22a-42e, it remains applicable to situations contemplated by subdivision (2) of 22a-42e. As it is undisputed that the commission has amended its regulations to conform with the requirements of state law, this issue is moot. The commission is the inland wetlands agency for the town of New Fair-field. Pursuant to General Statutes § 22a-36 through 22a-45, it is the entity charged with regulating the use of inland wetlands in New Fairfield. Paupack made three claims in its appeal to the Superior Court. They were that: (1) the lot was exempt from regulation by the commission pursuant to General Statutes § 22a-40 (a) (2); (2) the commission's regulations were controlling over the more restrictive provisions of § 22a-40 (a) (2); and (3) the commission's denial of its application was not supported by substantial evidence. The Superior Court sustained Paupack's appeal on the first claim. It did not reach the claim that the denial of the application was not supported by substantial evidence. On remand, the trial court will be required to consider this remaining claim. General Statutes (Rev. to 1972) § 22a-40 provided in relevant part: "The following operations and uses shall be permitted in wetlands and water courses, as of right . . . (g) A residential home on a subdivision lot which subdivision has been approved as of the date of the promulgation of the municipal regulations." General Statutes (Rev. to 1985) § 22a-40 (a) (2) provided in relevant part: "(a) The following operations and uses shall be permitted in wetlands and watercourses, as of right . . . (2) A residential home (i) for which a building permit has been issued or (ii) on a subdivision lot, provided the permit has been issued or the subdivision has been approved by a municipal planning, zoning or planning and zoning commission as of the effective date of promulgation of the municipal regulations pursuant to subsection (b) of section 22a-42a or as of July 1, 1974, whichever is earlier . . . ." The trial court found the use of the term "subdivision" in General Statutes § 22a-40 (a) (2) to be confusing as it is used to refer both to a subdivision of real property, and to a subdivision of the statute. A careful reading of the statute eliminates any confusion. The term "subdivision" added to § 22a-40 (a) (2) by P.A. 87-533 can only refer to a subdivision of the statute. For an explanation of the ambiguous use of the term "subdivision" to refer both to a portion of a statute and to a division of real property, see footnote 7. Senator Meotti was cochairman of the environment committee at the time of the adoption of P.A. 87-533. Paupack claims that because the subdivision in which its lot was located was substantially complete, by implication, its right to build on the lot had vested. See footnote 11. Paupack makes this claim pursuant to General Statutes § 22a-40 (a) (2). A vested rights claim is not supported by this statute, but may implicate constitutional rights. As noted by the attorney general in his brief as amicus curiae, however, Paupack has not raised, and we, therefore, do not consider, whether as applied to Paupack's subdivision lot, the commission's action pursuant to § 22a-40 (a) (2) constituted a taking under the fifth and fourteenth amendments to the United States constitution or under the constitution of Connecticut, article first, § 11. See Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987). As an alternative ground for affirmance, Paupack claims that because the lot that is the subject of this appeal is located in a subdivision that is substantially complete, its lot is exempt from wetlands regulation pursuant to General Statutes § 22a-40 (a) (2). We disagree. There is nothing in the statutory language of § 22a-40 (a) (2) that even implies an exemption from wetlands regulation for a lot existing in a subdivision approved before July 1,1974, in which the subdivision is substantially complete. Exemptions from remedial statutes are to be strictly construed. Conservation Commission v. Price, 193 Conn. 414, 423-24, 479 A.2d 187 (1984). Paupack cites no controlling authority for this proposition. Accordingly, we reject it.

The plaintiff's petition for certification for appeal from the Appellate Court, 31 Conn. App. 599 (AC 11526), is granted, limited to the following issue: "Under the circumstances of this case, did the proceeding on the motion to reargue cure the trial court's failure to provide oral argument on the defendant's objection to the acceptance of the attorney trial referee's report?"

The petition of the substitute plaintiff Eileen D. Maroun, administratrix, for certification for appeal from the Appellate Court, 35 Conn. App. 391 (AC 12209), is denied.

The plaintiff's petition for certification for appeal from the Appellate Court (AC 13521) is denied.

The defendant's petition for certification for appeal from the Appellate Court, 34 Conn. App. 922 (AC 12482), is denied. Decided September 14, 1994 William J. Zisk, pro se, in support of the petition. Joseph E. Milardo, Jr., in opposition.

Dupont, C. J. This appeal arises from the denial by the town of Avon's inland wetlands commission (commission) of the plaintiffs' request for a permit to conduct regulated activities in and around wetlands. The proposed activities concern the construction of a dwelling and driveway within wetlands and within forty feet of wetlands, on a lot owned by the plaintiffs. Pursuant to General Statutes § 22a-39 (h), the plaintiffs applied to the commission for a permit for the subject property, known as lot thirty-four, and for another nearby lot they owned. A public hearing was held and the commission unanimously denied the request for a permit for lot thirty-four because "the proposed plan would result in a significant impact on the wetlands." The application for the second lot was denied without prejudice. The plaintiffs appealed from the denial of the permit for lot thirty-four to the Superior Court. General Statutes § 22a-43. The appeal was dismissed, and an appeal was then taken to this court. The parties agree that the lot contains inland wetlands and that the proposed construction required a permit from the commission pursuant to General Statutes § 22a-41. The commission does not contest the plaintiffs' standing to bring this appeal. In 1981, the plaintiffs acquired lot thirty-four, which is almost an acre, half of which is wetlands. They also own two other lots, one adjacent to lot thirty-four and one across the street from it. Lot thirty-four is located in a residential zone and is part of a subdivision approved in the early 1960s. The plaintiffs first question whether the trial court was correct in determining that the plaintiffs had the burden of proving that "a feasible and prudent alternative" to the plaintiffs' plan for construction did not exist. General Statutes § 22a-41 (b) provides in pertinent part that "a permit [for the conduct of a regulated activity] shall not be issued unless the [commission] finds that a feasible and prudent alternative [to the activity] does not exist. . . ." The plaintiffs alleged in their complaint that "there is no feasible and prudent alternative to the plan presented" and they make the same claim on appeal to this court. The plaintiffs argue that they did not have such a burden and further that the commission's minutes contain a finding that feasible and prudent alternatives do not exist, thereby making it unnecessary for them to have presented to the commission any evidence about alternative plans. The question as to which party has the burden of proof concerning "feasible and prudent alternatives" has been settled. It lies with the plaintiff-applicant. In Huck v. Inland Wetland & Watercourses Agency, 203 Conn. 525, 525 A.2d 940 (1987), the court found the trial court in error "insofar as it placed the burden on the agency to demonstrate that there were alternatives . . . ." Id., 553. Furthermore, in the present case, as in Huck, the plaintiffs assumed the burden of proof on this issue because their complaint alleged that no such alternative existed. Id., 553 n.18. The plaintiffs argue, nevertheless, that Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 563 A.2d 1339 (1989), exonerates them from proving that no such alternative exists. Although Red Hill states that applicants are not compelled to submit formal plans or drawings for all possible alternatives, the court does not place any burden on the inland wetlands agency to do so. Instead, the court recognizes that the commission could consider alternatives submitted by the applicants or by other interested parties, and clarifies that the applicant need not submit plans for all possible alternatives. Nothing in Red Hill disturbs the holding of Huck. The trial court was, therefore, correct in its placement of the burden of proof on the plaintiffs. The plaintiffs also argue that the commission, according to its minutes, found that no feasible and prudent alternative existed. A review of the minutes of the commission's September 5,1989 meeting discloses that the plaintiffs' applications for two lots were considered. Several commissioners indicated their desire for alternative plans for one property and denied that application without prejudice. They next turned to lot thirty-four. One commissioner "questioned the likelihood that, even with sufficient creativity, an alternative exists, [for either lot], that would satisfy the commission given the impact . to the wetland." The commission then denied the second permit unanimously. Our reading of the minutes does not convince us that the commission made any finding regarding alternative plans for developing lot thirty-four. The fact that one commissioner questioned the existence of an alternative is not equivalent to the commission's finding that no alternative existed. Schwartz v. Town Planning & Zoning Commission, 168 Conn. 285, 290, 362 A.2d 1378 (1975). The record supports the trial court's determination that no such finding was made by the commission. The plaintiffs also claim that the commission should not have considered their ownership of a lot adjoining lot thirty-four and that the trial court should have sustained their appeal on that basis. The minutes of the September 5 meeting reflect that the town planner, who is not a member of the commission, indicated that in addition to the two lots described in the plaintiffs' permit applications, they owned a third lot that adjoined lot thirty-four. The town planner "thought it important to consider the overall picture of how all three of the lots may or may not be developed." The ownership of the abutting lot was also indicated on the plaintiffs' maps. The commission did not expressly consider the use of the adjoining lot in determining whether a feasible and prudent plan did not exist, although that alternative was suggested later by the defendant's counsel and by the trial court. The plaintiffs argue that under General Statutes § 4-183 (j) (6) and E.I.S., Inc. v. Board of Registration, 200 Conn. 145, 509 A.2d 1056 (1986), the commission exceeded its authority by considering the adjoining parcel at its hearing. We disagree. In Red Hill Coalition, Inc. v. Conservation Commission, supra, the commission permitted a landowner to fill one wetlands area and to construct a road over another in return for a promise to create new wetlands on other land it owned. The court ruled that General Statutes § 22a-41 (a) allowed the commission to "take into consideration all relevant facts and circumstances, including but not limited to [the six named factors]." Our statutes do not require the commission to consider each application as an entity unto itself, devoid of any context. In Madrid Corporation v. Inland Wetlands Agency, 25 Conn. App. 446, 594 A.2d 1037, cert. denied, 220 Conn. 915, 597 A.2d 334 (1991), we upheld the consideration of wetlands that were not located on the applicant's property. Whether an owner seeking a permit has an interest in an adjoining lot is relevant to a determination of whether a permit should be granted. See Gil v. Inland Wetlands Agency, 219 Conn. 404, 407, 593 A.2d 1368 (1991). Indeed, the legislative findings in General Statutes § 22a-36 recognize that wetlands and watercourses are "an interrelated web of nature," which must be protected and preserved. To require a commission to regard each parcel with blinders, ignoring the overall development of an area and, in particular, the ownership of abutting parcels, would defeat the statute's purposes. The commission must be allowed to use its own knowledge of a site and local conditions, including other properties owned by the applicant, in its deliberations. See Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 433 A.2d 999 (1980); Welch v. Zoning Board of Appeals, 158 Conn. 208, 216, 257 A.2d 795 (1969). The plaintiffs next claim that, if the decision of the commission is upheld, the decision constitutes a taking because the diminution in value of the property exceeds any health, safety, or welfare benefits. The test for determining whether a taking has occurred cannot be resolved on the basis of the denial of a single application, as in this case, or even the denial of multiple applications. Gil v. Inland Wetlands Agency, supra. Instead, the reviewing court must first establish that there was a final authoritative decision by a commission and then conduct a two-pronged analysis. That analysis must result in two conclusions. First, the landowner's expectation of development must be found to be factually reasonable and second, the denial of the application must constitute a taking either as a practical confiscation of property or by application of a balancing test. Id. It is the plaintiffs' burden to prove that there was a final authoritative decision, that the expectation for development was reasonable and that the property cannot be used for any reasonable purpose or that the denial of a permit caused the owner great economic deprivation without a significant public benefit. D'Addario v. Planning & Zoning Commission, 25 Conn. App. 137, 147-48, 593 A.2d 511 (1991). The plaintiffs claim that there was an unconstitutional taking of their property because the denial of their application for a permit rendered the property useless. Before that claim is reached, the plaintiffs must show that they have heen finally deprived by the commission of their use of the property. Gil v. Inland Wetlands Agency, supra; Manor Development Corporation v. Conservation Commission, supra; Brecciaroli v. Commission of Environmental Protection, 168 Conn. 349, 362 A.2d 948 (1975); Vartelas v. Water Resources Commission, 146 Conn. 650, 153 A.2d 822 (1959). The rejection of the plaintiffs' application for a permit does not imply that less ambitious plans will receive a denial as well. Gil v. Inland Wetlands Agency, supra. On the basis of the record before us, it cannot be known whether the plaintiffs may yet be permitted, after the submission of some subsequent application, to use a smaller portion of the lot, or to position the house and driveway differently, or to provide for a different type of drainage. Because a future application with a different plan for construction and excavation may be granted, there has not yet been a final authoritative decision by the commission. Without such a decision, a taking cannot have occurred. Gil v. Inland Wetlands Agency, supra; Brec ciaroli v. Commissioner of Environmental Protection, supra. We can not, therefore, reach the merits of the plaintiffs' claim that a taking occurred. Gil v. Inland Wetlands Agency, supra. The trial court was correct in rendering judgment for the defendant. The judgment is affirmed. In this opinion the other judges concurred. The named plaintiff is the record owner of the subject property. Morton Weiner, the other plaintiff, is an equitable owner of the property pursuant to a partnership agreement. General Statutes § 22a-41 provides: "(a) In carrying out the purposes and policies of sections 22a-36 to 22a-45, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to: "(1) The environmental impact of the proposed action; "(2) The alternatives to the proposed action; "(3) The relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity; "(4) Irreversible and irretrievable commitments of resources which would be involved in the proposed activity; "(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened; and ' '(6) The suitability or unsuitability of such activity to the area for which it is proposed. "(b) In the case of an application which received a public hearing, a permit shall not be issued unless the commissioner finds that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record." This case is unlike those in which the action of a town agency involves a zone change, thereby establishing a final authoritative decision that affects a landowner. See Dooley v. Town Planning & Zoning Commission, 151 Conn. 304, 311, 197 A.2d 770 (1964); D'Addario v. Planning & Zoning Commission, 25 Conn. App. 137, 593 A.2d 511 (1991). Since we hold that a taking has not yet occurred, we need not reach the claim of the plaintiffs that the named plaintiff, a real estate broker, should have been allowed to testify as to the diminished value of lot thirty-four if the permit were not granted. Such testimony would be relevant to the question of whether the plaintiffs purchased the lot with the reasonable expectation of developing it or that the denial caused the owners great economic deprivation without a significant public benefit. See Gil v. Inland Wetlands Agency, 219 Conn. 404, 414, 593 A.2d 1368 (1991). Even if the plaintiffs established a reasonable expectation of commercial or residential development, they "cannot prevail unless the agency's denial on the merits of [their] application for a building permit constituted a taking"; id., 415; and a judicial review of those merits cannot be had until the plaintiffs establish the finality of the agency decision.

Heiman, J. The defendant appeals from a judgment of conviction, rendered after a trial to the court, of possession of less than four ounces of marihuana in violation of General Statutes § 21a-279 (c) and possession of drug paraphernalia in violation of General Statutes § 2 la-267 (a). He claims that the evidence was insufficient to sustain his convictions. The trial court found the following facts. On February 28, 1990, Trooper Louis A. Ward was assigned to patrol Route 91 in the general area between the towns of Middletown and Cromwell, At approximately 2 a.m., Ward observed a red Camaro occupied by two individuals, neither of whom was wearing a seat belt. He followed the vehicle and observed it change lanes without signaling. Ward activated his emergency lights and stopped the Camaro without incident. Ward exited his vehicle and approached the Camaro from the passenger's side. Trooper Raoul Palen also arrived and approached the Camaro from the driver's side. The defendant, the operator of the vehicle, was asked to produce his operator's license and the vehicle's registration. The defendant produced his license but failed to produce the vehicle's registration. Both Ward and Palen found the defendant to be cooperative. In response to questions by the officers, the defendant stated that the vehicle belonged to a friend and that he was traveling from the Bronx, New York, to Willimantic. While speaking with the defendant, neither officer noted any odor of marihuana emanating from either the defendant's person or from the interior of the car. The defendant did not appear to be under the influence of alcohol or drugs. Sergeant Gerald Pennington of the state police, the shift supervisor, arrived at the scene to observe his officers' use of investigative techniques, which had been the subject of recent training. Pennington approached the Camaro from the right rear. Using a 30,000 candlepower flashlight, he observed a marihuana seed in a pleat in the right rear seat cushion. The defendant was asked to exit the vehicle and to disclose the origin and destination of his trip. He repeated his explanation to Pennington. When asked about the ownership of the car, however, the defendant told Pennington that the Camaro was his, thus contradicting his previous statement that the vehicle belonged to a friend. A search of the defendant's person revealed neither drugs nor weapons, but $1039.63. When asked about the presence of the marihuana seed, the defendant disclaimed any knowledge of it. The defendant admitted that he occasionally used marihuana, but asserted that he had not used any that night. The defendant consented to a search of the vehicle, which failed to disclose the presence of other marihuana, seeds or residue. While searching the vehicle, the officers found, in the center console of the vehicle, a package of "E-Z Wider" cigarette rolling papers. The passenger, Abilio Garcia, also was asked to exit the vehicle. A search of his person revealed a paper towel containing a quantity of heroin in the front waist band of his trousers. Subsequent investigation demon strated that the seed was capable of germination and that the seized heroin weighed approximately nine-tenths of an ounce. At the completion of the state's case-in-chief, the trial court granted the defendant's motion for judgment of acquittal with respect to that count of the information charging him with aiding and abetting the possession of a narcotic substance with the intent to sell. It denied the motion with respect to the other two counts, and the defendant rested without presenting evidence. The trial court entered findings of guilty with respect to the two remaining counts of the information and sentenced the defendant in accordance with his conviction. This appeal followed. The sole claim raised on appeal is that the trial court improperly denied the defendant's motion for judgment of acquittal on the charges of possession of marihuana and possession of drug paraphernalia because the evidence produced by the state was insufficient as a matter of law to support the findings of guilty. We agree. To determine the sufficiency of the evidence to justify a conviction, we apply a two-fold test. State v. Uribe, 14 Conn. App. 388, 392-93, 540 A.2d 1081 (1988). First, we construe the evidence in the light most favorable to sustaining the trial court's verdict. State v. Haddad, 189 Conn. 383, 385, 456 A.2d 316 (1983); State v. Uribe, supra, 393. We then determine whether, "from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt." State v. Uribe, supra. The test for determining whether the evidence is sufficient to sustain a verdict is "whether the [trier] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt . . . ." (Internal quotation marks omitted.) State v. Haddad, supra, 387. When applying this test, the court must ensure that "[e]ach essential element of the crime charged must be established by proof beyond a reasonable doubt, and although it is within the province of the [trier] to draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture. . . . Where it cannot be said that a rational trier of fact could find guilt proven beyond a reasonable doubt, then, a conviction cannot constitutionally stand, as it is violative of due process under the fourteenth amendment. . . . [T]he burden rested upon the prosecution to prove the guilt of the accused, i.e., to prove each material element of the offense charged beyond a reasonable doubt." (Citations omitted; internal quotation marks omitted.) Id., 387-88. To prove either actual or constructive possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence, and exercised dominion and control over it. State v. Brunori, 22 Conn. App. 431, 435-36, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990); State v. Parent, 8 Conn. App. 469, 473, 513 A.2d 725 (1986). Our courts have declined to find actual possession where the narcotics were accessible to others and were found in areas that were occupied by others. See, e.g., State v. Alfonso, 195 Conn. 624, 634-35, 490 A.2d 75 (1985) (drugs found in common area of an apartment were not possessed by the defendant); State v. Santiago, 17 Conn. App. 273, 278, 552 A.2d 438 (1989) (drugs found in a vehicle occupied by more than one person were not possessed by defendant). When the defendant is not in exclusive control of the area where the contraband is found, "it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference." (Internal quotation marks omitted.) State v. Alfonso, supra, 633. "[T]he presence of the defendant near the contraband without more is insufficient to support an inference of possession." State v. Brunori, supra, 436. The state relies on evidence that the defendant informed a police officer that the vehicle belonged to a friend, but later told another officer that the vehicle belonged to him. Other than these statements, the record is devoid of proof of ownership of the vehicle in which the seed was found. Nothing in the record indicates how long the defendant had possessed the vehicle nor the circumstances under which he had obtained it. The state also relies on the defendant's statement in which he admitted having smoked marihuana in the past. The state failed, however, to produce any additional evidence that the defendant had smoked marihuana or had transported the substance in the vehicle. The defendant's statements involving nonspecific past marihuana use are minimally probative of the issue of dominion and control of the seed. The state must prove beyond a reasonable doubt that the defendant knew of the character of the drug and its presence, and exercised dominion and control of it. Id., 435-36. The evidence, however, equally supported a conclusion that the defendant was unaware of the presence of either the seed or the rolling papers and did not exercise dominion and control over them. "The trier may not reach a conclusion of guilt where the facts, established by the evidence, including those reasonably and logically inferred from the other proven facts, are rationally consistent with the innocence of an accused. A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant's guilt and inconsistent with any other rational conclusion." State v. Morrill, 193 Conn. 602, 610, 478 A.2d 994 (1984). The evidence in this case fell short of proof beyond a reasonable doubt. The state has failed to offer supporting evidence that the defendant possessed either the rolling papers or the marihuana seed. See State v. Alfonso, supra, 634. The judgment is reversed and the case is remanded with direction to render judgment of acquittal on the two counts on which the defendant had been found guilty. In this opinion the other judges concurred. General Statutes § 21a-279 (c) provides in pertinent part: "Any person who possesses or has under his control . . . less than four ounces of a cannabis-type substance, except as authorized in this chapter ." may be fined or imprisoned or both. General Statutes § 21a-240 (29) provides in pertinent part: " 'Marihuana' means all parts of any plant, or species of the genus cannabis . . . whether growing or not; the seeds thereof . . . ." General Statutes § 21a-267 (a) provides in pertinent part: "No person shall use or possess with intent to use drug paraphernalia, as defined in subdivision (20) of section 21a-240 . to inject, ingest, inhale or otherwise introduce into the human body, any controlled substance General Statutes § 21a-240 (20) (A) provides in pertinent part: " 'Drug paraphernalia' refers to . . . products and materials of any kind which are used, intended for use or designed for use in . . . injecting, ingesting, inhaling or otherwise introducing into the human body, any controlled substance contrary to the provisions of this chapter including, but not limited to . . . (10) objects used, intended for use or designed for use in ingesting, inhaling, or otherwise introducing marihuana . . . into the human body, such as: Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with screens, permanent screens, hashish heads or punctured metal bowls; water pipes . . . ." The defendant was acquitted of the charge of possession of heroin with intent to sell in violation of General Statutes § 21a-278 (b) and 53a-8. Garcia was arrested and charged, but failed to appear for trial. A warrant seeking his rearrest was issued. We note that "rolling paper" is not listed in the examples of drug paraphernalia set forth in General Statutes § 21a-240 (20). In light of our resolution of this case, we need not address the question as to whether rolling papers constitute drug paraphernalia as defined by the statute.

The plaintiff's petition for certification for appeal from the Appellate Court, 34 Conn. App. 785 (AC 11164), is granted, limited to the following issues: "1. Did the Appellate Court misconstrue the initial presentation of the separation agreement as an 'approved agreement' with respect to the award of alimony where the initial agreement reserved the determination of alimony for a date in the future? Decided July 27, 1994 The Supreme Court docket number is SC 14985. Herman H. Tamow, in support of the petition. Wesley W. Horton, in opposition. "2. Did the Appellate Court correctly conclude that in a separation agreement that reserves the issue of 'alimony' for determination at a later date, that the term 'alimony' was limited to periodic alimony and did not include lump sum alimony?"

Landau, J., The principal issue in this appeal is whether the state of Connecticut has acquired criminal jurisdiction over the Mashantucket Pequot Indian reservation in Ledyard. The defendant, Lake Spears, was charged by a substitute information with committing various crimes while on the Mashantucket Pequot reservation. The defendant moved to dismiss the charges, claiming that the court lacked subject matter jurisdiction because the charged offenses were allegedly committed on the Mashantucket Pequot reservation. The trial court denied that motion, and rendered a judgment of conviction following the defendant's plea of nolo contendere to the charges of interfering with a peace officer in violation of General Statutes § 53a-167a, assault in the third degree in violation of General Statutes § 53a-61, and disorderly conduct in violation of General Statutes § 53a-182. The defendant's plea was entered conditional on his right to appeal the denial of his motion to dismiss. The following facts are not in dispute. The Mashantucket Pequot Indian tribe is a federally recognized tribe that owns and occupies a tribal reservation containing approximately 1800 acres in Ledyard. The defendant is a member of the Narragansett Indian tribe, and not a member of the Mashantucket Pequot tribe. On November 29, 1991, in response to a telephone call, State Trooper Robert Maynard was dispatched to investigate a disturbance at 8 Elizabeth George Drive, a residential address on the Mashantucket Pequot reservation. Maynard was assisted by Ledyard town constables Sergeant David Guiher and Officers John Craig and William Blanchette. As a result of actions by the defendant, he was arrested by Maynard and Craig, charged, and ultimately presented before the Superior Court. At the time of the defendant's arrest and presentment, he was "an Indian in Indian territory." After the trial court found the defendant guilty on the plea of nolo contendere, the defendant appealed. The defendant claims that the trial court improperly concluded that the Connecticut Indian Land Claims Settlement Act of 1983 (Settlement Act) effected a complete grant of criminal jurisdiction over the Mashantucket Pequot reservation to the state in that it (1) found that the plain meaning of § 6 of the Settlement Act, 25 U.S.C. § 1755, fully subjects the reservation to state criminal jurisdiction, and (2) found that the Mashantucket Pequot tribe has consented to state criminal jurisdiction. The state asserts that it possesses criminal jurisdiction over the Mashantucket Pequot reservation pursuant to an express grant by Congress in § 6 of the Settlement Act. The state does not claim that the tribe is divested of self-government, or that the tribe cannot enact tribal laws that govern the conduct of tribal members, or that the tribe lacks power to enforce such laws. The parties in this matter are in the curious position of agreeing on the issue, the general principles of law, the relevant authorities and the primary facts. Where the parties differ is on the result that is rendered after the facts are applied to the law. The defendant claims that the state lacks jurisdiction over criminal offenses committed by Indians while on the Mashantucket Pequot reservation. The state and the defendant agree that states do not have jurisdiction over Indian country unless Congress has specifically authorized such jurisdiction. Worcester v. Georgia, 31 U.S. 515, 8 L. Ed. 483 (1832). They disagree, however, in regard to the application of § 6 of the Settlement Act. Specifically, they disagree on the issue of whether § 6 vests the state with jurisdiction over crimes committed by Indians on the Mashantucket Pequot tribe's reservation. We agree with the defendant, and we arrive at our conclusion by way of the following statutory path. Section 6 of the Settlement Act, codified at 25 U.S.C. § 1755, addresses the issue of the state's jurisdiction over the Mashantucket Pequot tribe. This statute refers to portions of Title IY of the Indian Civil Rights Act of 1968, codified at 25 U.S.C. § 1321 through 1326. The dispute in the present case concerns the impact of 25 U.S.C. § 1755 on § 401 and 406 of the Indian Civil Rights Act of 1968, codified at 25 U.S.C. § 1321 (a) and 1326, respectively. Specifically, the issue before us is whether 25 U.S.C. § 1755 vests the state with criminal jurisdiction over the Mashantucket Pequot tribe notwithstanding the provision contained in 25 U.S.C. § 1321 (a), which otherwise requires that a tribe manifest its consent to jurisdiction prior to a state's assumption of jurisdiction. We begin our analysis by examining the well established principles that govern state jurisdiction over Indians in Indian country. "Criminal jurisdiction over offenses committed in 'Indian country' . is governed by a complex patchwork of federal, state, and tribal law." (Citation omitted; internal quotation marks omitted.) Negonsott v. Samuels, 507 U.S. 99, 102, 113 S. Ct. 1119, 122 L. Ed. 2d 457 (1993). "As a practical matter, this has meant that criminal offenses by or against Indians have been subject only to federal or tribal laws . . . except where Congress in the exercise of its plenary and exclusive power over Indian affairs has 'expressly provided that State laws shall apply.' " (Citation omitted.) Washington v. Yakima Indian Nation, 439 U.S. 463, 470-71, 99 S. Ct. 740, 58 L. Ed. 2d 740 (1979). "When on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the state's regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest." White Mountain Apache Tribe v. Bracken, 448 U.S. 136, 144, 100 S. Ct. 2578, 65 L. Ed. 2d 655 (1980). In 1953, pursuant to its plenary authority over Indian affairs, Congress enacted Public Law 83-280, the first federal jurisdictional statute of general applicability to Indian reservation lands; Bryan v. Itasca County, 426 U.S. 373, 379, 96 S. Ct. 2102, 48 L. Ed. 2d 710 (1976), and "the primary expression of federal policy governing the assumption by States of civil and criminal jurisdiction over the Indian Nations." Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877, 884, 106 S. Ct. 2305, 90 L. Ed. 2d 881 (1986) (Three Tribes II). The primary purpose of that legislation was to address the "problem of lawlessness on certain Indian reservations, and the absence of adequate tribal institutions for law enforcement." Id.; Washington v. Yakima Indian Nation, supra, 439 U.S. 471; H.R. Rep. No. 848, 83d Cong., 1st Sess., pp. 5-6 (1953). Other purposes of the act were "to [promote] the gradual assimilation of Indians into the dominant American culture and [ease] the fiscal and administrative burden borne by the Federal Government by virtue of its control over Indian affairs." Three Tribes II, supra, 886; Bryan v. Itasca County, supra, 387-88; H.R. Rep. No. 848, supra, pp. 3, 6. Public Law 83-280, § 2, embodied the provision for state criminal jurisdiction over offenses committed by or against Indians on reservations. Bryan v. Itasca County, supra, 426 U.S. 380. It effected an immediate grant of criminal jurisdiction over Indian country to five states. To the remaining states, it provided an option to assume jurisdiction over criminal offenses in Indian country "without consulting with or securing the consent of the tribes that would be affected." Washington v. Yakima Indian Nation, supra, 439 U.S. 473-74. Section 7 of Public Law 83-280 established a procedure by which all other states could obtain civil or criminal jurisdiction over Indian tribes: "The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act, to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof." See Washington v. Yakima Indian Nation, supra, 474 n.9; Schaghticoke Indians of Kent, Connecticut, Inc. v. Potter, 217 Conn. 612, 622, 587 A.2d 139 (1991). In 1968, Congress enacted Title IV of the Indian Civil Rights Act, which repealed § 7 of Public Law 83-280. Title IV requires that all subsequent assertions of jurisdiction be preceded by tribal consent. Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 467 U.S. 138, 144, 104 S. Ct. 2267, 81 L. Ed. 2d 113 (1984) (Three Tribes I). "The impetus for the addition of a consent requirement in the 1968 amendments was congressional dissatisfaction with the involuntary extension of state jurisdiction over Indians who did not feel they were ready to accept such jurisdiction, or who felt threatened by it." Three Tribes II, supra, 476 U.S. 892, citing S. Rep. No. 721, 90th Cong., 1st Sess., p. 32 (1967). Section 401 of Title IV, which addresses the subject of criminal jurisdiction over Indian country, provides: "The consent of the United States is hereby given to any State not having jurisdiction over criminal offenses committed by or against Indians in the areas of Indian country situated within such State to assume, with the consent of the Indian tribe occupying the particular Indian country or part thereof which could be affected by such assumption, such measure of jurisdiction over any or all of such offenses committed within such Indian country or any part thereof as may be determined by such State to the same extent that such State has jurisdiction over any such offense committed elsewhere within the State, and the criminal laws of such State shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State." (Emphasis added.) 25 U.S.C. § 1321 (a). "The method of a state's assumption of criminal jurisdiction is not specified by § 401 [25 U.S.C. § 1321 (a)], but is found in § 406 codified in 25 U.S.C. § 1326 . . . Mashantucket Pequot Tribe v. McGuigan, 626 F. Sup. 245, 247 (D. Conn. 1986). In 1983, Congress enacted the Settlement Act for the purpose of settling tribal claims to much of the private and public lands located in Ledyard. Mashantucket Pequot Tribe v. McGuigan, supra, 626 F. Sup. 246-47. Section 6 of the act, codified at 25 U.S.C. § 1755, which addresses the subject of state jurisdiction over the Mashantucket Pequot tribe's reservation, provides: "Notwithstanding the provision relating to a special election in section 4-06 [of the Indian Civil Rights Act], the reservation of the Tribe is declared to be Indian country subject to State jurisdiction to the maximum extent provided in title IV of such Act. " (Emphasis added.) In the present case, the defendant claims that even if the Settlement Act eliminates the requirement for a special election pursuant to 25 U.S.C. § 1326, it does not eliminate the general consent requirement contained in 25 U.S.C. § 1321 (a). The defendant also claims that since the tribe has never consented to the state's assumption of jurisdiction over offenses committed by Indians on the Mashantucket Pequot reser vation, the state lacks such jurisdiction and, therefore, the defendant's motion to dismiss must be granted. I We first address the issue of whether the Settlement Act dispenses with the special election requirement contained in 25 U.S.C. § 1326. The trial court concluded that the plain meaning of 25 U.S.C. § 1755 "clearly indicates the intent of Congress to dispense with the special election requirement of § 406 [of Title IV of the Indian Civil Rights Act, codified at 25 U.S.C. § 1326]." "It is the duty of the court to 'interpret statutes as they are written'; Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980); and not 'by construction read into statutes provisions which are not clearly stated.' Glastonbury Co. v. Gillies, 209 Conn. 175, 179, 550 A.2d 8 (1988)." State v. Johnson, 227 Conn. 534, 542, 630 A.2d 1059 (1993). Where the " 'will of Congress . . . has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive.' " Negonsott v. Samuels, supra, 507 U.S. 104, citing Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 102 S. Ct. 3245, 73 L. Ed. 2d 973 (1982). Section 1755 of title 25 of the United States Code provides: "Notwithstanding the provision relating to a special election in section 406 of the [Indian Civil Rights Act] . . . ." The plain language of this statute clearly indicates that Congress intended to dispense with the special election requirement that is otherwise required in order for a state to assume criminal jurisdiction over crimes committed by Indians in Indian country. We conclude, therefore, that the trial court properly determined that 25 U.S.C. § 1755 dispenses with the special election requirement contained in 25 U.S.C. § 1326. II We next address the issue of whether the Settlement Act dispenses with the general consent requirement contained in 25 U.S.C. § 1321 (a). The trial court stated that " '[t]he primary concern of Congress in enacting Public Law [83-280] that emerges from its sparse legislative history, was with the problem of lawlessness on certain Indian reservations, and the absence of adequate tribal institution for law enforcement.' . . . Since the Settlement Act dispenses with this special election and grants criminal jurisdiction in the State of Connecticut without the requirements of any such vote, it must be concluded that criminal jurisdiction has been fully vested in the State of Connecticut." Initially, we note that the language contained in 25 U.S.C. § 1755 is ambiguous because, although it "eliminates the consent election provided in 25 U.S.C. § 1326, it may have created an anomaly by the fact that it does not eliminate the consent requirement of 25 U.S.C. § 1321 [a]." Mashantucket Pequot Tribe v. McGuigan, supra, 626 P. Sup. 248. Since the statutory language is unclear, we must determine whether Congress intended to eliminate the general consent requirement contained in § 401 of Title IV, codified at 25 U.S.C. § 1321 (a). "It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent." State v. Johnson, supra, 227 Conn. 541. "If the statutory language is unclear, the intent of the legislature may be ascertained by looking to the legislative history and to the purpose that the statute was intended to serve." Id., 542. "Furthermore, it is a well established rule of statutory construction that repeal of the provisions of a statute by implication is not favored and will not be presumed where the old and the new statutes, in this case [25 U.S.C. § 1321 (a) and 25 U.S.C. § 1755], can peacefully coexist." McCarthy v. Commissioner of Correction, 217 Conn. 568, 578, 587 A.2d 116 (1991). " 'In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language.' " Id. "The legislature is presumed to be aware and to have knowledge of all existing statutes and the effect which its own action or nonaction may have on them." Windham First Taxing District v. Windham, 208 Conn. 543, 554, 546 A.2d 226 (1988). As we noted previously, Congress enacted Title IV of the Indian Civil Rights Act in response to "congressional dissatisfaction with the involuntary extension of state jurisdiction over Indians who did not feel they were ready to accept such jurisdiction, or who felt threatened by it." Three Tribes II, supra, 476 U.S. 892, citing S. Rep. No. 721, 90th Cong., 1st Sess., p. 32 (1967). Congress concluded that tribes were critical of Public Law 83-280 "because it authoriz[ed] the unilateral application of State law to all tribes without their consent and regardless of their needs or special circumstances." Id. (views of Senator Sam Ervin). The Indian Civil Rights Act amended Public Law 83-280 so that any State not presently having civil and criminal jurisdiction over Indian tribes would be required to obtain the consent of the tribes before assuming such jurisdiction. In order to verify that tribal members were in fact "ready to accept such jurisdiction," Congress enacted § 406 of Title IV, 25 U.S.C. § 1326. Section 406 provides that tribal consent may be manifested only by a majority vote of the tribe's enrolled adult Indians, voting in a special election held for that purpose. Kennerly v. District Court of Montana, 400 U.S. 423, 429, 91 S. Ct. 480, 27 L. Ed. 2d 507 (1971). Essentially, Congress enacted only one tribal consent requirement, embodied in § 401, codified at 25 U.S.C. § 1321 (a), and one method by which consent must be demonstrated, embodied in § 406, codified at 25 U.S.C. § 1326. "The method of a state's assumption of criminal jurisdiction is not specified by § 401 [25 U.S.C. § 1321 (a)], but is found in § 406 [25 U.S.C. § 1326] . . . wherein the election to effectuate consent is set forth and is mandatory." Mashantucket Pequot Tribe v. McGuigan, supra, 626 F. Sup. 247. After tribal consent is manifested by the method prescribed in § 406, "the criminal laws of such State shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State." Id.; see 25 U.S.C. § 1321 (a). In light of the legislative history of the Indian Civil Rights Act and the case law interpreting § 401 of the Indian Civil Rights Act, we conclude that Congress, by enacting 25 U.S.C. § 1755, did not intend to dispense with the general consent requirement embodied in 25 U.S.C. § 1321 (a). "If the legislature had intended by enacting [25 U.S.C. § 1755] to do away with the longstanding policy of [the general consent requirement], it could easily have said so." See McCarthy v. Commissioner of Correction, supra, 217 Conn. 578. In fact, Congress did not do so; it merely removed the specific procedure by which tribal consent must be manifested. Ill Finally, we address the issue of whether the Mashantucket Pequot tribe has consented to the state's assumption of criminal jurisdiction over offenses committed by Indians on the Mashantucket Pequot reservation. Both the state and the defendant cite portions of the Mashantucket Pequot Tribal Ordinance (M.P.T.O.) No. 112091-01 to support their argument. As we stated earlier, it is our duty to "interpret statutes as they are written." Muha v. United Oil Co., supra, 180 Conn. 730. "In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language." (Internal quotation marks omitted.) Iacomacci v. Trumbull, 209 Conn. 219, 222, 550 A.2d 640 (1988). The plain language of M.P.T.O No. 112091-01 does not amount to an "unequivocal expression" of tribal consent. On its face, the ordinance merely appears to •acknowledge and address the well established principle that tribal courts lack inherent authority to punish a person who is not Indian on the reservation, and may not exercise such jurisdiction without the consent of Congress. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 210, 98 S. Ct. 1011, 55 L. Ed. 2d 209 (1978). Absent an unequivocal expression of consent by the tribe, we are unwilling to imply such consent. Our conclusion that the tribe has not consented to such jurisdiction is also supported by the language contained in subsequent tribal ordinances. We conclude, therefore, that the plain language of the Mashantucket Pequot Tribal Ordinances does not unequivocally express the tribe's consent to the assumption by the state of jurisdiction over offenses committed on the reservation by Indians. Indeed, the plain language of the ordinances expressly denies such consent. In sum, we conclude that although § 6 of the Settlement Act, codified at 25 U.S.C. § 1755, dispenses with the special election requirement of 25 U.S.C. § 1326, it does not dispense with the general consent requirement of 25 U.S.C. § 1321 (a). Since 25 U.S.C. § 1321 (a) requires that tribal consent be manifested prior to "the criminal laws of the state having the same force and effect within Indian country as they have elsewhere within the state," and the Mashantucket Pequot Tribe has never consented to the state's assumption of criminal jurisdiction, we hold that 25 U.S.C. § 1755 does not vest the state with criminal jurisdiction over criminal offenses committed by Indians on the Mashantucket Pequot reservation. The judgment is reversed and the case is remanded with direction to grant the defendant's motion to dismiss. In this opinion the other judges concurred. The defendant was arrested initially on a charge of disorderly conduct involving Keri Spears, his wife, a resident of the reservation. Although the defendant's motion to dismiss advances two separate grounds for dismissal, the defendant acknowledged at oral argument before the trial court that the second claim in the motion, that the alleged conduct needed to have occurred in a public place, was abandoned. General Statutes § 54-94a provides in pertinent part: "When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court's denial of the defendant's . . . motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the . . . motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution." See also Practice Book § 4003. All parties agree that the fact that the defendant is not a member of the Mashantucket Pequot tribe has no legal significance in this appeal. On December 15, 1992, the court granted the Mashantucket Pequot tribe's motion to intervene as amicus curiae. The tribe supports the defendant's position that the state lacks subject matter jurisdiction. On February 17, 1993, the court granted the motion filed by the United States government to intervene as amicus curiae. The United States government supports the state's position that the state, and not the federal government, has jurisdiction to prosecute the defendant for state crimes committed on the Mashantucket Pequot reservation. Public Law 98-134, 97 Stat. 851 (1983), codified at 25 U.S.C. § 1751 through 1760. The act is also known as the Mashantucket Pequot Indian Claims Settlement Act. Id. Under the terms of the act, the state contributed twenty acres of public land in Ledyard to establish initially the Mashantucket Pequot reservation. 25 U.S.C. § 1751 (f). Congress identified an additional 800 acres of private land surrounding the initial twenty acres as "settlement lands" to be purchased for the tribe and incorporated into the reservation. 25 U.S.C. § 1752 and 1754. Reservation land is held in trust for the tribe by the federal government. 25 U.S.C. § 1757. Section 6 of the Settlement Act, codified at 25 U.S.C. § 1755, provides: "Notwithstanding the provision relating to a special election in section 406 of the Act of April 11,1968 [codified at 25 U.S.C. § 1326], the reservation of the Tribe is declared to be Indian country subject to State jurisdiction to the maximum extent provided in title IV of such Act [codified at 25 U.S.C. § 1321 et seq.]." In its amicus brief, the United States government claims that it has two interests to protect. The first is in maintaining a correct interpretation of the federal statutes at issue here. It claims that the defendant and the tribe's position is simply an incorrect interpretation of the law. The United States government also claims a strong administrative interest in the outcome of this case because it claims that the logical consequence of the defendant's position is that the state courts also lack jurisdiction over many criminal prosecutions for crimes committed on the reservation by persons who are not Indians; the corollary being that the federal courts and the federal government must assume the burden of these prosecutions. The government asserts that "the issue before the [Appellate Court] has large consequences for the United States. Adoption of the defendant's position would impose a significant burden on the federal judiciary, the federal courts, the United States Attorney's office, the United States Marshals' Service and all other federal law enforcement agencies. Without in any way minimizing the enormous caseload in the state courts, the United States must point out that, based on a system that calculates the weight of each case, the United States District Court for the District of Connecticut had one of the heaviest caseloads per judgeship in the federal judicial system. See, 1991 Federal Court Management Statistics, Administrative Office of the United States Courts, p. 45. Our District Court and its associated personnel cannot easily absorb new area of jurisdiction, especially in criminal cases subject to the Speedy Trial Act. See, 18 U.S.C. § 3161 et seq." "Indian country" is defined in 18 U.S.C. § 1151, which provides in pertinent part: "Except as otherwise provided in sections 1154 and 1156 of this title, the term 'Indian country' . . . means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government . . . .''Asa threshold matter, we note that the Mashantucket Pequot tribe is a federally recognized Indian tribe; 25 U.S.C. § 1758; and occupies a reservation of land in Ledyard pursuant to General Statutes § 47-63. The Mashantucket Pequot reservation is, therefore, Indian country to which federal law applies. See 25 U.S.C. § 1152. For example, the Indian Country Crimes Act, codified at 18 U.S.C. § 1152, extends "the general laws of the United States . to the Indian country," except to "offenses committed by one Indian against the person or property of another Indian . . . ." "These latter offenses typically are subject to the jurisdiction of the concerned Indian tribe, unless they are among those enumerated in the Indian Major Crimes Act [codified at 18 U.S.C. § 1153]." Negonsott v. Samuels, 507 U.S. 99, 102, 113 S. Ct. 1119, 122 L. Ed. 2d 457 (1993). "Federal jurisdiction over the offenses covered by the Indian Major Crimes Act is exclusive of state jurisdiction." Id. The Indian Major Crimes Act, codified at 18 U.S.C. § 1153, provides: "(a) Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A . . . incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States. "(b) Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense." See, e.g., Mashantucket Pequot Tribal Ordinance (M.P.T.O.) No. 112091-01, M.P.T.O. No. 011092-02, M.P.T.O. No. 113093-03. Public Law 83-280, 67 Stat. 588-90 (1953), codified, as amended, at 18 U.S.C. § 1162 and 28 U.S.C. § 1360. Section 2 of Public Law 83-280 provides in pertinent part: "Each of the States listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over offenses committed elsewhere within the State, and the criminal laws of such State shall have the same force and effect within such Indian country as they have elsewhere within the State . . . See Washington v. Yakima Indian Nation, supra, 439 U.S. 471-72 n.9; see also 18 U.S.C. § 1162 and 28 U.S.C. § 1360. Public Law 83-280 granted criminal jurisdiction to California, Minnesota, Nebraska, Oregon and Wisconsin, with an express exception for the reservations of three tribes. See Washington v. Yakima Indian Nation, supra, 439 U.S. 471-72 n.9. Alaska was added to this group in 1958. See 18 U.S.C. § 1162 and 28 U.S.C. § 1360. Public Law 90-284, 82 Stat. 79 (1968), codified at 25 U.S.C. § 1321 through 1326. 25 U.S.C. § 1321 (a). Section 406, codified as amended at 25 U.S.C. § 1326, provides: "Special election. State jurisdiction acquired pursuant to this [subchapter] with respect to criminal offenses or civil causes of action, or with respect to both, shall be applicable in Indian country only where the enrolled Indians within the affected area of such Indian country accept such jurisdiction by a majority vote of the adult Indians voting at a special election held for that purpose. The Secretary of the Interior shall call such special election under such rules and regulations as he may prescribe, when requested to do so by the tribal council or other governing body, or by 20 per centum of such enrolled adults." In Mashantucket Pequot Tribe v. McGuigan, supra, 626 F. Sup. 245, the plaintiff, an Indian tribe, sought a declaratory judgment and injunctive relief to preclude enforcement of state statutes pertaining to the conduct of bingo games on the plaintiff's reservation. The court held that the state's bingo statutes were regulatory and civil in nature and, therefore, unenforceable under a grant of jurisdiction over criminal law. Id., 249. The court did not resolve the issue of whether Connecticut possessed criminal jurisdiction over the reservation; the court expressly reserved the issue of whether the Connecticut Indian Claims Settlement Act, 25 U.S.C. § 1751 et seq., eliminates the consent election requirement provided for in 25 U.S.C. § 1326. Mashantucket Pequot Tribe v. McGuigan, supra, 246. We also take notice of the dicta in Schaghticoke Indians of Kent, Connecticut, Inc. v. Potter, supra, 217 Conn. 615 n.3: "[A] federal district court sitting in Connecticut has held recently that Connecticut has acquired criminal, but no civil, jurisdiction over state Indian tribes [citing Mashantucket Pequot Tribe v. McGuigan, supra, 626 F. Sup. 249]." Respectfully and regretfully, we do not read the holding in McGuigan as does our Supreme Court. The District Court, Dorsey, J., after opining that "[tjhere is a difference between a criminal law which prohibits conduct and imposes penal sanctions if the prohibition is disobeyed, and a law which regulates, controls and/or limits conduct"; id., 248; stated that, "[t]he dominant character of the nature and purpose of Connecticut's bingo laws is regulatory and the single penal statute included therein is not to be considered in isolation. . As a regulatory action, Connecticut's bingo laws . . . are found not to be enforceable under a grant of jurisdiction over criminal law." (Citation omitted.) Id., 249. The McGuigan court did not reach the issue of criminal jurisdiction because, even assuming that the court did do so, the statutes in question were found to be regulatory rather than criminal. In Kennerly v. District Court of Montana, supra, 400 U.S. 425, the United States Supreme Court analyzed the procedures by which "tribal consent" must be manifested under Title IV of the Indian Civil Rights Act; the court held that unilateral legislative action by a tribal counsel "does not comport with the explicit requirements of the Act." In that case, a person who is not Indian brought an action in a Montana state court against two Indians to collect a debt. The Montana Supreme Court ruled that the state court possessed jurisdiction based on a 1967 unilateral act of the tribal counsel. The act of the tribal counsel provides in part: "The Tribal Court and the State shall have concurrent and not exclusive jurisdiction of all suits wherein the defendant is a member of the Tribe which is brought before the Courts." The United States Supreme Court reversed, concluding that the tribe's unilateral act did not comport with the explicit requirements of Title IV of the Indian Civil Rights Act because the "plain meaning" of the statute requires that tribal consent "must be manifested by [a] majority vote of the enrolled Indians within the affected area of Indian country." Id., 427-29. In Mashantucket Pequot Tribe v. McGuigan, supra, 626 F. Sup. 247, the court noted the significance of this quoted phrase: "As thus incorporated in § 401 [25 U.S.C. § 1321 (a)], not in a separate sentence, and as unlikely to have a separate effect, independent of the prior provisions of § 401 (a), [this] phrase is construed to describe the force and effect of state law upon fulfillment of the conditions [contained in § 401 (a)]." Id. "This would perhaps be clearer if the word 'then' were inserted such that the quoted phrase read: '. . . and the criminal laws of such state shall then have .'" (Emphasis added.) Id. M.P.T.O. No. 112091-01 provides in pertinent part: "Section 1(a). Violations of State criminal laws: Every offense against those criminal laws of the State of Connecticut which are made applicable to the Mashantucket Pequot Reservation by Section 6 of the Mashantucket Pequot Indian Claims Settlement Act [25 U.S.C. § 1755] and 25 U.S.C. § 1321, shall be an offense against the law of the Mashantucket Pequot Tribe and the Mashantucket Pequot Tribe hereby adopts and incorporates by reference, as the law of the Mashantucket Pequot Tribe, all provisions of such criminal laws of the State of Connecticut which are made applicable to the Mashantucket Pequot Reservation by Section 6 of the Mashantucket Pequot Indian Claims Settlement Act." "Section 5: Concurrent jurisdiction over State offenses. The Mashantucket Pequot Tribal Police Department shall exercise concurrent authority with law enforcement officers of the State of Connecticut to make arrests for violations of criminal laws of the State which are made applicable to the Mashantucket Pequot Reservation by Section 6 of the Mashantucket Pequot Indian Land Claim Settlement Act [25 U.S.C. § 1755] and 25 U.S.C. § 1321; provided: however, that persons arrested by officers of the Mashantucket Pequot Tribal Police Department for such violations of criminal laws of the State of Connecticut shall be transferred as promptly as may be feasible to the jurisdiction of State law enforcement officers and the Mashantucket Pequot Tribal Police Department shall comply with all reasonable requirements of State law enforcement officers and agencies in order to assist in the prosecution of such offenders under the laws of the State of Connecticut." "[T]he tribe . . . has criminal jurisdiction over Indians who commit crimes on the reservation . . . . " M.P.T.O. No. 011092-02. "[T]he Mashantucket Pequot tribe has inherent authority to exercise jurisdiction over criminal matters that arise on the Mashantucket Pequot Tribal Nation Lands . the tribe has determined that it will exercise its jurisdiction to the maximum extent permitted by federal law . . . the tribe has never intended that the State of Connecticut shall exercise criminal jurisdiction within the Nation Lands nor has the tribe by any act consented to the exercise by the state of criminal jurisdiction within the Nation Lands . . . .''(Emphasis added.) M.P.T.O. No. 113093-03.

The defendants' petition for certification for appeal from the Appellate Court, 36 Conn. App. 907 (AC 13127), is denied.

Heiman, J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court improperly (1) permitted a hospital social worker to testify as to her opinion of whether the victim was truthful regarding the claims of sexual abuse, (2) permitted an expert to testify as to (a) behavioral pattern profile responses of victims of sexual abuse, (b) con sistencies in the behavior of the victim with sexually abused children in general, and (c) his opinion with regard to the number of children he had treated for sexual abuse who had fabricated their stories, and (3) charged the jury with respect to the meaning of the term reasonable doubt. The jury could reasonably have found the following facts. The victim was born on April 27, 1977. When she was about five years of age, her parents divorced. As a result, the victim, along with her mother and younger brother, moved to Wolcott to live with the victim's grandmother and grandfather, the defendant. For the first several years that she lived with her grandparents, the victim shared a room with her mother and her aunt. When she reached the age of seven or eight, however, she was given a room of her own. Throughout the time that she lived in Wolcott, her grandparents occupied separate bedrooms. At the time that the victim began sleeping in her own bedroom, the defendant began to come into her room late at night. The victim was awakened on several occasions by the defendant standing over her bed masturbating. Often the defendant was completely naked, while at other times he wore only underwear. On several occasions, the defendant touched the victim on the breast and vaginal areas. In addition, there were incidents when the defendant placed the victim's hand on his penis. Each time that the defendant came into the victim's bedroom, the victim pretended to be asleep. Often, the victim, who slept in sweatpants and a tee-shirt, awoke to find that her clothing had been removed during the night. Moreover, on a number of occasions, the defendant called to the victim to come into his bedroom. At these times, the victim saw the defendant lying naked on his bed masturbating and refused to enter the room. The defendant warned the victim not to tell anyone of his actions if she still wanted to see her mother and brother. When the victim was about twelve years of age, she received classroom instruction concerning what should be done if someone touches another person inappropriately or acts inappropriately. She was taught that it is not the fault of the victim and that the child should report such actions to a responsible adult. After hearing the lecture, the victim reported the defendant's conduct to her mother and grandmother. From that time on, the victim shared a bedroom with her grandmother and the problems with her grandfather ceased. In May, 1991, the victim was hospitalized at the Waterbury Hospital Health Center as a result of a suicide attempt involving the ingestion of an overdose of pills. She remained in the hospital for several weeks. While there, the Wolcott police department was notified that the victim may have been sexually abused. Detective Roger Picard interviewed the victim and the defendant was thereafter arrested. I The defendant first claims that the trial court improperly permitted a hospital social worker to testify as to her opinion of whether the victim was truthful regarding the claims of sexual abuse. We agree. The following additional facts are necessary to the resolution of this issue. Carol L. Cestaro, a social worker with the Waterbury Hospital Health Center, was called as a witness by the state. At the time of the victim's hospitalization, Cestaro worked in the adolescent inpatient psychiatric unit. While working in that unit, Cestaro had an opportunity to treat a number of adolescents with a history of sexual abuse, including the victim. Cestaro testified as to the circumstances surrounding the victim's suicide attempt, as told to her by the victim. She also testified to what the victim had told her regarding sexual abuse by the victim's grandfather, the defendant. Cestaro was then asked questions by the state's attorney regarding whether Cestaro had formed an opinion as to whether the victim's story was truthful or a fabrication. The defendant objected to that questioning, but his objections were overruled. The defendant asserts that it was improper for the trial court to permit this testimony to stand because the truthfulness of the victim's claims were the ultimate issue to be determined in the case. We agree. A " 'Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.' " State v. Borrelli, 227 Conn. 153, 165, 629 A.2d 1105 (1993), quoting State v. Spigarolo, 210 Conn. 359, 376, 566 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). However, " '[a]n expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by a trier of fact.' " State v. Smith, 35 Conn. App. 51, 70, 644 A.2d 923 (1994), quoting State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988). The determination of the credibility of a witness is solely the function of the jury. State v. Smith, 200 Conn. 544, 550, 512 A.2d 884 (1986); State v. Robins, 34 Conn. App. 694, 706, 643 A.2d 881, cert. granted on other grounds, 231 Conn. 917, 648 A.2d 166 (1994). "It is the trier of fact which determines the credibility of witnesses and the weight to be accorded their testimony." State v. Carter, 196 Conn. 36, 45, 490 A.2d 1000 (1985). Expert witnesses cannot be permitted to invade the province of the jury by testifying as to the credibility of a particular witness or the truthfulness of a particular witness' claims. See State v. Freeney, 228 Conn. 582, 592, 637 A.2d 1088 (1994), citing State v. Borrelli, supra, 227 Conn. 174; State v. Spigarolo, supra, 210 Conn. 379-80. In cases that involve allegations of sexual abuse of children, our Supreme Court has held that expert testimony of reactions and behaviors common to victims of sexual abuse is admissible. State v. Spigarolo, supra, 210 Conn. 380. Such evidence assists a jury in its determination of the victim's credibility by explaining the typical consequences of the trauma of sexual abuse on a child. Id., 378. It is not permissible, however, for an expert to testify further to her opinion of whether a victim in a particular case is credible or that a particular victim's claims are truthful. Id., 379; In re Noel M., supra, 23 Conn. App. 410, 423, 580 A.2d 996 (1990). Here, Cestaro was permitted to testify that she "never got the sense that [the victim] was fabricating or making up the story," and that she "felt that what [the victim] was saying was true." Clearly, such testimony involves an assertion by an expert witness that validates the truthfulness of the purported victim. We thus conclude that the trial court abused its discretion in permitting this testimony to stand. B Our conclusion that the trial court abused its discretion in admitting the improper evidence does not, however, end our inquiry. Where an evidentiary ruling has been found to be incorrect, but the improper ruling, as here, does not implicate a constitutional right of the defendant, the burden rests on the defendant to establish the harmfulness of the claimed impropriety. State v. Chapman, 229 Conn. 529, 544, 643 A.2d 1213 (1994); State v. Merritt, 36 Conn. App. 76, 92, 647 A.2d 1021, cert. granted on other grounds, 231 Conn. 926, 648 A.2d 165 (1994). In order to establish the harmfulness of a trial court ruling, the defendant must show that it is more probable than not that the improper action affected the result. State v. Chapman, supra, 229 Conn. 544. "The question is whether the trial court's error was so prejudicial as to deprive the defendant of a fair trial, or, stated another way, was the court's ruling, though erroneous, likely to affect the result?" State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986); see also State v. DePastino, 228 Conn. 552, 567, 638 A.2d 578 (1994). We conclude that the improper action of the trial court was likely to have affected the result and, therefore, was harmful to the right of the defendant to a fair trial. There was no physical or medical evidence linking the defendant with the alleged crime. The entire case offered by the state consisted of the testimony of the victim, testimony of other witnesses offered only under the theory of constancy of accusation, and testimony of a psychologist as to the general behavioral characteristics of victims of child sexual abuse under State v. Spigarolo, supra, 210 Conn. 380. Against this array was the testimony of the defendant, denying the victim's claims of sexual abuse. The entire fabric of the state's case against the defendant turned, therefore, on the credibility of the victim and on which version of the facts the jury chose to believe. We thus conclude that since the entire case turned on the issue of the credibility of the victim, Cestaro's testimony vouching for the truthfulness of the victim affected the outcome of the trial and denied the defendant his right to a fair trial. State v. Brown, supra, 199 Conn. 25. Thus, the defendant's conviction cannot stand. II The defendant next claims that the trial court improperly permitted an expert to testify as to (1) behavioral pattern profile responses of victims of sexual abuse, (2) consistencies in the behavior of the victim with sexually abused children in general, and (3) his opinion as to how many children he had treated for sexual abuse had fabricated their stories. The following facts are necessary to the resolution of this issue. Sidney Horowitz, a child psychologist, was called to testify on behalf of the state. Horowitz testified that victims of sexual abuse often exhibit such characteristics as depression, moodiness, sleep and appetite problems, bedwetting, difficulty concentrating, and low self-esteem. The defendant objected, asserting that the state's line of questioning was irrelevant because the characteristics testified to could apply equally to children who have suffered other kinds of trauma, such as physical or psychological abuse, and did not relate only to victims of sexual abuse. After an offer of proof, the defendant's objection was overruled and Horowitz was permitted to testify. The psychologist was precluded, however, from testifying that the existence of some or all of these characteristics necessitated a finding that a child was the victim of sexual abuse. The continued direct examination also revealed to the jury that the characteristics listed were often present in children who suffered other abuse or trauma, and were not limited to victims of sexual abuse. Horowitz was then asked whether his review of the police report and arrest warrant in this case disclosed information that was characteristically common to many victims of sexual abuse. The defendant objected that the line of questioning was highly prejudicial as it allowed an expert to give an opinion as to the ultimate fact to be determined. The objection was over ruled and Horowitz testified that there were three elements in this case that were consistent with reactions of child victims of sexual abuse: (1) the victim revealed the abuse after a personal safety course given at school; (2) the victim was involved in self-injurious behavior such as the suicide attempt; and (3) the victim had difficulty describing the details of what had happened to her. At another point in the direct examination, the state's attorney asked Horowitz how many of the victims he treated did he think had fabricated their claims. The defendant objected that a response to such a question would involve a personal survey by Horowitz without the jury's having access to the methods that he used to make such a determination. This objection was also overruled. Horowitz testified that he believed that fewer than ten of the hundreds of children he had treated had fabricated their claims of sexual abuse. He further testified that fabricated claims usually appeared rehearsed and were related by the child without emotion. A The defendant's first claim with respect to Horowitz' testimony is that his testimony of common behavioral responses of victims of sexual abuse was irrelevant. The defendant rests his claim on the fact that the characteristics testified to by Horowitz are also found in children who have not suffered sexual abuse, but who have suffered other forms of trauma. We do not agree that the testimony was irrelevant. " 'The trial court has broad discretion to determine the relevancy of evidence, and we will not disturb a trial court's ruling on the admissibility of evidence in the absence of a clear abuse of discretion.' " State v. Gant, 231 Conn. 43, 58, 646 A.2d 835 (1994). "Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue." (Internal quotation marks omitted.) State v. Ulen, 31 Conn. App. 20, 28, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993), quoting State v. Boucino, 199 Conn. 207, 228, 506 A.2d 125 (1986); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). Horowitz' testimony regarding common behavioral responses of child victims of sexual abuse was relevant to the jury's determination of whether the victim was sexually abused. See State v. Freeney, supra, 228 Conn. 592; State v. Spigarolo, supra, 210 Conn. 378-79. Such testimony can aid a jury in assessing the claims of a witness who has alleged a sexual assault by calling to the jury's attention typical reactions to such abuse. See State v. Freeney, supra, 592; State v. Spigarolo, supra, 378-79. The fact that many of the behavioral characteristics exhibited by victims of sexual abuse are also exhibited by children who have suffered other types of trauma does not render such evidence any less relevant. "[T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible." (Internal quotation marks omitted.) State v. Sauris, 227 Conn. 389, 406-407, 631 A.2d 238 (1993). The defendant contends further that even if this testimony was relevant, it should have been excluded because its probative value was outweighed by its prejudicial effect. "The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury." State v. Crafts, 226 Conn. 237, 255, 627 A.2d 877 (1993). A trial court's determination of the admissibility of such evidence will not be overturned on appeal unless there is a clear abuse of discretion. State v. Woodson, 227 Conn. 1, 17, 629 A.2d 386 (1993); State v. Grant, 33 Conn. App. 133, 142, 634 A.2d 1181 (1993). The defendant has not shown how the psychologist's testimony would elicit an emotional response from the jury. Horowitz merely listed various characteristics that his studies had shown were typical of children who had suffered sexual abuse. In addition, Horowitz made clear, both on direct and on cross-examination, that the characteristics listed were also exhibited by children who suffered other forms of abuse. We cannot say that the trial court abused its discretion when it determined that the probative value of Horowitz' testimony was not outweighed by any prejudicial effect. The trial court did not abuse its discretion by admitting the testimony of Horowitz concerning common behavioral characteristics of child victims of sexual abuse. B The defendant next claims that the trial court improperly allowed Horowitz to testify to consistencies in the behavior of the victim with sexually abused children in general. In support of this claim, the defendant posits that Horowitz' testimony interfered with the jury's duty to assess the credibility of the victim and went to an ultimate issue of fact to be determined by the jury. We disagree. In Freeney, our Supreme Court upheld the admission of expert testimony that the victim's behavior was consistent with that of victims of sexual assault. In so doing, the court reiterated the language of State v. Borrelli, supra, 227 Conn. 174, that the "expert testimony was properly admitted to assist the jury in understanding, not whether [the victim] was a credible witness on the witness stand, but whether her conduct . . . was consistent with the pattern and profile of [an abused person]. . . . [T]he expert testimony did not invade the province of the jury in determining the credibility of witnesses. . . ." (Citations omitted; internal quotation marks omitted.) State v. Freeney, supra, 228 Conn. 592. The testimony of Horowitz that the victim exhibited three responses that were typical of victims of sexual abuse was, therefore, properly admitted. C The defendant's final claim regarding the testimony of Horowitz is that the trial court improperly admitted his testimony that very few of the children he had treated had fabricated their claims of sexual abuse. The defendant objected to the admissibility of this testimony on the basis of a claim that the jury could not evaluate the reliability of Horowitz' survey. We decline to afford review because the defendant did not state any legal basis for the objection. At trial, the defendant stated only that the testimony constituted a personal survey by the witness and that it was not clear how that survey was conducted. We note also that the defendant has failed to cite any Connecticut law in his brief to support this contention. We will not review a claim that is not distinctly raised at trial. Practice Book § 288, 4185; State v. Anderson, 28 Conn. App. 833, 844, 614 A.2d 438 (1992). The defendant's failure to state the legal grounds on which he based his objection deprived the trial court of the opportunity to address adequately the issue while there was time to correct it and denied this court an adequate record to review the claim. Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 385-86, 544 A.2d 673, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988). We, therefore, decline to review the defendant's claim that the trial court improperly admitted the psychologist's testimony regarding the number of children who fabricate claims of sexual abuse. Ill The defendant also claims that the trial court improperly charged the jury on the meaning of reasonable doubt. In light of our disposition of the case in part I of this opinion, we need not and do not address this issue. The judgment is reversed and the case is remanded for a new trial. In this opinion the other judges concurred. General Statutes § 53-21 provides; "Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be [punished]." The following are the questions and answers at issue: "Q. [By Assistant State's Attorney] Based on your treatment of her, do you have any indication that her story of the sexual abuse was any type of a fantasy or fabrication on her part? "A. None "Q. Can you explain this to me? "[Defense Counsel]: Objection. "The Court: I'm going to overrule the objection. "[Defense Counsel]: May I have an exception? "The Court: Exception may be noted. "Q. You can answer the question. "A. I never got the sense from her that she was fabricating or making up the story. One, because she was so consistent, I think. Two, because of her reluctance to disclose actual details and her humiliation and shame and embarrassment around even talking about having been sexually abused. I felt that what she was saying was true. [Emphasis added.] "[Defense Counsel]: I move that be stricken. Again, you are getting an opinion. Its the ultimate question of fact in this case. "The Court: She had asked her whether she had formed an opinion relative to that. I'm going to overrule your objection and you may have an exception. It's not going to be stricken from the record. "[Defense Counsel]: May I have an exception? "The Court: Exception may be noted. "Q. You indicated one of the reasons that you did not believe that it was a fabrication or fantasy was her inability to disclose a lot of the specifics. What do you mean by that? "A. Well, I think that if she had been fabricating, she would have talked about the details. I mean, she is old enough to know the different parts of the body. I think that she is old enough in her early teenage years to be able to talk about masturbation or penis and vagina. I would think that if she were fabricating, she may have been able to embellish, so to speak, her story, but again her reluctance to talk about details and her shame and embarrassment around it again indicated to me that was being truthful in what she was saying. "[Defense Counsel]: Again, I would object to this line of questioning. I would move to have it stricken. "The Court: All right, your objection is overruled. "[Defense Counsel]: May I have an exception? "The Court: Exception may be noted." Although our decision in part I requires reversal, we address the portion of this claim that is properly preserved and likely to arise again on remand. See State v. Skipper, 228 Conn. 610, 624-25, 637 A.2d 1101 (1994). In Ms brief, the defendant also claims that the characteristics listed by Horowitz constitute child sexual abuse syndrome and that such testimony has been found unreliable in other jurisdictions. This objection was not made at trial. " 'This court reviews rulings solely on the ground on which the party's objection is based [at trial].' " State v. Robinson, 227 Conn. 711, 740, 631 A.2d 288 (1993), quoting State v. Manning, 162 Conn. 112, 118, 291 A.2d 750 (1971); see Practice Book § 288. We, therefore, review this claim only on the grounds of relevancy. The defendant's objection follows: "[Assistant State's Attorney]: [0]ut of the hundreds of victims that you indicated you had treated or spoken with, [with] approximately how many of these victims did you feel there might be an issue of fabrication? "[Defense Counsel]: Objection, Your Honor, goes into a personal survey of him. We don't know what tools he used in order to make a determination, Your Honor. "The Court: I am going to overrule the objection to the extent it reflects his own personal experience and analytical practice of child abuse and child neglect where there is an indication that there may be a fabrication. I think that's an appropriate area to explore in light of defense counsel's cross-examining the witness relative to that particular issue. "[Defense Counsel]: May I have an exception?"

O'Connell, J. The defendant appeals from the judgment of conviction, following a jury trial, of murder in violation of General Statutes § 53a-54a (a). The defendant claims that (1) the trial court and the state's attorney improperly denied him access to exculpatory material, (2) the trial court improperly admitted identification testimony into evidence, (3) the trial court improperly instructed the jury on intent to kill, and (4) the trial court improperly failed to conduct a hearing as to whether a juror felt pressured. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. Early in the morning of February 23,1989, the victim, Eugene Deis, and Pamela Teague were seeking to purchase cocaine in New Haven. Deis was driving his car and Teague was in the front passenger seat. On Southwest Drive near its intersection with Dixwell Avenue, they were flagged down by two drug runners, Michael Little and Nessie Jacobs. Deis told the runners what he wanted, and they relayed the order to Reggie Cash. Cash was nearby with drugs that he had previously received from the defendant. Cash and Little approached Deis' car to complete the transaction. As Cash handed Deis the cocaine, Deis started the car, giving the impression that he intended to drive away without paying. Cash and Little reached into the car and grabbed the victim, preventing him from leaving. Teague got out of the car and went toward the intersection looking for a telephone or a police officer. Finding neither, she stood on the sidewalk and watched the struggle. She saw Jacobs and the defendant approach the car. The defendant pulled a handgun, fired into the car and hit Deis, who died within minutes. Jacqueline Ellis, who had known the defendant for many years, also witnessed the incident. She saw the defendant, with a handgun, walk over to the victim's car. She then heard a shot. Little also saw the defendant reach into the car with a gun and then heard a shot. Cash and Jacobs both heard the shot but neither saw who fired the gun. The defendant testified that he saw an unidentified male run up to Deis' car, fire one shot and run away. No one else saw this man. Additional facts are included in our analysis of the issues. I The defendant first claims that the state's attorney and the trial court denied him access to discoverable exculpatory material in violation of his constitutional rights to due process, to present a defense and to the assistance of counsel. The state police forensic laboratory analyzed the bullet taken from the victim's body and concluded that it came from the same gun that was fired in an unrelated crime in Hamden on December 23,1988. The state disclosed this information but, because the Hamden case was still open, refused to allow the defendant access to the Hamden police reports. The defendant subpoenaed the Hamden police file and, following completion of the state's case-in-chief, moved for its production. The trial court examined it in camera, determined that it contained no exculpatory evidence and declined to order its production. The defendant argues that discovery of the Hamden file would have allowed him to develop exculpatory evidence contained therein (1) to support the defendant's testimony of third party culpability and (2) to impeach the observations and credibility of the two state witnesses who claim to have seen the gun in the defendant's hand. The state is constitutionally obligated to disclose evidence that is material and potentially exculpatory. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); State v. Quintana, 209 Conn. 34, 37, 547 A.2d 534 (1988); see also General Statutes § 54-86c; Practice Book § 741 (l). In addition, an independent right to disclosure of exculpatory evidence has been recognized under the due process provision of article first, § 8, of the Connecticut constitution. State v. Simms, 201 Conn. 395, 405 n.8, 518 A.2d 35 (1986). A " 'In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense; and (3) that the evidence was material.' " State v. Rasmussen, 225 Conn. 55, 90, 621 A.2d 728 (1993). It is not disputed that after a proper request the state refused to release the Hamden file to the defendant and that, subsequently, the trial court denied the defendant's discovery motion. Accordingly, the first Brady prong has been satisfied. We will analyze the second prong — favorableness— and the third prong — materiality—together. "Favorable evidence is that evidence which . . . might have led the jury to entertain a reasonable doubt about . . . guilt . . . and this doubt must be one that did not otherwise exist." (Citations omitted; internal quotation marks omitted.) State v. Green, 194 Conn. 258, 265, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). On the other hand, "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); State v. Rasmussen, supra, 225 Conn. 92; State v. Pollitt, 205 Conn. 132, 142-43, 531 A.2d 125 (1987). " 'Impeachment evidence as well as exculpatory evidence falls within Brady's definition of evidence favorable to an accused.' " State v. Demers, 209 Conn. 143, 161, 547 A.2d 28 (1988). The defendant argues that evidence in the Hamden file was favorable because the Hamden witnesses described the weapon as a big black or blue-black revolver, whereas in the present case two state witnesses described the weapon as silver in color. The defendant contends that this discrepancy might have caused the jury to discredit the state's witnesses in this case. The fallacy in the defendant's argument is that, because the gun has never been recovered, the evidence in the Hamden file could show only that the witnesses in one of the cases were apparently mistaken. Particularly damaging to his argument is the fact that the defendant himself testified that he witnessed the shooting and the gun was silver. Thus, the defendant puts himself in the unique position of seeking evidence to impugn his own credibility. The defendant loses sight of the fact that the purpose of discovery is to obtain information. The possible color discrepancy was already known to the defendant. The state's ballistic expert had testified in the jury's presence that the gun that fired both bullets was probably a Charter Arms .44 caliber Bulldog revolver and that in his experience such guns were made of blue steel. The defendant fully cross-examined the state's ballistic expert on the color of the gun in the presence of the jury. The jury also heard the state's witnesses, as well as the defendant, testify that the gun in the present case was silver. Accordingly, the jury was well aware that witnesses in this case were of the opinion that the gun was not the same color as that which the state's expert described. This case turns on the "material" Brady prong. "[T]he mere possibility that an item of undisclosed evidence might have helped the defense or might have affected the outcome of the trial . . . does not establish materiality in the constitutional sense." (Emphasis in original; internal quotation marks omitted.) State v. Pollitt, supra, 205 Conn. 149. Because the determination of materiality is inevitably fact bound, a reviewing court must give deference to the trial court's determination, especially in the weighing of the evidence. United States v. Kelly, 790 F.2d 130, 136 (D.C. Cir. 1986); State v. Pollitt, supra, 149. Materiality is not determined in a vacuum; rather, it must be made in the context of all the evidence adduced at trial. State v. Pollitt, supra, 205 Conn. 143. Accordingly, the trial court properly determined that even if the Hamden witnesses' descriptions of the gun were favorable to the defendant, they were not material because they involved only a mere possibility that they might have helped the defendant as opposed to the required reasonable probability that the result of the proceeding would have been different. United States v. Bagley, supra, 473 U.S. 682; State v. Pollitt, supra, 149. B The defendant also contends that discovery of the Hamden file would have supported his claim of third party culpability. "[A] defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged. . . . The defendant, however, must show some evidence which directly connects a third party to the crime . It is not enough . to raise a bare suspicion that some other person may have committed the crime . . . ." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Holeman, 18 Conn. App. 175, 182, 556 A.2d 1052 (1989); see 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 93g (3). The defendant's third party theory was based solely on his own testimony. No other witness saw the phantom shooter appear suddenly, shoot the victim and run away. Moreover, the Hamden file does not contain a description of any person who resembles the defendant's description of the unknown shooter. The defendant argues that if he had been given access to the Hamden file it might have given him leads that he could have followed, which might have furnished helpful evidence. This argument runs afoul of the standard that the mere possibility that undisclosed evidence might have helped the defense or might have affected the outcome is not enough. State v. Pollitt, supra, 205 Conn. 149. In the usual scenario in this type of case, the trial court has denied the defendant access to a desired file and sealed it for our review. Lack of knowledge of the file's contents is an understandable handicap to appellate counsel's arguing that the trial court improperly denied access. In this case, however, counsel was not so handicapped. The Hamden case was concluded after the verdict in the present trial but before sentencing. At that point, the trial court unsealed the file and gave the defendant full access to it. Despite the advantage of this access, however, the defendant has not persuaded us that the information in the Hamden file would have been both favorable and material to his defense. See United States v. Bagley, supra, 473 U.S. 682. We conclude that neither the state's attorney nor the trial court violated the defendant's constitutional or statutory rights, or his rights under the rules of practice, to any exculpatory material. II We turn next to the defendant's claim that the trial court improperly allowed Teague's identifications of the defendant into evidence. " 'The due process clause of the fourteenth amendment to the United States constitution requires the exclusion of identification evidence when the procedure used was so impermissibly suggestive as to give rise to a very substantial likelihood of an irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983). "In order to establish that a pretrial identification procedure has violated a defendant's constitutional right to due process, the defendant must prove (1) that the identification procedure was unnecessarily suggestive, and (2) that the resulting identification was not reliable under the totality of the circumstances." State v. Hunt, 10 Conn. App. 404, 407, 523 A.2d 514 (1987). Whether such an identification procedure is unnecessarily suggestive, depends on the facts and circumstances of each case. State v. Findlay, 198 Conn. 328, 337-38, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986).' State v. Arroyo, 13 Conn. App. 687, 690, 539 A.2d 581, cert. denied, 208 Conn. 805, 545 A.2d 1103 (1988). To prevail on his claim the defendant 'must show that the trial court erred in determining both the "suggestiveness" and "reliability" of the identification. State v. Sims, [12 Conn. App. 239, 242, 530 A.2d 1069 (1987), cert. denied, 206 Conn. 801, 535 A.2d 1315 (1988)].' State v. Barnes, 16 Conn. App. 333, 343-44, 547 A.2d 584 (1988)." State v. Gagnon, 18 Conn. App. 694, 701-702, 561 A.2d 129, cert. denied, 213 Conn. 805, 567 A.2d 835 (1989). In State v. Daniels, 13 Conn. App. 133, 135, 534 A.2d 1253 (1987), this court, in an opinion written by now Justice Borden, disposed of challenges to identification evidence as follows: "The trial court held an evidentiary hearing regarding the identifications and specifically found that none of them was the result of an impermissibly suggestive procedure, and that they were reliable. . It would serve no useful purpose to recite those findings here. We have fully reviewed the record, and we conclude that those findings are amply supported by the evidence." (Citation omitted.) The same is true in the present case. The trial court properly allowed Teague's identifications into evidence. Ill The defendant next claims that the trial court's instruction improperly allowed the jury to find the defendant guilty of murder on the basis of proof of intent to engage in conduct, rather than the required intent to cause a specific result, i.e., death. Because the defendant did not file a request to charge or except to the charge as given, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under the Golding guidelines, a defendant can assert a constitutional claim, not preserved at trial, only if all of the following conditions are met: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id. If any one of these conditions is missing, the defendant's claim will fail. Id., 240. The relevant portion of the instruction commenced with the statement: "You must find proved beyond a reasonable doubt that Mr. Deis died as a result of the actions of the defendant. Next, you must conclude that the person causing the death of the victim must have done so with the intent to cause the death." The court then read the statutory definition of when a person acts intentionally. General Statutes § 53a-3 (ll). Six sentences later the trial court instructed that "[i]f you find that the state has proved beyond a reasonable doubt that the defendant had the intent to cause the death of and that having that intention to cause the death of Mr. Deis, the defendant did cause his death, then you may find the defendant guilty of the crime of murder." The court concluded this portion of its charge by commenting: "So let me just summarize by reading the statute. 'A person is guilty of murder, when, with intent to cause the death of another person, he causes the death of such person.' This means that the state must prove beyond a reasonable doubt that the defendant intended to cause the death of another person and that in accordance with that intent the defendant caused the death of that person." When the court finished its instruction, defense counsel advised the court that the charge on intent was "proper" and "perfectly fine" with one exception. The court had used the example of drinking a glass of water to demonstrate intent, and defense counsel thought that may have been misleading. The court recalled the jury and, after speaking of the water drinking example, told the jury, "I don't want to give you the impression that every time a course of conduct leads to a result that that's the intended result. I mean, that's for you to decide." The court repeated this clarification twice and defense counsel expressed satisfaction with it. During its deliberations, the jury asked, inter alia, to rehear the definition of murder including the matter of intent. The court instructed the jury that the state had to prove two elements for a murder conviction, "[one] that the defendant intended to cause the death of another person and, two, that in accordance with that intent the defendant caused the death of that person." The defendant's challenge to the charge on intent arose out of the trial court's reading of the statutory definition of intent from § 53a-3 (11). Even if it were improper, it would not destroy the propriety of the instruction as a whole. Viewing the challenged language in isolation is unjustified. Immediately before first using that language, the court properly told the jury that it must find that the defendant had intended to cause the victim's death, and six sentences later reiterated that the jury may find the defendant guilty of murder if "the defendant had the intent to cause the death of . . . Mr. Deis [and] the defendant did cause his death." It strains reason to believe that the jury could have heard the challenged instruction as not requiring that the state prove beyond a reasonable doubt that the defendant intended to kill Deis. Furthermore, the court's reply to the jury question also properly informed the jury that the state must prove that the defendant possessed a specific intent to kill Deis. It is axiomatic that a jury charge is to be read as a whole and that individual instructions are not to be judged in artificial isolation from the overall charge. State v. Suggs, 209 Conn. 733, 755, 553 A.2d 110 (1989); State v. Washington, 15 Conn. App. 704, 713, 546 A.2d 911 (1988). The test is whether the charge as a whole tended to mislead the jury. State v. Quintana, supra, 209 Conn. 44; State v. Boone, 15 Conn. App. 34, 55, 555 A.2d 217, cert. denied, 209 Conn. 811, 550 A.2d 1084 (1988). A similar issue was raised in State v. Boles, 223 Conn. 535, 541-43, 613 A.2d 770 (1992). The language of the Boles court is singularly applicable to the facts of this case. "[T]he trial court gave instructions, both prior and subsequent to the instruction at issue, that properly informed the jury that it had to find proven that the defendant intended to cause the victim's death before it could convict him of murder. . We conclude that the instruction of the trial court, on which the defendant focuses in isolation, did not, in the context of the entire charge, deprive him of his constitutional due process right to a fair trial nor did it result in an injustice. . . . Because there was no constitutional violation, the defendant does not have a valid claim for relief under Golding. Further, because there was no manifest injustice, the defendant's claim does not warrant plain error review." (Citations omitted.) Id., 543. The defendant also argues that by reading the statutory definition of intent the trial court created a mandatory presumption of intent in violation of the principle laid down in Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). In view of our analysis of the charge as a whole, this contention does not merit further discussion. The defendant has not satisfied the third Golding prong and is thus not entitled to further review of his claim that the trial court improperly instructed the jury on intent. IV In his final claim, the defendant argues that the trial court improperly failed to conduct an inquiry into the significance of a remark made by a juror and overheard by an attorney. The attorney, who was not involved in the case, passed four or five jurors standing outside the courthouse as he entered. The jurors appeared to be "just talking about the weekend," when the attorney overheard an unidentified female juror say "if she feels pressured." That was all he heard. The attorney reported this incident and explained the circumstances to the trial court. The court, however, did not think the incident "in any way taint[ed] the integrity of the deliberations at all." When possible concerns regarding juror misconduct or improper influence are brought to the attention of the court, it has a duty to determine whether and to what extent, improper influence or undue pressure may have violated the defendant's constitutional right to a fair trial. State v. Gonzalez, 25 Conn. App. 433, 439, 596 A.2d 443 (1991), aff'd, 222 Conn. 718, 609 A.2d 1003 (1992). In the present case, however, the defendant did not show that the snippet of overheard conversation was related to this case in any way. It could just as easily have been a comment referring to a person other than a member of the jury who felt pressured in some way by the vicissitudes of life. The trial court acted within its discretion in not inquiring into the matter. The judgment is affirmed. In this opinion the other judges concurred. This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court. General Statutes § 53a-54a provides in relevant part: "murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . ." General Statutes § 54-86c provides in relevant part: "(a) Not later than thirty days after any defendant enters a plea of not guilty in a criminal case, the state's attorney, assistant state's attorney or deputy assistant state's attorney in charge of the case shall disclose any exculpatory information or material which he may have with respect to the defendant whether or not a request has been made therefor. If prior to or during the trial of the case, the prosecutorial official discovers additional information or material which is exculpatory, he shall promptly disclose the information or materia] to the defendant. "(b) Any state's attorney, assistant state's attorney or deputy assistant state's attorney may request an ex parte in camera hearing before a judge, who shall not be the same judge who presides at the hearing of the criminal case if the case is tried to the court, to determine whether any material or information is exculpatory. ." Practice Book § 741 provides in relevant part: "Upon a written motion made by a defendant within ten days after the entry of a plea, the prosecuting authority, within the time set by the judicial authority, shall disclose in writing the existence of and allow the defendant to inspect, copy, photograph and have reasonable tests made on any of the following relevant materials; "(1) Exculpatory information or materials . . . ." The constitution of Connecticut, article first, § 8, provides in relevant part: "No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . ." The trial court's charge to the jury on intent was as follows: "You must find proved beyond a reasonable doubt that Mr. Deis died as a result of the actions of the defendant. Next, you must conclude that the person causing the death of the victim rmist have done so with the intent to cause the death. So, I'll define intent for you. And it's not as complicated as it might seem. A person acts 'intentionally' with respect to a result or conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. Intent is a mental process. To discern what a person is thinking, the question of intent may be determined by considering all the facts and circumstances leading up to, surrounding and following the events in question. You may consider any statement made and any act done or omitted by the defendant, along with other facts and circumstances in evidence, and from those you may infer what his intention was. If you find that the state has proved beyond a reasonable doubt that the defendant had the intent to cause the death of and that having that intention to cause the death of Mr. Deis, the defendant did cause his death, then you may find the defendant guilty of the crime of murder. On the other hand, if after reviewing all of the evidence, you find that the state has failed to prove beyond a reasonable doubt either or both of the elements of the crime charged, then you must find the defendant not guilty." The court then gave as an example that the jury could infer intent from watching the court drink a glass of water. See footnote 9. It then continued its charge as follows: "So let me just summarize by reading the statute. 'A person is guilty of murder, when, with intent to cause the death of another person, he causes the death of such person.' This means that the state must prove beyond a reasonable doubt that the defendant intended to cause the death of another person; and that in accordance with that intent, the defendant caused the death of that person. . . ." The defendant mentioned plain error review but did not furnish analysis of his claim under this doctrine. Accordingly, we deem it abandoned. State v. Tatum, 219 Conn. 721, 742, 595 A.2d 322 (1991). General Statutes § 53a-3 (11) provides: "A person acts 'intentionally' with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . . ." During jury instructions the court drank a cup of water and said to the jury, "Now, if you were watching me, I didn't say a word. Could you fig ure from what I did, what I meant to do? Sure, I meant to have a drink of water. Now you didn't have to look inside my mind . to figure that out. How were you able to judge my intent? By simply observing my actions and the circumstances surrounding the event. That's the way you judge a person's intent . It's all common sense." The third prong of Golding requires that "the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . ." State v. Golding, supra, 213 Conn. 239-40.

Borden, J. The plaintiff appeals from the judgment of the trial court rendered in accordance with the report of an attorney trial referee. The issues in this appeal involve the propriety of the trial court's acceptance of the referee's findings regarding the plaintiff's standing to sue and the trial court's denial of the plaintiff's posttrial motion to add parties as plaintiffs. The plaintiff also claims that the trial court erred by rendering judgment for the defendants on his claim to recover on a surety bond. We find no error. This appeal arises in the following procedural context. On June 5,1978, the plaintiff, Victor Christ-Janer, who is an architect, filed a two count complaint against the named defendant, A.F. Conte & Company, Inc., and against Anthony F. Conte. Count one alleged that the plaintiff prepared architectural plans for the Cedar Court housing project for the elderly in Norwalk, and that the named defendant agreed to purchase those architectural plans for the sum of $42,000. It further alleged that the named defendant received those plans as consideration for the contract but failed and refused to pay for them in accordance with the agreement. The allegations in the second count pertain to a surety bond which was substituted for a mechanic's lien. This action was brought against the named defendant as principal, and against Anthony F. Conte as surety. Hereinafter, all references to the defendant will refer to the named defendant except where it may be necessary to refer to the defendants in their respective capacities separately. Upon stipulation of the parties, the case was referred to an attorney trial referee, who conducted a trial. On October 17, 1984, the referee filed a thorough report consisting of findings of fact and conclusions of law based thereon, with a recommendation for judgment in favor of the defendant. On November 15,1984, the plaintiff filed objections to the acceptance of the referee's report and a motion to add Christjaner, Inc., a separate corporation, as a party plaintiff. The defendant objected to the motion to add a party and moved for judgment in accordance with the referee's report. The plaintiff filed an objection to the motion for judgment on the ground that his previously filed objection to the acceptance of the referee's report and motion to add a party were then pending. On January 14,1985, the trial court rendered judgment for the defendant in accordance with the referee's report. The plaintiff subsequently filed a motion to open judgment on the ground that his prior motion to add a party had not been ruled upon. The trial court denied this motion on January 20, 1985. Thereafter, the plaintiff filed an amended motion to add Victor Christ-Janer, Inc., still another corporation, and Christjaner, Inc., as plaintiffs. On February 21,1985, the trial court filed a supplemental memorandum of decision in which the court addressed the plaintiff's motions to add Christjaner, Inc., and Victor Christ-Janer, Inc., as plaintiffs. The court concluded that "to permit the adding of new plaintiffs after this long and hard fought trial was concluded and a decision rendered and thus necessitate a new trial, would only result in unreasonable delay and would be unfair to the defendants who are not at fault, if any there be, for the ruling concerning lack of standing." Judgment was rendered anew on February 21, 1985. On appeal, the plaintiff claims that the trial court erred by accepting the report of the referee and by denying the posttrial motions to add plaintiffs. We disagree. We note at the outset that the plaintiff "properly filed an objection to acceptance of the report of the attorney referee, which the court overruled in rendering judgment for the defendant. The plaintiff therefore is entitled to appellate review of the trial court's disposition of his objection." Midland Ins. Co. v. Universal Technology, Inc., 199 Conn. 518, 521-22, 508 A.2d 427 (1986). Our review of the plaintiff's claims, however, is hampered somewhat due to the plaintiff's failure to "file with the court a motion to correct setting forth the changes and additions [to the attorney referee's report] desired by him." Practice Book § 438; Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 518, 508 A.2d 415 (1986). Nor has the plaintiff filed "a brief statement of the grounds of each correction asked, with suitable references to the testimony. ." Practice Book § 438. Finally, we note that the plaintiff has not filed "exceptions to the report seeking corrections by the court in the report or finding." Practice Book § 439. Instead, the plaintiff merely filed with the court, pursuant to Practice Book § 440, an objection to the acceptance of the referee's report in which he asserted that he had standing to sue on this contract because he was the owner of the plans and he was a party to the contract. The trial court rejected the plaintiff's claim that the referee erred by finding that he lacked standing. Under these facts and circumstances, our review is limited to the question of whether the trial court erred by failing to find "that the [attorney referee] has materially erred in his rulings . . . .''Practice Book § 443. Certain findings of the referee are not in dispute. He found that the plaintiff was a 50 percent shareholder in Victor Christ-Janer, Inc., an entity that the plaintiff characterized as a "sweat equity" company. The idea upon which this entity operated was that Victor Christ-Janer, Inc., would contribute architectural services to certain special projects in cooperation with a construction company such as the defendant. The parties became interested in the Cedar Court housing project, which was then under consideration by the Nor-walk housing authority. This project was to be funded by the federal department of housing and urban development. Although the parties never formalized their relationship, they entered into a joint venture at will. Each contributed time and services as "sweat equity" for the purpose of submitting appropriate plans and proposals in order to compete successfully for the award of the Cedar Court project. The project ultimately was awarded to Victor Christ-Janer, Inc., and the defendant. The referee further found, and the plaintiff does not dispute, that shortly after the project was awarded, the plaintiff began to have second thoughts about the financial viability of the project. Thereafter, the attorneys for Victor Christ-Janer, Inc., and the defendant drew suggested joint venture agreements which the plaintiff refused to sign on behalf of Victor Christ-Janer, Inc. Ultimately, the plaintiff refused to participate further in the venture and the defendant initiated suit in federal court. That litigation terminated upon the parties' stipulation that the defendant would proceed with the project on its own, provided that it could obtain the plans from Victor Christ-Janer, Inc. The referee further found as follows: On April 4, 1977, the plaintiff executed a letter to the Norwalk housing authority which was admitted into evidence at trial. This letter stated, inter alia, that "[i]n the interests of accomplishing the completion of the Cedar Court project, Victor Christ-Janer, Inc. agrees to release all interest in the . . . project . . . pending the purchase by A.F. Conte & Co., Inc. of the architectural plans for the project from Christjaner, Inc., for the sum of $42,000." The referee found that this letter was on the letterhead of Victor Christ-Janer Architect and was signed by the plaintiff. It was accepted by the defendant on April 7, 1977. As of that date, Victor ChristJaner, Inc., had contributed $12,000 in "sweat equity" into the architectural part of the project and the defendant had contributed between $5000 and $7000 worth of its services into the project. Subsequently, the defendant obtained the plans from the plaintiff and the defendant retained two other architects who completed the plans in place of the plaintiff. Neither Victor ChristJaner, Inc., nor Christjaner, Inc., nor the plaintiff were ever paid anything by either defendant for the use of the plans. On the basis of these findings, the referee concluded that the plaintiff lacked standing to prosecute his claim. In this regard, the referee found that the relationship of the defendant corporation was with Victor ChristJaner, Inc., and not with the plaintiff. In addition, the referee concluded that if there was a third party beneficiary to the agreement between Victor Christ-Janer, Inc., and the defendant, it was Christjaner, Inc., and not the plaintiff. The plaintiff disputed only the latter findings and conclusions in his objection to the trial court's acceptance of the referee's report. He essentially reiterates that objection in this appeal on the same grounds which he set forth in his objection, namely, that he has standing to bring this action because he is the owner of the plans and because he, not Victor ChristJaner, Inc., was the party to the agreement upon which the action was brought. These claims lack merit. The undisputed facts reveal that it was Victor ChristJaner, Inc., which contributed the plans, otherwise known as "sweat equity," to the venture with the defendant. It was Victor Christ-Janer, Inc., which was awarded the elderly housing project with the defendant. It was the attorneys for Victor Christ-Janer, Inc., who later drew up the proposed joint venture agreement, and Victor Christ-Janer, Inc., agreed to release its interest in the project pending purchase of the plans from Christjaner, Inc. Indeed, the undisputed evidence was- that when Victor Christ-Janer, Inc., agreed to release its interest in the project, Victor Christ-Janer, Inc., and not the plaintiff, had contributed $12,000 of its services into the project. Although the plaintiff now claims that the evidence presented to the referee does not support the subordinate facts found by the referee, this argument presumably was rejected by the trial court. See Blessings Corporation v. Carolton Chronic & Convalescent Hospital, Inc., 7 Conn. App. 364, 366-67, 508 A.2d 829 (1986). Nor is there any material error in the referee's conclusion, based on these subordinate facts, that the plaintiff lacked standing. " 'Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.' " Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983). Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause. See Housing Authority v. Local 1161, 1 Conn. App. 154, 157, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). In this case, because the evidence supports the finding that someone other than the plaintiff is the proper party to the contract sued upon, the conclusion of the referee that such a plaintiff lacks standing, and the trial court's adoption of that conclusion, will not be disturbed on appeal absent clear error. Practice Book § 443; see Second Exeter Corporation v. Epstein, 5 Conn. App. 427, 429-30, 499 A.2d 429 (1985). We find no such error on the basis of this record. We reach a similar conclusion regarding the trial court's denial of the plaintiff's posttrial motion to add Christjaner, Inc., and Victor Christ-Janer, Inc., as parties. "The decision whether to grant a motion for the addition of a party to pending legal proceedings rests generally in the sound discretion of the trial court." Lettieri v. American Savings Bank, 182 Conn. 1, 13, 437 A.2d 822 (1980). We find that the trial court was well within those discretionary bounds to deny the plaintiff's motion to add parties in this case. The record reveals that prior to the calling of the first witness in the proceedings before the referee, the defendant made reference to the issue of the plaintiff's right to pursue a claim on this contract. Similarly, the issue of who the proper plaintiff in this action should be was raised at two other points in the course of those proceedings. The plaintiff's motion, however, was filed after the conclusion of all of the proceedings before the referee. Therefore, "[a]s the architect of his own predicament"; Fox v. First Bank, 198 Conn. 34, 40-41 n.3, 501 A.2d 747 (1985); the plaintiff cannot now com plain that he was unaware of this defect or that the commencement of this action in the name of the wrong party was due to inadvertence or mistake. See Practice Book § 101. As the trial court noted, the addition of parties at such a late stage in the proceedings would have caused unreasonable delay. "We presume that the legislature created the office of attorney referee as an alternative method of dispute resolution in order to alleviate court congestion." Seal Audio, Inc. v. Bozak, Inc., supra, 505. In this case, the trial court's denial of the plaintiff's motion to add parties after the conclusion of proceedings before the referee was consistent with this "salutary purpose." Id. To conclude otherwise would be to relegate the referee in this case to the role of a mere advisor to the plaintiff at the expense of his opponents. Our conclusion regarding the plaintiff's lack of standing to bring the action on the contract also disposes of the plaintiff's claim that the trial court erred by adopting the referee's recommendation for judgment in favor of the defendant in the action on the surety bond. The plaintiff filed a mechanic's lien against the property of the defendant, and a surety bond was substituted for that lien. The referee found that the plaintiff failed to prove that he had worked upon the project within sixty days next prior to the prosecution of the mechanic's lien. The trial court adopted this finding, over the plaintiff's objection, and rendered judgment in favor of the defendants. We affirm the trial court's decision. In order for a lien to be valid it must be recorded by "the person performing the services or furnishing the materials . . " General Statutes § 49-34. In this case, that person was Victor Christ-Janer, Inc., not the plaintiff. Thus, because the party who possessed an interest in the subject matter of the lien was Victor Christ-Janer, Inc., and not the plaintiff; Ardmare Construction Co. v. Freedman, supra; we conclude that he lacked standing to prosecute the claim on the bond which derived from material and services provided by Victor Christ-Janer, Inc. We therefore affirm the trial court's judgment in favor of the defendants on the alternate ground that the plaintiff lacked standing to prosecute the claim. See Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978). There is no error. In this opinion the other judges concurred. Because the original judgment of the trial court was rendered at a time when objections to the referee's report were pending, this procedure ordinarily would constitute reversible error. See Walker v. Ambulance Service of Manchester, Inc., 7 Conn. App. 191, 193, 508 A.2d 446 (1986). Under the facts and circumstances of the present case, however, because the trial court's ultimate judgment was rendered on February 21, 1985, after the plaintiff's objections and subsequent motions were filed, our decision in Walker, does not apply. The incorrect reference in the plaintiffs objection to Practice Book § 441 is deemed to refer to Practice Book § 440. We reject the plaintiffs argument that as the owner of the plans he was the proper party to bring this action. There is no basis in this record for this court to review factual findings regarding ownership of the plans. The proper avenue by which to preserve this claim for review under these circumstances would have been to file a motion to correct this finding; Practice Book § 438; and an exception to the report "with . a transcript of the evidence taken before the [referee]. . . . " Practice Book § 439. The plaintiff did not do so.

Parskey, J. The defendant was charged with the crimes of burglary in the third degree in violation of General Statutes § 53a-103, attempted larceny in the second degree in violation of § 53a-123 and § 53a-49a, and being a persistent felony offender under § 53a-40 (b). He entered a plea of guilty to the burglary charge. Before the imposition of sentence the defendant filed a motion to vacate his plea on the grounds that (1) it was not voluntary, knowing and intelligent, (2) he did not fully understand the implications of the plea nor did he understand the rights a guilty plea waived, (3) there was no factual basis for the plea, (4) the record did not demonstrate adequately a knowing, voluntary and intelligent waiver sufficient to support a plea of guilty and (5) the state would not be prejudiced by the relief requested. At oral argument on the motion the defendant amplified these grounds by making eleven claims of law. These may be condensed into three constitutional claims which the defendant has pursued in his brief, namely, that the acceptance of the plea did not comport with constitutional standards, that the defendant lacked an understanding of the plea proceedings and that his guilty plea was tainted by ineffective assistance of counsel. The defendant made an offer of proof and requested an evidentiary hearing to prove the latter two claims. The court denied both the request for a hearing and the motion to vacate the plea and thereafter imposed a sentence of not less than two nor more than four years. The defendant claims error in the denial of both the evidentiary hearing and his motion. I We have set forth in a footnote the complete transcript of the plea proceedings. The defendant, relying principally on United States v. Lincecum, 568 F.2d 1229 (5th Cir. 1978), argues that single-word responses to inquiries from the court invalidates the plea as a matter of constitutional law. We disagree. Although some form of meaningful dialogue is preferable to monosyllabic responses by the defend ant, we have never held that single-word responses require an automatic vacation of a guilty plea. We have said that "[i]f the questioning of a defendant to determine whether a plea of guilty represents a voluntary and intelligent choice and waiver of rights is to have any meaning, the answers elicited from the defendant in open court should he something more than a mouthing of platitudes." State v. Battle, 170 Conn. 469, 475, 365 A.2d 1100 (1976). This is true whether the responses are single words or, as in Battle, single or multiple sentences. "To insulate from attack convictions obtained after a plea of guilty, tbe trial court is best advised to conduct an on-the-record examination of the defendant which will disclose, inter alia, a full understanding of what the plea connotes and of its consequence, and which will demonstrate that the plea of guilty was entered intelligently, knowingly and voluntarily." State v. Bugbee, 161 Conn. 531, 536, 290 A.2d 332 (1971). If a fair reading of the record satisfies the standards set down in Bugbee, the guilty plea will withstand a constitutional attack based on facial invalidity. The defendant's reliance on a number of federal cases for the proposition that single-word reponses render a guilty plea constitutionally defective is misplaced. In Sierra v. Government of Canal Zone, 546 F.2d 77 (5th Cir. 1977), the court, referring to Rule 11 of the Federal Rules of Criminal Procedure, made the following observation: "Routine questions on the subject of understanding are insufficient, and a single response by the defendant that he 'understands' the charge gives no assurance or basis for believing he does." Id., 79. (Emphasis added.) These statements were repeated with approval in United States v. Lincecum, supra, 1231, and Coody v. United States, 570 F.2d 540, 541 (5th Cir. 1978). But in United States v. Dayton, 604 F.2d 931 (5th Cir. 1979), the court upon further reflection noted that "[mjeasured deliberation has convinced us that such statements are too broad." Id., 941. In Dayton the defendant was charged in two counts with unlawfully, knowingly and intentionally possessing with intent to distribute a certain quantity of marihuana. Id. The trial court, after reading the indictment to the defendant, inquired whether the defendant understood the nature of the charges, to which the defendant replied "Yes, sir." The court then inquired whether the defendant had any questions about it, to which the defendant responded "No, sir." The court then invited the government's attorney to state the facts which the government contended could he proven following which the court inquired of the defendant whether the facts were true and whether they could be proved against the defendant beyond a reasonable doubt, to which the defendant responded "Yes, your honor." Id., 942. The Court of Appeals for the Fifth Circuit upheld the conviction against a challenge that the plea was taken in violation of Rule 11. Id., 942-43. The defendant argues that Rule 11 embodies constitutional requirements regarding guilty pleas and our own rules § 711-713 mirror the federal rule. Even if we assume that this is substantially so; see United States v. Dayton, supra, 946 (Brown, C. J., concurring); Dayton makes clear that single-word responses do not necessarily render guilty pleas constitutionally infirm. The charge in this case was not complex. It involved entering a private dwelling without permission of the owner with the intent to commit larceny. The defendant stated that he understood the charge and thereafter admitted that he drove his wife's car to a certain residence in Guilford with the intention of "robbing" it, that he and a companion entered the dwelling for the purpose of stealing the television set, that upon being surprised by a neighbor in the course of the burglary the two ran away leaving the television set in the driveway next to the car. The record further discloses that the defendant understood that by pleading guilty he waived his constitutional right to a jury trial, his right to confront his accusers and his privilege against self-incrimination and that he was entering his plea voluntarily after discussing the matter with his attorney. The defendant's attorney, upon inquiry, knew no legal reason why the guilty plea should not be accepted. The record sufficiently meets the requisite constitutional standards for the acceptance of guilty pleas. State v. Bugbee, supra. In addition to the information supplied by the specific responses, the court was entitled to presume that "defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being ashed to admit." Henderson v. Morgan, 426 U.S. 637, 647, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976); Blue v. Robinson, 173 Conn. 360, 375-76, 377 A.2d 1108 (1977). Except for those inquiries which are constitutionally mandated or are required by our rules; Practice Book, 1978, 711-713; the court is not obliged to assume the role of the defendant's counselor. n The defendant next argues that the court erred in denying him an evidentiary hearing regarding his claim that he did not understand the plea proceedings because of difficulty with the English language and that he did not knowingly waive his constitutional rights because of ineffective assistance of counsel. A Because the entry of a guilty plea is in effect a conviction and the equivalent of a finding of guilty by a jury; Kercheval v. United States, 274 U.S. 220, 223, 47 S. Ct. 582, 71 L. Ed. 1009 (1927); State v. Carta, 90 Conn. 79, 81, 96 A. 411 (1916); "it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts." McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969). See Staton v. Warden, 175 Conn. 328, 331, 398 A.2d 1176 (1978). "Consequently, if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void." McCarthy v. United States, supra. A motion to withdraw a guilty plea which is filed before the imposition of sentence and which raises an issue regarding the voluntariness of the plea strikes at the heart of due process. Before a guilty plea is accepted a defendant may withdraw it as a matter of right. Practice Book, 1978, § 720. After a guilty plea is accepted but before the imposition of sentence the court is obligated to permit withdrawal upon proof of one of the grounds in § 721. An evidentiary hearing is not required if the record of the plea proceeding and other information in the court file conclusively establishes that the motion is without merit. See Fontaine v. United States, 411 U.S. 213, 215, 93 S. Ct. 1461, 36 L. Ed. 2d 169 (1973). In considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique. For the purpose of determining whether to hold an evidentiary hearing, the court should ordinarily assume any specific allegations of fact to be true. If such allegations furnish a basis for withdrawal of the plea under § 721 and are not conclusively refuted by the record of the plea proceedings and other information contained in the court file, then an evidentiary hearing is required. B The defendant's first ground for an evidentiary hearing is that the plea was involuntary because he did not fully understand the plea proceedings due to his difficulty with the English language. At oral argument on the motion the defendant made an offer of proof that he did not understand the plea proceedings because (1) he was less than an adequate master of the English language, (2) he has been speaking English for three years and does not fully understand the language particularly when people speak quickly or in legal jargon, (3) when he pleaded guilty he did not fully understand all that was being said to him in court, and (4) his wife will testify that the defendant ordinarily does not fully understand things unless the simplest language is used and there is a good back and forth exchange. The questions posed by the court prior to its acceptance of the guilty plea appear to be simple and straightforward. The defendant does not claim nor does the record suggest that he required an interpreter or that he was mentally deficient. Although most of the factual assertions in the defendant's offer of proof are vague, conclusory and oblique, the record of the plea proceedings does not conclusively refute the defendant's assertion that he did not fully understand the plea proceedings either because the questions were rapid or because there was not sufficient interchange between court and accused. If in fact there was a sufficient lack of understanding of the plea proceedings for either of these reasons, then the plea cannot truly be said to be voluntary. Because we cannot say on the basis of the present record that under no circumstances could the defendant establish a basis for relief under § 721; see Fontaine v. United States, supra; the defendant was entitled to an evidentiary hearing on the extent to which he understood the plea proceedings. C The defendant further argues that his plea was tainted by violation of his sixth amendment right to effective assistance of counsel. The basis for this contention is his claim that his arrest was illegal and therefore any statement made by him or identification of him made as a result of the arrest was subject to being suppressed as the fruit of the poisonous tree and that his attorney, by neither moving to suppress this information nor explaining to him that by pleading guilty he waived his right, did not provide him with the requisite degree of competent legal assistance. The keystone to the claim of ineffective assistance of counsel is the asserted illegality of the arrest. The defendant's bald assertion that the arrest was based on mere suspicion is groundless. The record discloses that in the early afternoon of May 23, 1978, the complaining witness reported a burglary to the Guilford police. The complainant, a neighbor, stated that she observed two males in the driveway of the burglarized residence with a television set belonging to the owners of that house, that when she pulled into the driveway blocking the car parked there the two men fled into the woods, that she then approached the house and found the front door to be wide open after which she called the police. Upon arriving at the scene the police observed an orange car parked in the driveway. When they checked the residence they found the front door wide open and further determined that the house had been forcibly entered through a smashed window in a room on the east side of the house. In an upstairs bedroom they noticed that a stereo had been moved out of place on a shelf, a jewelry box was open, a door to a nightstand was open and coins were strewn about the stairs. In the driveway near the passenger door of the orange ear was a large television set, apparently taken from the house. The complainant described two short males with dark hair, possibly unshaven, possibly Puerto Rican, as the subjects she saw in the driveway who upon being surprised ran into tbe woods. About an hour later one of the policemen was advised by a truck driver that he saw two dark-complexioned males walking on a road approximately one mile from the scene of the crime, in the same direction the complainant had indicated the subjects fled. Five minutes later one of the police officers approached the two subjects, who were dark-complexioned, short in height, with dark hair and with moustaches, one wearing a goatee. Both were taken into custody and advised of their rights. One of the subjects, the defendant, admitted that the orange car parked in the driveway belonged to his wife Doreen. The other, Darryl Bussell, subsequently gave a statement admitting his involvement in breaking and entering the residence with the defendant. " 'In order to establish probable cause it is not necessary to produce a quantum of proof sufficient to establish guilt. . . . Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony had been committed.' State v. Wilson, 153 Conn. 39, 42, 212 A.2d 75 [1965]." State v. Wilson, 178 Conn. 427, 435-36, 423 A.2d 72 (1979). We cannot say that the facts and circumstances supporting the arrest in the present case, measured against this standard, were so weak that defense counsel's alleged failure to pursue the suppression of the fruits of the arrest demonstrates that the defendant did not have the effective assistance of counsel. See Tollett v. Henderson, 411 U.S. 258, 265-67, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973); McMann v. Richardson, 397 U.S. 759, 769-71, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976). The defendant refutes none of the facts in the record. His general characterization of these facts as raising mere suspicion is groundless. With the loss of his "probable cause" keystone his arch of ineffective assistance of counsel crumbles. There is error, the judgment is set aside and the case is remanded with direction to conduct an evidentiary hearing on the voluntariness of the defendant's guilty plea limited to the defendant's claim that his guilty plea was involuntary due to his claimed difficulty in understanding the English language. In this opinion Cotter, C. J., and Peters, J., concurred. "Mr. Wolf [assistant state's attorney]: If your Honor please, this is the matter No. 22736, Miguel Torres. There were prior not guilty pleas entered, and requests for a jury trial. I understand counsel wishes to withdraw the prior pleas and elections. The Court: Is that correct, Mr. Dakers? Mr. Dakers [assistant public defender]: That is correct, your Honor. The Court: All right, proceed. Mr. Wolf: May he be put to plea on the first count of the information. Court Clerk: Mr. Torres, to an information charging you with the crime of burglary in the third degree, you pleaded not guilty on May 31 of 1978 and elected to be tried by a jury of six. Do you at this time wish to change your plea? The Accused: Guilty. Court Clerk: Would you speak up so his Honor can hear you. The Accused: Yes. Court Clerk: In this instance, this is the information, sir: Arnold Markle, State's Attorney for the County of New Haven, accuses Miguel Torres, T-o-r-r-e-s, of burglary in the third degree, and charges at the town or city of Guilford on the 23rd day of May, 1978, [at] approximately 1:24 p.m., the said Miguel Torres did unlawfully enter and remain in the building, to wit: the residence of James F-u-r-n-e-r, 96 C-h-a-f-f-i-n-c-h Island Hoad, in Guilford, with the intent to commit a crime therein, in violation of Section 53a-103a of the General Statutes. To this, sir, how do you plead at this time, guilty or not guilty? The Accused: Guilty. Court Clerk: The plea is guilty, if your Honor please. The Court: All right, Mr. Torres, you have discussed this matter with Mr. Dakers, your attorney? The Accused: Yes. The Court: And after discussion with him, are you satisfied with the advice that he has given you? The Accused: Yes. The Court: And based on your discussion with him, as part of the reasoning, is that why you're entering a plea at this time? The Accused: Tes. The Court: Do you understand what you have pleaded to? The Accused: Tes. The Court: Do you know what the maximum sentence that the Court eould impose on this charge is? The Accused: Yes. The Court: What is it? The Accused: Five years. The Court: All right; the maximum sentence will be two and a half to five. Now, you want the court to understand that you're entering this plea voluntarily? The Accused: Yes. The Court: Do you understand that you have a constitutional right to a court or jury trial? The Accused: Yes. The Court: You're willing to waive that right? The Accused: Yes. The Court: You also have the right, the constitutional right to face your accusers in the courtroom, and you're waiving that right? The Accused: Yes. The Court: You're also waiving a constitutional right against self-incrimination; you're waiving that right? The Accused: Yes. The Court: Do you understand that? The Accused: Yes. The Court: All right, is there—would you give me some of the facts, please. Mr. Wolf: Yes, if your Honor please, the incident occurred on May 23, 1978 about 1:24 p.m. at the home of James Furner, which is located at 96 Chaffinch Island Boad in the town of Guilford. At the time, the defendant and another person went to the premises, without the permission of the owner, entered the premises for the purpose of committing a larceny in the premises. They actually were able to get a television set out the door and into the driveway before a neighbor happened on the scene, and then they fled without taking anything from the house. The Court: All right, Mr. Torres, you just heard that statement. Do you agree with it, or disagree with it? The Accused: No. The Court: You agree with it? You did go into this house? The Accused: Yes. The Court: And you had the intention of robbing it, taking the television set? The Accused: Yes. The Court: Do I understand that you had the television set outside the house when somebody saw you; is that right? The Accused: Yes. The Court: Was there a car involved here? I notice in the file there is an in rem of the car. Mr. Wolf: There's the ear that he used. It belongs to his wife, I believe. The Court: Is that the car that you drove from the scene with? The Accused: Yes. Mr. Wolf: The larceny, the second count, may that be continued until the time of sentencing. That was a television set, not a separate incident. The Court: So, Mr. Torres, when you went to the scene, it was your intention to rob it? The Accused: Yes. The Court: And you drove there in an orange car? The Accused: Yes. The Court: Now, has there been any promises or threats to get you to plead guilty to this charge? The Accused: No. The Court: Nobody has forced you to do that, have they? The Accused: No. The Court: Is there plea bargaining here? Mr. Wolf: If your Honor please, we indicated that we would recommend to the court a sentence not less than two years nor more than four years in the custody of the commissioner of corrections. This is not an agreed recommendation. The Court: Not an agreed recommendation? Mr. Wolf: No. The Court: Mr. Bakers, is there anything you want to say about that? Mr. Bakers: This is what the agreement was with the opportunity of the defendant to try to get the sentencing judge to reduce that recommendation. The Court: All right; Mr. Torres, do you understand at the time of sentencing that you will not be given an opportunity to withdraw your plea? The Accused: Yes. The Court: Whatever the sentencing judge should decide should be imposed in this case, that's the sentence that you're going to serve. The Accused: Yes. The Court: To sum this all up, you want the court to understand that you're entering this plea voluntarily? The Accused: Yes. The Court: There have been no force or threats to get you to plead that way? The Accused: No. The Court: You understand your constitutional rights, and you're willing to waive them. The Accused: Yes. The Court: You are entering your plea after discussing the matter with your attorney, Mr. Bakers? The Accused. Yes. The Court: Mr. Bakers, do either you or Mr. Wolf know of any legal reason why the court should not accept the plea? Mr. Wolf: No, your Honor. Mr. Bakers: No, your Honor. The Court: Let the record note that the accused entered his plea intelligently; has waived his rights. The eourt will accept the plea, order a presentenee investigation for— Mr. Wolf: November 10th. The Court: November 10th. Mr. Wolf: Thank you, your Honor." Practice Book, 1978, § 720 provides: "A defendant may withdraw liis plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed." Practice Book, 1978, § 721 provides: "The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows: (1) The plea was accepted without substantial compliance with See. 711; (2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed; (3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the court had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered; (4) The plea resulted from the denial of effective assistance of counsel; (5) There was no factual basis for the plea; or (6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant." After hearing evidence from both the defendant and the state, perhaps including the pertinent testimony of the defendant's former attorney, the trial court will have an adequate record on which to make its determination.

The plaintiff's motion to dismiss the appeal from the Superior Court in Middlesex County is denied.

Longo, J. The plaintiff, Ludmil A. Chotkowski, M.D., appealed his termination from state employment to the defendant personnel appeal board, hereinafter the board, which dismissed his appeal for lack of jurisdiction. The plaintiff's appeal to the Court of Common Pleas under General Statutes § 4-183 was sustained. From a judgment remanding the case to the board for a full hearing on the merits, the board has appealed to this court. The record indicates that in 1969 the plaintiff was hired to serve as chief of medicine at the Veterans Home and Hospital in Rocky Hill, and that he functioned in that capacity. In his state personnel records, however, he was designated as holding the positions of "special assistant" and "professional specialist" in the unclassified service. Following correspondence between the state personnel department and the hospital administration as to whether he was improperly in the unclassified service, the plaintiff was appointed on October 14, 1975, to the position of chief of medicine in the classified service. On March 25,1976, approximately three weeks prior to the expiration of the six-month worldng test period required by regulations of the commissioner of personnel issued pursuant to statutory authority, the plaintiff was notified that he had received an unsatisfactory service rating for reasons other than his competence as a physician. He was dismissed without a hearing on April 8, 1976. The plaintiff then appealed to the board under General Statutes § 5-202 (a), which grants a right of appeal to any "permanent employee holding a position in the classified service" who is dismissed. The board decided that although the plaintiff was "holding a position in the classified service," chief of medicine, at the time of his dismissal, he was not a "permanent employee" and so had no right of appeal under § 5-202 (a). The key term "permanent employee" is defined in General Statutes § 5-196 (s) as either (a) "an employee holding a position in unclassified service who has served in such a position for a period of more than six months," or (b) "an employee holding a position in the classified service under a permanent appointment." "Permanent appointment," according to § 5-196 (r) of the General Statutes, means "appointment to a position in the classified service following successful completion of the required working test." The plaintiff contends that notwithstanding his designation as an unclassified employee from 1969 to 1975 and his unsatisfactory working test report, by virtue of his six years of continuous service as chief of medicine in all but name he qualifies as a "permanent employee" of the second type specified in § 5-196 (s), an employee "holding a position in the classified service under a permanent appointment." It is evident from a reading of the statutes that a state employee claiming permanence under this provision must show that at the time of his dismissal (1) he was occupying a position in the classified service and (2) he had successfully completed the working test for that position. We agree with the plaintiff that under the circumstances of this case he satisfied both requirements, for reasons set forth below. Section 5-197 of the General Statutes commands that "[a]ny office or position in the state service, whether full-time or part-time, shall be a position in the classified service, except as hereinafter set forth in this chapter or otherwise specified by statute." The next section of chapter 67, § 5-198, lists twenty exemptions from the classified service. No provision of § 5-198 or any other statute has been brought to our attention as excluding from the classified service the work the plaintiff performed at the hospital from 1969 to 1975. In the absence of statutory authority the hospital administration and the state personnel department were powerless to assign the plaintiff to the unclassified service. Indeed, recognition of this limitation on their powers prompted the responsible officials belatedly to appoint the plaintiff to the classified position of chief of medicine. We conclude that at least insofar as a right of appeal to the board is concerned, the plaintiff must be deemed to have been continuously employed in the classified service from 1969 to his dismissal in 1976. This aspect of the appeal is factually similar to State ex rel. Levy v. Pallotti, 133 Conn. 334, 51 A.2d 136, which involved the question of whether the plaintiff, a special assistant attorney general, was holding a position in the classified service when the Merit System Act took effect in 1937 so as to entitle him to appeal his dismissal to the personnel appeal board. The defendant attorney general argued that his records and the personnel department's records showed the plaintiff to be in the unclassified service. We responded (p. 337): "The fact that the personnel department, or the attorney general's department, did or did not designate the plaintiff as in the classified service is not of controlling importance. The question is whether he was as a matter of law in that service." We examined the predecessors of General Statutes § 5-197 and 5-198 and held (p. 342) that because no statutory exemption from the classified service covered the plaintiff's position, as a matter of law he was in the classified service when the Merit System Act took effect and thus had a right to appeal his dismissal to the board. We next consider whether the plaintiff successfully completed the working test for his position. The purpose of the working test requirement is to provide a trial working period "during which the work and conduct of the employee shall be noted by the appointing authority or his authorized agent and reported upon to determine whether such employee merits permanent appointment." General Statutes §5-196 (aa). See also General Statutes § 5-230. Those statutes clearly envision that the trial period will be of limited duration, and place the burden on the employer to take timely action regarding dismissal. Accordingly, we have held in Coppola v. Personnel Appeal Board, 174 Conn. 271, 386 A.2d 228, that where an employer has failed to dismiss a probationary classified employee in a timely fashion, the employee will be deemed to have satisfied the working test and to have achieved permanent status. That is the result the law requires in this case, where the hospital officials had six years to judge the plaintiff's fitness to serve as chief of medicine. The plaintiff was a permanent employee in the classified service at the time of his dismissal. As such he was entitled under General Statutes § 5-240 (c) to two weeks written notice and a statement of reasons for his dismissal. Had those rights been denied him, the appropriate remedy would be reinstatement, with back pay and benefits less offsets. Coppola v. Personnel Appeal Board, supra. The record establishes that although the plaintiff was informed that "you are being dropped during your working test period," he did receive written notice two weeks prior to his termination date, with an adequate statement of reasons. At no stage in these proceedings has the plaintiff asserted a right to reinstatement because of defective procedure, only a right to a hearing on the merits of his dismissal pursuant to General Statutes § 5-202. We conclude, therefore, that the trial court committed no error in sustaining the plaintiff's appeal. There is no error. In this opinion the other judges concurred. Section 5-202 (a) provides in part: "Any permanent employee holding a position in the classified service who is demoted, suspended or dismissed, or is individually aggrieved . . . may obtain a review of such action or alleged grievance by presenting a written appeal to the personnel appeal board." Section 5-198 (m) exempts "[p]hysicians . . . and other professional specialists who are employed on a part-time basis," but there is no claim or evidence in this ease that the plaintiff was a part-time employee. This conclusion makes it unnecessary to consider the plaintiff's alternative claim that having achieved permanent status in the unclassified service prior to his appointment as chief of medicine, he had a right of appeal to the hoard under General Statutes §5-202 (a).

Per Curiam. In June, 1974, the plaintiff commissioner of environmental protection, pursuant to General Statutes § 25-54k, ordered the defendant Land Development Company to correct the existing subsurface sewage disposal system serving two tenement buildings in Canton. Almost nine months later, after notice and an opportunity to be heard had been afforded the company under § 25-54o, the parties agreed to the entry of a consent order modifying the original order. The consent order pro vided that the company would reconstruct the sewage system in accordance with an approved plan of a licensed professional engineer at a time schedule agreed to by the parties. The order was modified by consent of the parties again in April, 1976, giving the company until June 30,1976, to commence construction. When the company failed to do so, the commissioner requested the attorney general to bring this action under § 25-54k to enjoin the company from polluting the waters of the state. The named defendant, Morton Shimelman doing business as Land Development Company, demurred for nonjoinder of necessary parties. Shimelman named Joseph Venick, his partner in Land Development Company, and thirteen tenants of the buildings as necessary parties. The demurrer was sustained as to Venick but overruled as to the tenants. The court granted the commissioner's motion to amend the complaint citing Venick as a codefendant. The court enjoined the defendants from maintaining a source of water pollution as requested by the commissioner. The defendants have appealed solely on the ground that the court erred in failing to find that the tenants were necessary parties to the action. The defendants argue that failure to join the tenants as parties violates the tenants' due process rights to a hearing and appeal under General Statutes § 25-54o and 25-54p The defendants also contend that § 52-473 and 52-474 require the commissioner to give notice of his application for an injunction to the tenants as adverse parties. The commissioner claims that the defendants do not have standing under Shaskan, v. Waltham Industries Corporation, 168 Conn. 43, 48-49, 357 A.2d 472 (1975), to raise the claims of the tenants who are third parties. The question of standing is not in issue. The defendants do not raise the claims of the tenants but seek only to include them as necessary parties. It is a well-established rule of this jurisdiction that a court will not proceed to adjudicate a matter until all persons directly concerned have been given actual or constructive notice of the pendency of the proceedings and a reasonable opportunity to appear and to be heard. This is a jurisdictional limitation which rests upon a sound constitutional basis. State ex rel. Kelman v. Schaffer, 161 Conn. 522, 527, 290 A.2d 327 (1971); Ackerman v. Union & New Haven Trust Co., 91 Conn. 500, 508, 100 A. 22 (1917). Those sections of the Water Pollution Control Act and the statutory limitations on the issuance of injunctions cited by the defendants are consistent with this rule. Here the defendants seek to include as parties defendant persons who have not attempted to exercise their right to be heard under the statute and whom the plaintiff has expressed no desire to sue. If the tenants are not joined as parties, the trial court's judgment will not be binding as to them. Corey v. Avco-Lycoming Division, 163 Conn. 309, 317, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 196, 91 A.2d 778 (1952). The defendants do not claim that their interests will be prejudiced by multiple suits or multiple liability if the tenants are not included as parties. Corey v. Avco-Lycoming Division, supra, 316-17; Bridgeport Hydraulic Co. v. Pearson, supra, 195. Nor is there any evidence in the record to show that failure to include them now might result in unnecessary litigation later. James & Hazard, Civil Procedure (2d Ed. 1977) § 9.14-9.20, pp. 427-43; see Fed. R. Civ. Proc. 19 (a). Holders of interests in land which will not be disturbed or affected by the relief requested need not be joined. James & Hazard, op. cit. § 9.23, p. 447. This court has said that "[o]ne who is not injured by the operation of a law cannot be said to be deprived by it of his constitutionally protected rights." Shaskan v. Waltham Industries Corporation, supra, 49; Windsor v. Whitney, 95 Conn. 357, 367, 111 A. 354 (1920). The injunction ordered the company and its owners, not the tenants, to stop polluting the water. The tenants' rights were not determined by the order. Therefore it was not necessary to include them as parties. There is no evidence in the record to show that they are persons aggrieved under the act, let alone necessary parties with claims which must be heard before the case between the existing parties may be decided. Furthermore, any tenant who claims in the future that his rights are affected by the judgment in this case may exercise Ms rigM under § 52-474 to appear and to be heard in an effort to dissolve the injunction. There is no error. General Statutes $ 25-54o provides in part: "Any person . . . aggrieved by any such order [to abate pollution] . . . may, within thirty days from the date such order is sent, request a hearing before the commissioner." General Statutes § 25-54p provides in part: "Any person . . . aggrieved by any order of the commissioner . to abate pollution . . . may, after a hearing by the commissioner . . . [under § 25-54o] appeal . to the superior court . . . ." General Statutes § 52-473 provides in part: "[N]o temporary injunction shall be granted without notice to the adverse party . . . ." General Statutes § 52-474 provides: "Any person who may be directly or indirectly interested in, or affected by, the granting of any temporary or permanent injunction, may appear and be heard with regard to granting or dissolving the same."

The defendant's "Motion for Stay of Judgment," dated August 31, 1978, is denied by the court.

Cotter, C. J. The sole issue presented by this appeal is whether an executor may utilize the hearing described in General Statutes § 12-367 (b), in effect on February 17, 1973, to contest and alter Ms own appraisal of an asset reported on a duly filed succession tax return after the tax commissioner failed to object to the executor's reported appraisal pursuant to General Statutes § 12-359 (b). The parties stipulated to the facts and those pertinent to this appeal are: The decedent, Bessie Miller Lyons, was a settlor of a trust dated September 6, 1968, involving certain real estate located in Norwalk; she died testate on February 17, 1973. In November of 1973, the executor of the decedent's estate filed the Connecticut succession tax return (form S-l), reporting the previously noted trust as item 1 on schedule 10. In the column of schedule 10 designated as "Total Value at Date of Death," the executor listed the value of the corpus of the trust as $549,300. In the adjacent column calling for concessions of tax-ability, the executor claimed the trust was not taxable. The tax commissioner objected to the executor's claim of nontaxability but did not object to the executor's valuation of the trust. After a hearing on the tax commissioner's objection, the Nor-walk Probate Court entered a decree on May 21, 1975, holding the trust to be not taxable for Connecticut succession tax purposes. An appeal by the commissioner to the Superior Court, however, was sustained and the executor did not appeal the Superior Court's decree holding the trust to be taxable. On June 3, 1976, the plaintiff tax commissioner computed the Connecticut succession tax based on the succession tax return as filed and included the trust estate, found taxable by the Superior Court, at the value of $549,300 placed on it by the defendant executor. The trust was added to other con ceded taxable property to form a gross taxable estate of slightly over $1,000,000. On June 21,1976, the defendant filed an application under General Statutes § 12-367 for a hearing upon the computation of the tax before the Norwalk Probate Court. The executor's claim, as set forth in his application, was that the value placed on the trust in the succession tax return was excessive and that a lower figure should be used in computing the tax on the trust. After a hearing, the Probate Court entered a decree reducing the value of the trust in question for purposes of the Connecticut succession tax from $549,300 to $387,000. The tax commissioner's appeal from this decree of the Probate Court was sustained by the Superior Court, that court having concluded that the defendant was not, under § 12-367, entitled to a hearing as to the value of the trust, and it is from that judgment that this appeal by the defendant executor is taken. I The present case involves solely the interpretation of §12-359 (a), 12-359 (b) and 12-367 (b) of the General Statutes in effect on February 17,1973, the date of the decedent's death. Thus, we first examine the statutory scheme in these provisions before reviewing the arguments underlying the defendant's claim that the trial court erred in sustaining the tax commissioner's appeal. See Hopkins v. Pac, 180 Conn. 474, 477, 429 A.2d 952; Bahre v. Hogbloom, 162 Conn. 549, 554-55, 295 A.2d 547. Section 12-359 (a) of the General Statutes sets forth what shall be included on the succession tax return. Section 12-359 (b) delineates the method of objecting to valuations and concessions of taxability of individual items set forth in the succession tax return and sets out the scope of the Probate Court hearing and determination on the objections. Section 12-359 (b) further provides the method of determining the gross taxable estate upon which the tax computation shall be based. Section 12-367 (b) in 1973 provided for an application for a hearing to challenge the tax commissioner's computation of the succession tax. II The defendant executor argues initially that, on its face, there is no limitation regarding the issues which may be heard in a hearing held pursuant to § 12-367 (b) and that he could raise the issue of valuation as he did before the Probate Court. This argument ignores our cardinal rule concerning statutory construction, viz.: "In the construction of . statutes, words and phrases shall be construed according to the commonly approved usage of the language." General Statutes §1-1 (a). See Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 7, 434 A.2d 293; Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 423, 426 A.2d 1324. Section 12-367 (b), the words of which the defendant executor does not quote or rely on in making his claim, fails to mention or allude to valuation, concessions of taxability or the determination of the gross estate already fixed under § 12-359. Under § 12-367, a hearing is restricted to questions on the tax's "computation," an expression which is repeatedly iterated in the provision. "Compute" commonly means "to determine or ascertain esp. by mathematical means: arrive at an answer to or sum for . . . vi: to make calculations." Webster, Third New International Dictionary. See also Goddard v. Shapiro Bros. Shoe Co., 234 A.2d 326, 330 (Me.) (computation is the act or process of computing; calculation, reckoning); Fisher v. Bethesda Discount Corp., 221 Md. 271, 276, 157 A.2d 265 (same); Mudd v. McColgan, 174 P.2d 646, 651 (Cal. App.) (determination of a deficiency in an income tax was a "computation" of a tax within the sta tute). Thus, the hearing appears definitely to be restricted to questions such as whether the mathematics are correct or whether a full exemption was granted. Nothing suggests that the fiduciary has an opportunity under § 12-367 (b) to question his own reported valuations. Nonetheless, although words do not become ambiguous simply because lawyers or laymen contend for different meanings and courts do not torture words to import ambiguity where the ordinary meaning leaves no room for it; see, e.g., Collins v. Sears, Roebuck & Co., 164 Conn. 369, 374, 321 A.2d 444; because the defendant contends that as a whole and as applied to the present facts the statutory scheme created by § 12-359 and 12-367 is confusing and ambiguous, we review his other arguments to see whether any ambiguity can reasonably be imputed to these provisions. Our further review is also impelled by the principle that statutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law. State v. Murtha, 179 Conn. 463, 466, 427 A.2d 807; Doe v. Institute of Living, Inc., 175 Conn. 49, 58, 392 A.2d 491. A Initially in support of his claim that § 12-367 (b) permits the question of valuation to be raised at a hearing before a Probate Court, the defendant contends that the entry of $549,300 on schedule 10 of the succession tax return in question was only a pro forma informational figure which had no legal significance and was not binding on the defendant. Not only does this argument disregard the clear language of § 12-359 (a) and the defendant's actions in conformity with the directions on the succession tax return itself, but it also fails to take into account the significance of the entry of valuation for the tax commissioner under the statutory framework created by §12-359 (a) and (b). The succession tax return utilized was in conformity with the mandatory language of § 12-359 (a), and schedule 10 of that return (where "Transfers During Decedent's Lifetime" are reported) has a column for the description of the asset, another for the valuation of the asset, and a third column for concessions of taxability concerning the asset. Thus, the succession tax return statute and the succession tax return itself clearly indicate that an asset must be reported at its fair market value, regardless of concessions of tax-ability which form a distinctly separate issue. As the stipulated facts reveal, the defendant executor followed both the requirements of § 12-359 (a) and the succession tax return prepared and disseminated in furtherance of the statutory directions. Finally, as the defendant himself conceded at oral argument, when the tax commissioner raised questions of taxability concerning the entries on the succession tax return under § 12-359 (b), he was also at that time bound to object to questions of valuation or forfeit the opportunity to challenge the executor's valuation. In light of the foregoing, the defendant's argument is unpersuasive that the entry of valuation on the succession tax return before the issue of taxability was finally determined was merely a pro forma matter. B In conformity with the initial language of § 12-359 (b); see footnote 2; the tax commissioner objected to the defendant's claim of nontaxability for the trust in question, but did not object to the defendant's reported appraisal of fair market value for the trust. Although the Superior Court sustained the tax commissioner's objection and held the trust to be taxable in its entirety and the defendant did not appeal to this court, he nonetheless argues that if a hearing is not permitted on valuation after the Superior Court's determination of taxability, § 12-359 (b) does not permit the addition of the trust to the decedent's taxable estate. The defendant's contention is premised on the fact that the three methods of determining the gross taxable estate for purposes of tax computation as described in § 12-359 (b); see footnote 3; do not mention explicitly adding any asset determined taxable in judicial proceedings beyond the hearing provided for in the Probate Court. Even if we assume that the defendant's construction is conceivable, it is settled that when two constructions are possible, courts will adopt that construction which makes the statutes effective and workable, and not one which would lead to difficult and unfathomable results. Wiegand v. Heffernan, 170 Conn. 567, 582, 368 A.2d 103; Atwood v. Regional School District No. 15, 169 Conn. 613, 621, 363 A.2d 1038. The defendant's construction fails to take into account that § 12-359 (b) provides for an appeal from the Probate Court's decision and thus would make a successful appeal, as is true in this case, meaningless if the asset judged taxable in that successful appeal could not be added to the gross taxable estate. The executor's argument here also leads to another untenable conclusion in that if the tax commissioner prevails in his objection to a claim of nontaxability under § 12-359, he cannot compute the tax until the executor files a second return, setting forth a new value or restating the old value for the asset at issue. The relevant statutes supply no support for this scenario. The only viable construction of § 12-359 (b) is the one on which the tax commissioner acted in computing the succession tax. He used the gross value as set forth in the tax return, and added to that amount only the value of the trust as set forth in the return and as determined to be taxable by the Superior Court. C The defendant also contends that the 1978 alterations of § 12-367 (b) by the general assembly were intended only to clarify the allegedly ambiguous language of that provision. We do not, however, view the amendments brought about by Public Aets 1978, No. 78-195 as merely clarifying the previous language of the provision. See Muha v. United Oil Co., 180 Conn. 720, 727, 433 A.2d 1009. As the language and the statutory history of the amendment clearly indicate, among the changes effected by the amendment is one which allows questions of valuation or of taxability to be raised by a fiduciary at the hearing provided for in § 12-367 (b). Compare Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 244-45, 377 A.2d 305. This language and statutory history reinforce the presumption that amendments effect a change in existing law. Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 21 n.6, 434 A.2d 293; Stamford v. Stamford, 107 Conn. 596, 606, 141 A. 891. Section 12-367 (b) was amended by Public Acts 1978, No. 78-195 to read in pertinent part: "Within sixty days after the mailing of the computation by the commissioner of revenue services, the fiduciary or transferee or any other party in interest may make written application to the probate court for a hearing upon the determination of tax or the computation thereof. . . . The commissioner or any person interested may appear before such court at such hearing and be heard on any matter involved in the determination of the tax or the computation thereof, including, if no hearing has been held previously under the provisions of subsection (b) of section 12-359, . . . any matter which would have been heard at such a hearing." Thus, after Public Acts 1978, No. 78-195, the hearing under § 12-367 (b) became a forum for raising questions on the "determination of the tax" as well as on the computation of the tax. See Wilhelm, Conn. Estates Practice Death Taxes (Rev. Ed. Cum. Sup.) § 84, p. 37 ("Effective January 1, 1979, the fiduciary may at the time of objecting to the 'computation,' also raise any issues pertinent to the 'determination' of the tax which have not been raised before. Issues which may be raised include those relating to valuation, and taxability."). The statutory history is equally clear regarding the effect of the language of Public Acts 1978, No. 78-195. While presenting the bill which became Public Acts 1978, No. 78-195, Senator George Guidera stated: "[T]his bill would make several changes in the procedures relating to the payment of succession [taxes]; . . . and generally would make those procedures less restrictive." 21 Sen. Proc., Pt. 6, 1978 Sess., p. 2442. See also 21 H. R. Proc., Pt. 5, 1978 Sess., pp. 2119-20. The executor cannot take advantage of the change wrought by Public Act No. 78-195. See General Statutes § 55-3. Substantive rights are affected and so the amendment at issue is to be given prospective application only. Muha v. United Oil Co., supra, 729; East Village Associates, Inc. v. Monroe, 173 Conn. 328, 331-33, 377 A.2d 1092. D The defendant's final contention is that if he is denied a hearing on the question of valuation for succession tax purposes he will be denied constitutional due process. We fail to perceive what deprivation is involved in denying the defendant a hearing on a valuation which is designated as entirely for the defendant to determine as an initial matter. It is his own action of which the defendant complains, not the lack of opportunity to be heard created by statute. Compare, e.g., Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113. We have repeatedly stated that: "Where the language used by the legislature is plain and unambiguous, there is no room for construction by the courts and the statute will be applied as its words direct. Baston v. Ricci, 174 Conn. 522, 528, 391 A.2d 161 (1978); Johnson v. Personnel Appeal Board, 174 Conn. 519, 521-22, 391 A.2d 168 (1978); Clark v. Mulcahy, 162 Conn. 332, 338, 294 A.2d 504 (1972)." Muha v. United Oil Co., supra, 730-31. This was the procedure which the trial court followed. There is no error. In this opinion the other judges concurred. Tn 1973, General Statutes § 12-359 (a) read in pertinent part: i(Such return shall include among other things: . (2) an appraisal by the fiduciary or transferee, at its fair market value on the date of decedent's death, of each item of property, the transfer of which may he taxable under the provisions of section 12-341, 12-341b, 12-342, 12-343, 12-345 or 12-345a; (3) a statement as to whether, or to what extent, the reported transfers are conceded taxable." In 1973, General Statutes § 12-359 (b) provided in relevant part: "Within one hundred twenty days after the receipt of such return by the tax commissioner, he may file with the fiduciary or transferee and with such court of probate a statement in writing setting forth in detail such objections as he may have to the valuations or concessions of taxability appearing thereon. . . . [T]he tax commissioner, fiduciary or transferee may file in the court of probate . . . an application for a hearing upon those items set out in such return as to which the tax commissioner objects. . . . Such court, upon such hearing, shall hear such objections and determine the fair market value of any property, the reported value of which has been objected to, and the taxability of any transfer objected to and shall enter upon its records a decree determining the fair market value of property the value of which has been objected to and the taxability of any transfer which has been objected to." In 1973, General Statutes § 12-359 (b) read in relevant part: "The value of the gross taxable estate as set forth in the tax return or as altered by written agreement between the tax commissioner and such fiduciary or transferee or as set by the probate court upon a hearing as hereinbefore provided shall be the basis for computing the succession tax." In 1973, General Statutes § 12-367 (b) provided in general part: "Within sixty days after the mailing of the computation by the tax commissioner, the fiduciary or transferee or any other party in interest may make written application to the probate court for a hearing upon the computation of the tax. Such application shall set forth in detail the objection to the computation and a copy of the same shall be mailed to the commissioner at the time of filing. The probate eourt shall assign a time and place for a hearing upon such computation. . . . Such court shall determine that amount of such tax and shall enter upon its records a decree for such amount." On the house floor, the sponsor of the bill enacted as Public Acts 1978, No. 78-195 stated in part: "The bill would provide that any item that affects the computation or determination of the tax can be raised at this final hearing provided that there has been no prior hearing in the Probate Court concerning that particular item. This is a desirable change since when the fiduciary receives the com putation of the tax this is the first official word that he has as to the amount actually owed by the estate for succession tax purposes. This is the time when the fiduciary would review his file and determine whether the tax has been correctly computed in accordance with law. If he has any disagreement with the way the tax has been computed and cannot reach a satisfactory agreement with the Tax Commissioner's office, then he should have the right within this fixed period of time to [go to] the Probate Court and have it decided before the tax becomes final. If the fiduciary has obtained any further information with respect to any estate asset such as an item being overvalued on the original return, or erroneous concession of taxability, or misdeduction, then all of these things should be able to be taken into consideration at this time so that the tax computed at this time would be accurate insofar as possible. This bill would allow for that flexibility." We note that General Statutes § 12-359 allows the fiduciary a nine-month period from the date of death, plus extensions when necessary, to arrive at his own valuations.

Arthur H. Healey, J. The defendant Kenneth Haddad was charged in a two count information in which the first count charged him with intentionally aiding Arthur Faunce and Michael Zierler in committing the crime of burglary in the first degree in violation of General Statutes § 53U-8 and 53a-101 (a) (2) and the second count charged him with intentionally aiding Arthur Faunce and Michael Zierler in committing the crime of attempted larceny in the first degree in violation of General Statutes § 53a-8, 53a-49, 53a-119 and 53a-122 (a) (2). After a trial to the court, Dannéhy, Jhe was found guilty on the first count and the trial court granted the defendant's motion to dismiss the second count. Thereafter, the defendant appealed from the judgment on the first count. On appeal the defendant's basic claim is that the court could not have concluded, on the evidence and the reasonable inferences to be drawn from it, that his guilt had been established beyond a reasonable doubt. In challenging the sufficiency of the evidence to justify his conviction, he recognizes that on review the evidence must be given the construction most favorable to sustain the trial court's judgment of guilty. He maintains, however, that the state did not sustain its burden of proving beyond a reasonable doubt every essential element of the crime. He claims that "the key element . . . was whether Haddad intentionally aided Faunce and Zierler as it was conceded [that] both co-defendants had committed the crime." Acknowledging that the court had concluded that he had intentionally aided them by acting affirmatively in the furtherance of the crime, he submits that this court "should review again the credibility of these witnesses on this point," although he concedes that "ordinarily" rulings on the credibility of witnesses are not reviewed by us. Additionally, he claims that not only were Faunce and Zierler self-confessed and convicted accomplices but their credibility was also gravely flawed by their trial testimony in the light of earlier statements each had given to the state police as developed particularly on cross-examination. While arguing that his "testimony was not shaken in any material [way] by the state's cross-examination" and was "as believable as that of Faunce and Zierler," he goes on to claim that "the truthfulness of their testimony did not rise to the level of proof beyond a reasonable doubt by any reasonable assessment." On the other hand, the state argues that there was sufficient evidence before the court to sustain its conclusion that the defendant was proven guilty beyond a reasonable doubt. Specifically, it maintains this was so with reference to the requisite mental intent for the charge of aiding the co-defend ants in the underlying crime of burglary in the first degree, pointing to the right to prove intent by circumstantial evidence. Conceding that it depended heavily upon accomplice testimony which at times was "differing," it claims, nevertheless, that the credibility of all the testimony was a matter for the trial court to determine. It submits that the evidence was such that "the testimony of each accomplice independently supported the trial court's finding of guilty." Noting that the trial court explicitly adverted to the "inherent unreliability" of accomplice testimony and to the demeanor and attitude of the witnesses, it claims that there was sufficient evidence to warrant the trial court's finding that the state had proven the defendant guilty beyond a reasonable doubt. At this point certain principles should be set out: "We have repeatedly stated the test which this court employs to determine whether the evidence is sufficient to sustain a verdict: ' "[T]he issue is whether the [trier] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt ."' State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 479 (1980), quoting State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980); State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980); State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979); State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978). 'In ruling on such a motion, the evidence presented at the trial must be given a construction most favorable to sustaining the jury's verdict.' State v. Jackson, supra, 262; see State v. Nemeth, supra; State v. Chetcuti, 173 Conn. 165, 172, 377 A.2d 263 (1977). Each essential element of the crime charged, must he established by proof beyond a reasonable doubt, ' "and although "it is within the province of the [trier] to draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture." ' State v. Gaynor, supra, 503; State v. Festo, supra, 259." State v. Stankowski, 184 Conn. 121, 126, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). Where it cannot be said that a rational trier of fact could find guilt proven beyond a reasonable doubt, then, a conviction cannot "constitutionally stand," as it is violative of due process under the fourteenth amendment. Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Kish, 186 Conn. 757, 768, 443 A.2d 1274 (1982). The defendant, "by his plea of not guilty, put in issue every essential element of the crime charged. Roe v. United States, 287 F.2d 435 (5th Cir.), cert. denied, 368 U.S. 824, 82 S. Ct. 43, 7 L. Ed. 2d 29 [1961]; 21 Am. Jur. 2d, Criminal Law, § 467; 22 C.J.S., Criminal Law, ^ 454. With that, the burden rested upon the prosecution to prove the guilt of the accused, i.e., to prove each material element of the offense charged beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 [1975]; State v. Johnson, 162 Conn. 215, 231, 292 A.2d 903 [1972]; State v. Jenkins, 158 Conn. 149, 154, 256 A.2d 223 [1969]; 1 Wharton, Criminal Evidence (13th Ed.) § 10. The United States Supreme Court has explicitly held that the dne process clause requires that every fact necessary to constitute the crime of which an accused stands charged must be proven beyond a reasonable doubt before a conviction. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 [1970]." State v. Griffin, 175 Conn. 155, 162, 397 A.2d 89 (1978); see State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982). "The trier of the facts determines with finality the credibility of witnesses and the weight to be accorded their testimony. 'We cannot retry the facts or pass upon the credibility of the witnesses.' Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975)." State v. Penland, 174 Conn. 153, 157-58, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978). "The trial court is the final judge of credibility and may disbelieve a witness as to part of his or her testimony and accept it in other respects." State v. Coulombe, 143 Conn. 604, 608, 124 A.2d 518 (1956); see Raia v. Topehius, 165 Conn. 231, 235, 332 A.2d 93 (1973); State v. Chisolm, 162 Conn. 631, 632, 295 A.2d 563 (1972); Rood v. Russo, 161 Conn. 1, 3, 283 A.2d 220 (1971). The fact that the defendant's testimony contradicted that of Faunce and Zierler does not compel us to accept the argument that the evidence was insufficient to prove guilt beyond a reasonable doubt. State v. Farrah, 161 Conn. 43, 48-49, 282 A.2d 879 (1971). Special caution should be exercised by the trier of fact in passing upon the testimony of an accomplice because, as we said in State v. Carey, 76 Conn. 342, 349, 56 A. 632 (1904), "[t]he conditions of character and interest most inconsistent with a credible witness, very frequently, but not always, attend an accomplice when he testifies." See State v. Ferrara, 176 Conn. 508, 511, 408 A.2d 265 (1979); State v. Colton, 174 Conn. 135, 140, 384 A.2d 343 (1977). It is the trier's function not only to decide credibility but also to determine the facts and from those facts draw logical and reasonable inferences. State v. Wilson, 178 Conn. 427, 434, 423 A.2d 72 (1979); State v. Ortiz, 169 Conn. 642, 646, 363 A.2d 1091 (1975). We also note, as we have often said, that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. See, e.g., State v. Wilson, supra; State v. Brown, 169 Conn. 692, 695, 364 A.2d 186 (1975); State v. Cari, 163 Conn. 174, 179, 303 A.2d 7 (1972). There was evidence from which the court could have found the following facts: In August and September, 1980, the defendant, by his own admission, owed roughly $100,000 to family members, friends and lending institutions. These obligations stemmed from his gambling losses, certain drug dealing with Faunce and his use of cocaine. Albert Faunce, whom he had known for about a year, was one of the persons to whom he owed money. Faunce had lent him $3000 in July, 1980, in connection with a gambling debt. Because he had difficulty collecting this money from the defendant, Faunce arranged with a drug supplier to "front" $3300 worth of cocaine which Faunce gave to the defendant. Under their arrangement, the defendant agreed to sell the cocaine at a profit and to return $6300 of the proceeds to Faunce. This sum would include the $3300 owed to the supplier by Faunce and the $3000 the defendant owed Faunce. Haddad himself admitted he owed Faunce $3300 for cocaine. As evidence of their deal, the defendant signed a note on August 5,1980, that he owed Faunce $3350 for drugs as well as stating that if Haddad did not pay the debt by midnight of August 7,1980, Faunce then could present the note to the defendant's mother for payment. Along with this note, Haddad gave Faunce eight postdated checks totaling $3350, but on August 7, the defendant substituted six checks for the original eight, which he destroyed. On August 9, 1980, Haddad had still not paid Faunce and begged him not to contact his mother. The defendant, at about that time, told Faunce "he would come up with something, a better idea" regarding payment. Thereafter, around the latter part of August, the cocaine supplier was getting upset with Faunce over nonpayment and caused him to be threatened at gunpoint. Faunce was also informed that the supplier was looking for the defendant. After Faunce told Haddad this about the end of August, Haddad said "he could come up with a way that we could get full payment to these people." About this time, the defendant told both Faunce and Zierler of his desire to get money to settle various debts he had. Haddad told Faunce and Zierler that he knew a man named Danny Greene who was a collector of antiques and coins and who had a valuable collection of coins. Haddad suggested it would be very possible to steal the coin collection. Several years earlier when Greene lived over a pizza restaurant in Willimantic, he had shown the defendant coin collections in his possession which were owned by Greene and two other persons. Haddad told Faunce and Zierler that he had seen the coin collection when it was usually kept inside a "bureau" where Greene lived over the pizza restaurant. The defendant also said that "it could be valued anywhere between two thousand and ten thousand dollars." After this conversation and while Haddad, Faunce and Zierler were passing through Willimantic, Haddad had Zierler pull his car over in front of the pizza restaurant. The defendant asked some people who were there and who were mutual friends of Greene and the defendant where Greene had moved to. He learned from them that Greene now lived on Lisbon Road in Canterbury. They drove to Canterbury and located Greene's house. The only decision made in regard to the coin collection and the Greene residence that night was that Haddad suggested he would do "some research into it" by going over to Greene's house, talking with him and trying to get a layout of his house or apartment. On the afternoon of September 29, 1980, the defendant went alone to the house on Lisbon Road in Canterbury where Danny Greene resided with Ruth Guyette and the latter's daughter, Donna Carey. Both Greene and Guyette, who were there at that time, knew the defendant although they had not seen him for about a couple of years. About three years before Haddad had sold Greene a piece of antique furniture. Aware of Greene's interest in fixing up and refinishing antiques, the defendant asked him if he was interested in buying some antiques or furniture. During this conversation inside the house, both Greene and Guyette observed that the defendant kept "walking around" and "looking around" in the kitchen, living room and dining room areas. Although Greene did not have at his house on Lisbon Road the same buffet he had when he lived over the pizza restaurant, he did have "one almost like it . . . very similar." The defendant's visit lasted "roughly a half an hour," and when it ended Haddad told Greene he would call him in a couple of weeks. On the evening of September 29, 1980, Haddad telephoned Faunce and asked if he wanted to go out for "a few drinks or ride around." Faunce declined. Very shortly thereafter, Zierler telephoned Faunce and told him he was coming down to see Faunce. Thereupon, Faunce told Zierler to pick up Haddad and the three would meet at a market in Canterbury. Zierler, who had been drinking, picked up the defendant in Willimantic. During the trip to meet Faunce, the defendant mentioned that he was in dire need of funds to pay various debts, one of which was owing to Faunce; the defendant said that he was a "desperate man." He also said that he had visited Greene's house earlier that day; and in addition he spoke of "trying to gain access to Mr. Greene's coin collection, stealing it that night." They did meet Faunce at approximately ten o'clock at the market in Canterbury and all three got into Zierler's car which he was driving. Haddad knew Faunce had a .22 revolver and a can of mace when Faunce got into Zierler's car. Faunce had the gun in his hand when he went into Zierler's car. They drove by Greene's house and the defendant told them that he had been there earlier that day, talked with Danny Greene and knew that he was still dealing in old coins. He then presented them with a sketch map he had made of the interior of Greene's house which both examined and he told them that this would be a "very good night" to steal the coin collection because Greene frequented the dog track. The defendant further told them that from his being there it was his impression that whenever Greene was home he was always the one who answered the telephone and that if he could call the Greene residence and anybody but Greene answered he would be positive Greene was not home. The three thereupon returned to the market in Canterbury where the defendant exited the car, dialed a number on the pay phone, listened briefly, hung up the receiver, got back into the car and informed the other two that a woman's voice answered the phone. They drove back to the area of the Greene residence and parked about one house past Greene's on the same side in a gravel lot with the front of the car facing the road. It was decided that the defendant would not go with Faunce and Zierler into the house because he had been there earlier that day and both Guyette and Greene knew him. Haddad got into the driver's seat as he was to stay in the car with the motor running to be a lookout and the getaway driver if the other two were to return in a hurry. While Faunce and Zierler were proceeding on foot toward the house, Faunce was carrying the revolver concealed in his trousers and a can of chemical shield (mace) in his shirt pocket. As they neared the door of the house, however, they decided not to pursue the plan. Instead, they knocked on the door which Guyette answered. They asked if Danny was home; she said he was not but that he was at the dog track and would perhaps be home in about fifteen minutes. Faunce and Zierler then left after declining her invitation to stay and have coffee saying that they would come back later. At that time, Donna Carey and Gertrude Palmer, a neighbor, were also in the house. Faunce and Zierler returned to the car where the defendant was in the driver's seat and told him that they had decided they did not want to go through with their plan to steal the coins. The three then drove around for a time with Zierler now driving. The defendant told them they should not have "chickened out," that they should have "went ahead and scared them, surprised them with the mace." He was "agitated"; he told them they should get "access to the coin collection because we needed to get it and that we had to do it that night." He again gave them cocaine. He seemed "very intent in coercing ns to do it" and, after maybe fifteen or twenty minutes, they decided they would go back to carry out their plan. Zierler, who was very intoxicated, was easy to convince and he told Faunee in the presence of the defendant that he would gladly spray the-mace if Faunee took the gun with him. ' The defendant was to remain in the car at the same place as before to act as the driver and the other two men were to enter the house and seek to steal the coins as originally planned. At about 10:30 p.m. Faunee and Zierler burst into the Greene residence and, on entering, Zierler sprayed the mace into the faces of Guyette and Palmer. Palmer ran out of the house and Guyette, her face burning, ran into her bedroom and ordered her daughter Donna, who was in bed, to lie on the floor. One of the men was trying to force open the bedroom door; Guyette succeeded finally in locking it. She heard the men walking around, opening doors and the like. She got a gun from a bureau in the bedroom and fired a shot into the floor. Faunee and Zierler, hearing the shot, ran out of the house and when they got to where the car was parked the defendant was gone. Guyette and her daughter exited the house through the bedroom window. In the process of opening the bedroom window, Guyette dropped the gun and it went off again with the shot going through the window. Once outside, she fired two or three more shots in the air. Upon returning to the house, they did not notice anything missing but Guyette saw that the doors and drawers of her buffet were opened whereas before this episode they were closed and "everything in it." When he heard the shots, the defendant left the car and stopped at the home of the witnesses Dustin Nattress and Elizabeth Nattress who were neighbors and lived near the Greene residence. He did not know these people, but asked to use their telephone to endeavor to get himself a ride telling the Nattresses that his car had broken down. At that time he appeared nervous and was perspiring. Apparently unsuccessful with his efforts on the telephone to get a ride, he asked Dustin Nattress for assistance but he was unwilling to help him. After several attempts to contact Haddad, Faunce finally reached him about two weeks after the burglary. In response to Faunce's inquiry about where the defendant went that night, he told Faunce that when he heard the shots he ran to the Greene residence to see if anyone had been hurt and that Faunce and Zierler had driven off without him although he was yelling at them from the bushes to pick him up. After learning that the state police had an arrest warrant for him, the defendant went to the state police barracks on November 10, 1980. Although he first said he had no idea what the charges stemmed from, he changed his position upon being shown a police sketch of a heel mark of a shoe made at the scene of the crime which was similar to that of a shoe he was actually wearing at that time. In his statement he admitted being with Faunee and Zierler at the scene that night but he placed all the blame for the break-in on them. Not only is it coiiceded that the underlying crime of burglary in the first degree in violation of General Statutes $ 53a-101 (a) (2) was committed, but also it is evident that the state proved it beyond a reasonable doubt. In its decision the trial court noted that credibility "is a critical issue in this case" and, in determining that issue, specifically noted that it had considered "by way of illustration and not limitation, the demeanor and attitude of the witnesses as they testified" and that it had "not overlooked the fact that Mr. Faunee and Mr. Zierler are self-confessed and convicted accomplices." There was evidence, as we have set out, upon which the trial court could reasonably conclude, as it did, that the state had proven beyond a reasonable doubt that the defendant was guilty of the crime charged in the first count of the information. The state had to prove beyond a reasonable doubt that the defendant possessed the intent to commit the crime charged. The intent of the defendant is a question for the trier of fact and the trier's conclusion in this regard should stand unless it is unreasonable. State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977); see State v. Ruiz, 171 Conn. 264, 271, 368 A.2d 222 (1976). "This burden of proof on intent ordinarily can be borne only by the presentation of circumstantial evidence, because intention is a mental process that necessarily must be proved through inferences drawn from the defendant's statements and actions. State v. Holley, 174 Conn. 22, 25-26, 381 A.2d 539 (1977); State v. Cofone, 164 Conn. 162, 164-65, 319 A.2d 381 (1972)." State v. Harrison, 178 Conn. 689, 695, 425 A.2d 111 (1979). "The accessory statute, § 53a-8, sets forth the element of intent as a twofold requirement: that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged. See LaFave & Scott, Criminal Law (1972), p. 505 n.53, § 64." (Emphasis in original.) State v. Harrison, supra, 694. "A person acts 'intentionally' with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct." General Statutes § 53a-3 (11); see State v. Ruiz, supra. The defendant not only instigated and devised the plan to break into the Greene residence, for which he solicited the enlistment of Faunce and Zierler, but he also managed and implemented it. When his two confederates weakened in their resolve after their first visit, he overbore their reluctance and pressed them to go into the Greene residence again to carry out the plan. His conscious objective throughout the entire continuum of circumstances of the plan was not only to gain entry to the Greene residence and to steal the coins but also to accomplish this objective by having Zierler spray mace on the occupants. He shared the requisite criminality of intent and the community of unlawful purpose of his confederates. State v. Teart, 170 Conn. 332, 336, 365 A.2d 1200 (1976). He was not passively acquiescent nor acting innocently. See State v. Teart, supra; State v. Laffin, 155 Conn. 531, 536, 235 A.2d 650 (1967); State v. Pundy, 147 Conn. 7, 11, 156 A.2d 193 (1959). He knew Faunce had brought a revolver and mace with, him, he knew the condition of both men when they left to go in the second time, he suggested that the mace be used and he knew of their intended course of action when they went into the house again. He did nothing at all to deter them. The fact that the defendant did not go into the house with Faunce and Zierler in no way precludes sustaining his conviction. This is so because it is not necessary to support a conviction under the accessory statute in ^ 53a-8 "to prove that an accused was actually present at or actively participated in the actual commission of a crime. It is sufficient to prove that he intentionally assisted in its commission. State v. Pundy, 147 Conn. 7, 156 A.2d 193 [1959]." State v. Hicks, 169 Conn. 581, 585, 363 A.2d 1081 (1975). The defendant "intentionally" aided Faunce and Zierler and, in aiding them, he intended to commit the offense with which he was charged. Moreover, both Guyette and Palmer were in fact "maced" inside the house. The state fully sustained its burden of proof and the trial court could have reasonably f ound as it did. There is no error. In this opinion the other judges concurred. General Statutes § 53a-8 provides: "A person, acting with, the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender." General Statutes § 53a-101 (a) (2) provides: "(a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and . (2) in the course of committing the offense, he intentionally, knowingly or recklessly infliets or attempts to inflict bodily injury on; anyone." The second count of the information alleged that the value of the coin collection that was the subject of the attempted larceny was "between $2000 and $10,000." After the state rested, the state conceded that "there is no evidence that the value [of the coin collection] is over two thousand dollars." After the state had rested and before the defendant put on his evidence, the defendant moved not only to dismiss the second count of the information, but also moved for a judgment of acquittal on both charges. The court, at that point, denied his motion for judgment of acquittal on the first count and reserved decision on that motion as to the second count. After both parties had rested, the court denied the motion for judgment of acquittal on the first count and granted the defendant's motion to dismiss, which was made at that time, as to the second count. After the state rested, in a colloquy between court and counsel the court said: "They — the State, T think, has proved [burglary in the first degree] by evidence beyond a reasonable doubt, each element of the erime." Defense counsel replied: "I think so." Defense counsel insisted that the state had not established the defendant's guilt as charged in the first count. Both Faunce and Zierler had pleaded guilty to their participation in the crime charged against the defendants and had been sentenced prior to their testimony at the defendant's trial. He also maintains that both Faunce and Zierler admitted on cross-examination that they knew the defendant had implicated them before they gave their statements to the state police. These three men gave their statements in the following temporal context: Haddad, Faunce and Zierler. Haddad implicated both, Faunce implicated Haddad and Zierler and Zierler implicated Haddad and Faunce. In State v. Stankowski, 184 Conn. 121, 439 A.2d 918 (1981), we were reviewing, inter alia, the trial court's denial of the defendant's motion for judgment of acquittal where he contended that the state had failed to meet its burden of proving beyond a reasonable doubt every element of the crime charged and specifically that of intent. Although the defendant has conceded that the state had proven that Faunce and Zierler had committed the crime of burglary in the first degree, it is necessary to set out the circumstances under which the trial court could find that the state had proven the defendant guilty beyond a reasonable doubt of the crime charged in the first court of the information. In questioning the sufficiency of the evidence the defendant has recounted the evidence in twenty-one pages of his brief while the state's counterstatement covers nine pages of its brief. This note was a full exhibit at the trial. An examination of the transcript does not disclose why the note was for $3350, which was $50 more than the debt of $3300. Zierler had known the defendant from the time Zierler had been four or five years of age, although not on an intimate basis. In August and September, 1980, he began to spend more time with Haddad, when, because of Zierler's friendship with Faunce of three or four years standing, the three of them went out together on a number of occasions. "This conversation, with Faunce took place in Zierler's presence when all three were out socializing. During the trial the words "bureau" and "buffet" were used interchangeably. Faunce kept the gun and the maee in his truck ever since the time he was threatened because he had not paid the cocaine supplier. Haddad designated in this sketch the approximate area where he believed the coins to be kept. This was approximately one hundred yards past Greene's residence. Maybe ten or fifteen minutes before this, Donna Carey had answered the telephone and "nobody was on the other end." He gave Faunce and Zierler cocaine that night both before and after their first visit to Greene's residence. When, the two men entered the house the second time, Zierler brought the mace. Faunee, however, did not bring his gun but "slid the revolver under the front seat of the car." Danny Greene had still not returned home at this time. Guyette said: "It burned my face, really burned, you know." "I got it . . . all over my face . Burned real bad." This shoe was taken as evidence from the defendant at the police barracks on November 10, 1980. The trooper assigned to the investigation testified that that was the first time that the name of either Faunee or Zierler had come up in the police investigation of this incident. It is not olear from the transeript whether the defendant actually knew that Faunce had left the revolver under the seat in the car the second time they entered the house.

Peters, J. This ease is a wrongful death action arising out of an automobile-truck accident on the Connecticut Turnpike that led to the electrocution of a passerby who attempted rescue. Suit was brought by the plaintiff, Barbara C. Oberempt, as administratrix of the estate of Donald A. Oberempt, to recover damages for the death of the decedent rescuer. The suit originally alleged negligence on the part of five defendants: Nicholas Egri, the driver of the automobile; the state transportation commissioner; Nathan Grisehe, the operator of the truck; and Simons Haulage Company, Inc., and L. I. Kennedy Trucking Company, employers of Nathan Grisehe. Before trial, the complaint was amended to eliminate claims against Egri, from whom the plaintiff had received a payment of $50,000, and against the commissioner. The amended complaint was submitted to a jury which returned a verdict for the defendants. The plaintiff appeals to this court from the denial of her motion to set aside the verdict and the consequent entry of judgment for the defendants. There was evidence before the jury from which they could have found the following: The accident occurred on a rainy evening in November, 1970, in the westbound lanes of 1-95 in the Long Wharf area of New Haven. As the Egri automobile in the center lane passed the truck operated by Gische in the right lane, Egri was somewhat blinded by water on his windshield. Shortly after having passed the truck, Egri braked his automobile; he went into a sldd which brought him into the truck's lane. Egri's automobile eventually spun off the roadway, struck a highway light pole, and thereafter became charged with electricity. Gische tried to avoid the Egri automobile, but his efforts jackknifed the truck, which went off the roadway at a location west of and beyond the automobile. The decedent Oberempt observed the accident and offered to help first Gische and then Egri. He was fatally electrocuted when he touched the doorhandle of the Egri automobile. The only important contested factual issue at the trial was whether the Egri automobile was hit by the truck, or whether it landed against the lightpole as a result of its own skid. The plaintiff has limited her appeal to two alleged errors in the trial court's charge to the jury. She claims that the court should not have charged on intervening negligence, and should have charged more broadly on the emergency doctrine. The trial court charged the jury on intervening negligence upon the conclusion of its charge on prox imate cause. It referred to the possible intervening negligence of the commissioner of transportation and of Egri, the automobile driver, both originally cited as eodefendants in the present action. As we have recently reiterated, statements in complaints against parties subsequently withdrawn from a cause of action are admissible as evidence relevant to the issue of proximate cause. Schenck v. Pelkey, 176 Conn. 245, 248, 405 A.2d 665 (1978); Tough v. Ives, 162 Conn. 274, 283, 294 A.2d 67 (1972). There was other evidence as well concerning Egri's operation of his ear. The court's charge emphasized that intervening negligence would discharge the defendants only if the negligent act or omission of the commissioner, or of Egri, was found to have been the sole proximate cause of the decedent's fatal accident. This charge was entirely proper, for the defendants could not have proximately caused an injury which had been caused solely by another. "Even though the intervening cause may be regarded as foreseeable, the defendant is not liable unless his conduct has created or increased an unreasonable risk of harm through its intervention." Prosser, Torts (4th Ed. 1971) § 44, p. 275. The case of Merhi v. Becker, 164 Conn. 516, 325 A.2d 270 (1973), relied upon by the plaintiff, is inapposite, because it concerned the responsibility for third-party intervention of a defendant found to have been negligent in a way causally connected to the plaintiff's injury. Id., 521. In connection with this claim of error, the plaintiff also argues that the charge on proximate cause was defective in the manner in which it instructed the jury on the concept of concurrent negligence. Although the court's definition of proximate cause had stressed that the relevant conduct must be a substantial factor in producing the resulting injury, the portion of the charge dealing with concurrent evidence did not explicitly refer back to the substantial factor test. It is well settled that a charge to the jury is to be read as an entirety and to be judged by its total effect rather than by the language of isolated portions. LeBlanc v. Bray, 168 Conn. 92, 93, 357 A.2d 926 (1975); DePaola v. Seamour, 163 Conn. 246, 253, 303 A.2d 737 (1972); Hanken v. Buckley Bros., Inc., 159 Conn. 438, 442, 270 A.2d 556 (1970). Maltbie, Conn. App. Proc. §92, p. 109. The totality of the charge on all of the various aspects of proximate cause more than adequately protected the plaintiff. The plaintiff's other claim of error concerns the trial court's charge on the emergency doctrine. The emergency doctrine modifies the standard of reasonable conduct ordinarily expected of reasonable men and women by allowing the occurrence of a sudden or unexpected event to be taken into account as one of the circumstances determining what conduct is reasonable. Prosser, Torts (4th Ed. 1971) § 33, pp. 168-69. Restatement (Second), 1 Torts § 296 (1966). "In an emergency not due to his own negligence, one is not relieved of all obligations to exercise care but is required to exercise the care of an ordinarily prudent person acting in such an emergency. Degnan v. Olson, 136 Conn. 171, 177, 69 A.2d 642; Puza v. Hamway, 123 Conn. 205, 213, 193 A. 776." Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 312, 268 A.2d 639 (1970). A person faced by such an emergency has some leeway when deciding rapidly between alternative courses of action. Id., 312. Vachon v. Ives, 150 Conn. 452, 455, 190 A.2d 601 (1963). The plaintiff does not maintain that the defendants were not entitled to a charge on the emergency doctrine with respect to the defendant Grische. Rather, the plaintiff urges that the charge should also have been given with respect to Egri, the driver of the automobile, since such a charge would have lessened the likelihood that Egri's conduct would have been characterized as intervening negligence. The applicability of the emergency doctrine to the conduct of Egri has not been established. Egri arguably contributed himself to the emergency by the manner of his own handling of his car when his visibility was impaired. Furthermore, there was no evidence that once his ear began to skid, Egri had the opportunity to exercise the kind of rational but hurried choice between alternative courses of action which the emergency doctrine is designed to protect. Mei v. Alterman Transport Lines, Inc., supra; Vachon v. Ives, supra. Under these circumstances, the court's failure to extend the emergency doctrine to Egri was not erroneous, especially since the plaintiff filed no such request to charge. There is no error. In this opinion the other judges concurred. The interests of the three remaining defendants on this appeal are identical.

Per Curiam. This is an appeal from a judgment of the Court of Common Pleas dismissing an appeal from the action of the defendant Bristol zoning commission changing the zone of two adjoining parcels of land containing approximately fourteen acres from residence B zone to residence C zone and providing for a 200-foot buffer zone on the easterly side of this land. The plaintiffs Prank and Victoria Veseskis own a fifteen-acre parcel of land abutting to its west the easterly border of the fourteen-acre area subject to the zone change. In their appeal to the Court of Common Pleas, the plaintiffs claimed that the zoning commission acted illegally, arbitrarily and in abuse of its discretion in creating a buffer zone on one side of the residence C zone in violation of its authority under § 8-3 of the General Statutes. Notwithstanding this claim, the court concluded that "[t]he specific buffer zone created by the defendant commission incident to the general zone change is similar to yard and setback requirements and is a valid exercise of the police powers granted it by § 8-3 of the Connecticut General Statutes." On their appeal to this court, the plaintiffs have assigned error to that conclusion. Section 8-2 of the Greneral Statutes provides, in pertinent part, that "[s]ueh zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district." Section 8-3 of the Greneral Statutes sets forth the procedure by which the regulations enacted pursuant to § 8-2 may be enforced, amended or changed. Nothing in § 8-3, however, abrogates the express requirement of § 8-2 that such regulations shall be uniform. The obvious purpose of the requirement of uniformity in the regulations is to assure property owners that there shall be no improper discrimination, all owners of the same class and in the same district being treated alike with provision for relief in cases of exceptional difficulty or unusual hardship by action of the zoning board of appeals. Greneral Statutes § 8-6; Florentine v. Darien, 142 Conn. 415, 424, 425, 115 A.2d 328. To require by zoning regulation a buffer strip between one zone of a particular classification and another zone of a different class in one specific instance and not in other instances when zones of these two zone classifications abut clearly violates the statutory uniformity requirement and is exactly the arbitrary and discriminatory use of the police power which the statute was designed to prevent. See 1 Anderson, American Law of Zoning § 3.13, 5.17; Bassett, Zoning, pp. 51-52. In a 1958 case raising a similar issue; Pecora v. Zoning Commission, 145 Conn. 435, 144 A.2d 48; this court said that a change of zone for a sixty-acre tract which provided that as part of the change of zone a fifty-foot green belt should be maintained around the new zone was permissible and did not violate the then existing statutory provision requiring uniformity because the change affected the use of the land itself and not the buildings or structures on it. The controlling provision of the statute as it then read was identical to the portion of § 8-2 quoted above except that it did not then contain the words "or use of land." The following year the legislature added those words. Public Acts 1959, No. 614, § 2. The clear implication of the Pecora decision and legislative action which followed is that had the statute at the time of the decision required uniformity as to the use of the land the provision of the Trumbull ordinance requiring a fifty-foot green belt would have been in violation of the statute. Inasmuch as § 8-2 now requires uniformity "for each . . . use of land . . . throughout each district," the Bristol zoning commission did not have the power or authority under § 8-2 and 8-3 of the General Statutes to create a special buffer strip on one specific individual piece of property by an amendment to its zoning regulations. There is error, the judgment is set aside and the case is remanded to the Court of Common Pleas with direction to sustain the appeal.

Santaniello, J. These appeals raise the question whether a party suing the state under General Statutes § 13a-144 must prove that the alleged defect in the state highway was the sole proximate cause of his injuries. The plaintiffs, George Maintanis and Anthony Kolich, the administrator of the estate of Barbara Maintanis, brought separate suits against the state alleging that the state negligently constructed and maintained its highways. The cases were consolidated for trial, and in each case the jury returned a verdict in favor of the state. The court rendered judgments in accordance with the verdicts, and the plaintiffs subsequently appealed. We find no error. On August 7,1977, at approximately 2 a.m., George and Barbara Maintanis were traveling westbound on the Connecticut turnpike in Milford when their car was struck by a van. The car swerved off the highway and crashed into the median divider. Barbara Maintanis was killed and George Maintanis was injured. There was evidence that the guardrail which their car struck was improperly secured and may have contributed to their injuries. There was also evidence that George Maintanis, who was driving, was intoxicated at the time of the accident. Both plaintiffs brought suit against the state alleging that the state negligently constructed and maintained the guardrail on the turnpike and that the defect proximately caused their injuries. The state's liability was predicated on General Statutes § 13a-144. After the case went to trial and the evidence was presented, the plaintiffs requested that the court instruct the jury that if the highway was defective and that defect was "a substantial factor" in causing the plaintiffs' injuries, then it must return a verdict in their favor. Instead, the court instructed the jury that it was the plaintiffs' burden to show that the defective highway was "the sole proximate cause" of their injuries. The jury returned verdicts in favor of the state and the court rendered judgments accordingly. Neither plaintiff moved to have the verdict against him set aside. On appeal, the plaintiffs argue that the trial court erred in its instruction to the jury on proximate cause. Both plaintiffs, however, failed to file a motion to set aside the verdiet in accordance with Practice Book § 320 and General Statutes § 52-228b. It is an established rule of appellate practice in this state that in order to obtain a full review of claims of error in civil jury cases, parties must raise those errors with the trial court and file a motion to set aside the verdict. Pietrorazio v. Santopietro, 185 Conn. 510, 513-16, 441 A.2d 163 (1981) (claimed errors involving the sufficiency of evidence and admissibility of testimony); Gordon v. Feldman, 164 Conn. 554, 557, 325 A.2d 247 (1973) (sufficiency of evidence); Warner v. Pandolfo, 143 Conn. 728, 729, 122 A.2d 738 (1956) (sufficiency of evidence); Polce v. Stop & Shop Cos., 4 Conn. App. 18, 19, 492 A.2d 206 (1985) (charge to the jury); Denby v. Voloshin Cadillac, Inc., 3 Conn. App. 181, 183, 485 A.2d 1360, cert. dismissed, 196 Conn. 802, 491 A.2d 1105 (1985) (directed verdict); Eagar v. Barron, 2 Conn. App. 468, 472, 480 A.2d 576 (1984) (computation of interest on award); Rozbicki v. Pelletier, 2 Conn. App. 87, 88, 476 A.2d 1069 (1984) (charge to the jury); see General Statutes § 52-228b. The purpose of the rule is to provide the trial court with an opportunity to pass on claims of error which may become the subject of an appeal. Even if the issue was raised during the course of a trial and the party has properly preserved the issue for review, the trial court should be given "a full opportunity to redress any errors which may have occurred at trial before the appellate process is begun." Pietrorazio v. Santopietro, supra, 515. The plaintiffs' failure to file a motion to set aside the verdict limits our review in these cases to ascertaining whether there has been "plain error." Practice Book § 3063; Pietrorazio v. Santopietro, supra. "Practice Book § 3063 provides that this court 'may in the interest of justice notice plain error not brought to the attention of the trial court.' Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). Reviewing the record and arguments presented in these appeals, we conclude that it was not plain error for the trial court to have instructed the jury as it did. The trial court's instruction on causation was in accordance with a long line of decisions holding that parties suing the state under General Statutes § 13a-144 must prove that the defective highway was the sole proximate cause of their injuries. See Foster v. Waterford, 186 Conn. 692, 695, 443 A.2d 490 (1982); Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981); Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406 (1970); Pape v. Cox, 129 Conn. 256, 259, 28 A.2d 10 (1942); Roth v. MacDonald, 124 Conn. 461, 463-64, 200 A. 725 (1938). The plaintiffs argued to the trial court that it should disregard this formidable array of precedent. The trial court, by ruling against the plaintiffs and following the established rule of law, can hardly be said to have committed "plain error." The plaintiffs have made the additional argument that General Statutes § 52-228b is unconstitutional because it impermissibly restricts the jurisdiction of this court over cases otherwise properly before it. In Pietrorazio v. Santopietro, supra, we relied on § 52-228b to establish the rule, set out above, limiting our review in cases where the parties did not file a motion to set aside the verdict. Our jurisdiction to hear cases, however, is not in any way restricted by this rule or by § 52-228b. "The failure to file [a motion to set aside the verdict] does not affect the jurisdiction of this court over the appeal, because the acceptance of the jury verdict at the time it is rendered is deemed to constitute a final judgment; Grzys v. Connecticut Co., 123 Conn. 605, 607n., 198 A. 259 (1938); Hull v. Thoms, 82 Conn. 386, 391, 73 A. 793 (1909); unless a motion to set aside is later filed. Tough v. Ives, 159 Conn. 605, 606, 268 A.2d 371 (1970). General Statutes § 52-263 expressly authorizes an appeal to this court from any final judgment except those specifically excluded. See Rickey v. E. H. Jacobs Mfg. Co., 142 Conn. 495, 496, 115 A.2d 336 (1955)." Pietrorazio v. Santopietro, supra, 512-13. Thus, although the failure to file a motion to set aside the verdict will limit the extent of appellate review afforded, the motion is not a prerequisite to an appeal and thus not a limitation on jurisdiction. There is no error in either case. In this opinion the other judges concurred. These appeals were not consolidated pursuant to Practice Book § 3002. Because they present identical issues and share a common procedural history, however, we discuss their merits together. General Statutes § 13a-144 provides in part: "Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. . . ." Both plaintiffs originally presented two issues for review: (1) whether the trial court erred in its instruction to the jury on sole proximate cause; and (2) whether the trial court should have instructed the jury on superseding and intervening causes. The second issue is really subsumed in the plain tiffs' primary claim as to proximate cause. We fail to see how the trial court could consistently instruct the jury that the defect in the highway must be the sole proximate cause of the injuries while at the same time instructing them on superseding and intervening causes. Practice Book § 320 provides in part: "Motions in arrest of judgment, whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict and motions for new trials . . . must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered . Such motions shall state the specific grounds upon which counsel relies." General Statutes § 52-228b provides in part: "No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. ."

Grillo, J. This appeal from the judgment rendered dissolving a prejudgment attachment addresses the legal sufficiency, pursuant to General Statutes § 20-325a (b), of several writings which are singly unenforceable but which, it is averred, collectively satisfy the statute and therefore create a binding contract. The plaintiff, a real estate broker, instituted this action claiming a breach of a real estate brokerage contract relating to property purchased by the defendant from the Choate-Rosemary Hall Foundation and referred to as the Choate property. The plaintiff was granted an ex parte order of attachment. The defendant filed a motion to dissolve the prejudgment remedy, and after a hearing the trial court concluded that the plaintiff had failed to satisfy its burden of sustaining probable cause as to the validity of its claim, and dissolved the attachment. This appealed followed. Although the plaintiff concedes that no single document satisfied General Statutes §20-325a (b), its appeal disputes the trial court's conclusion that the various writings produced by the plaintiff do not collectively meet the statutory requirements. The defendant argues that probable cause is lacking since the documents fail to form a single, consistent contract which is enforceable under $20-325a (b). We agree. In support of its claim that the statutory requisites were fulfilled, the plaintiff first relies on an aggregation of exhibits A and B. Although collectively these documents satisfy the statutory deficiency which is individually lacking, the addresses of both parties; Hossan v. Hudiakoff, 178 Conn. 381, 383, 423 A.2d 108 (1979); their combination raised another flaw. The writings contain different commission rates. The trial court, being unable to ascertain the applicable commission rates, therefore construed exhibits A and B as two separate agreements unenforceable under $20-325a (b). In an effort to meet the expressed concern of the trial court that the different commission rates created two separate contracts, the plaintiff offered the parol testimony of a witness in an attempt to connect the two documents and thereby create a single transaction. The court, after hearing the testimony, struck the entire response, stating that there were no circumstances justifying the admission of parol testimony and no ambiguity requiring explanation. The ruling of the trial court was correct. The different rates of commission rendered an accurate determination of the "conditions of such contract or authorization"; General Statutes § 20-325a (b) (4); impossible. Although the plaintiff insists that collective documents relating to each other are sufficient to fulfill the requirements of the statute, this predicate assumes that the necessary proof of relationship between the writings was provided. The plaintiff relies principally on the case of Good v. Paine Furniture Co., 35 Conn. Sup. 24, 391 A.2d 741 (1978). As the trial court stated, the holding in Good was that separate documents will be deemed to constitute a valid contract under §20-325a (b) if they collectively satisfy the statutory requirements and relate to the same agreement. Id., 27. It is not within the power of courts to create new and different agreements. Collins v. Sears, Roebuck & Co., 164 Conn. 369, 375, 321 A.2d 444 (1973). The trial court found that there were no connected documents. The evidence sustains the conclusion that neither document pointed unquestionably to the other document so as to create one consistent contract. The plaintiff's contention that the trial court impermissibly excluded parol evidence showing the connection and consistency between the two documents is without merit. Parol evidence is admissible (1) to explain an ambiguity appearing in .the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in a writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud. Merritt-Chapman & Scott Corporation v. Mauro, 171 Conn. 177, 193-95, 368 A.2d 44 (1976) (Cotter, J., dissenting). The plaintiff asserts that if exhibits A and B relate to the same agreement, then there is one contract with conflicting rates of commission, thereby creating ambiguity justifying the introduction of parol evidence. A stated rate of commission within a contract is unambiguous. Reese v. First Connecticut Small Business Investment Co., 182 Conn. 326, 327, 438 A.2d 99 (1980). The plaintiff's theory is flawed not only because the relationship between the exhibits is lacking, as previously discussed, but also because the conflicting rates of commission, which negate connection, have clear and definitive meanings and thus may not be explained by parol evidence. See Maier v. Arsenault, 140 Conn. 364, 368, 100 A.2d 403 (1953). The plaintiff claims that exhibit D relates to exhibit A and collectively these documents satisfy the statute. Here again, the rates of commission are different in each document, contradicting the contention that these documents are consistent with and together form one contract since together they bear the address of both parties. The court was not bound to come to the conclusion that exhibits A and D formed one valid contract under § 20-325a (b) relating to the same brokerage agreement. The plaintiff's final thrust in argument is that because exhibit B, when supplemented by exhibits E or K, satisfied the statutory requirements, it is therefore entitled to damages predicated on the commissions specified in exhibit B, i.e., 3 percent and 5 percent. The plaintiff asserts that the court did not address this issue. The court, however, while not referring specifically to exhibits E or K with reference to exhibit B, concluded that the evidence was not sufficient to convert the documents so as to satisfy the statutory requirements. It was the function of the trial court to determine what weight it would ascribe to the evidence offered. State v. Staples, 175 Conn. 398, 407, 399 A.2d 1269 (1978). Even assuming the plaintiff's position is correct, it avails the plaintiff nothing since the substituted complaint clearly sought remuneration based on a combination of exhibits A and B, not on exhibit B in combination with exhibits E or K. The exact amount of damages claimed in all counts except one are predicated upon the 4 percent commission rate delineated in exhibit A. The court could rea sonably have concluded that exhibit B was added solely as a supplemental document to cure the lack-of-address deficiency in exhibit A. The documents involved in this matter neither singly nor collectively satisfy the stringent requirements of § 20-325a (b). There is no error. In this opinion the other judges concurred. General Statutes § 20-325a (b) states: "No person, licensed under the provisions of this chapter, shall commence or bring any action in respect of any acts done or services rendered after October 1, 1971, as set forth in subsection (a), unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall (1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which sueh contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the parties thereto." Exhibit A represents a letter from the plaintiff to the defendant dated November 15, 1976, and states: "Ahearn Development Corporation 88 Woodhouse Avenue Wallingford, Connecticut Dear Mr. Ahearn: This is to confirm that there will be no commissions payable to this office as a result of any contract or purchase by you or any of your corporations of land owned by The Choate Rosemary Hall Foundation located on Mapleview Road, Wallingford, Connecticut, known as St. Andrews Camp and Patmos, consisting of approximately 65-67 acres. Per our understanding, this will confirm that commissions equal to 4% of sales price shall be payable to this office on any sales of land and/or buildings subsequent to your acquisition from Choate. JAY REALTY, INC. By: /s/Thomas Wall" Exhibit B is a printed form of the Greater New Haven Board of Realtors, Ine., a standard multiple listing contract, signed by the defendant, the pertinent part reading as follows: "I/We agree that whenever during the term of this agreement, the property shall have been sold or exchanged or a customer procured, ready, able and willing to buy or exchange the property on the terms authorized by me/us. I/we will pay to you a commission of 3%-houso, 5%-lot of the gross sale price whether the transaction shall be effected by you, me/us or any other person or corporation." The contract is signed by the owner of Choate property and includes the address of the plaintiff. Exhibit D is a letter to the plaintiff dated August 30, 1978, signed by one Edward Loughlin, presumably a representative of the defendant, enclosing a check for a 6 percent commission. Exhibit E is a letter dated January 9, 1979, from the defendant to the plaintiff discharging the plaintiff as agents. Exhibit K is a letter from Jeffrey Aheam, dated November 1, 1978, concerning prices of lots at Laurelwood. The exception is count four, wherein the plaintiff seeks damages predicated upon the 6 percent commission rate contemplated within exhibit D. See footnote 4, supra.

Dupont, C. J. The defendant appeals from the judgment of conviction rendered in accordance with the jury's verdict of guilty on one count of robbery in the first degree, a violation of General Statutes § 53a-134 (a) (4), and one count of attempted assault in the first degree, a violation of General Statutes § 53a-49 (a). The issues of this case are whether the trial court erred (1) in allowing the state to amend its information to charge the defendant with a more serious crime after the voir dire of prospective jurors had begun, (2) in providing the jury with an overly broad definition of the crime of robbery in the first degree, and (3) in overruling the defendant's objection to the filing of an amended information in violation of Practice Book § 833 and in failing to instruct the jury on the essential elements of the crimes as charged in the bill of particulars. It is essential to an understanding of the issues presented to describe certain facts which the jury could reasonably have found. It is also necessary to compare the state's two amended informations with the original information and to compare the bill of particulars filed with the third and last information. The defendant and another person approached two men, John Vasquez and James Carrillo, on a public street. The defendant and his companion pointed guns at the victims and announced "this is a stick-up." They forced Vasquez into a nearby hallway where they struck him repeatedly and took $30 from his pocket. Carrillo, who had fled initially, returned to the scene in time to see the defendant exiting the hallway, whereupon the defendant fired a shot which barely missed him. The defendant was originally charged in a three count information with the crimes of robbery in the first degree. See General Statutes § 53a-134; attempted assault in the first degree; see General Statutes § 53a-49 (a) (2) and 53a-59 (a) (3); and assault in the third degree. See General Statutes § 53a-61 (a) (1). The counts did not identify the victim of each crime. After the parties began the voir dire of prospective jurors, the state was allowed, over the defendant's objection, to amend the prior information. The court relied on Practice Book § 623 in overruling the objection. This amendment altered the second count of attempted assault in the first degree by referring to General Statutes § 53a-59 (a) (1) rather than to General Statutes § 53a-59 (a) (3), and altered the third count by charging the defendant with attempted assault in the first degree instead of assault in the third degree. See General Statutes § 53a-49 and 53a-59 (a) (1). The amended information still did not specify the victim of each crime charged. During the presentation of the state's case, it filed another amended information which charged the defendant with only two crimes instead of three: one count of robbery in the first degree and one count of attempted assault in the first degree. According to the state, the charge of attempted assault in the first degree, which had been the second count of the first two informations, related to Yasquez, and that charge was dropped in the last amended information. Also according to the state, what had been the third count of the prior two informations related to Carrillo and was now the second count of the last information. The bill of particulars, filed the same day as the last amended information, stated that the defendant "displayed the use of what he represented by his words or conduct to be a pistol" during the commission of a robbery. It also stated that Vasquez was the victim of the robbery and that Carrillo was the victim of the attempted assault. The information and the bill of particulars were both submitted to the jury during their deliberations. The court, however, made no comment in its instructions about the relationship between the two documents, or about any discrepancy between the two. I The defendant claims that it was error for the trial court to allow the state to file an amendment to the original information after the trial had commenced, in contravention of Practice Book § 624. Practice Book § 624 provides in part: "After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced." The record indicates that the voir dire of the prospective jurors began on July 20, 1983. On July 22, 1983, the state amended the original information. As previously noted, the second count of the information was amended to charge a violation of General Statutes § 53a-59 (a) (1) rather than General Statutes § 53a-59 (a) (3), and the third count of the information was changed from a charge of assault in the third degree to attempted assault in the first degree. Before we evaluate the substantive effect of the July 22, 1983 amendment, we must first determine whether this amendment was made before or after the commencement of the trial. If the amendment of the information were made before the commencement of the trial, Practice Book § 623 would govern, but if the amendment were made after the commencement of the trial, Practice Book § 624 would apply. A prosecutor has broad authority to amend an information prior to the commencement of the trial. Practice Book § 623. Once a trial has commenced, however, an amendment may be permitted with leave of the court only for good cause shown and "if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced." Practice Book § 624. Section 624 of the Practice Book is designed to protect a defendant's right to fair notice of the charges against him. See State v. Jacobowitz, 182 Conn. 585, 590, 438 A.2d 792 (1981). Relying on cases construing double jeopardy, the state argues that a criminal trial does not commence until the jury is impanelled and sworn. See Crist v. Bretz, 437 U.S. 28, 38-39, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978) (Blackmun, J., concurring); Illinois v. Somerville, 410 U.S. 458, 471, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973). The interests protected by the prohibition against double jeopardy, however, are not entirely the same as those embodied in Practice Book § 624. The prohibition against multiple prosecutions protects the defendant from multiple penalties for the same offense or, if acquitted, from the repeated possibility of conviction as well as protection from the anxiety, embarrassment and expense incurred in defending a second trial. See Benton v. Maryland, 395 U.S. 784, 796, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); State v. Couture, 194 Conn. 530, 566, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). Those rules of practice relating to the amendment of an information seek to protect a defendant's right to fair and adequate notice of the charges against him so as to afford him an opportunity to prepare an adequate defense. See State v. Young, 191 Conn. 636, 644, 469 A.2d 1189 (1983); State v. Jacobowitz, supra. The purpose of an information is twofold. It ensures that a defendant will be informed of the nature of the crime or crimes with which he is charged in order to enable him to prepare a defense and ensures that future criminal proceedings for the same offense or offenses will be avoided. State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986). The first purpose is not involved in the defendant's constitutional right not to twice be put in jeopardy for the same offense, but is involved in the defendant's constitutional right to fair notice of the charge or charges against him. Thus, the constitutional protections afforded by an information go beyond the protection against double jeopardy. It is the guaranty of fair notice with which we are here concerned, a guaranty distinct from that of the prohibition against double jeopardy. An effective voir dire cannot be undertaken without knowing the particular offense with which the defendant is charged, including its penalty. The greater the penalty, the greater the need is to conduct an intensive voir dire. The risk of incarceration is greater or lesser depending upon the particular crime involved. Without proper notice of the precise charges against him, a defendant is hampered in the effective questioning of the veniremen to discover and evaluate any bias or prejudice which they may harbor as to the particular crime or crimes involved. It would be difficult to ask appropriate questions in an effort to discover such possible bias or prejudice unless the defendant has notice of the particular charges against him. The voir dire process is " 'an integral part' of the criminal trial . . . . " State v. Gathers, 197 Conn. 369, 375-76, 497 A.2d 408 (1985) (discussing the right to counsel). We conclude, therefore, that for purposes of Practice Book § 623 and 624, a criminal trial begins with the voir dire of the prospective jurors. Having found that the amendment of July 22, 1983 was made after the commencement of trial, we must now determine whether it affected the substantive rights of the defendant. See Practice Book § 624. The third count of the amendment, which related to Carrillo, changed the original count of assault in the third degree to a charge of attempted assault in the first degree. After the trial has commenced, unless the original and the amended information charge the defendant with the same crime, "an amendment is permissible only to charge a lesser included offense." State v. Jacobowitz, supra, 590-91. Under Jacobowitz, an amendment which charges a new offense, but not a lesser included offense, is a substantive alteration of the information which is prohibited by Practice Book § 624. The count charging attempted assault in the first degree was a substantively different offense and was therefore an impermissible amendment. Since that count of the information charging attempted assault in the first degree was invalid, the judgment of conviction as to it must be set aside and a judgment of not guilty directed. See, e.g., State v. Jacobowitz, supra, 593. II The defendant also claims that the trial court's instructions to the jury on robbery in the first degree were erroneous. He alleges that the instructions went beyond what was contained in the information, as modified by the bill of particulars. Specifically, he complains that while the bill of particulars stated that the defendant displayed a pistol, the court instructed the jury on the definition of other firearms listed in the statute. He asserts that such an overly broad instruction disregarded the limitations imposed by the state's bill of particulars and may have misled the jury into believing that they could have found the defendant guilty had he used a weapon other than the pistol alleged in the bill of particulars. It is axiomatic that an accused need defend against only those charges which have been properly alleged by the pleadings. State v. Belton, 190 Conn. 496, 501, 461 A.2d 973 (1983). Likewise, once "a bill of particulars has been filed . . . the state is limited to proving that the defendant has committed the offense in substantially the manner described." State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976); see State v. Roque, 190 Conn. 143, 155, 460 A.2d 26 (1983). In charging the jury on the elements of the offense, " '[w]e have disapproved the practice of reading an entire statute to a jury where under the pleadings or the evidence only a portion of it is applicable.' " State v. Belton, supra, 501. The court should not instruct the jury in the exact language of the statute where to do so might be misleading. Id., 501-502. In the present case, the court instructed the jury in the exact language of General Statutes § 53a-134 (a) (1) and included the definition for the terms "pistol, revolver, rifle, shotgun, machine gun or other firearm . " General Statutes § 53a-134 (a) (4); see General Statutes § 53a-3 (15) through (19). Since the bill of particulars specifically alleged a pistol, the court should have limited its instructions accordingly. Any error, however, which the court may have committed by failing to exclude inapplicable portions of the statute was harmless. " 'For an erroneous portion of a charge to be reversible error, the court must consider the whole charge and it must be determined, in appeals not involving a constitutional question, if it is reasonably probable that the jury were misled . . . and, in appeals involving a constitutional question, if it is reasonably possible that the jury were misled.' " (Emphasis added.) State v. Ruiz, supra, 273. Under either analysis, the error was rendered harmless when the trial court effectively explained to the jury, after the definition of each weapon, that there was no allegation or evidence to show that the weapon used was anything other than a pistol. If we assume, as we must, that the jury followed the limitation on the instructions, it is neither reasonably possible nor probable that the extraneous instructions were misleading. Ill The defendant's final claim of error is that the trial court erred in overruling the defendant's objection to the filing of the last amended information concurrently with the bill of particulars. The defendant's objection cites the state's failure to comply with Practice Book § 833, which provides that "[w]hen any bill of particulars is ordered, an amended or substitute information shall be filed incorporating its provisions." Although the court erred by allowing the state to file an amended information which did not comport with Practice Book § 833, we conclude that the error was harmless because it could not reasonably have affected the verdict. See State v. Murrell, 7 Conn. App. 75, 91, 507 A.2d 1033 (1986). In view of our conclusion that the judgment rendered as to count two of the information upon which the defendant was tried must be set aside, we need only discuss the alleged error as it relates to count one, the count of robbery in the first degree. While the bill of particulars and the information were consistent as to all of the essential elements of the crime charged, the bill of particulars was more detailed as to the events surrounding the alleged offense. The purpose of Practice Book § 833 is to ensure that the defendant be given fair notice of the charges against him. "When the state's pleadings have 'informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty.' " State v. Vincent, 194 Conn. 198, 205, 479 A.2d 237 (1984). In the present case, the defendant cannot argue reasonably that the state's failure to file its amended information in conformity with Practice Book § 833 deprived him of fair notice of the essential elements necessary for a conviction. Nor can the defendant reasonably argue that the submission of the bill of particulars and the information to the jury without any explanation, could have misled the jury. The amended information submitted to the jury charged the defendant with robbery in the first degree, a violation of General Statutes § 53a-134 (a) (4). It stated that the robbery was committed in Hartford, on or about December 28, 1981. It also stated that while in the course of the commission of said robbery, the defendant "displayed or threatened to use what he represented by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . . " The bill of particulars alleged that the defendant, "on December 28, 1981, at approximately 11:30 a.m. on Hampton Street, Hartford, Connecticut," displayed the use of what he represented by his words or conduct to be a pistol in the course of the commission of a robbery. The bill of particulars also alleged that the defendant committed a robbery, a violation of General Statutes § 53a-133, in that he "threatened the immediate use of physical force upon John Vasquez for the purpose of preventing or overcoming resistance to" the permanent taking of a sum of money. The only difference between the factual allegations made in the information and the factual allegations of the bill of particulars is that the latter pleading specifies the time of the offense, the street upon which the crime was committed, the name of the victim, and that the weapon used was a pistol. These additional facts were not disputed by the defendant because his defense was one of alibi. The defendant denied being at the scene of the crime and testified that he was washing clothes with his girlfriend during the morning of the commission of the crime. Her testimony corroborated his testimony. The name of the victim was irrelevant to his defense. Whether the jury used the information or the bill of particulars in determining if the defendant was guilty or not guilty of robbery in the first degree would not have changed the result under the facts in this case. We find, therefore, that the trial court's error could not reasonably have affected the jury's verdict. There is no error on the first count, robbery in the first degree; there is error on the second count, attempted assault in the first degree, the judgment of conviction of attempted assault in the first degree is set aside and the case is remanded with direction to render judgment that the defendant is not guilty of that crime. In this opinion the other judges concurred. Practice Book § 623 provides in pertinent part: "If the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information." General Statutes § 53a-59 defines assault in the first degree as follows: "A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person." Assault in the third degree is a class A misdemeanor. See General Statutes § 53a-61. Attempted assault in the first degree is a class B felony. See General Statutes § 53a-49, 53a-51 and 53a-59 (b). While not controlling in the present case, Practice Book § 956E defines the commencement of a criminal trial to a jury as the commencement of the voir dire examination. Practice Book § 956E governs the tolling of time for the purpose of establishing a defendant's right to a speedy trial.

Shea, J. The defendant was convicted after a jury trial of felony murder in violation of General Statutes § 53a-54c. In his appeal from the judgment the defendant claims error: (1) in the admission of evidence of his pre-arrest and postarrest silence with respect to the murder accusation; (2) in the admission of evidence of (a) threats claimed to have been made by the defendant against a witness for the state, (b) the existence of outstanding arrest warrants against the defendant for unrelated crimes, and (c) his arrests for prior felonies; (3) in charging the jury on felony murder without mentioning the affirmative defenses to that crime set forth in § 53a-54c as well as in explaining what is meant by a reasonable doubt; and (4) in the ineffective assistance rendered at trial by defense counsel. We find no error. This defendant was convicted of the felony murder of the same person, Raymond Lovell, who was the victim of the crime in State v. Spencer, 198 Conn. 506, 503 A.2d 1165 (1986), wherein this court affirmed the conviction of Theresa Spencer at a separate trial as a participant in the same offense of felony murder. The facts, set forth in greater detail in that opinion, may be briefly summarized for the purpose of this appeal. The jury could reasonably have found from the evidence that on December 11,1980, Raymond Lovell was found dead in his room at the Holiday Inn in New Haven. He had been bound with handcuffs and a cord, gagged, his head covered with a pillow case, and beaten on the head with a blunt object, causing injuries that resulted in his death. On December 8,1980, three days before Lovell's body was discovered, the defendant had driven to New Haven from Philadelphia, accompanied by Lawrence Nowlin and Theresa Spencer. The defendant brought with him a set of handcuffs, a metal pipe and a handgun. Nowlin and Spencer testified in behalf of the state at the defendant's trial and provided most of the evidence of his involvement in the crime. The trio spent the night of December 8 in New Haven at the home of an acquaintance of Spencer. They had initially intended to rob this person, but later abandoned the plan. On December 9, Spencer contacted Lovell, the victim, whom she had met previously while working for a magazine sales organization that also employed him. She spent that night with Lovell in his motel room. The next day, December 10, she rejoined Nowlin and the defendant at the motel where they were then staying. The defendant, with Nowlin and Spencer, drove to the Holiday Inn where Lovell was staying. Lovell did not return to the motel until the late afternoon, at which time he spoke with Spencer about her returning to his room that evening. The defendant, observing that Lovell wore expensive clothing and jewelry and drove a Cadillac, expressed his intention of robbing Lovell with the assistance of Nowlin and Spencer. The trio returned to the Holiday Inn at about 8 p.m. that evening. Spencer entered Lovell's room while Nowlin and the defendant remained in the car. After some period of time, Nowlin knocked on the door of the room and Spencer let him and the defendant into the room. The defendant used the bathroom and, when he emerged, he held a handgun. He demanded that Lovell give him his money and his drugs. Lovell was bound, gagged and blindfolded by placing a pillow case over his head. The defendant then struck Lovell several times on the head with an iron pipe. Assisted by Nowlin and Spencer, the defendant searched the room and removed some of Lovell's jewelry and clothing, which they placed in the trunk of the defendant's car. One of his accomplices drove Lovell's Cadillac and followed the defendant, who was driving his own car. After it had been searched, the Cadillac was abandoned on the Merritt Parkway. The trio then returned to Philadelphia. The defendant testified at trial in support of his alibi defense that, at the time when the crime was committed, he was waiting for Nowlin and Spencer at a bar located near the motel where Lovell resided. He said that they had used his car to pick up some possessions of Spencer at the motel and that, when they returned, the trio drove back to Philadelphia. He also testified that, at the time he learned of the murder several weeks later, when the trio was in North Carolina, both Spencer and Nowlin made statements indicating their involvement in the robbery and murder of Lovell. I The defendant claims that certain questions put to him on cross-examination to show that his alibi was of recent contrivance and to attack his credibility violated his constitutional right to remain silent under the strictures of Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). Doyle held that postarrest silence is "insolubly ambiguous" because it may have been nothing more than the exercise by an arrestee of his right to remain silent in the wake of the customary warning of his rights given at the time of his arrest pursuant to Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Long before these decisions this court had reached a similar conclusion, on nonconstitutional grounds, that evidence of silence when an accused is in custody is inadmissible. State v. Ferrone, 97 Conn. 258, 266, 116 A. 336 (1922). Under such circumstances, "our law accords him the right to reply to question or statement, or to remain silent. His silence under such circumstances cannot be laid in evidence against him." Id; see State v. Morrill, 197 Conn. 507, 535-36, 498 A.2d 76 (1985); State v. Cook, 174 Conn. 73, 76, 381 A.2d 563 (1977). A The defendant seeks to extend the prohibition against evidence of postarrest silence of an accused to the period prior to his arrest. He acknowledges that such a claim, when based upon federal constitutional provisions guaranteeing the right of an accused to remain silent and to due process of law, has been rejected. Jenkins v. Anderson, 447 U.S. 231, 235, 100 S. Ct. 2124, 65 L. Ed. 2d 2486 (1980); Raffel v. United States, 271 U.S. 494, 496-97, 46 S. Ct. 566, 70 L. Ed. 1054 (1926). He maintains, however, that analogous provi sions of our state constitution, article first, § 8, should be construed to afford greater protection to these rights of an accused than the federal constitution has provided. The defendant points to no history relating to our state constitution nor to any significant differences from their federal counterparts in the language of the state constitutional provisions relied upon that might warrant a different interpretation. Although this court recognized under principles of the law of evidence the ambiguity inherent in the postarrest silence of an accused long before the advent of Miranda warnings, which add a further dimension of unfairness to its use by the prosecution, we have, nevertheless, followed the general principle that pre-arrest silence under circumstances where one would naturally be expected to speak may be used either as an admission or for impeachment purposes. McCormick, Evidence (3d Ed.) § 160, 270. "When a statement, accusatory in nature, made in the presence and hearing of an accused, is not denied or explained by him, it may be received into evidence as an admission on his part." State v. Cook, supra, 76; State v. Yochelman, 107 Conn. 148, 152, 139 A. 632 (1927). The circumstances, of course, must be such that a reply would naturally be called for even in the prearrest setting. State v. Vitale, 197 Conn. 396, 405-406, 497 A.2d 956 (1985). "Although evidence of silence in the face of an accusation may be admissible under the ancient maxim that 'silence gives consent' the inference of assent may be made only when no other explanation is consistent with silence." State v. Harris, 182 Conn. 220, 229, 438 A.2d 38 (1980). We can perceive no violation of any constitutional right, state or federal, in our continued adherence to these rules. The additional claim of the defendant, that evidence of his pre-arrest silence was introduced without satisfying the evidentiary standards for admissibility requiring proof of circumstances naturally calling for him to speak, does not involve a claimed violation of any constitutional right. The failure of the defendant to raise any objection in the trial court to the prosecutor's inquiries on this subject precludes appellate review. Practice Book § 288. We are not convinced that we should invoke our authority to notice "plain error" in accordance with Practice Book § 3063, because, if objection had been raised, the state would have had an opportunity to supplement the foundation shown by the present record for the admission of such evidence. B The first claimed violation of the defendant's right of postarrest silence as delineated in Doyle v. Ohio, supra, relates to his responses on cross-examination to questions concerning his failure to inform the police at the time he "turned himself in" that the car that had been observed at the Holiday Inn in New Haven at the time of the murder was owned by him rather than his uncle, in whose name it had been registered. In presenting its case the state had called Paul Lee-can, the defendant's uncle, who testified that he took title to the automobile, which the defendant had purchased on July 6, 1980, at the request of the defendant and that he had used the car for only a few days afterward. Paul Leecan also testified that the defendant had told him that he was going to Connecticut to surrender himself to the police and that he would clear up any involvement arising from the registration of the car in the name of his uncle. On cross-examination the defendant admitted telling Paul Leecan that he was going to Connecticut "to straighten that out." This response was followed by the question at issue: "And, of course, you immediately came forward then and helped straighten that out, that it wasn't his car, in March of 1981 when you turned yourself in?" Defense counsel objected that the question constituted an impermissible comment on the defendant's right to remain silent by highlighting the fact that the defendant, unlike his confederates, Nowlin and Spencer, had never given any statement to the police. The state claimed the question to be related to the credibility of the defendant. The court overruled the objection and defense counsel duly excepted. He also moved for a mistrial, which the court denied. When the question was read back to the defendant on the witness stand, he responded that, at the time, he "was advised by an attorney not to give any statement whatsoever." The prosecutor also elicited, without further objection being raised, that the answer to his question was "No." Although the defendant relies upon the Doyle principle that silence following Miranda warnings is "insolubly ambiguous" and, therefore, cannot be used by the prosecution, he concedes that the record in this case does not disclose whether any such warnings were given or when they may have been given. In Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982), the United States Supreme Court held that the absence of any indication in the record that the silence of a defendant had been preceded by a Miranda warning rendered Doyle inapplicable, even though the inquiry of the prosecutor pertained to the time of arrest. "In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand." Id., 607. This clarification of the scope of Doyle was not envisioned by this court in State v. Cook, supra, 76-77, when we held that it was not essential for the record to disclose at what point or whether Miranda warnings were given to a defendant when his postarrest silence is the subject of a prosecutorial inquiry. Our holding in Cook, that a defendant's federal constitutional rights are infringed by questions relating to postarrest silence even in the absence of Miranda warnings, must accordingly be modified. The defendant urges that we continue to abide by our holding in Cook as a matter of state constitutional law or as a rule of evidence. In Cook the failure to except to the evidentiary ruling allowing inquiry concerning postarrest silence required treatment of the claimed error on appeal as the deprivation of a fundamental constitutional right, for which review was available under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). This circumstance, however, does not indicate that any distinct state constitutional right was implicated, because Doyle was plainly viewed as applicable, thus making the issue cognizable as a federal constitutional claim. Cook does not refer to our state constitution even as an additional ground for its holding. As we have previously noted in dismissing the defendant's claim that pre-arrest silence should be accorded state constitutional protection, there is no historical or lexicological basis for different treatment of the parallel provisions of our state and federal constitutional provisions pertaining to the right of an accused to remain silent under the circumstances of this case. We are also not persuaded that contemporary considerations of soeial policy and the administration of the criminal justice system in this state warrant a broader view of our state constitutional provisions in the context of postarrest silence. Putting a constitutional gloss upon every postarrest silence inquiry makes it possible for defense counsel to sit back without voicing objection when such questions are asked, secure in the knowlege that his neglect may well provide his client with an opportunity to overturn an unfavorable verdict on appeal. See State v. Evans, supra, 67. Our experience with claims of error under Doyle indicates a widespread failure of defense counsel to alert the trial court by a proper objection and exception when improper inquiries concerning the silence of an accused are made. We, therefore, decline in this instance to afford under our state constitution greater protection for the right of postarrest silence than is available under our federal constitution. We agree with the defendant, nevertheless, that the view we expressed in State v. Ferrone, supra, 266, that postarrest silence is inadmissible under principles of the law of evidence, is sound. Because many persons, even in the absence of a Miranda warning, are aware of their right to remain silent and are frequently advised by counsel to exercise that right when arrested, the custodial setting is simply not an occasion when the circumstances naturally call upon a defendant to speak or to reply to police inquiries. Accordingly, there is ordinarily no reasonable basis to infer that a defendant's silence in such a situation indicates that he acknowledges the truth of some assertion implicit in a question asked by a police officer. Since Ferrone is grounded upon the rules of evidence and does not purport to establish a constitutional principle, a defend ant must seasonably object and take exception to an adverse ruling in order to obtain appellate review of his claim of error in this respect. The defendant did object to the prosecutor's inquiry in this case concerning his failure to "straighten out" the problem created for his uncle by the registration of the car in his name. He also excepted to the ruling allowing the question. The basis for his objection, however, was not a claim of Doyle silence or the impropriety of inferring an admission from the defendant's failure to speak once he had been arrested. His objection was that the question amounted to an impermissible comment on the defendant's right to remain silent under the fifth amendment to the federal constitution because it drew attention to the fact that the defendant, unlike his confederates, Nowlin and Spencer, had given no statement to the police. In addition to this departure from the requirements of Practice Book § 288, the defendant has failed to persuade us that the error was probably harmful to him. The subject of the inquiry, the defendant's failure to inform the police that his uncle had never actually owned the car registered in his name, can hardly be regarded as very critical to the determination of guilt. The defendant's failure to fulfill a promise made to his uncle could have had only slight effect upon his credibility and no effect in establishing his guilt. He had conceded in his direct testimony that the car used by him and his associates, Nowlin and Spencer, belonged to him. We conclude that, although the court erred in allowing the question, the circumstances do not indicate that the error was probably harmful as required for a reversal where no constitutional right is involved. State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982); State v. Gordon, 185 Conn. 402, 419, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982). c The remaining violations of his right of silence claimed by the defendant relate to his testimony on direct examination that he had remained at a bar in New Haven while Nowlin and Spencer went to see Lovell, the victim, at the motel where he resided in order to retrieve Spencer's personal belongings as well as a paycheck owed to her by her former employer. On cross-examination the defendant testified that he had first learned of the murder when he was in North Carolina in late December, 1980, or in early January, 1981. The prosecutor then asked a series of questions concerning whether the defendant had gone to the police when he learned of the murder to explain that he was not involved in the crime and to give such information as he had about the activities of Nowlin and Spencer. The defendant responded negatively several times, but then, in response to a question of whether he had "come forward to any authorities" to reveal his information, he said: "Not until I turned myself in in March. No, I didn't." The cross-examination proceeded: "Q. And in March, did you tell them that? "A. No, I didn't tell them anything. I was under the advice of an attorney. "Q. So you never said it until you were sitting here? "A. As a result of the advice of my attorney. "Q. Well, sir, let me ask you this: From January 15 to the date of March 3, forgetting when you turned yourself in, up to March 3, did you ever go forward and say, 'Hey, I've got some information concerning that accident that took place in New Haven? . . .' "A. No, I didn't. . . . "Q. And you did nothing to clear this case up, did you, during that period of time that you were free and roaming the streets? "A. Not until I turned myself in, no, sir. "Q. You didn't do anything then, did you? "A. Under the advice of an attorney, no, sir." During the remainder of the cross-examination the state repeatedly questioned the defendant about his failure to "come forward" to inform the police about his knowledge of the murder, but these questions clearly focused upon the period prior to March 4,1981, when the defendant surrendered himself to the New Haven police, except in two instances: "Q. Did you do one thing to clear your name right after you found out about this? "A. No, I didn't. "Q. In all of January? "A, No, sir, I didn't. "Q. In all of February? "A. No, sir, I didn't. "Q. March first? "A. No, sir. "Q. Second? "A. No, sir. "Q. Third? "A. No, sir. "Q. And this is the first time you've told this story? [Emphasis added.] "A. Yes, sir. "Q. And there was nothing you ever did to clear your name right from the moment you heard the accusations against you to the moment that you surrender to the day you testified? [Emphasis added.] "A. When you say 'heard the accusations against me,' I don't understand that. "Q. You didn't know that you had been accused in this case? "A. Oh, yes. "Q. When did you first learn that? "A. When I was in North Carolina. "Q. And, of course, you called and said to the sheriff, 'Hey, I've got some information that I want to get to the New Haven Police?' "A. No, sir, I didn't. "Q. You called the New Haven Police and said, 'I'd like to talk to you guys?' "A. No, sir, I didn't. "Q. You called the State's Attorneys Office and said, 'I'd like to talk to you?' "A. No. "Q. You called the Public Defenders Office and said, 'I've got some information that I think will clear me?' "A. No, sir, I didn't." At no time did defense counsel object to any of the questions that related to the defendant's failure to make a statement to the police after he submitted himself to their custody. The defendant explained simply that he was following the advice of counsel. Though these inquiries were objectionable under the principles of State v. Ferrone, supra, the absence of a seasonable objection and exception precludes reliance upon them in this appeal. Practice Book § 288. The defendant claims, however, that the questions about his postarrest silence violated his constitutional rights as delineated in Doyle v. Ohio, supra, and that he thus is entitled to review pursuant to State v. Evans, supra. We have held Doyle violations reviewable under Evans. State v. Morrill, 197 Conn. 507, 536, 498 A.2d 76 (1985); State v. Zeko, 177 Conn. 545, 553, 418 A.2d 917 (1979). As we have previously noted, the record in this case does not indicate that the defendant ever received a Miranda warning, the necessary predicate to reliance upon Doyle. Fletcher v. Weir, supra, 607. Aware of this deficiency, the defendant urges that we take judicial notice of the probability that at some point between his arrest and his trial he would have been advised of his constitutional right to remain silent and told that his silence could not be used against him. He refers to General Statutes § 54-1b and Practice Book § 637, which require an accused at the time of arraignment to be informed that he is not obliged to say anything and that anything he says may be used against him. We do not regard the advice given by a court or a clerk pursuant to these provisions as the functional equivalent of a Miranda warning given by the police prior to custodial interrogation. It is not as explicit, and is thus not so likely to induce silence in reliance upon it. Furthermore, the defendant in this case testified that he had disclosed nothing to the police, not because of any official warning received at arraignment or at any other time, but because his attorney advised him to remain silent. It appears, therefore, that neither the police nor any other government personnel can reasonably be deemed to have induced the defendant's post-arrest silence, as is essential to support a claimed violation of Doyle. Fletcher v. Weir, supra. We are also not convinced that, in the context of the entire cross-examination, even if the record demonstrated that & Miranda warning had been given by the police to the defendant at the time of his arrest, a Doyle violation would have occurred. It was not until the defendant, in response to a question that appears to have been related to his pre-arrest silence, declared that he had not "come forward" and given his information to the police "until I turned myself in in March" that the prosecutor asked his first questions about post-arrest silence. The implication of the defendant's answer, in the absence of clarification by these questions, was that he had revealed what he knew about the murder at the time he surrendered to the police or thereafter. "It goes almost without saying that the fact of postarrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant's testimony as to his behavior following arrest." Doyle v. Ohio, supra, 619 n.11. In this case the defendant's unsolicited response that he had given no information about the crime "until" he was taken into custody falls within the parameters of this exception to the prohibition against use of postarrest silence. The follow-up questions focusing upon the period after the arrest were essential in order to clarify the ambiguous response of the defendant. On the two later occasions, when a series of questions concerning his pre-arrest silence included single references also to his postarrest silence, the defendant cannot be said to have invited these postarrest inquiries by his responses. Since these questions were merely repetitious of those asked following the defendant's initial ambiguous response, however, we conclude that the later inquiries were harmless beyond a reasonable doubt. See Schneble v. Florida, 405 U.S. 427, 431, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972); State v. Pellegrino, 194 Conn. 279, 291-92, 480 A.2d 537 (1984); State v. Randolph, 190 Conn. 576, 589-90, 462 A.2d 1011 (1983); State v. Zeko, supra, 554-58. II The remaining claims of the defendant regarding improper evidence, which do not implicate any constitutional right, relate to the admission of: (1) a letter containing a threat against a witness for the state; (2) evidence of outstanding warrants for the arrest of the defendant upon unrelated criminal charges; and (3) evidence of other prior felony arrests. A The defendant claims that a letter, received by Theresa Spencer while her trial was in progress, that contained a statement of the defendant's intention to seek reprisal against an unnamed "snitch" was improperly admitted in evidence. The first ground of objection is authenticity, that there was insufficient proof that the defendant had authored the letter. The defendant concedes that at the time the letter was admitted there was a sufficient evidentiary foundation for its admission in the testimony of Spencer that she recognized the letter to be in the defendant's handwriting and that the fictitious name, "Gemini," signed by the sender was one the defendant sometimes used as a nickname. Later in the trial a handwriting expert testified that the handwriting on the letter and envelope was not that of the defendant. The state conceded the validity of this opinion but maintained that the defendant's authorship of the letter was amply proved by its contents and the use of the defendant's nickname. Though no motion to strike the exhibit was made, the defendant urges us to treat the court's failure to do so sua sponte as "plain error." See Practice Book § 3063. We see no basis for doing so, because the defendant's connection with the letter is sufficiently established by its contents and the circumstances under which it was received. The defendant also claims that the court abused its discretion in admitting the letter because its probative value was minimal in comparison to its prejudicial effect. On several occasions this court has approved the admission of threats against or attempted intimidation of witnesses as evidence of consciousness of guilt. State v. Maturo, 188 Conn. 591, 598, 452 A.2d 642 (1982); State v. Brokaw, 181 Conn. 475, 479, 436 A.2d 6 (1980); State v. Sorbo, 174 Conn. 253, 256, 386 A.2d 221 (1978); State v. Moynahan, 164 Conn. 560, 597, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973); State v. Holliday, 159 Conn. 169, 173, 268 A.2d 368 (1970). These cases amply support the court's exercise of discretion in admitting evidence of the defendant's intention to seek reprisal against Nowlin for testifying on behalf of the state. The letter is also significant in showing the relationship between Spencer and the defendant during the period before their arrest. We reject this claim of error. B Prior to the testimony of Paul Leecan, the defendant's uncle, the defendant obtained an in limine ruling that the state would not be permitted on direct examination of this witness to show that the reason the car uséd in perpetrating the crime had not been registered in the name of the defendant was the existence of some outstanding warrants for his arrest. Accordingly, no mention was made of any outstanding arrest warrants during the presentation of the state's case. During cross-examination of the defendant, however, the state's attorney, without objection, asked why the car title had been placed in Paul Leecan's name. The defendant responded "personal reasons" and, upon further inquiry, "insurance purposes." When asked if that was the only reason, he answered affirmatively. The prosecutor then referred to the "representations" made by counsel for the defendant that the reason for using the uncle's name "may have been that there was an outstanding arrest warrant for my client." At this point defense counsel objected and the jury was excused. The trial court deferred ruling on the objection until a transcript of defense counsel's remarks during the in limine proceeding could be obtained. Cross-examination of the defendant before the jury continued in the interim and he testified further that the car was not registered in his name because he was under twenty-five years of age at the time and, thus, it was cheaper to use his uncle's name. Later, the court, after reviewing the in limine proceeding, ruled that the state's attorney would be permitted to inquire as to whether the existence of outstanding arrest warrants was the reason the car had not been registered in the defendant's name in view of his testimony of a different reason. The defendant excepted to the ruling. We conclude that the trial court could have reasonably viewed the earlier statement of defense counsel, made in the presence of the defendant, as inconsistent with the defendant's testimony that the sole reason for the false registration was to reduce the cost of insurance. The court could reasonably assume that defense counsel's statement was based upon information given to him by the defendant and thus evidenced a statement made by the defendant. The inquiries concerning the arrest warrants were, therefore, permissible for the purpose of attacking the credibility of the defendant. State v. Reed, 174 Conn. 287, 302, 386 A.2d 243 (1978); State v. Keating, 151 Conn. 592, 597, 200 A.2d 724 (1964), cert. denied sub nom. Joseph v. State, 379 U.S. 963, 85 S. Ct. 654, 13 L. Ed. 2d 557 (1965). In a related ruling, the court allowed a deputy sheriff to testify that he had overheard a statement of the defendant during the luncheon recess that followed his testimony that his car had been registered in his uncle's name for insurance purposes. The defendant had spoken to his attorney in the elevator while the sheriff was also present. The defendant was reported to have said that "he couldn't have said anything about the outstanding warrants" and that, if he had done so, "that would have been it, wouldn't it have?" The court overruled defense counsel's objection that the statement was a privileged communication, a ground for exclusion that has been abandoned on appeal. Belatedly the defendant now argues that the court abused its discretion in balancing the probative value of this evidence against its prejudicial effect, seeking review under the "plain error" principle. Practice Book § 3063. In view of the other evidence on the same subject that we have held admissible, this additional testimony was not of such significance that justice requires us to overlook the failure to state in the trial court the ground of objection relied upon in the appeal. Practice Book § 288. We decline to review this claim of error further. C The defendant claims that the court erred in permitting the state's attorney to cross-examine him about his prior felony arrests. On direct examination he had testified that "this [was] the first time [he] ever saw a trial" and that he had never been in jail before. The court ruled that the inquiries concerning the defendant's prior arrests were pertinent in view of the defendant's testimony that he was a newcomer to the courts. No exception was taken to this ruling, however, and we shall not review it further. Practice Book § 288. The defendant claims no violation of any constitutional right nor any plain error that would allow review of this claim in the absence of an exception. See Practice Book § 3063; State v. Evans, supra. Ill The defendant also claims that the court erred in its charge to the jury in three respects, two of which were not properly raised in the trial court. Despite his arguments to the contrary, we are not persuaded that any of the claimed errors belatedly raised on appeal qualify for review as issues involving the denial of a fundamental constitutional right under State v. Evans, supra, or as "plain error" under Practice Book § 3063. A Despite the absence of a request to charge or an exception to the charge as given, the defendant claims error in the failure of the court to charge upon the affirmative defense to a felony murder charge, as set forth in General Statutes § 53a-54c. We have recently indicated that a failure to charge upon an affirmative defense, in the absence of a request or an exception, does not amount to the denial of a fundamental constitutional right and, therefore, does not qualify for review under Evans. State v. Preyer, 198 Conn. 190, 196-97, 502 A.2d 858 (1985). The circumstances also do not warrant application of the "plain error" doctrine, because the only evidentiary basis for this affirmative defense was the defendant's testimony in support of his alibi, which the jury's verdict implicitly rejected. See State v. Valeriano, 191 Conn. 659, 664, 468 A.2d 936 (1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984). B The defendant also claims error in the charge upon reasonable doubt, to which no exception was taken, in two respects: (1) the definition of a reasonable doubt as "a doubt for which a reasonable man can give a valid reason"; and (2) the failure to mention that a reasonable doubt may arise from the lack of evidence when charging that it is not a doubt "unwarranted by the evidence" and is a doubt "founded on the evidence." The defendant claims that these instructions impermissibly lowered the constitutionally mandated standard of proof beyond a reasonable doubt that the state must sustain in order to support a conviction. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Despite the failure to raise the issue in the trial court, such a claim does necessitate review for the limited purpose of determining whether a fundamental constitutional right has been infringed. State v. Hinckley, 198 Conn. 77, 86-87, 502 A.2d 388 (1985); State v. Evans, supra, 69. This court has held that an instruction that a reasonable doubt is "one for which you can, in your own mind, conscientiously give a reason" does not violate any constitutional right of a defendant. State v. Derrico, 181 Conn. 151, 170, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). Although more recently the instruction has been criticized; Adams v. South Carolina, 464 U.S. 1023, 104 S. Ct. 558, 78 L. Ed. 2d 730 (1983) (Brennan and Marshall, Js., dissenting from denial of certiorari); Butler v. South Carolina, 459 U.S. 932, 103 S. Ct. 242, 74 L. Ed. 2d 191 (1982) (Marshall, J., dissenting from denial of certiorari); we are not persuaded to change our view that, in the context of the whole charge on reasonable doubt, such an instruction violates no constitutional right. Our analysis of the failure to instruct that a reasonable doubt may arise from the lack of evidence in a case as well as from the evidence produced is similar. We do not believe that this omission rendered the charge on reasonable doubt so defective as to violate the defendant's constitutional right to a fair trial. See State v. Evans, supra. C The defendant did take exception to the trial court's "missing witness" instruction with respect to his failure to produce his wife as a witness. The state had requested such an instruction in accordance with Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960), and had obtained permission in accordance with State v. Daniels, 180 Conn. 101, 113-14, 429 A.2d 813 (1980), to argue that an inference should be drawn from the absence of the defendant's wife as a witness. The defendant excepted to the charge on two grounds: (1) the failure of the state to demonstrate that the defendant's wife was available to testify; and (2) the absence of any indication that his wife's testimony would relate to any material issues in the case. The defendant testified that he had lived with his common-law wife in Philadelphia for eight years and that they had one child. Since the time of his arrest his wife and child had continued to occupy the same residence that he had shared with them previously. There was also evidence of continuing communication and a cordial relationship between the defendant and his wife since he had been in prison. The fact that his wife resided in another state did not render her unavailable as a witness. State v. Bennett, 171 Conn. 47, 56-57, 368 A.2d 184 (1976); see General Statutes § 54-82L We conclude that there was sufficient evidence of availability of the witness to satisfy this requirement of Secondino. With respect to the materiality of the testimony of the defendant's wife, it appears that she might have been able to support his claim that he had separated from Nowlin and Spencer prior to learning of their arrest and had returned to Philadelphia with the intention of surrendering to the police in order to respond to the charges against him. The defendant testified that his wife sent him some money so that he could return from Florida to his home by bus. He also said he first learned of the apprehension of Nowlin and Spencer from his wife some time after he had come back to live with her in Philadelphia. Her testimony, therefore, could reasonably have been viewed as sufficiently important to warrant an unfavorable inference from the failure to produce her as a witness with respect to those aspects of the defense claim. The defendant also claims that the content of the "missing witness" charge was deficient in that the court failed to limit the doctrine to a witness who would naturally be produced because of his possession of "peculiar or superior information material to the case which, if favorable, the party would produce." See Secondino v. New Haven Gas Co., supra, 675. Because of the failure to except to the charge on this ground, however, we shall not review this claim of error. Practice Book § 854. The omission relied upon does not involve any constitutional right nor is it of such significance that we should review it as "plain error." Practice Book § 3063. IV The final claim of the defendant is that he was denied the effective assistance of counsel. "This court has emphasized in other cases that a claim of ineffective assistance of counsel is more properly pursued on a petition for new trial or on a petition for a writ of habeas corpus rather than on direct appeal." State v. Mason, 186 Conn. 574, 578-79, 442 A.2d 1335 (1982); State v. Just, 185 Conn. 339, 370-71, 441 A.2d 98 (1981). The trial transcript seldom discloses all of the considerations of strategy that may have induced counsel to follow a particular course of action. The defendant appears to have been concerned that his failure on appeal to raise any ineffective assistance claims that the record adequately supports might be regarded as a deliberate bypass of the appellate remedy, which would preclude review of them in a habeas corpus proceeding. See State v. Gethers, 193 Conn. 526, 541, 480 A.2d 435 (1984). We have recently relaxed the deliberate bypass rule in cases in which the sole claim for relief from a criminal conviction is a claim of ineffective assistance of counsel. State v. Rivera, 196 Conn. 567, 571, 494 A.2d 570 (1985). In this appeal the defendant has raised several grounds for setting aside his conviction in addition to his claim of incompetent counsel and, thus, Rivera is not controlling. On further consideration, however, we have decided once more to lower this barrier to habeas corpus relief. It is preferable that all of the claims of ineffective assistance, those arguably supported by the record as well as others requiring an evidentiary hearing, be evaluated by the same trier in the same proceeding. A defendant should not be required to await the outcome of his appeal upon other issues before pursuing his claim of incompetent counsel. If his claim is meritorious, he may often obtain relief in the trial court before his appeal on other issues can be heard, thus mooting such an appeal. An appeal by the state or the defendant from the determination of the incompetency of counsel question may also be joined with a pending appeal from the judgment of conviction, thus allowing a single resolution on appeal of all the claims of error that have been raised. In view of this modification of our procedure in regard to ineffective assistance claims, we shall not review at this time even the portion of the defendant's ineffective assistance claim that he contends is adequately supported by the record. Though we have resolved his other claims of error, we believe that his ineffective assistance claim should be resolved, not in piecemeal fashion, but as a totality after an evidentiary hearing in the trial court where the attorney whose conduct is in question may have an opportunity to testify. There is no error. In this opinion the other judges concurred. The attorney representing the defendant on appeal did not represent him at trial. "[Conn. Const., art. I] (Rights of accused in criminal prosecutions. What cases bailable. Speedy trial. Due process. Excessive bail or fines. Presentment of grand jury, when necessary.) Sec. 8. In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger." "[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury."

Callahan, J. A jury found the defendant, Jerry Lee Davis, guilty of robbery in the first degree, a violation of General Statutes § 53a-134 (a) (3). He was sentenced to imprisonment for seven years. On appeal, he claims that the trial court erred in: (1) refusing to suppress an out-of-court photographic identification and a subsequent in-court identification, and (2) refusing to instruct the jury adequately on the subject of eyewitness identification. We find no error. The jury could reasonably have found the following facts: At about 7 a.m. on March 25,1982, in Danbury, the victim, a thirteen year old girl, was accosted on her way to school by a black male holding a knife. He told her if she did not surrender her pocketbook, he was going to cut her throat. After taking the victim's purse, the robber entered a small red car with green patches and was driven away by an unidentified operator. That afternoon, when the victim returned home, she told her mother about the incident and her mother called the police. Officer Thomas Mack of the Danbury police department talked with the victim and obtained a description of her assailant. Although the victim did not recall how long she had had the robber in.view, she was able to describe him in detail. She told the officer that he was wearing a green sweater and blue coveralls with suspenders and that he had a moustache and a growth of facial hair, but not a full beard. We first address the defendant's claim that the trial court erred in refusing to suppress the out-of-court photographic identification of the defendant and the subsequent in-court identification. "A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure." State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984). This court has repeatedly stated that " ' "[i]n determining whether identification procedures violate a defendant's due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on the 'totality of the circumstances. ' " . . . ' " State v. Hinton, 196 Conn. 289, 292-93, 493 A.2d 837 (1985); State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985); State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980). The day after the robbery, Mack and another officer went to the victim's home and displayed seven photographs to the victim in an effort to have her identify the assailant. The victim viewed the photographs and immediately picked out a photograph of the defendant as the person who had confronted her the morning before. At the time she viewed the photographs, she knew the police had a suspect in custody. The photographic array used by the Danbury police department contained black and white photographs of similar looking black males. All of the men pictured in the photographs had similar builds and some type of facial hair. Each photograph showed, on a placard, the date of the arrest of the individual depicted. The only recent arrest date on the photographs in the array was the date of March, 1982, which was on the photograph of the defendant. In the photograph, the defendant was depicted wearing the same clothes worn by the robber at the time of the crime, bibbed blue jeans with a shirt underneath. We agree with the defendant that the similar clothing and the recent arrest date in the photograph and the fact that the victim knew a suspect was in custody made the photographic display unnecessarily suggestive; nevertheless, we find that the victim's identification of the defendant was reliable based on the totality of the circumstances. "The constitutional test for reliability requires the trial court to consider 'the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of [her] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.' Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Theriault, supra, 373-74." State v. Hinton, supra, 295-96. At the time of the robbery, the victim viewed the defendant from a distance of about three and one-half feet. She also had the opportunity to view him as he ran to his car which was approximately 100 feet away. She described the robber "as being five foot ten, large frame, almost heavyset, having a wild-type hair, some facial hair, and was wearing blue jeans-type overalls, with a green shirt underneath the overalls," an accurate and detailed description which fit the defendant. The identification procedure took place only thirty-two hours after the robbery. Mack testified that when the victim picked out the photograph of the defendant she stated that "she recognized him, and she felt certain that this was the individual, that the features matched the features that she knew existed." There is no indication that the victim based her identification on the clothing worn by the defendant or on the dates in the photographs. The victim testified that "I saw the numbers, but I didn't know what they meant. I really didn't pay much attention to them. I was just looking at the faces." We conclude that the out-of-court photographic identification procedure even though unnecessarily suggestive resulted in a reliable identification and did not violate the defendant's right to due process. The trial court did not err in refusing to suppress the out-of-court identification. Further, we do not find error in the refusal of the trial court to suppress the in-court identification of the defendant by the victim. This court will set aside a conviction based upon an in-court identification which follows an out-of-court identification only " 'if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' " State v. Fullwood, 193 Conn. 238, 243-44, 476 A.2d 550 (1984), quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Parker, 197 Conn. 595, 598, 500 A.2d 551 (1985); State v. Vass, 191 Conn. 604, 609, 469 A.2d 767 (1983); State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983). In the present case, the photographic identification procedure resulted in a reliable identification and did not give rise to a substantial likelihood of irreparable misidentification. The trial court acted properly in refusing to suppress the victim's in-court identification. The defendant's second claim on appeal is that the trial court erred in its instructions to the jury on eyewitness identification by refusing to include in its charge a Telfaire instruction on identification, an instruction which was requested by the defendant. The Telfaire instruction tells the jury to consider in appraising the identification testimony of a witness the adequacy of his opportunity and his capacity to observe the offender; the length of time available for the witness to observe the offender; the proximity of the witness to the offender; whether the witness had seen or known this person in the past; whether the identification was a product of the witness' own recollection; and the credibility of the witness. United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972). "Although we have indicated that a court should grant a request for a charge regarding the dangers of misidentification in an appropriate case, we have not found reversible error in the failure to do so where 'the conviction of the defendant did not turn upon the testimony of eyewitnesses who were uncertain, unclear, or inconsistent.' State v. Harden, 175 Conn. 315, 322, 398 A.2d 1169 (1978); see State v. Maturo, 188 Conn. 591, 600, 452 A.2d 642 (1982); State v. Tinsley, 181 Conn. 388, 393-94, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed 2d 811 (1981)." State v. George, 194 Conn. 361, 375, 481 A.2d 1068 (1984). In the present case, the testimony of the victim was not uncertain, unclear or inconsistent. She was able to give an accurate and detailed description of the defendant and she did not hesitate in choosing, from among the array of photographs, the photograph of the defendant as her assailant. She also identified him with certainty in the courtroom. Additionally, this court has specifically dealt with a trial court's denial of a requested Telf aire instruction in State v. McKnight, 191 Conn. 564, 469 A.2d 397 (1983). In McKnight, we held that the trial court did not err in refusing to give the requested Telfaire instruction because the "salient principles of the court's charge adequately covered the dangers of misidentification." Id., 583. " ' "A charge to the jury will not be critically dissected for the purpose of discovering possible inaccuracies of statements, but the charge is to be considered, rather, as to its probable effect upon the jury in guiding them to a correct verdict in the case." ' State v. Miller, 186 Conn. 654, 661, 443 A.2d 906 (1982)." State v. McKnight, supra, 582. " 'The ultimate test of a court's instructions is whether, taken as a whole, they fairly and adequately present the case to a jury in such a way that injustice is not done to either party under the established rules of law.' State v. Harden, 175 Conn. 315, 322, 398 A.2d 1169 (1978)." State v. McKnight, supra, 583. In the present case, the trial court's charge to the jury included the following references to the identification issue: "one of the main points of contention is the identification of the Defendant"; "[y]ou should also consider the opportunity of a witness for observation, the impressions such witness made upon you for his or her power of observation, the reasonableness of the story told and, then, consider what are the fair and reasonable conclusions or inferences that you can draw"; and "it is incumbent upon the State to prove beyond a reasonable doubt that Mr. Davis was the individual involved in the incident complaint by [the victim]." The trial court also instructed the jury on the credibility of the witnesses. We find that, in viewing the charge as a whole, the trial court fairly and adequately addressed the dangers of misidentification. There is no error. In this opinion the other judges concurred. General Statutes § 53a-134 (a) (3) provides: "Sec. 53a-134. robbery in the first degree: class B felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . (3) uses or threatens the use of a dangerous instrument . . . ."

Borden, J. The defendant appeals from the judgment of conviction, after a jury trial, of three counts of professional gambling in violation of General Statutes § 53-278d (b), three counts of using a telephone to transmit and receive gambling information in violation of General Statutes § 53-278d (a), and one count of possession of gambling records in violation of General Statutes (Rev. to 1979) § 53-278c (e). His conviction resulted in part from the introduction into evidence of tape recordings of his conversations, over a telephone located at a bar known as The Ivy Hill Lounge (the lounge), which were intercepted pursuant to a judicially authorized wiretap. The court denied the defendant's motions to suppress as evidence the tape recordings of his conversations. The principal issues are: (1) whether a telephone leased to a bar and made available for local calls to its patrons is a public telephone facility within the meaning of General Statutes § 54-4M (7); (2) whether General Statutes § 54-41e requires more from the judicial panel issuing a wiretap order than a written statement, based on the supporting affidavit and application, specifying in the language of the statute the findings required by the statute; and (3) whether the state's attorney for a judicial district is barred by federal law from applying for a wiretap order. The defendant also raises three evidentiary claims, one of which involves the nature and timing of the statutory requirement that tape recordings of the intercepted conversations be sealed. We find no error. The facts are not in dispute. Pursuant to General Statutes § 54-41b, the state's attorney for the judicial district of Hartford-New Britain applied to a judicial wiretap panel for permission to intercept the telephonic communications of the defendant and other unknown persons over telephone facility number 666-4653, located at the lounge, in Newington, described as a commercial location. Attached to the application and specifically incorporated by reference was the affidavit of Trooper John S. Drescher. Drescher's affidavit disclosed, inter alia, that the main business of the lounge was the service of food and of alcoholic beverages. The affidavit also stated that telephone company records revealed that telephone facility 666-4653 was located within the lounge premises, that it was leased to the business, and that there were two extensions to the facility within the lounge. The affidavit further disclosed that there were three telephones located on or behind the bar and in the kitchen, all being extensions of number 666-4653, and that the defendant was using these telephones to engage in professional gambling and to transmit and receive gambling information. The application and affidavit were submitted to the wiretap panel of three judges, which ordered "the interception of the wire communications of [the defendant] and other unknown persons, and transmitted over facility no(s). 666-4653, located at 244 Hartford Avenue, Newington, Conn., The Ivy Hill Lounge." The order contained the following language: "The panel, pursuant to Section 54-41d, of the General Statutes, has unanimously determined on the basis of the facts submitted by the applicant in [Drescher's affidavit] that there is probable cause to believe that" the nine findings required by General Statutes § 54-41d exist. The nine findings of probable cause made by the panel essentially tracked the statutory language of General Statutes § 54-41d. The seventh finding, which corresponded to General Statutes § 54-41d (7), was as follows: "(7) if the facilities from which the wire communication is to be intercepted are public, a special need exists to intercept wire communications over such facilities (if applicable)." The wiretap order was executed, resulting in three reels of tape recordings containing the defendant's conversations over the telephones in the lounge. The defendant filed three separate motions to suppress his intercepted conversations. The first claim was, inter alia, that "[t]he facilities from which the wire communications were intercepted are public and the application for [the] order . . . makes no application of special need sufficient to support the [order] . . . ." The court, Hale, J., denied this motion. The second and third motions claimed, respectively, (1) that the order was facially invalid because the issuing panel failed to state the grounds for its determinations of probable cause as required by General Statues § 54-41e, and (2) that the order was invalid because the state's attorney was not an authorized person to apply for it, pursuant to applicable federal law. The court, Byrne, J., denied these motions and the evidence was admitted in the trial. This appeal followed. I The Defendant's Motions to Suppress A THE PANEL'S FAILURE TO DETERMINE WHETHER THE FACILITY WAS PUBLIC AND, IF SO, WHETHER A SPECIAL NEED EXISTED The defendant's first claim of error involves General Statutes § 54-41d (7), which authorizes the panel to issue a wiretap order "if the panel determines on the basis of the facts submitted by the applicant that there is probable cause to believe that:... (7) if the facilities from which a wire communication is to be intercepted are public, a special need exists to intercept wire communications over such facilities . . . . " The defendant argues that this language requires a specific finding by the panel of probable cause as to whether the facility is public and, if so, a specific finding of probable cause that a special need exists. The defendant further argues that the evidence produced at the hearing on his motion to suppress indicates that the facility tapped was a public telephone, that a reasonable prior investigation by the applicant would have revealed that the telephone had sufficient indicia of publicity to warrant submission of the question of its character to the panel for determination, and that finding number seven of the panel's order was insufficient to meet the mandate of the statute. We reject the defendant's arguments. First, the statute does not, as the defendant argues, require that the issuing panel make a specific finding as to whether the facility is public and, if so, whether a special need exists. General Statutes § 54-41d (7) requires, for wiretap authorization, that "the panel [determines] on the basis of the facts submitted by the applicant that there is probable cause to believe that: . (7) if the facilities from which a wire communication is to be intercepted are public, a special need exists to intercept wire communications over such facilities . . . ." (Emphasis added.) Thus, it is the publicity of the facility, as determined by the facts submitted by the applicant, which triggers the required determination by the panel that a special need exists for interception. There was nothing in the application or affidavit in this case to suggest to the panel that the telephone in the lounge was a public telephone. We simply do not find in the statute the investigative and two-step finding process which the defendant urges. The language of the panel, which tracked the language of the statute and added the caveat, "if applicable," was quite proper. In State v. Levine, 5 Conn. App. 207, 209, 497 A.2d 774, cert. denied, 197 Conn. 816, 500 A.2d 1337 (1985), we held that a panel's finding, which was in the alternative and tracked the statutory language, was proper. A panel's finding which is in the subjunctive and tracks the statutory language is equally proper. Second, the evidence adduced by the defendant at the hearing on this motion to suppress could not, even if taken as true, establish that any of the extensions of the tapped telephone facility in the lounge was a "public" facility as that term is used in General Statutes § 54-41d. That evidence is as follows: The lounge was a bar open to the public. There were three telephones in the lounge, all of which were extensions of number 666-4653. One of the telephones was in the kitchen, one was located behind the bar and one was located at the bar. The telephone in the kitchen was available for use upon request by regular patrons for private conversations. The telephone located behind the bar was used for business and was not generally available for use by patrons of the bar. The telephone at the bar was generally available for use by patrons, usually, but not always, upon request to the bartender. This telephone had a sign on it which stated, "Local calls only. Three minute limit." On occasion a person would enter the bar and use this telephone without purchasing a drink. The word, "public," must be interpreted according to its use in context. 73 C.J.S. 330, Public. One of its usual meanings as an adjective is, "operated for the benefit of the public, rather than for the benefit of a private individual, and it means the public generally has the free and unrestricted right to use it." (Footnotes omitted.) Id., 331. "Public" means "accessible to or shared by all members of the community." Webster's Third International Dictionary. It is clear that this is the sense which the legislature intended by its reference in General Statutes § 54-4 Id to "public" telephone facilities. One does not ordinarily consider a telephone leased to a private commercial establishment, even an establishment which is open to the public as in this case, and made available principally to the establishment's patrons, as a public telephone. Statutory words and phrases, which are neither technical nor words and phrases of art, are construed "according to the commonly approved usage of the language . . . ." General Statutes § 1-1 (a). This reading is buttressed by the scant legislative history relating to General Statutes § 54-41d (7), which suggests that the legislature used the phrase in its conventional, commonly understood sense. See 14 S. Proc., Pt. 2, 1971 Sess., p. 903 (Remarks of Senator Romeo G. Petroni, envisioning a public telephone facility as one located in a railroad station and used by thousands of people.) In this case, none of the telephone extensions in the lounge was a "public" telephone facility. Although they were available to various patrons of the lounge within certain limitations set by the owner of the lounge, and although on occasion nonpatrons would use one of them within the same limitations, there was no showing here that the public had a free and unfettered right to use them, and that they were accessible to or shared by all members of the public. B THE DEFENDANT'S CLAIM OF FACIAL INVALIDITY OF THE ORDER The defendant claims that the wiretap order was facially invalid. This claim has two facets: (1) the order of the panel contains findings in the alternative, some of which are inconsistent with each other; and (2) the order does not comply with the requirement of General Statutes § 54-41e that the order "be accompanied by a written statement of the issuing panel setting forth in detail its determination made in accordance with the provisions of section 54-41d and the grounds therefor . . . ." We disagree. The first facet of the defendant's argument is disposed of by State v. Levine, supra. Specific written findings of the panel in the alternate are findings nonetheless; id.; and the fact that they tracked the statutory language and that some of them may appear inconsistent does not vitiate their validity as findings, as long as they meet the statutory requirements of General Statutes § 54-41d and 54-41e. The second facet of the defendant's argument is more troublesome, but has also been rejected by us. In State v. Mastrianni, 5 Conn. App. 634, 501 A.2d 772 (1985) (per curiam), we rejected a similar challenge to a wiretap order. We address the defendant's claim here in less summary fashion, however, because of the recurring nature of the claim. The wiretap order began by noting that the panel "by unanimous vote . . . orders the interception of the wire communications of [the defendant] and other unknown persons" transmitted over the lounge's telephone facility. The order then stated, inter alia, as follows: "The panel, pursuant to Section 54-41d, of the General Statutes, has unanimously determined on the basis of the facts submitted by the applicant in [Drescher's affidavit] that there is probable cause to believe" that the nine determinations of probable cause required by General Statutes § 54-41d existed. The order also contained all the specifications required by General Statutes § 54-41e (1) through (11), and specifically addressed the contents of a wiretap order required by the remainder of General Statutes § 54-41e, such as the time of its execution, the minimization requirement, and technical assistance by the telephone company. Reading the order together with the application and its supporting affidavit, to which the order specifically referred, renders the factual and legal bases of the order quite clear. We conclude that such a reading satisfied in this case the requirement of General Statutes § 54-41e that the wiretap order "be accompanied by a written statement of the issuing panel setting forth in detail its determination made in accordance with the provisions of section 54-4M and the grounds therefor . . . ." There can be no quarrel with the fact that the wiretap order was accompanied by a written statement of the panel which set forth in detail its determinations of probable cause as required by General Statutes § 54-41d. The order particularly addressed each of the nine probable cause determinations required by that section. The defendant's argument must therefore focus on the language of General Statutes § 54-41e that the panel's written statement set forth "in detail . . . the grounds therefor . . . ." "A statute, even [our wiretap statute] which has been held to be subject to strict construction; State v. Formica, [3 Conn. App. 477, 481, 489 A.2d 1060, cert. denied, 196 Conn. 806, 494 A.2d 903 (1985)]; must be read with common sense, so as to accomplish a reasonable result and not to thwart its purpose." State v. Ralston, 7 Conn. App. 660, 682, 510 A.2d 1346 (1986). The purpose of the statutory requirement that the panel set forth in detail its grounds for the issuance of the order is two-fold: (1) to ensure that the panel will give its full attention to the issue of whether an order should issue; and (2) to permit a reasonable review by the trial court or an appellate court of the propriety of the order. The first purpose is fulfilled by the signed statement of the panel that it "has unanimously determined on the basis of the facts submitted by the applicant in [Drescher's affidavit] that there is probable cause to believe that" the nine requirements of General Statutes § 54-41 d were met. The second purpose is fulfilled by the fact that a reviewing court has before it both the detailed order of the panel and the application together with the supporting affidavit. Just as an ordinary search warrant must not be read in a vacuum but must be evaluated together with its accompanying application and affidavit; see State v. Santiago, 8 Conn. App. 290, 304-305, 513 A.2d 710 (1986); so must a wiretap order be evaluated together with its accompanying application and affidavit. See United States v. Tortorello, 480 F.2d 764, 781 (2d Cir.), cert. denied, 414 U.S. 866, 94 S. Ct. 63, 38 L. Ed. 2d 86 (1973); Moore v. United States, 461 F.2d 1236, 1238 (D.C. Cir. 1972). This reading of General Statutes § 54-41e regarding the contents of the order is buttressed by reference to its legislative history. That history makes it clear that the legislature, in enacting the wiretap statute, intended the procedure of issuance of a wiretap order to be analagous to that of issuance of a search warrant, enhanced, however, by the additional safeguards inherent in the requirement that the order issue only upon the unanimous determination of three judges, unlike a search warrant which is authorized by a single judge. The issuance of a search warrant by a judge requires only that, after making a common sense determination based on the application and affidavit presented to him, probable cause exists; State v. Telesca, 199 Conn. 591, 603, 508 A.2d 1367 (1986); the judge sign the search warrant. It is not required of the issuing judge that he also produce a memorandum of decision or other written statement explaining further the basis of that common sense judgment. We do not believe that General Statutes § 54-41a requires more from the three-judge wiretap panel. The defendant's argument would require a panel to do more than to state its unanimous determination that probable cause exists based on the material presented to it, to state in detail its findings of probable cause as to the nine factors specified in General Statutes § 54-41d, and to state its determination as to the additional matters covered by General Statutes § 54-41e. The defendant would in effect require the panel to draft and agree unanimously on a memorandum of decision somehow spelling out its reasons as to all nine factors specified in General Statutes § 54-41d. This reading of General Statutes § 54-41e misperceives the nature of a memorandum of decision regarding a probable cause determination, would not comport with common sense, would lead to an unreasonable result and would thwart the purpose of the wiretap statutory scheme. State v. Ralston, supra. When a reviewing court, such as a trial court acting on a motion to suppress or an appellate court review ing a trial court's decision on such a motion, issues a written decision in response to a defendant's challenge to the validity of a wiretap order, it ordinarily does so in response to specific claims of defect. Thus, the issues addressed by the court are necessarily confined by the nature of the claims of defect. The defendant's argument would require the panel to construct a written memorandum of decision in the absence of any such claims of defect and, presumably, to anticipate them before they are even made. We cannot attribute to the legislature the intent to create such an unprecedented and bizarre judicial procedure. See Connecticut Natural Gas Corporation v. DPUC, 1 Conn. App. 1, 4, 467 A.2d 679 (1983). Furthermore, such a requirement would undoubtedly require time, a commodity which is ordinarily in short supply when the need for a wiretap is demonstrated. Several of the probable cause determinations required by General Statutes § 54-41d involve findings which focus on timeliness. Subsection (1) of General Statutes § 54-41d requires a finding that an "individual . is committing an offense enumerated in section 54-41b"; subsection (2) requires a finding that "particular communications will constitute material evidence that [such] an offense . . . is being committed"; and subsection (5) requires a finding that the tapped facilities or their location "are being used, or are about to be used, in connection with the commission of such an offense . . . .''It takes little imagination or understanding of the process of gaining considered unanimity among three judges to the contents and wording of a decision, to realize that, while that process is taking place, the bases of those findings could evaporate. Thus, the defendant's argument would thwart a principal purpose of the wiretap scheme, namely, to permit the apprehension, under appropriate safeguards, of persons who have committed or are committing the crimes specified in General Statutes § 54-41b. Indeed, the defendant's proposed reading of General Statutes § 54-41d would in all likelihood produce wiretap orders issued upon bases that no longer exist, and thus would run counter to the "legislative concern that wiretap orders not issue based on stale information." State v. Ralston, supra, 683. C THE DEFENDANT'S CLAIM THAT THE STATE'S ATTORNEY WAS UNAUTHORIZED TO APPLY The defendant's third attack on the validity of the wiretap order is that the state's attorney for the judicial district of Hartford-New Britain was not an authorized applicant for a wiretap order because he was not a "principal prosecuting attorney of any political subdivision" of the state within the meaning of 18 U.S.C. § 2516 (2). This argument is without merit. The basic authority of the states to conduct wiretapping derives from chapter 119 of the United States Code, entitled "Wire Interception and Interception of Oral Communications." The interception and use of wire communications is deemed to be illegal unless specifically authorized by that chapter. 18 U.S.C. § 2511. Section 2516 (2) of title 18 of the United States Code permits "[t]he principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State," to apply for a wiretap order. (Emphasis added.) Pursuant to General Statutes § 54-41b either "[t]he chief state's attorney or the state's attorney for the judicial district in which the interception is to be conducted may make application" to the judicial wiretap panel The defendant argues that since county government was abolished in Connecticut effective October 1,1960, the state's attorney for the Hartford-New Britain judicial district is an official of the judicial district and not of a county, and that a judicial district is merely a geographical division without powers of legislation, taxation, appropriation or self-government. Therefore, he claims, a judicial district is not a "political subdivision" within the meaning of 18 U.S.C. § 2516 (2). We disagree. It is clear from the legislative history of 18 U.S.C. § 2516 (2) that the term, "political subdivision," was not used in any literal sense but was meant to focus on the function of law enforcement. "The important question, however, is not name but function. The intent of the proposed provision is to provide for the centralization of policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State. Who that officer would be would be a question of State law. Where no such office exists, policymaking would not be possible on a statewide basis; it would have to move down to the next level of government. In most States, the principal prosecuting attorney at the next political level of a State, usually the county, would be the district attorney, State's attorney or county solicitor. The intent of the proposed provision is to centralize area-wide law enforcement policy in him. Who he is would also be a question of State law. Where there are both an attorney general and a district attorney, either could authorize applications, the attorney general anywhere in the State and the district attorney anywhere in his county. . . . State legislation enacted in conformity with this chapter should specifically designate the principal prosecuting attorneys empowered to authorize interceptions." Senate Report, No. 1097, U.S. Code Congressional and Administrative News, 90th Congress, 2d Sess. (1968) 2112, 2187. This reading of the federal use of the term is fully consistent with Connecticut law. That law makes clear that "political subdivision" is a comprehensive term which refers to any division of the state made for the purpose of carrying out public governmental functions. State ex rel. Maisano v. Mitchell, 155 Conn. 256, 263, 231 A.2d 539 (1967). Certainly, the function of law enforcement, which our statutes have lodged in the offices of both the chief state's attorney and the various state's attorneys for the judicial districts, is such a function. Indeed, in 1971, when our wiretap statute was first enacted, only the state's attorneys were authorized to make applications. See General Statutes (Rev. to 1972) § 54-41b. The office of chief state's attorney was not created until 1973. Public Acts 1973, No. 73-122, § 27. Thus, the defendant's argument would have rendered our wiretap statute a two-year nullity. We cannot ascribe the intention to create such a bizarre result to either the United States Congress or to the Connecticut legislature. II The Defendant's Evidentiary Claims The defendant makes three evidentiary claims of error. We find no merit to any of them. A The defendant claims that the court erred by admitting into evidence a copy of the order by the judicial panel to the telephone company requiring the company to provide technical assistance to the state in placing the wiretap. The defendant's objection was that the exhibit was hearsay, that the statutory business entry exception to the hearsay rule was not complied with, and that the'.Mbit was irrelevant. The court overruled the defendant's objection and the defendant duly excepted. On appeal, the state concedes that it did not establish at trial all the necessary prerequisites of the business entry statute. We agree with the state, however, that the exhibit was properly admitted on other grounds. The business entry statute; General Statutes § 52-180; creates an exception to the hearsay rule. See Schwarz v. Waterbury Public Market, Inc., 6 Conn. App. 429, 435, 505 A.2d 1272 (1986). Hearsay is an out of court statement offered to establish the truth of the facts contained in the statement. Vazzano v. Slater, 6 Conn. App. 1, 6, 502 A.2d 440 (1986). This exhibit was not hearsay, because it was not offered for the truth of any facts contained in it; it was offered as a judicial directive to the telephone company to render technical assistance. The sole question on appeal, therefore, is whether the exhibit was relevant and, if so, whether its relevance outweighed the claimed prejudicial effect. Prior to the admission of the exhibit, a telephone company representive had testified to the actions of the telephone company in rendering assistance to the police in intercepting telephone calls. Such conduct would be criminal if not specifically authorized. 18U.S.C. § 2511; General Statutes § 53a-189. The order was clearly relevant in order to establish that the telephone company was acting within the law. The defendant has not established the kind of prejudice necessary to persuade us that the trial court abused its broad discretion in admitting the exhibit. B The defendant's second evidentiary claim is a three-pronged challenge to the admission of the tape recordings of his intercepted telephone conversations. We reject this claim. The defendant first argues that the tapes were admitted without sufficient authentication that they were fair and accurate reproductions of the intercepted conversations. Despite the unsupported assertion in his brief that he made this claim at the trial, he has not pointed to any transcript reference where he did so. Nor has he replied to the state's argument in its brief and at oral argument that he made no such objection at the trial. Under these circumstances, therefore, we decline to review this prong of the defendant's claim. Osborne v. Osborne, 2 Conn. App. 635, 641, 482 A.2d 77 (1984). In this regard, the defendant also argues that the state did not sufficiently establish the chain of custody of the tapes so as to preclude the likelihood of tampering. It is not necessary to review this claim at any length. Suffice it to say that the trial court had ample evidence to support a finding of a reasonable probability that the tapes were not changed in significant respects. State v. Heinz, 1 Conn. App. 540, 544-45, 473 A.2d 1242, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984). The defendant next argues that the tapes were not sealed in the time and manner required by General Statutes § 54-4U. That statute provides in pertinent part as follows: "The recording of the contents of any wire communication in accordance with the provisions of this section [requiring that intercepted communications be recorded, if possible] shall be done in such manner as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the panel issuing such order and sealed under its directions and custody of such recordings shall be wherever the panel so directs." The hearing held by the trial court on this issue disclosed the following: Drescher monitored the wiretaps, which took place on October 20, 21 and 22, 1979, and made separate daily recordings of the intercepted conversations. He sealed each tape in a box with a fiber sealing tape, and sealed each box in a manila envelope with the same fiber tape. He kept the tapes of the October 20 and 21 conversations in his possession until October 22, when he delivered them to the criminal intelligence unit of the state police. He kept the tape of the October 22 conversations in his possession until October 23, when he delivered it to the criminal intelligence unit. On November 7,1979, the criminal intelligence unit made copies of the tapes and delivered the originals on November 9,1979, to Carl Testo, who was then the secretary to the judicial wiretap panel. The evidence further established that the reason for the delay between October 23,1979, and November 9, 1979, was as follows: Detective Thomas Brady of the criminal intelligence unit received the tapes from Drescher and kept them in a special vault until they were copied. At that time, Brady had a new partner who was attending school in Florida and Brady's unit was also busy working on three other wiretaps. Therefore, the tape in question could not immediately be copied and delivered to Testo. When the tapes were delivered to Testo they were in envelopes which were sealed with a fiber tape. Testo did not open the envelopes. He signed his name, as secretary of the panel, along the edge of the sealing tape on each envelope, wrote the date on the envelope, and placed the envelopes in a vault designated for the use of the panel. He did all this pursuant to established procedures for handling wiretap material. He knew of no formal vote or written regulation of the panel establishing this procedure. In 1983, Testo was replaced as secretary to the wiretap panel by Daniel Horwitch, who was the secretary at the time of the trial of this case in 1984. During the time from November 9, 1979, through the time of trial only Testo and Horwitch, as secretaries to the panel, had access to the vault which contained the tapes. The defendant claims (1) that the sealing of the tapes was not in accordance with the statute, (2) that they were sealed too late, and (3) that they were delivered to an unauthorized person. We disagree. We agree with the defendant that the statute requires that the tapes be sealed upon receipt by the panel's custodian. We do not agree, however, that the provision of the statute, namely, that the tapes be "sealed under [the panel's] directions," mandates that those directions be in any particular form. Those directions may be evidenced, as they were here, by an established procedure which bears more than ample indicia of safety and reliability. Testo received them in a safely sealed condition, adopted that sealing as his own by signing his name and the date along the edge of the sealing tape, and kept them in a designated, restricted and secure vault. Horwitch continued that process when he assumed his duties as secretary to the panel. This procedure comported with the sealing requirements of the statute. With respect to the defendant's claim of delay in transmission of the tapes from the police to Testo, the defendant concedes that the word, "immediately," means without unreasonable delay, considering the nature of the task to be performed. Bailey v. Bruneau's Truck Service, Inc., 149 Conn. 46, 52, 175 A.2d 372 (1961); Krattenstein v. Thomas, 7 Conn. App. 604, 609, 509 A.2d 1079 (1986). The federal wiretap statute contains language essentially identical to our statute. "Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions." 18 U.S.C. § 2518 (8) (a). That statute has been interpreted to mean that any delay beyond one or two days calls for a satisfactory explanation. United States v. Vasquez, 605 F.2d 1269, 1278 (2d Cir.), cert. denied, 444 U.S. 981, 100 S. Ct. 484, 62 L. Ed. 2d 408 (1979); United States v. Fury, 554 F.2d 522, 533 (2d Cir. 1977), cert. denied, 436 U.S. 931, 98 S. Ct. 2831, 56 L. Ed. 2d 776 (1978) (where there is reasonable basis for delay, failure to seal "immediately" does not require suppression of evidence). We agree with the trial court's findings in this case that the delay of sixteen days between October 23, 1979, and November 9,1979, was reasonable, and we agree that the explanation was satisfactory. See United States v. Vasquez, supra (delay of seven to thirteen days held reasonable upon satisfactory explanation). The defendant's final challenge to the admission of the tapes is that Testo was not an authorized custodian of the tapes because there was no written directive or authorization to him to perform that function. This argument is without merit. The statute does not mandate that the authorization be in any particular form. The trial court found, on the basis of Testo's testimony, that he had the requisite authority. Public officials are presumed, in the absence of evidence to the contrary, to have performed their functions lawfully. Patry v. Board of Trustees, 190 Conn. 460, 477, 461 A.2d 443 (1983). The trial court's finding was not clearly erroneous. c The defendant's final evidentiary claim is that the trial court erred in restricting his cross-examination of Drescher. This claim requires little discussion. Drescher was able to identify the defendant's voice on each tape because he had heard the defendant speak in the lounge several times, albeit not over the telephone. On cross-examination the defendant sought to challenge the credibility of Drescher's identification of the defendant's voice by asking Drescher to identify other voices on the tapes. The court sustained the state's objection, and the defendant excepted. There was no showing that Drescher had heard any of the other voices, which the defendant sought to have him identify, before hearing them on the tapes. Thus, it would have been a fruitless venture to ask him to identify them, and would have offered the jury nothing as a basis on which to test the credibility of his identification of the defendant's voice on the tapes. Under these circumstances, the court's ruling neither deprived the defendant of his constitutional right of cross-examination nor was it an abuse of the court's discretion in limiting that cross-examination. There is no error. In this opinion the other judges concurred. General Statutes § 54-41b provides in pertinent part that a wiretap application may be made by "[t]he chief state's attorney or the state's attorney for the judicial district in which the interception is to be conducted . . . ." The reproduced trial court record supplied to us in this appeal does not indicate on its face any action by the court on the third motion to suppress, nor does the defendant in his brief supply a transcript reference to any oral decision by the trial court. See Practice Book § 3060F (c). The state does not deny in its brief, however, that the court addressed the motion and denied it. We therefore treat the motion as denied, and as briefed by the parties in this court. At oral argument in this court, the defendant, for the first time, suggested that the word, "facilities," as used in General Statutes § 54-41d, refers, not to the telephonic or other apparatus of wire communications sought to be tapped, but to the physical place in which the apparatus is located. Thus, he would have us focus our inquiry on whether the lounge, rather than its telephone, was public. This argument is disingenuous at best. Examination of chapter 959 of the General Statutes, entitled "Wiretapping and Electronic Surveillance," of which General Statutes § 54-42d is a part, makes it absolutely clear that the words, "facilities" and "facility," mean the electronic apparatus and not the real estate. See, e.g., General Statutes § 54-41a (1) (" 'Wire Communication' means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of telephone or telegraph"); General Statutes § 54-41a (3) (" 'Electronic, mechanical or other device' means any device or apparatus which can be used to intercept a wire communication other than (A) any telephone or telegraph instrument, equipment or facility, or any component thereof (i) furnished to the subscriber or used by a communications common carrier in the ordinary conduct of its business"). Furthermore, the defendant in his brief clearly and repeatedly uses the term "facility" in its proper statutory sense. There was also a pay telephone in the lobby of the lounge which is not involved in this case. Senator Jay W. Jackson stated: "In effect, we have a search warrant procedure which will be done by the three judges. I think that the three judge panel will give the protection which is needed. You will have reason ing on the part of the three judges and you will not have a precipitous claim made by a law enforcement official to an individual judge who may perhaps, not be able to give adequate consideration to the application. . . . I would also point out that the three judge panel, must be unanimous before any wiretap can be instituted." 14 S. Proc., Pt. 2, 1971 Sess., p. 870. Representative Albert W. Cretella, Jr., stated: "I point out that in effect a wiretap as it is being used in this bill, has the same effect as a search warrant." 14 H. Proc., Pt. 2, 1971 Sess., p. 845. It is of no moment, moreover, that the initial version of the wiretap statute referred to the applicant as "[t]he state's attorney for the county in which the interception is to be conducted"; (emphasis added), General Statutes (Rev. to 1972) § 54-41b; because the counties have been no more than geographical subdivisions of the state without governmental functions since 1960.

The defendant's "Application for Stay," dated August 4, 1978, is denied by the court. Submitted September 1 decided October 4, 1978 Stanley V. Tucker, pro se, in support of the motions. Michael Belzer, in opposition. The defendant's "Motion for Review," dated August 4, 1978, is denied by the court.

Peters, J. The defendant Leon Sheppard was convicted, after a trial to a jury, of sexual assault in the first degree in violation of General Statutes § 53a-70. The sole issue on this appeal is whether the trial court, Moraghan, J., denied the defendant his constitutional rights to a public and fair trial by excluding the general public from the trial during the testimony of the complaining witnesses. There is presently no dispute as to the relevant facts. The defendant, and one Walter Guyton, were tried jointly on the basis of complaints of rape by two fifteen year old girls. Immediately prior to the commencement of the trial, before the jury had been summoned, the state moved that, during the testimony of the complainants, the courtroom be cleared of all spectators, other than the mothers of the complaining witnesses and the press. The defendant raised constitutional objections to the granting of the state's motion, and argued that the present case did not warrant exclusion of the public because it did not involve a particularly heinous or violent sexual assault. The state decried the propriety of distinctions among sexual assaults, and pressed its motion, which the court granted. When it granted the motion, the court had as yet heard no evidence concerning the nature of the crime with which the defendant had been charged. It had before it only the information charging a sexual assault in the first degree at Danbury on or about November 6, 1978, in violation of General Statutes § 53a-70, and the bill of particulars specifying the name of the complainant, the approximate time and location of the alleged offense and the charge that the defendant had compelled the complainant to engage in sexual intercourse by the use of force against her. Had the state made an offer of proof to substantiate its motion for closure, it would presumably have relied upon evidence similar to that presented at the trial. During the trial, the principal factual issue came to be whether intercourse had been forced upon the complaining witnesses or whether they had consented thereto. The girls were shown to have gone willingly to the house in Danbury in which the crimes were alleged to have occurred, and they made no attempt to complain to anyone that they had been assaulted until after they had been apprehended by the police for having stolen a car. The defendants, in turn, admitted that they had had intercourse with the girls. That the jury, too, were concerned with the question of consent is probable in the light of their requests for elaboration of the law and rereading of testimony during their twelve hours of deliberation. They asked to have reread to them: the testimony of the complaining witnesses concerning their time in the Danbury house; the medical testimony, which corroborated intercourse but indicated that no lacerations or bruising were found; the meaning of force and of reasonable doubt; and the law as to the various degrees of sexual assault. After the jury's verdict finding him guilty, the defendant unsuccessfully moved to set aside the verdict, for acquittal and for a new trial. The court then ordered a presentence report. At the hearing concerning the sentence to be imposed, the court addressed the degree of violence in this particular case, noting: "The use of violence could not be called substantial. It's certainly not a situation where someone would utilize a gun or a knife or a razor or something equally frightening, but, nevertheless, there certainly was physical force and coercion." The only issue on this appeal is whether the trial court erred in excluding the general public from the defendant's trial during the testimony of the fifteen year old girls who were the complaining witnesses. The right to a public trial is a right guaranteed in all criminal prosecutions by the provisions of the sixth and fourteenth amendments to the United States constitution; see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980); Levine v. United States, 362 U.S. 610, 616, 80 S. Ct. 1038, 4 L. Ed. 2d 989 (1960); and by article first, § 8 of the Connecticut constitution. Public trials vindicate an important public interest in the process by which trials are conducted; Richmond Newspapers, Inc., supra; and play as well an important part "as a security for testimonial trustworthiness." 6 Wigmore, Evidence § 1834, p. 435 (1976). Like other important constitutional rights, the right to a public trial "is not a limitless imperative." Aaron v. Capps, 507 F.2d 685, 687 (5th Cir. 1975); United States ex rel. Latimore v. Sielaff, 561 F.2d 691, 694 (7th Cir. 1977); Lacaze v. United States, 391 F.2d 516, 521 (5th Cir. 1968); United States ex rel. Bruno v. Herold, 368 F.2d 187, 188 (2d Cir. 1966). An accommodation must sometimes be made between the individual's right to a public trial and other societal interests that might justify closing the courtroom to the public. The court's power to order a closure should, however, be sparingly exercised, and limited to those situations where closure is demonstrably necessary to further the administration of justice. United States v. Hernandez, 608 F.2d 741, 747 (9th Cir. 1979); United States ex rel. Lloyd v. Vincent, 520 F.2d 1272, 1274 (2d Cir. 1975); People v. Jones, 47 N.Y.2d 409, 414, 391 N.E.2d 1335, cert. denied, 444 U.S. 946, 100 S. Ct. 307, 62 L. Ed. 2d 315 (1979). Applying that standard to the particular circumstances of the case before us, we conclude that the trial court had an insufficient basis in fact for the order of closure. The cases in which a trial court has been held to have acted properly in excluding the public are cases in which there was a reasonable basis in fact for a determination that closure was required to keep order in the courtroom or to foster full and truthful testimony. See People v. Jones, supra; United States v. Hernandez, supra. A paradigmatic example is the demonstrated need to protect a witness, such as an informer, from threatened harassment or physical harm. See United States v. Hernandez, supra; United States v. Eisner, 533 F.2d 987, 993-94 (6th Cir.), cert. denied, 429 U.S. 919, 97 S. Ct. 314, 50 L. Ed. 2d 286 (1976); United States ex rel. Bruno v. Herold, 408 F.2d 125, 128 (2d Cir. 1969). Another example is the demonstrated need to protect a witness from a substantial threat of indignity that might induce reluctance to testify about a lurid or heinous sexual assault. See United States ex rel. Latimore v. Sielaff, supra, 694-96 (multiple rapes by several defendants); Giese v. United States, 262 F.2d 151, 156-57 (9th Cir. 1958), cert. denied, 361 U.S. 842, 80 S. Ct. 94, 4 L. Ed. 2d 80 (1959) (eight year old rape victim, aged nine at trial; other witnesses aged seven and eleven years). This court has sanctioned closure where "[t]he young witness was called upon to testify to all the sordid details of a particularly revolting rape." State v. Purvis, 157 Conn. 198, 207, 251 A.2d 178 (1968), cert. denied, 395 U.S. 928, 89 S. Ct. 1788, 23 L. Ed. 2d 246 (1969). In this case, in the absence of evidence in support of the state's motion, neither the information nor the bill of particulars was sufficient to demonstrate such a likelihood that testimony would be withheld or distorted if the courtroom remained open to the public as to outbalance the defendant's right to a public open trial. We are not prepared to say that every charge of rape involving a complainant who is a minor is necessarily so embarrassing and intimidating that closure is warranted, and there was, in this case, no further factual basis proffered by the state in support of its motion to exclude the general public from the defendant's trial. If the state, over the defendant's objection, seeks to have a trial closed during the testimony of designated witnesses, it must furnish to the court some information to demonstrate a compelling need to deny his right to a public trial. The court may then conduct an evidentiary hearing into the propriety of excluding the public, unless it is satisfied from the examination of an affidavit, or from a colloquy with counsel or from the testimony of witnesses, that there exists a factual justification for exclusion of the public. United States v. Hernandez, supra, 748; People v. Jones, supra, 414-15. On the basis of a factual showing, the court can then determine what kind of exclusionary order, if any, is warranted. It is axiomatic that the order should be reasonably limited to respond only to the compelling need for closure. In the present ease, for example, the court should have inquired whether it was necessary to exclude members of the defendant's family, when members of the complainant's family were permitted to remain in the courtroom. Cf. Aaron v. Capps, 507 F.2d 685, 687 (5th Cir. 1975). The error in excluding the public from the defendant's trial requires reversal of his conviction. The failure to provide a public trial deprives the defendant of a fundamental constitutional right and the public of access to an open judicial forum. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980); People v. Jones, 47 N.Y.2d 409, 391 N.E.2d 1335 (1979). Under these circumstances, the defendant cannot be required to make an affirmative showing of how he was specifically prejudiced by the closed trial. Because demonstration of prejudice in this kind of case is a practical impossibility, prejudice must necessarily be implied. United States v. Hernandez, supra, 747; United States v. Eisner, supra, 993; United States v. Kobli, 172 F.2d 919, 921 (3d Cir. 1949); Tanksley v. United States, 145 F.2d 58, 59 (9th Cir. 1944); State v. Anthony, 172 Conn. 172, 177, 374 A.2d 156 (1976); People v. Jones, supra, 417; cf. United States ex rel. Latimore v. Sielaff, supra, 694. There is error, the judgment is set aside and a new trial is ordered. In this opinion the other judges concurred. Guyton was found not guilty by the jury. General Statutes $ 53a-70 provides: "(a) A person is guilty of sexual assault in the first degree when sueh person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or (2) by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person." The sixth amendment provides, in relevant part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . ." The fourteenth amendment provides, in relevant part: ". . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . . ." Article first, § 8 provides, in relevant part: "In all criminal prosecutions, the accused shall have a right . to a speedy, public trial . . . ."

Stoughton, J. The defendants appeal from a judgment ordering the defendant Barbara Carrier Block to pay attorney's fees and'to convey certain premises to the plaintiff. The plaintiff, Morris Epstein (Epstein), is a real estate broker in Colchester, and the defendant Genevieve C. Carrier (Carrier) was the owner of real property which had belonged to her husband's family for several generations and which came to her under the will of her deceased husband by certificate of devise dated December 7,1964. The will contained the following paragraph: "First: After my lawful debts are paid, I give to my beloved wife, Genevieve C. Carrier, my house and property consisting of house, garage and about (45) acres of land, located in North Westchester, Connecticut. I will this property to her in the hope that in her will she will pass it on to our daughter, Barbara. Also to my beloved wife, Genevieve C. Carrier, all my personal property." The defendant Barbara Carrier Block (Block) is the daughter of the defendant Carrier and is the Barbara referred to in paragraph First of the will. In 1984, the defendant Carrier was a resident of a home for the elderly and desired to sell the property because of some concern over her ability to meet her expenses. At that time, and on the date of the certificate of devise, the property consisted of substantially fewer than 45 acres. On October 15,1984, Epstein and Carrier entered into an agreement under which Epstein was to purchase the property, consisting of 14 acres more or less, for $40,000, and Carrier was to convey by warranty deed on or before January 15, 1985. After Block learned of the agreement, she spoke to her mother and asked to purchase the property herself. She instituted a legal action in which she sought to enjoin the sale, alleging that she had a vested remainder interest in the property, or, alternatively, that Carrier had received the property in trust. On July 15, 1985, Block purchased the property from Carrier. Epstein instituted this action against Carrier and Block. In an amended complaint, he alleged in the first count that the conveyance from Carrier to Block caused him monetary damage. The second count alleged irreparable damage with no adequate remedy at law. The third count alleged that Block intentionally interfered with the performance of his contract with Carrier, that the defendants acted outrageously and maliciously with wilful disregard of his rights and intending to cause him financial loss, and that he has suffered damages. He requested a decree directing specific performance by Carrier, damages, an order compelling Block to con vey the premises to him, and punitive damages. Each of the defendants filed an answer in which she admitted some of the allegations of the complaint and denied others. Carrier interposed five special defenses. She alleged that Epstein breached their agreement by failing to deliver the survey before January 15, that it had expired and time for performance was not extended, that it was null and void for mutual mistake, that it was unenforceable because it was impossible to convey by warranty deed, and that Epstein fraudulently induced her to enter into the agreement by misrepresenting the amount of land involved. Block interposed four special defenses. She alleged that she was justified by virtue of her relationship to Carrier and the special value of the land in pursuing any action necessary to secure her property interests, that she possessed an absolute privilege to accept the deed from Carrier to protect a bona fide property interest, that she did not act tortiously, and that the agreement had expired. After a trial to the court, the trial judge issued a lengthy memorandum of decision in which he made a detailed finding of facts. These findings include those which are set forth hereinafter. Epstein and Carrier entered into a contract for the sale and purchase of 14 acres, more or less, in Colchester. The agreement provided for a closing on or before January 15,1985, but did not contain any language indicating that time was of the essence or that the time factor was of serious consequence to either party. The agreement, in fact, specifically provided for an automatic thirty days extension of the closing in the event the buyer was unable to obtain zoning approval for three building lots. In late. December, 1984, Epstein furnished a preliminary map to Carrier's attorney. This preliminary survey indicated two or three acres of land in which there might have been some question as to the boundaries. It also indicated that there were approximately twenty-two acres in the parcel. Carrier's attorney was dissatisfied with the preliminary survey and did not feel that he could prepare a proper legal description. On January 14, 1985, Carrier's attorney wrote to Epstein's attorney that he was ready to discuss scheduling the closing but still sought a survey accurate enough to prepare a legal description. Carrier sought a higher price to reflect the additional acreage, but Epstein refused to pay the additional price and Carrier agreed to sell the property for $40,000. Epstein's attorney and Carrier's attorney agreed on or about January 18, to modify the purchase agreement to provide for conveyance by quitclaim deed. On January 24, the attorneys for the parties agreed to convey the property according to the ancient description by quitclaim deed, and Epstein waived any and all contingencies regarding subdivision, zoning, etc. A tentative closing date of February 7 was agreed to, and Carrier's attorney prepared a quitclaim deed and an adjustment sheet. On February 6, Block commenced a legal action against Epstein and Carrier, asserting that Carrier was only a life tenant and that Block had a vested remainderman interest. Also on February 6, Block had Epstein served with a notice of lis pendens. The lawsuit and the recorded lis pendens prevented Carrier from conveying a marketable title and put Carrier and Epstein on notice that Block claimed a remainderman interest. On July 15, Carrier executed a quitclaim deed to Block for $50,000 and a hold harmless and indemnification agreement by Block in favor of Carrier. On July 19, Block unilaterally withdrew her lawsuit against Carrier and Epstein. On February 6, Epstein's attorney telephoned Carrier's attorney that the lis pendens and lawsuit had been served and that a closing could not take place as scheduled on February 7. Block testified that she first learned of the contract between Carrier and Epstein on December 23, 1984. She testified that she initiated the lawsuit against her mother and Epstein to stop the sale and to help keep the property in the family by purchasing it from her mother. She said that on January 7, she called her mother to ask her mother to let her buy the land to keep it in the family, and that she approached her mother again on January 13. The trial court reached the following conclusions which it expressed in its memorandum of decision. The sole purpose for the legal action brought by Block was to prevent the sale from Carrier to Epstein. Block did not have a bona fide and sincere belief that she was in fact the vested remainderman. This conclusion was drawn from Block's offer to purchase and subsequent purchase at a price in excess of that offered by strangers, the unilateral withdrawal of the Block action, and Block's willingness to execute a hold harmless and indemnification agreement. From these findings, the court drew the ultimate conclusion that Block tortiously interfered with the contract between Carrier and Epstein. The court also concluded that each of the defendants had failed to prove any of their special defenses. The court found that because time was not of the essence in the contract between Epstein and Carrier, and because Epstein was a defendant in the Block action until July 15, 1985, the contract had not expired due to the passage of time. Because the value of the land had increased, the court found no basis for damages except as to attorney's fees. It rendered judgment against Block in the amount of $7089.13, Epstein's attorney's fees, and ordered Block to convey the property to Epstein by quitclaim deed for the sum of $39,000 less damages of $7089.13, or $31,910.87, subject to normal tax adjustments. The defendants claim that the court erred: (1) in concluding that Block tortiously interfered with the agreement to buy between Epstein and Carrier; (2) in concluding that the agreement to buy had not expired even though more than a reasonable amount of time had elapsed since the scheduled closing and Epstein had failed to request an extension of time; and (3) in ordering specific performance since such an order results in Epstein's receiving a greater interest than he would have received under the agreement to buy and precludes Block from asserting her interest in the parcel. I In the defendants' first claim of error, they raise four sub-issues. The first of these issues is whether the court erred in concluding that the filing of Block's action and the recording of a lis pendens prevented the closing on the agreement to buy. The finding of the court was that the lawsuit, together with the recorded lis pen-dens, prevented Carrier from conveying a marketable title and put Carrier and Epstein on notice that Block claimed a remainder interest. The defendants correctly point out that an agreement was reached to modify the original agreement and provide for conveyance by quitclaim deed, and the court so found. The Block lawsuit, expressly sought, inter alia, an order restraining and enjoining Carrier from selling, tranferring or disposing of all or any part of the property pending disposition of the action. She could hardly have done more in her attempt to prevent the sale to Epstein. Even though Epstein had been willing to accept a quitclaim deed, there is no finding that Carrier was willing to convey the property to him by any form of deed in the face of the lawsuit by Block. Epstein was named as a defendant in the Block lawsuit, and it flies in the face of reason to suggest that the modified agreement should have been carried out on his payment of $39,000 for a quitclaim deed under the circumstances. The second of the sub-issues raised by the first claim of error is that the court erred in finding that Block improperly interfered with the agreement to buy by bringing the action and by recording the lis pendens. Block contends that she had a sincere belief in the merits of her action because she believed that the property was to be her inheritance, and that this belief immunized her from any action based on a theory of intentional interference with a contractual relationship. The burden of showing that the interference was privileged or justified in this case was on the defendant Block. Cosgrove Development Co. v. Cafferty, 179 Conn. 670, 670 n.1, 427 A.2d 841 (1980); Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 415, 363 A.2d 86 (1975). Block pleaded justification in her first special defense and privilege in her second special defense. The court found that she had failed to prove either of these special defenses. We cannot retry the facts, which is essentially what this defendant asks us to do. The trial court was free to believe or disbelieve all or any part of the testimony of the witnesses. The trial court clearly could have disbelieved the assertions of the defendant Block that she thought she had acquired an interest in the property under her father's will, while believing that she wanted to keep the property in the family. This is consistent with the conclusion that her sole purpose in bringing the action against Epstein and Carrier was to prevent the sale from Carrier to Epstein. In the third sub-issue, Block claims that the court erred in finding that she acted in bad faith based on the terms of the settlement of her action against Epstein and Carrier. Block relies upon the holding in Blake v. Levy, 191 Conn. 257, 464 A.2d 52 (1983). In Blake, the Supreme Court held that the tort of intentional interference with business relations, like the tort of vexatious litigation, cannot be maintained when the underlying lawsuit the propriety of which is at issue terminated in a good faith negotiated settlement. Block asserts that the trial court could not, as a matter of law, draw any adverse inference from the withdrawal of the action, payment of a purchase price in excess of that offered by Epstein and execution of the indemnity agreement, because they were all part of a negotiated settlement. The trial court was not obligated to believe that the settlement was a good faith negotiated settlement, however, particularly in light of the relationship between Block and Carrier and the professed belief of Carrier that the modified agreement had expired by June, 1985. The trial court found that Block testified that she initiated the lawsuit against her mother and Epstein to stop the sale and to help keep the property in the family by purchasing it. The court also found that Block testified that twice in January, 1985, which was after she knew of the Epstein agreement, she asked her mother to let her buy the land. The test of whether interference with business relations is tortious is whether the actor's behavior is improper. Blake v. Levy, supra, 261. The conclusions that Block did not have a bona fide and sincere belief that she was, in fact, the vested remainderman, and that she had tortiously interfered with the contract between Carrier and Epstein, must stand if they are legally and logically correct and if they find support in the facts set out in the memorandum of decision. Cookson v. Cookson, 201 Conn. 229, 243, 514 A.2d 323 (1986). Under this test, those conclusions must stand. In their fourth sub-issue, the defendants claim that the purchase of the property by Block cannot constitute tortious interference with the modified agreement between Carrier and Epstein because that agreement had expired prior to the purchase. This argument depends upon the assertion that the agreement had expired, which is contrary to the conclusion reached by the trial court and is discussed below. II The second of the defendants' three main claims is that the court erred in concluding that the agreement to buy had not expired. The defendants correctly observe that when time is not of the essence to a contract to convey land, the time for performance is a reasonable time following the time for performance set forth in the contract. Fullerton v. McGowan, 6 Conn. App. 624, 629, 507 A.2d 473 (1986). The defendants claim that more than a reasonable time for performance had elapsed by the time Carrier conveyed to Block in July, 1985, and that since Epstein had not requested an extension of time after the closing scheduled for February had been cancelled, the modified agreement had expired. There is no merit to the argument that Epstein could have accepted a quitclaim deed from Carrier at any time, and no evidence that a quitclaim deed was offered to him after February 7,1985. As the trial court observed, Block should not be able to bring an action for the purpose of preventing the sale and then claim that the agreement for the sale which she had prevented had expired due to lapse of time. The conclusion of the court that the contract had not expired due to passage of more than a reasonable amount of time is amply supported by the facts found. III The defendants' final claim is that the court erred in ordering Block to convey the property to Epstein by quitclaim deed because the order results in the transfer of a greater interest than Carrier had. Block contends that this order is a final adjudication of her rights in the parcel without a full and fair opportunity to litigate those rights. Under the terms of the modified agreement, Epstein would have received all the right, title and interest which Carrier possessed in and to the premises. If Block had any interest, it would not have been extinguished by a quitclaim deed from Carrier. The court concluded that Block did not have a bona fide and sincere belief that she was, in fact, the vested remainderman of the property, and she withdrew an action in which the question of her rights, if any, might have been determined. Block alleged in one special defense that she was justified in pursuing any action necessary to secure her property interests, and in another that she possessed an absolute privilege in accepting delivery of a deed from Carrier to protect in good faith a bona fide property interest in the premises. The court found that she had failed to prove any of her special defenses, and this necessarily implies that Block had no bona fide property interest in the premises. Nevertheless, she should not now be required to convey more than she received by quitclaim deed from her mother. The judgment is modified to order the defendant, Barbara Carrier Block, to convey by quitclaim deed to the plaintiff, Morris Epstein, all of such right, title and interest in and to the real estate in Colchester, as she received from Genevieve C. Carrier by quitclaim deed dated July 15, 1985. There is error in part, the judgment is set aside and the case is remanded with direction to render judgment as on file except as modified in accordance with this opinion. In this opinion the other judges concurred.

Borden, J. The plaintiff appeals from the judgment of the trial court denying its application, filed pursuant to General Statutes § 52-418, to vacate an arbitration award rendered under a collective bargaining agreement between the parties. The plaintiff claims that the court erred (1) by applying an improper scope of review to the award, (2) by disregarding and modifying the plain language of the parties' agreement regarding the timeliness of the defendant's grievance, (3) by disregarding and modifying the plain language of the agreement regarding the power of the arbitrator to order the plaintiff to increase starting wage rates, and (4) by disregarding and modifying the plain language of the agreement regarding the time period covered by the award. We find error in part. The facts are not in dispute. The plaintiff and the defendant were parties to a collective bargaining agreement effective May 16, 1982, through May 15, 1985. Article XVII, Section 4 of the agreement provided for certain wage increases on May 16,1982, May 16,1983, and May 14, 1984. The wage increases were to be applied to the "then existing wages." Pursuant to its interpretation of this provision, the plaintiff on each anniversary date of the agreement increased the wages of certain of the employees then employed by it, but did not increase the wage rates at which new employees were hired or the minimum wage rates for the various job classifications. Those wage rates remained constant. On February 22, 1985, the defendant filed a grievance that the plaintiff had violated Article XVII, Section 4 of the agreement by failing to apply the specified wage rates to the starting and minimum wage rates. Article IX, Section 2 of the agreement provided, in pertinent part, that unless a grievance were presented to the plaintiff no more than ten working days "from the occurrence of the condition giving rise the grievance" it would "not thereafter be considered a grievance under this agreement . . . . " After the defendant's grievance was denied, the defendant submitted the grievance to arbitration pursuant to Article XI of the agreement. That article provided, in pertinent part, for arbitration "as to the meaning and interpretation of particular provisions" of the agreement. It also provided that the arbitrator had "no power . to add to, subtract from or modify this Agreement, or to establish or change any rates of pay or wages," and that the arbitrator had "no power . . . to make any awards for a period which transpired before a dispute was first submitted by the Union to the Company, nor shall the Arbitrator grant any relief extending beyond the termination date of the contract." The parties did not agree on the specific language of the submission. The arbitrator, therefore, framed it as follows: "Did the [plaintiff's] failure to apply the general wage increases listed in Article XVII, Section 4, to the starting wage rate and/or the minimum wage rate for various job classifications [constitute] a viola tion of that provision? If so, what should be the remedy?" On November 21,1985, the arbitrator rendered an award finding that the grievance was timely, and that the plaintiff had violated the agreement. The arbitrator directed the plaintiff to increase the starting wage rate and each job classification minimum rate, in specified amounts, effective January 15, 1985, and to make reimbursement to any eligible employees retroactive to January 15, 1985. The plaintiff applied to the trial court to vacate the award. The court denied the plaintiffs application. This appeal followed. I The plaintiff first claims that the trial court erred by applying an improper scope of review to the arbitrator's award. Specifically, the plaintiff claims that the court applied a state law scope of review; see, e.g., Board of Education v. Local 818, 5 Conn. App. 636, 639-40, 502 A.2d 426 (1985) (comparison of award with submission); rather than a federal law scope of review which, the plaintiff contends, is required because the plaintiff is engaged in interstate commerce. See, e.g., United Steelworkers v. Enterprise Wheel & Car Corporation, 363 U.S. 593, 597, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960) (under federal law, the award must "[draw] its essence" from the agreement); Hudson Wire Co. v. Winsted Brass Workers Union, 150 Conn. 546, 553, 191 A.2d 557 (1963) (same). We decline to consider this claim because it was not presented distinctly to the trial court. The trial court did state that a "challenge to an award on the ground that the arbitrator has exceeded his power is limited to a comparison of the award with the submission. Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 584 [440 A.2d 774 (1981)]." In addition, however, the court specifically cited Board of Education v. Local 818, supra, to support its statement that "the scope of judicial review is very narrow, since the courts favor arbitration as a means of settling differences. The award is to be upheld unless the award clearly violates General Statutes § 52-418." In Board of Education v. Local 818, supra, we held that, pursuant to an unrestricted submission, generally "[i]f the award conforms to the submission, the arbitrators have not exceeded their powers." Id., 639-40. We also held, however, that there are "limited circumstances in which a court will conduct a broader review of an arbitrator's decision." Id., 640. These circumstances are where a party claims "that the award, as issued, is inherently inconsistent with the underlying collective bargaining agreement . . . .''Id. In such a case, "this court will review the award only to determine whether it 'draws its essence from the collective bargaining agreement.' " Id., quoting United Steelworkers v. Enterprise Wheel & Car Corporation, supra, 597. In Board of Education v. Local 818, supra, therefore, we reconciled any apparent inconsistency between the state and federal standards of review. As the defendant correctly points out, the plaintiff did not present distinctly to the trial court the claim that the plaintiff's involvement in interstate commerce required the court to employ a scope of review more searching than is ordinarily required. The plaintiff's trial brief is bereft of anything resembling such a claim. It is true that the defendant's trial brief refers to Hudson Wire Co. v. Winsted Brass Workers Union, supra, and to Board of Education v. Local 818, supra, but neither party claimed to the court that the plaintiff's purported involvement in interstate commerce triggered a different scope of review. Even if we were to find error in the trial court's scope of review, however, a remand to the trial court would not necessarily be required. The plaintiffs other claims of error specify the ways in which, the plaintiff argues, the award does not draw its essence from the agreement. We now address those claims. II The plaintiff next claims that the court erred by disregarding the plain and unambiguous language of the agreement regarding the timeliness of the grievance filed by the defendant. Specifically, the plaintiff claims that the grievance, filed on February 22, 1985, was untimely under Article IX, Section 2 of the agreement, because it was not filed within ten days of "the occurrence of the condition giving rise to the grievance," namely, the plaintiffs purported failure, in May, 1982, May, 1983, and May, 1984, to increase the starting and minimum wage rates. We disagree. "We have held that the failure to file a timely grievance is a question of procedure stemming from the agreement itself." East Hartford v. East Hartford Municipal Employees Union, Inc., 10 Conn. App. 611, 617-18, 525 A.2d 112, cert. granted, 204 Conn. 806, 528 A.2d 1153 (1987). With respect to that issue, the court is not bound by the arbitrator's decision and is free to examine the question anew. Id., 615-18. Applying this enhanced scope of review, we agree with the finding of the arbitrator that the grievance was timely filed. Where a grievance concerns a discrete, isolated event, such as a discharge of an employee, "the occurrence of the condition giving rise to the grievance" is easily marked. Where, however, the grievance concerns, as in this case, the failure of the employer to apply a general wage increase to the starting wage rates of new hires, the boundaries of "the occurrence of the condition" are less clear. In such a case, no particular employee is poised to alert the union to the violation. Moreover, the plaintiff's argument proves too much, because it would also apply to the plaintiffs failure to pay the annual wage increases to the employees who are not at the starting or minimum wage rate. That, in turn, would mean that if a grievance challenging such a failure were not filed within ten days of the contract anniversary date, the plaintiff could not be compelled by the grievance and arbitration procedures to make its employees whole. We do not believe that the parties intended such a result. See Game-A-Tron Corporation v. Gordon, 2 Conn. App. 692, 694-95, 483 A.2d 620 (1984) (between two possible interpretations of a contract, court prefers the more equitable and rational interpretation). We conclude, therefore, that the alleged violation was continuing, and that each day's failure to pay a wage increase required by the agreement was a new violation which triggered a new time period for filing a grievance. Thus, the grievance was timely filed. The cases on which the plaintiff relies are inapplicable. They involve either a statute of limitations governing a wrongful discharge claim or an action for breach of a collective bargaining agreement; see, e.g., International Association of Machinists & Aerospace Workers, AFL-CIO v. Aloha Airlines, Inc., 790 F.2d 727, 733-38 (9th Cir.), cert. denied, 479 U.S. 931, 107 S. Ct. 400, 93 L. Ed. 2d 354 (1986); West v. ITT Continental Baking Co., 683 F.2d 845 (4th Cir. 1982); or an application to vacate an arbitration award based on a clear-cut, discrete event, rather than a claim of a continuing violation by refusing to pay wages required by .the collective bargaining agreement. See, e.g., Detroit Coil Co. v. International Association of Machinists & Aerospace Workers, Lodge #82, 594 F.2d 575 (6th Cir.), cert. denied, 444 U.S. 840, 100 S. Ct. 79, 62 L. Ed. 2d 52 (1979). III The plaintiff's third claim is that the court erred in upholding the award, because the award modified the plain and unambiguous language of the agreement prohibiting the arbitrator from "establishing] or changing] any rates of pay or wages . . . .''The plaintiff does not claim that the award fails to conform to the submission. Rather, it claims that the arbitrator's remedy is inherently inconsistent with the agreement, and does not draw its essence from the agreement. This claim is without merit. The award is based on the provision of the agreement authorizing arbitration "as to the meaning and interpretation of particular provisions" of the agreement, namely, the provision regarding annual increases of "then existing wages." It is clear from the lengthy and reasoned decision of the arbitrator, which we have examined; Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 292, 377 A.2d 323 (1977); that his award draws its essence from the agreement. Board of Education v. Local 818, supra. We require no more. Indeed, the plaintiff's position would preclude the most effective remedy for the plaintiff's violation of its obligation to institute the wage increases required by the collective bargaining agreement. That would eviscerate the grievance and arbitration process, on which the parties agreed. IV We do find merit to the plaintiff's final claim, namely, that the court erred when it upheld the arbitrator's time limits on the award. The award ordered the plaintiff to increase the starting and minimum wage rates for each job classification effective January 15, 1985, and to reimburse employees for lost wages retroactive to that date. There are two fundamental flaws in this award. Both involve a failure of the award to draw its essence from the agreement. Board of Education v. Local 818, supra. First, there is simply no justification for the date of January 15, 1985. We can find none in the collective bargaining agreement, or in the arbitrator's decision. Nor has the defendant been able to point us to any reasonable justification for that particular date. Thus, that particular part of the award cannot stand. The agreement provides that the grievance must be filed within ten days of the occurrence of the condition giving rise to the grievance. The parties do not quarrel with the arbitrator's reasoning that, with respect to the ongoing failure of the plaintiff to pay required wage increases, this provision operates as a limit on the plaintiff's retroactive liability to a ten day period preceding the filing of the grievance. The grievance in this case was submitted to the plaintiff on February 22, 1985. Thus, the retroactive date in the award should have been February 12, 1985. Second, the arbitrator did not adhere to the plain command of the agreement that he may not "grant any relief extending beyond the termination date of the contract." Ordinarily, when an arbitrator renders an award during the life of a collective bargaining agreement containing such a provision, it would be understood that the award would only be effective until the end of the contract. Here, however, the award was rendered on November 21,1985, after the agreement had expired. The award should have made clear that it concerned wage rates only through May 15, 1985, the termination date of the collective bargaining agreement. There is error in part, the judgment is set aside and the case is remanded with direction to render judgment in accordance with this opinion. In this opinion the other judges concurred.

Peters, J. The plaintiff, Russell Sehenek, and his father, John Sehenek, brought an action in Superior Court against Goshen Manufacturing Company (hereinafter Goshen) and Sears, Roebuck & Company (hereinafter Sears), claiming damages and alleging three counts against each defendant: strict liability in tort, negligence, and breach of implied warranty. The defendants asserted the two special defenses of contributory negligence and assumption of risk. These allegations arose out of an accident that occurred when Russell Sehenek used a pool slide in a swimming pool at the home of Theodore and Margaret Pelkey. The slide was manufactured by Goshen, purchased from Sears in 1967, and sold by the original purchasers to the Pelkeys in 1968. The initial complaint was brought against the Pelkeys alone, alleging only negligence. Prior to trial, Sears and Goshen were joined as defendants, the claim against the Pelkeys was settled, and the action was withdrawn as to them. On each of the three counts, the slide was alleged to be "defective" in that it contained no warning or directions for use concerning the size or depth of the pool with which it should be used, or concerning the hazards of head first sliding. The case was tried to a jury, which returned a verdict for the remaining defendants, responding in their favor in reply to specific interrogatories on all counts. The trial court denied the plaintiffs' motion to set aside the verdict, and the plaintiffs have appealed, citing as error that denial, certain evidentiary rulings, and portions of the charge to the jury. Prom the evidence, the jury could have found the following facts, which were virtually uneontested; The plaintiff, Russell Schenek, sustained quadriplegic injuries on August 10, 1970, while going down a swimming pool slide at the home of a neighboring family, the Pelkeys; he was using the pool with their permission. Russell was then thirteen years old. The pool was above ground, three feet in height, not completely level, and contained 25 to 27 inches of water at the time of the accident. There was a two-foot gap between the end of the slide and the top of the water. Russell was using the pool and slide with a friend, David Hill, and with the Pelkeys' two young daughters. After using the slide twice in the sitting position, Russell began to slide down headfirst. He stopped his slide part way down by grabbing the side of the slide, then continued forward with his arms in back of his body. Without the protection of his hands and arms in front of him, he struck his head on the bottom of the pool, sustaining severe injury. Prior to Russell's injury, the pool slide had been used by the other children without injury, including at least one headfirst slide by David Hill. The slide had also been used without incident for over a year by both adults and children at the home of the previous owners, but they had used the slide with a larger, four-foot pool. I The plaintiffs assign as error a number of evidentiary rulings by the trial court: (1) The court admitted the original complaint against the Pelkeys into evidence on the issue of proximate cause; (2) the court excluded from evidence as full exhibits certain literature concerning the safety of pool slides; and (3) the court permitted prior statements of a witness to be used to refresh her recollection. We find none of these rulings to have been in error. The original complaint against the Pelkeys was introduced into evidence as a judicial admission on the issue of proximate cause. Statements in pleadings that are inconsistent with claims advanced at trial are admissible as judicial admissions. In Tough v. Ives, 162 Conn. 274, 283, 294 A.2d 67 (1972), we held that a plaintiff's complaint against the drivers of cars involved in an accident was relevant in her subsequent suit against the highway commissioner alleging that icy road conditions had proximately caused her injury. For the same reason, the original complaint was correctly admitted in this case. See also Kucza v. Stone, 155 Conn. 194, 197, 230 A.2d 559 (1967). While Tough and Kucza involved admissions by way of pleadings from separate actions, that is a distinction without a difference, since "[a] superseded pleading remains in the case as a part of its history and is available to the adverse party as an admission." Nichols v. Nichols, 126 Conn. 614, 620, 13 A.2d 591 (1940). Admission of the original complaint on the issue of proximate cause is not interdicted by § 52-216a of the General Statutes. That statute forbids introduction in a jury trial of a covenant not to sue, or a release of joint tortfeasor. It is clear that no such covenant or release was ever introduced into evidence in this ease, despite the defendants' efforts to the contrary. It would be entirely speculative to assume that the jury, warned that the original complaint had been admitted solely on the issue of causation, would have drawn improper inferences concerning settlement. The court made a number of evidentiary rulings concerning certain warnings, literature, standards, and test results relating to the safety of pool slides. Some proffered evidence was excluded as hearsay, other as too remote, immaterial, or irrelevant; its admissibility rested within the sound discretion of the trial court; State v. Carbone, 172 Conn. 242, 262, 374 A.2d 215 (1977), cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063; Steiber v. Bridgeport, 145 Conn. 363, 366, 143 A.2d 434 (1958). Standards promulgated by the Consumer Product Safety Commission in 1976, nine years after the sale of the slide and six years after the injury, were properly excluded as irrelevant under Tomer v. American Home Products Corporation, 170 Conn. 681, 687, 368 A.2d 35 (1976), which held that "[s]ince the defendants could not he held to standards which exceeded the limits of scientific advances existing at the time of their allegedly tortious conduct, expert testimony tending to show the scope of duties owed could have been properly limited to scientific knowledge existing at that time." For similar reasons, the trial court acted within its discretion in admitting, only for the limited purpose of demonstrating feasibility of warning, the post-1970 warnings of another manufacturer of pool slides, and in excluding a potentially prejudicial film. See Tait & LaPlante, Handbook of Connecticut Evidence, § 9.1 (c) (1976). The plaintiffs' final evidentiary claim on appeal is equally without merit, since again it concerns a matter entrusted to the sound discretion of the trial court. One of the plaintiffs' witnesses was a young girl, Tracey Pelkey, who was eight years old at the time of the accident, and fourteen years old at the time of the trial. Her testimony concerned the place on the slide where Russell had stopped before proceeding to push himself off into the pool. Her original testimony at trial allegedly differed from that contained in a prior deposition and in a prior statement temporally nearer to the time of the accident. The court permitted the defendants' counsel to refresh her recollection by showing her these allegedly contradictory statements, and she then modified her testimony. Whether there was a need for her recollection to be refreshed and whether in all the circumstances it was appropriate to do so were questions for the trial court's exercise of discretion. States v. Grimes, 154 Conn. 314, 322, 228 A.2d 141 (1966). n The plaintiffs' assignments of error concerning the charge to the jury raise questions about the charge with respect to each of the plaintiffs' various counts. Since the jury returned verdicts for the defendants on each count, it is appropriate to consider separately objections to the charge on the issues of strict liability in tort, negligence, and breach of warranty. With respect to strict liability in tort, the plaintiffs claim that the trial court erred in its statement of contributory negligence as a defense. The trial court charged, in accordance with Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 505-506, 365 A.2d 1064 (1976), that contributory negligence is a defense to strict liability when the plaintiff's conduct involves misuse of the product, but not when the conduct consists of a mere failure to discover the defect in the product or to guard against the possibility of its existence. This charge accurately stated the law of Connecticut at the time of the accident, and at the time of the trial. Thereafter, the General Assembly enacted a statute, 1977 Public Acts, No. 77-335, abolishing the defense of contributory negligence in causes of action based on strict tort liability. Although Public Act 77-335 is in terms applicable to a]l actions "pending on or brought after the effective date [June 7, 1977] of this act," that statute cannot govern this case, in which judgment was rendered more than five months before the effective date of the act. After the rendition of judgment, an action is no longer "pending." See Salem Park, Inc. v. Town of Salem, 149 Conn. 141, 144, 176 A.2d 571 (1961); Walsh v. Gurman, 132 Conn. 58, 65, 42 A.2d 362, cert. denied, 326 U.S. 719, 66 S. Ct. 24, 90 L. Ed. 426 (1945). With respect to negligence, the plaintiffs claim error in the court's failure to charge on the defendants' duty to test their product to assure its safety. The plaintiffs requested the court to charge that " [w]here no standard of reasonable inspection'or testing has been followed, the duty to exercise due care has been breached." The duty to test does not, however, exist in a vacuum. Bather, it is "one facet of the manufacturer's general duty to exercise reasonable care . The rule is that a manufacturer has a duty to make such tests and inspections . as should be recognized as being reasonably necessary to secure the production of a safe product." Annot., Manufacturer's Duty to Test or Inspect as Affecting His Liability for Product-Caused Injury, 6 A.L.R.3d 91, 98 (1966). See Putensen v. Clay Adams, Inc., 12 Cal. App. 3d 1062, 91 Cal. Rptr. 319 (1970); LeBlanc v. Ford Motor Co., 346 Mass. 225, 191 N.E.2d 301 (1963). The question, initially, is not how much testing was required, but whether due care required any testing at all. The trial court therefore correctly charged the jury that "the test here is the care of a reasonably prudent corporation under the same circumstances. If under the circumstances you find [that] a test of said slide . . . would have been made by a reasonably prudent corporation, and the defendants [or] either of them, did not so test, it constitutes negligence." With respect to implied warranty, the plaintiffs claim error because the court's charge required them to prove reliance by the original buyer on the skill and judgment of the defendant-seller, Sears. The court construed the plaintiffs' complaint, which alleged an implied warranty "that said slide would be reasonably fit for the purpose for which it was purchased," to be a complaint invoking § 42a-2-315 of the General Statutes, the section of the Uniform Commercial Code that describes an implied warranty of fitness for a particular purpose. Accordingly, the court instructed the jury that, on the warranty counts, the plaintiffs would have to establish that Sears had made public representations in its advertisements and publicity concerning the safety of its products, and that the buyer had in fact relied upon such representations. Since the plaintiffs had offered no evidence of reliance on public representations, the charge left the jury virtually no choice other than to find for the defendants on implied warranty. The plaintiffs claim that they were entitled to a charge based on the implied warranty of merchantability; General Statutes § 42a-2-314 ; proof of which requires neither specific representations nor reliance. The warranty of merchantability is the broadest and most important warranty in the Uniform Com mercial Code. A warranty of merchantability is implied in any sale of goods by a merchant seller; the statutory standards for merchantability include, under §42a-2-314 (2) (c), that the goods be "fit for the ordinary purposes for which such goods are used." (Emphasis added.) See White & Summers, Handbook of the Law under the Uniform Commercial Code, § 9-6, 9-7 (1972). The warranty of fitness for a particular purpose, § 42a-2-315, by contrast, is narrower, more specific, and more precise. Id., § 9-9. It requires that the seller have reason to know of a buyer's particular purpose and of the buyer's reliance on the seller's skill and judgment, as well as actual reliance in fact by the buyer. According to White & Summers, the warranty of fitness for a particular purpose appears most commonly in transactions between businessmen where goods are to be specially selected or manufactured. Id., § 9-9, pp. 297-98. Consumer transactions, in which warranty is pleaded as an alternative to strict liability, almost invariably involve the warranty of merchantability. The complaint in this ease, although it refers somewhat confusingly to "fitness" rather than to "merchantability," should have been understood to be pleading the broader rather than the narrower implied warranty. The purpose for which this slide was purchased was obviously the ordinary purpose for which such goods are intended; the plaintiffs never offered anything to the contrary in their pleadings or in their proof at trial. "A dealer who sells articles which ordinarily are used in only one way impliedly warrants fitness for use in that particular way. The warranty is one of merchantability." Crotty v. Shartenberg's-New Haven, Inc., 147 Conn. 460, 464, 162 A.2d 513 (1960). See also Redfield v. Mead, Johnson & Co., 266 Or. 273, 512 P.2d 776 (1973); Pacific Marine Schwabacher, Inc. v. Hydroswift Corporation, 525 P.2d 615 (Utah 1974). Under modern rules of pleading, slight linguistic ambiguity should not be fatal to a cause of action. See Schaller v. Roadside Inn, Inc., 154 Conn. 61, 64, 221 A.2d 263 (1966). The court was therefore in error in refusing, after due exception, to charge on the general implied warranty of merchantability. The defendants argue that even if the instruction on implied warranty was erroneous, any error was harmless because of the substantial substantive overlap between strict liability and the implied warranty of merchantability. Whether the standard for defective goods under § 42a-2-314 (2) is fully coextensive with the standard for "a defective condition unreasonably dangerous" for strict liability under the Restatement (Second) of Torts, §402A (1965), is a controversial question which we need not now address. It is true that the jury's findings for the defendants on strict liability might have come from a determination that the slide was not defective for tort or, inferentially, for warranty purposes. But it is equally possible that the jury found for the defendants because the plaintiff's contributory negligence barred recovery. As the trial court charged, contributory negligence is not a defense to breach of implied warranty. The jury might consistently have found the slide to be defective, and yet have denied recovery on strict liability because of contributory negligence and on implied warranty because of the erroneous instruction concerning reliance. The error in this instruction was therefore clearly prejudicial and requires a new trial on the breach of warranty count. III The plaintiffs' final assignment of error asks us to overrule the trial court's refusal to set aside the verdict as against the weight of the evidence. It is a well-established rule that in review of such decisions, " 'great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.' " Cicero v. E.B.K., Inc., 166 Conn. 490, 494, 352 A.2d 309 (1974); Gosselin v. Perry, 166 Conn. 152, 168, 348 A.2d 623 (1974). On the record before us, there appears no basis for overturning the conclusion of the trial court. There is error in part; the judgment is affirmed except as regards the fourth and seventh counts, and as to those counts only a new trial is ordered. In this opinion the other judges concurred. "[General Statutes] See. 52-216a. reading or agreements or releases to jury prohibited. An agreement not to bring legal aetion by any tortfeasor or release of a tortfeasor in any eanse of aetion, shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of such cause of action against any other joint tortfeasors, nor shall any other agreement not to sue or release of claim among any plaintiffs or defendants in such aetion be read or in any other way introduced to a jury, except the court at the conclusion of the trial may deduct from the verdict any amount of money received by any party to such aetion pursuant to such agreement not to sue or such release of claim. Nothing in this section shall prohibit the introduction of such agreement or release in a trial to the court." "[General Statutes] See. 42a-2-315. implied warranty: fitness for particular purpose. Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under section 42a-2-316 an implied warranty that the goods shall be fit for such purpose." "[General Statutes] See. 42a-2-314. implied warranty: merchantability; usage of trade. (1) Unless excluded or modified as provided by section 42a-2-316, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale. (2) Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description; and (b) in the ease of fungible goods, are of fair average quality within the description; and (e) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promises or affirmations of fact made on the container or label if any. (3) Unless excluded or modified as provided by section 42a-2-316 other implied warranties may arise from course of dealing or usage of trade." In a pretrial memorandum concerning the availability ol the statute of limitations as a defense in this case, the trial judge characterized the plaintiffs' fourth and seventh counts as alleging "breach of an implied warranty of fitness for a particular purpose." We do not, however, consider this statement to be a controlling interpretation of the plaintiffs' pleadings.

Spallone, J. The defendant appeals from the judgment rendered in an action for dissolution of marriage, claiming that the trial court erred (1) in designating the plaintiff husband as the custodial parent of the two minor children, (2) in concluding that the breakdown of the marriage was the fault of the defendant and, therefore, making no award of periodic alimony, (3) in assigning the defendant's interest in the family home to the plaintiff, and (4) in denying the defendant's motion for a new trial based on the existence and discovery of new evidence. The facts are not in dispute. The parties were married for twelve years, during which time a daughter and a son were born. Conflicts eventually arose between the plaintiff and the defendant, resulting in a severe strain on their marital relationship. The defendant suffered emotional disturbances which led to her hospitalization for treatment. On occasion, the defendant inflicted corporal punishment upon her children, and the daughter once required medical treatment for injuries brought about by a kick from her mother. There was testimony that the defendant spent much of her time lying in bed, leaving the plaintiff to take all the responsibility for the home and children. After a contested hearing, the trial court concluded that the marriage had broken down irretrievably and that the cause of this breakdown, for a variety of reasons, was the fault of the defendant. Thereupon, the trial court dissolved the marriage and entered its orders awarding custody of the minor children to the plaintiff, and ordering the defendant to convey her interest in the marital home to the plaintiff, subject to a payment to her of $25,000 after the passage of ten years, or earlier if the plaintiff remarried, died or sold the premises. The court ordered no periodic alimony or child support. The defendant has appealed on the issues of fault, alimony, custody and property settlement. We find no error in the court's actions. The first three issues raised by the defendant implicate the factfinding function and the broad discretionary powers of the trial court. Our Supreme Court and this court have repeatedly and consistently held that we will not intrude into the proper exercise of those functions unless there is an abuse of discretion. "It is axiomatic that because of its clearly advantageous position to assess all of the circumstances before it, the trial court is accorded broad discretion in awarding alimony and allocating property in dissolution actions. Carpenters. Carpenter, 188 Conn. 736, 742, 453 A.2d 1151 (1982); Carter v. Carter, 8 Conn. App. 356, 358, 512 A.2d 929 (1986). This court has held that decisions by the trial court on such matters will only be disturbed ' "under the clearest of circumstances." ' Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 421, 479 A.2d 826 (1984)." Papageorge v. Papageorge, 12 Conn. App. 596, 598-99, 533 A.2d 229 (1987). This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found, thereby establishing that the court could reasonably conclude as it did. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982). Our study of the transcript discloses ample evidence to support the trial court's findings of fact and its conclusions of law. The defendant's final claim, that the trial court erred in denying her motion for a new trial on the basis of existing and newly discovered evidence, also fails. Prior to the institution of this dissolution action, and during proceedings then pending in the Probate Court, the state department of children and youth services (DCYS) conducted a custody study with regard to the children and parties herein involved. When the dissolution aetion was initiated, the proceedings in the probate court were abated. Although it existed at the time of the trial of this action, the actual report prepared by DCYS was never presented to the trial court for consideration. After the judgment of dissolution was rendered, new counsel for the defendant became aware of said report and thereupon moved for a new trial based on newly discovered evidence. A hearing on the motion for a new trial was held before the court, Kelly, J., which, after taking evidence, expressly found (1) that the DCYS report could have been discovered and produced at the time of trial by the exercise of due diligence, (2) that the testimony given during the dissolution action by Peter Myers, a family relations officer, was based to a considerable extent on the DCYS report, and (3) that even considering the content of the DCYS report, the final result in the dissolution action would not have been different. These findings are fully supported by the evidence and manifest a correct application of the standards to be applied when deciding a motion for a new trial. As enunciated in Hamlin v. State, 48 Conn. 92, 93-94 (1880), "to entitle a party to another trial on the ground of newly-discovered evidence, it must be made to appear that the evidence relied upon for such purpose was in fact newly-discovered; that it would be material to the issue on another trial; that it could not have been discovered and produced on the former trial by the exercise of due diligence; that it must not be cumulative; and that it must be sufficient to produce a different result on another trial, should the cause be determined solely upon the law and the evidence." Although Hamlin is over one hundred years old, it is still the law which governs our trial courts when presiding over a motion for new trial based on newly discovered evidence. See, e.g., Kubeck v. Foremost Foods Co., 190 Conn. 667, 670, 461 A.2d 1380 (1983); Lombardo v. State, 172 Conn. 385, 390, 374 A.2d 1065 (1977). Our analysis indicates that the trial court properly exercised its factfinding function in attributing fault in this matter, did not abuse its broad discretion in awarding custody and in fashioning its financial awards, and applied long standing and lawful standards in ruling on the defendant's motion for a new trial based on newly discovered evidence. There is no error. In this opinion the other judges concurred. Although a fifth claim of error was included in the defendant's statement of issues, a careful examination of the brief could not uncover any argument in support of this claim. Under these circumstances, we consider the claim abandoned. See Enterprise Leasing Corporation v. Dixon, 1 Conn. App. 496, 501, 472 A.2d 1300 (1984); Schlough v. Ruley, 1 Conn. App. 119, 119 n.3, 468 A.2d 1272 (1983). This portion of the judgment was opened by the trial court on February 24,1986, to amend the terms of the $25,000 payment to the defendant to include the death of the plaintiff.

Dupont, C. J. The defendant was convicted of sexual assault in the first degree, in violation of General Statutes § 53a-7(y and risk of injury to a minor, in violation of General Statutes § 53-21. The defendant has appealed from the judgment rendered on the conviction. His claims of error relate to the propriety of the court's instructions to the jury. The first issue in this case is whether the trial court erred in instructing the jury on the two types of conduct which can constitute a violation of General Statutes § 53-21, when the defendant was charged only with one. A second issue is whether the court erred in its instructions to the jury on the "threat of use of force" portion of General Statutes § 53a-70. The jury could reasonably have found the following facts. The victim, who was nine years old at the time of the offense, lived with her mother, two older sisters and the infant child of one of the sisters. The defendant was the boyfriend of the victim's mother and occasionally stayed overnight at the victim's house. On the day of the offense, while one of the older sisters was asleep in one bedroom; the defendant asked the victim, in another bedroom, if she would perform oral sex on him. The defendant held her by the arm so she could not get away, pulled her clothes up and down, touched and sucked her breasts and put his fingers on and inside her vagina. After this incident, the victim told her sister, who contacted her mother. A medical examination of the victim approximately one and a half to two weeks after the incident revealed that the victim had a one by two centimeter hole in the hymen of her vagina. This was consistent with the size of a finger but could also have occurred in the normal development of the child. The defendant was initially charged by an information, dated April 7,1983, which contained two counts, sexual assault in the first degree and risk of injury to a minor. Neither of those counts was particularized, and the offense of risk of injury was charged generally and included both statutory alternatives. On May 9, 1983, the day the trial began, the state filed a substituted information which, by its language, limited the manner in which the crime of risk of injury was alleged to have been committed. The substituted information specified the date, time and place of the alleged incident, and relied upon only one of the two statutory alternatives set forth in General Statutes § 53-21. In the substituted information, the state charged the defendant with risk of injury to a minor in that the defendant "did an act likely to impair the health or morals of [the victim], a child under the age of sixteen, in violation of Section 53-21 of the Connecticut General Statutes." The defendant's first claim of error is that the trial court erroneously enlarged the crime with which he was charged by reading General Statutes § 53-21, in its entirety, in its opening remarks at the beginning of the trial and by instructing the jury on the entire statute at the conclusion of the trial. At neither time did the trial court explain to the jury that the defendant had been charged with only one portion of the statute. The state concedes that the trial court erred in instructing the jury on the portion of General Statutes § 53-21 which was not charged. It argues, however, that because the defendant has not demonstrated that the charge prejudiced his defense and resulted in substantial injustice, he should not prevail on appeal. The defendant did not properly preserve this issue in the trial court by taking an exception to the charge. Practice Book § 854. His claim is reviewable only if the record supports his contention that a fundamental constitutional right is involved. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); State v. Delgado, 8 Conn. App. 273, 276, 513 A.2d 701 (1986). An appellate court must ask a series of questions when an Evans claim is made and answer each in the affirmative before continuing to the succeeding question. These questions are as follows: (1) is there an issue raised which facially implicates a constitutional right; (2) is the record sufficient to consider that constitutional claim on its merits; (3) was there, in fact, based on the record, a deprivation of a constitutional right of a criminal defendant; and (4) did the deprivation deny the defendant a fair trial, thereby requiring that the judgment rendered following a conviction by a jury be set aside. The first two questions relate to whether a defendant's claim is reviewable, and the last two relate to the substance of the actual review. In cases involving a jury instruction where the claimed constitutional deprivation is the enlargement of the crime of which the defendant is accused, the ultimate question is whether it is reasonably possible that the jury was misled. State v. Torrence, 196 Conn. 430, 436, 493 A.2d 865 (1985); State v. Grant, 6 Conn. App. 24, 27, 502 A.2d 945 (1986). "A defendant is constitutionally entitled 'to be informed of the nature and cause of the accusation' against him. Conn. Const., art. I § 8; U.S. Const., amend. VI. 'Nothing is more elementary in criminal law than that an accused is required to defend only against the charge alleged.' State v. Genova, 141 Conn. 565, 572, 107 A.2d 837 [1954] (opinion of O'Sullivan, J., dissenting)." State v. Ruiz, 171 Conn. 264, 269-70, 368 A.2d 222 (1976). When an information sufficiently sets out the offense with which a defendant is charged, "the state is limited to proving that the defendant has committed the offense in substantially the manner described." Id., 270. The purpose of this limitation is to ensure (1) that a defendant is informed of the nature of the crime charged to enable him to prepare his defense and to avoid prejudicial surprise, and (2) that future criminal proceedings for the same offense will be avoided. State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986). Accordingly, the defendant's claim of enlargement does implicate a fundamental constitutional right. The next question is thus whether the record is sufficient to consider his claim on its merits. General Statutes § 53-21 proscribes "two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor's moral or physical welfare; see State v. Smith, 149 Conn. 487, 181 A.2d 446 [1962]; and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being. See State v. Coulombe, 143 Conn. 604, 124 A.2d 518 [1956]; State v. Silver, 139 Conn. 234, 93 A.2d 154 [1952]." State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963); State v. Apostle, 8 Conn. App. 216, 242, 512 A.2d 947 (1986). In its opening remarks to the jury and in its charge at the conclusion of the trial, the trial court read or paraphrased the uncharged portion of General Statutes § 53-21 five times. It repeatedly stressed that a conviction under that statute would require the jury to conclude, first, that the child was under sixteen years of age and, second, either that the child was placed in a situation wilfully or unlawfully, so that her life or limb was in danger or her health likely to be injured or her morals likely to be impaired, or that acts were directly perpetrated on her person which were injurious to her moral or physical well-being. The court not only read the inapplicable portion of the statute, but also discussed this alternative mode for committing the crime. See State v. Carter, 189 Conn. 631, 645-46, 458 A.2d 379 (1983). Applying the criteria of State v. Evans, supra, we find that the record is sufficient to consider the constitutional claim of the defendant on the merits. See State v. Franko, supra. The next question is whether, on the basis of the record, the defendant was, in fact, deprived of his rights guaranteed by article first, § 8 of the Connecticut constitution and the sixth amendment to the United States constitution. " 'We have disapproved the practice of reading an entire statute to a jury where under the pleadings or the evidence only a portion of it is applicable. State v. Ruiz, [supra, 269-72]; State v. Criscuolo, 159 Conn. 175, 177, 268 A.2d 374 (1970).' State v. Carter, supra, 645. ' "While the court may instruct in the exact language of the statute, it should not do so where the exact statutory language might mislead the jury . . . . " ' State v. Criscuolo, supra." State v. Belton, 190 Conn. 496, 501-502, 461 A.2d 973 (1983). As we noted earlier, the ultimate issue in cases such as these is whether it was reasonably possible that the jury was misled by the charge into misunderstanding an issue of fundamental constitutional significance. State v. Torrence, supra; State v. Grant, supra. The record indicates that evidence was presented at trial regarding the defendant's disruptive influence on the victim's household. The defendant occasionally slept at the victim's house. When he did, the victim, who ordinarily shared a bedroom with her mother, slept with one of her sisters. Both of the sisters testified that they disliked the defendant because he beat their mother. The elder sister testified that he stole her baby's clothes in order to sell them. The same sister also testified that when the defendant was present, the mother did not pay attention to her daughters and the eldest sister had to take the place of the mother in the family. The middle sister, who at the time of trial was fifteen years old, stated that the defendant stole numerous articles from her. The victim testified that the defendant made promises that he never kept, stole her mother's checks and beat her mother. The state admits in its brief that the focus of the evidence of both the state and the defendant was the act involving the sexual assault of the victim. It also states in its brief that the evidence it produced as to the stealing and beatings by the defendant, and the general unwholesome situation in which the victim was placed by him, was not sufficient to convict the defendant of the uncharged statutory alternative. The defendant's defense as to both the sexual assault charge and the risk of injury charge was that of simple denial. The focus of his defense and the focus of the state's case was the sexual incident alleged in the substituted information. The defendant did not take the stand. All of his witnesses, except one whose testimony related to prior alleged misconduct of the victim, testified either directly or indirectly about the alleged rape, or about the date on which it was alleged to have occurred. One witness, unrelated to the defendant, a rental agent, gave alibi testimony, with reference to the date and time of the sexual act as alleged in the substituted information. His other witnesses were the doctor who had treated the victim for the assault, and relatives who testified that the victim had said another person had put his foot or finger into her vagina or that they had heard the defendant agree to buy the victim a training bra. The victim testified that the defendant promised her a training bra during the course of his sexual assault. An examination of the defense indicates that the evidence which the defendant might have offered had he been charged with the entire statute would logically have differed from that which he did present to defend against the portion of the statute with which he was charged. It is a fundamental tenet of due process that a defendant charged with a crime has the right to establish a defense. State v. DeJesus, 194 Conn. 376, 388, 481 A.2d 1277 (1984); State v. Delgado, supra, 282. In this case, it is highly likely that the defendant would have pursued an alternative, if not different, defense to the risk of injury count had he been charged with the entire risk of injury statute in the substituted information. For example, he might have introduced evidence to rebut the state's evidence relating to the portion of the statute with which he was not charged. "It has been recognized that a charge of risk of injury can include a host of possibilities and a multitude of acts. See State v. Eason, 192 Conn. 37, 470 A.2d 688 (1984)." State v. Apostle, supra, 246. In order to commit an offense under the first part of the broad risk of injury statute, no touching of any part of the body is required. "[T]he creation of a prohibited situation is sufficient." State v. Perruccio, 192 Conn. 154, 160, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984). In view of the evidence presented and the charge as given, several acts of the defendant, if not his very presence in the victim's household, might have lured the jury into a consideration of the uncharged portion of the risk of injury statute. The state admits that there was not enough evidence of acts other than the sexual assault to convict the defendant of the uncharged portion of the statute. The sufficiency of the evidence to convict the defendant of the uncharged portion of the statute by use of the evidence unrelated to the sexual assault is, however, not the question here. It is, rather, whether it was reasonably possible for the jury to have been misled by the instructions of the court. The record indicates that the defendant was not unfairly surprised by the evidence relating to the uncharged portion of the statute, nor by the trial court's charge to the jury since he did not object to its introduction, or to the charge. The record does, however, show that he was prejudiced in his defense. Unlike the situation in State v. Franko, supra, which also dealt with a statute phrased in the disjunctive and with an alleged unconstitutional enlargement of an offense, the defendant here mounted a defense which consisted of denial. In Franko, the defendant claimed, as to a charge of sexual assault in the first degree, that there was sexual intercourse but that it was consensual. Such a defense encompassed both a charge of threat of force, the claimed enlargement, and a charge of use of force. Since there was sufficient evidence under either alternative of the statute to allow its submission to the jury, the defendant was not prejudiced in his defense. Here, the state agrees that there was insufficient evidence on the uncharged portion of the statute for the defendant's conviction. Cf. State v. Dahlgren, 200 Conn. 586, 595, 512 A.2d 906 (1986). Therefore, an amendment to the information to charge the entire statute would have been improper, if sought. Furthermore, the uncharged portion of the risk of injury statute could relate to diverse times and places, unlike a charge of sexual assault which is anchored to a particular time and place. From the very beginning of the trial, before any evidence was presented, the trial court invited the jury to consider both the charged and uncharged portions of the statute. At no point during the trial did the court note that the state limited its accusation to one part of the risk of injury statute. The erroneous instruction, coupled with the evidence introduced at the trial, could have led to the defendant's conviction "for a crime the elements of which were not alleged in the information. See Fahy v. Connecticut, 375 U.S. 85, 91, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963)." State v. Belton, supra, 504. We therefore hold that in this case there was at least a reasonable possibility that the jury was misled by the trial court's instructions. Because a new trial will be necessary on the risk of injury count, this conclusion is dispositive of the defendant's remaining claims of error arising out of that charge. The defendant also claims that the trial court erred in its instruction on General Statutes § 53a-70 by instructing the jury on the "threat of use of force" portion of that statute, and by failing to define that phrase. In the substituted information, the defendant was charged with compelling the victim "to engage in sexual intercourse by the use of force against her in violation of Section 53a-70 (a) of the Connecticut General Statutes." The trial court, however, instructed the jury that "[a] person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such person or by the threat of the use offeree against such other person. " (Emphasis added.) The defendant contends that the charge as given was erroneous because it did not include a definition of "threat of use of force" and that it is therefore reasonably possible that the jury was misled. He does not argue, in this instance, that the trial court erred by permitting the jury to consider an uncharged alternative ground of liability. He maintains instead that the court, having charged the jury on both the use of force and the threat of use of force, erred by failing properly to guide the jury on the meaning of "threat of use of force." He contends that this amounted to an omission of an essential element of the crime. The state argues that the instruction was harmless because no evidence was presented at the trial to support a charge of threat of the use of force and that the defendant's conviction rested solely on his use of superior physical force, an element upon which the jury had been properly instructed. No exception was made to the court's charge on General Statutes § 53a-70 (a). Consequently, this claim, like the defendant's claim as to the risk of injury charge, is reviewable only if it is adequately supported by the record and involves a fundamental constitutional right. State v. Delgado, supra, 276. "A claim that a jury charge omitted an essential element of the crime charged raises an issue of fundamental constitutional dimension. State v. Maltese, 189 Conn. 337, 341-42, 455 A.2d 1343 (1983); State v. Hilliard, 3 Conn. App. 339, 342, 488 A.2d 463 (1985)." State v. Grant, supra, 28. The record here is sufficient for us to review this claim. The record discloses that the victim testified that the defendant held her arm so that she could not walk away. She also testified that she was not hurt, but that she was scared. A social worker from the department of child and youth services who met with the victim testified that the victim told her that she was very frightened at the time of the incident so that she complied with the defendant's wishes, but that he did not force her. On the basis of the victim's description of the incident, it is reasonable to infer that at some point during the incident the defendant released his hold on the victim's arm in order to accost her sexually, but that the victim did not flee because of her fear of him. It is fundamental that the trial court "in discharging its function of instructing the jury on the law . . . explain those rules of law which are applicable to the facts of the particular case. See State v. Preyer, 198 Conn. 190, 199-200, 502 A.2d 858 (1985)." State v. Grant, supra, 31. In reviewing a claim of error involving this function of a trial court, our task is not to dissect the charge microscopically, but to view it as part of the whole trial. State v. Kurvin, 186 Conn. 555, 563, 442 A.2d 1327 (1982). In general, an omission in an instruction is less likely to cause prejudice than a misstatement of the law. Id. In this case, our review leads us to conclude that the trial court erred in omitting the statutory definition of "threat of use of force," but that the error was harmless, that is, that there is no reasonable possibility that the jury was misled. See State v. Cobb, 199 Conn. 322, 325, 507 A.2d 457 (1986). We have recently had occasion to consider a similar question in State v. Grant, supra. There, the unexplicated statutory language was the word "unlawful" as used in General Statutes § 53a-103 (a), attempted burglary in the third degree. "Unlawful" in that context is defined in General Statutes § 53a-100 (b) as an entry or remaining upon premises "when the actor is not otherwise licensed or privileged to do so." "Licensed or privileged," we decided in Grant, was a unitary phrase, rather than two separate concepts, which possessed legal significance bearing upon the state's burden of proving whether the defendant's entry on the premises was consensual. Id., 30-31. We thus held that the common understanding of the term "unlawful" was either "too general to be useful or . . . simply not the same as [its] technical meaning . . . . " Id., 31. In this case, "threat of use of force" as used and explicated in General Statutes § 53a-70 (a) is not so laden with technical significance. Although General Statutes § 53-21 provides a legislative definition of "threat of use of force," that definition does not differ substantially, as the defendant argues, from what might be deemed to be the common understanding of the phrase. The statute provides that "the threat of use of force against such other person or a third person" is that which "reasonably causes such person to fear physical injury to such person or third person." General Statutes § 53a-70 (a). According to Webster, Third New International Dictionary, "threat" means: "1: an indication of something impending and [usually] undesirable or unpleasant . . . a: an expression of an intention to inflict evil, injury, or damage on another [usually] as retribution or punishment for something done or left undone . . . b: expression of an intention to inflict loss or harm on another by illegal means and [especially] by means involving coercion or duress of the person threatened . . . . " In construing statutes, the commonly approved usage of the language should control. General Statutes § 1-1 (a); State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983). The defendant has in no way shown that "threat of use of force" was used in the statute in anything other than its ordinary meaning. See State v. Maresca, 173 Conn. 450, 460-61, 377 A.2d 1330 (1977). We therefore cannot conclude that it is reasonably possible that the jury was misled by the failure of the trial court to instruct on the statutory meaning of "threat of use of force." There is error as to the risk of injury count only, the judgment finding the defendant guilty of risk of injury to a minor is set aside and the case remanded for a new trial on that count. In this opinion the other judges concurred. General Statutes § 53a-70 provides: "(a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person. "(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court." General Statutes § 53-21 provides: "Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both." The defendant was sentenced to a definite term of ten years on the sexual assault in the first degree charge, and to a concurrent term of five years on the risk of injury to a minor charge. In its opening remarks to the jury, the trial court stated: "As to the second count, a person violates a section of the law, risk of injury to a minor, if that person wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any child. The questions you have to decide are, was the child . . . under the age of sixteen? Was that child placed in a situation wilfully or unlawfully so that her life or limb was in danger or her health likely to be injured or her morals likely to be impaired, or was there any act done by the defendant likely to impair her health or morals?" In its charge at the conclusion of the trial, the court read the entire risk of injury statute and stated that the jury must answer two questions: (1) whether the child was under the age of sixteen; and (2) whether the state had proven beyond a reasonable doubt that the the child was "placed [by the defendant] in a situation wilfully or unlawfully so that her life or limb was endangered or her health likely to be injured, or her morals likely to be impaired, or was there any act done by the defendant to her likely to impair her health or morals . There are two types of behavior which the second element describes. The first is the deliberate indifference to, acquiescence in, or the creation of a situation harmful to the child's moral or physical welfare. The second are acts directly perpetrated on the person of the minor and injurious to her moral or physical well-being." While it is true that the evidence presented would support a verdict based solely upon the second portion of the risk of injury statute, this is not the issue before us. "[Wjhat is before us is whether it is reasonably possible that the jury were misled. See State v. Rose, 169 Conn. 683, 688-89, 363 A.2d 1077 (1975). In any event, 'appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial.' Dunn v. United States, 442 U.S. 100, 107, 99 S. Ct. 2190, 60 L. Ed. 2d 743 (1979)." State v. Belton, 190 Conn. 496, 504, 461 A.2d 973 (1983). The trial court instructed the jury that the use of force is the "use of a dangerous instrument or use of actual physical force or violence of superior physical strength against the victim." There was evidence that the defendant, an adult male, held the nine year old victim's arm in a manner that precluded her from fleeing. This conclusion should not be construed as approval of the charge as given. State v. Smith, 194 Conn. 213, 220, 479 A.2d 814 (1984). The better practice would have been for the trial court to have instructed the jury on the statutory definition of "threat of use of force."

Shea, J. In this action the plaintiffs, consisting of three corporations bearing the family name "Paeelli," and two brothers, Clarence and Guido Paeelli, have sued a third brother, Torino Paeelli, for damages resulting from fraudulent misrepresentations claimed to have been made when they purchased his interests in the corporations. The defendant, Torino Paeelli, has filed a counterclaim based upon the refusal of the plaintiffs to pay the balance due on a promissory note given to him at the time of the purchase and also his share as a beneficiary in a profit sharing plan of one of the corporations. The trial court rendered judgment for the defendant on the complaint as well as on the counterclaim. In their appeal the plaintiffs claim that the court erred (1) in finding that no fraudulent misrepresentation was proved which would justify an award of damages; (2) in concluding that a stipulated judgment and general release of all claims against the defendant included even thop.e claims which had been concealed in violation of a fiduciary duty to disclose; (3) in allowing the defendant to recover upon his claim as the beneficiary of a profit sharing plan which had been the subject of a previous suit which terminated in a judgment of dismissal for failure to prosecute; and (4) in overruling the defense of the statute of limitations which the plaintiffs had raised against the promissory note. The defendant has filed a cross appeal for failure of the trial court to award reasonable attorney's fees for collection of the promissory note in accordance with a provision thereof. We find no error in the appeal of the plaintiffs. In the cross appeal we find error in the refusal to award attorney's fees. The underlying facts as set forth in the memorandum of decision are not seriously challenged. In 1974 the three brothers, Clarence, Guido, and Torino Pacelli were equal stockholders in Pacelli Brothers Transportation, Inc., Pacelli Truck Rental, Inc., and Pacelli Petroleum Transporters, Inc., corporations engaged in different aspects of the trucking business. Their father had started the enterprise. Clarence, the eldest son, ran the business until about 1960, when Torino, the youngest, took over as manager. He became president of the principal corporation, Pacelli Brothers Transportation, Inc., which was organized in 1963. Clarence was treasurer, but was engaged principally in loading and unloading freight. Guido was secretary, but he worked for another employer, and was not involved in the daily operation of the business. All three brothers were directors. After Guido retired from his employment in 1972, he became more interested in the operation of the family trucking business. He became involved in a dispute with Torino. In late 1972 he engaged an attorney who arranged some meetings of the brothers, but was unsuccessful in achieving a reconciliation. Guido also retained an accountant to examine the corporate books. He suspected Torino of stealing, and Clarence eventually joined Guido in this belief. Guido had learned of an account with a bank in Boston which was used as a depositary where customers of the business in the Boston area could conveniently pay freight charges which had been billed to them. These funds, which could be paid only to the depositor and were not available for drawing checks to other persons, were allowed to accumulate until Torino felt they were needed for the business. They would then be transferred to the corporation bank accounts in Connecticut. These funds were not reported' as income to the corporation until they were deposited in the regular corporation bank accounts, a circumstance which gave rise to a potential liability for additional income taxes and penalties. In the summer of 1974 Guido and Clarence decided to oust Torino as a director and president of the corporations. "When Torino learned of this intention he brought an action against the three family corporations and his two brothers to enjoin the move, to have a receiver appointed and to dissolve the corporations. Guido, Clarence and one of the trucking corporations sued Torino, three of his sons employed by the corporation, and another trucking corporation, Pace Motor Lines, Inc., which was alleged to have been formed by Torino and his sons for the purpose of diverting the assets and customers of the Pacelli trucking business. When the cases came to trial, there were extensive negotiations. The attorneys and accountants were aware of the possible tax liability arising from the failure to recognize the funds in the Boston depositary as income until they were withdrawn, but were not fully aware of its dimensions. The accountant who represented Guido and Clarence advised them against a settlement because they did not know enough about the operation of the corporations under Torino. A settlement nevertheless was reached, which, on October 2, 1974, was embodied in a stipulated judgment entered in the action which Torino had commenced. Guido testified that although he did not know the entire background and did not trust Torino, he wanted to get the whole thing over with. Under the terms of the settlement, Clarence and Guido agreed to buy Torino's interest for $300,000, of which $87,000 would be paid in cash and $213,000 by a secured promissory interest-bearing note payable in semi-annual installments over a period of approximately five years. They also withdrew the suit against Torino, his sons and their corporation, and they gave Torino a general release. It was also agreed that Torino's share of the profit sharing plan would become vested. Torino agreed not to compete in the franchise areas of the Pacelli corporations for five years. About one year after the settlement it was discovered that during his management of the business Torino had secretly established another bank account, known as the Air-Freight account, which he had used not only for the needs of the business but also for himself and his family. The present action followed. The trial court found that Torino had diverted at least $103,410.02 of corporate funds to himself and that he had disregarded his "corporate duties of fidelity and honest dealing." Nevertheless, the court concluded that the effect of the stipulated judgment and general release could not be overcome by this evidence. It relied upon the admission of Gruido that he had agreed to the settlement because he wanted to get the matter over with, even though he realized that he did not have full knowledge of Torino's dealings and was acting against the advice of his accountant. The subsequent tax liability related to the Boston bank depositary was found to have been foreseeable. The misappropriation of the funds in the Air-Freight account was held to be "something the plaintiffs have to take their chances on as they were well aware of such a possibility from their accountant and their knowledge of the background of the case." The court found that Torino had made no representations on the general subject and had never even discussed it. He had refused to talk with the plaintiffs' accountant who had been engaged in auditing the books of the enterprise for several months before the settlement. I The conclusion of the trial court that Torino made no affirmative or express misrepresentation at the time of the settlement agreement is adequately supported by the evidence. The intentional withholding of information for the purpose of inducing action has been regarded, however, as equivalent to a fraudulent misrepresentation. 1 Eestatement (Second), Contracts §161; Haddad v. Clark, 132 Conn. 229, 233, 43 A.2d 221 (1945); see Duksa v. Middletown, 173 Conn. 124, 127-28, 376 A.2d 1099 (1977); Ceferatti v. Boisvert, 137 Conn. 280, 283, 77 A.2d 82 (1950). The subordinate facts found relating to his clandestine misappropriation of corporate funds clearly indicate a flagrant breach of Torino's duties as an officer and director of the family corporations. "Thou shall not steal" is basic. Not only the theft, but also his failure to disclose it were violations of the trust imposed upon him in that capacity. "An officer and director occupies a fiduciary relationship to the corporation and its stockholders." Katz Corporation v. T. H. Canty & Co., 168 Conn. 201, 207, 362 A.2d 975 (1975). "He occupies a position of the highest trust and therefore he is bound to use the utmost good faith and fair dealing in all his relationships with the corporation." Id. " 'Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.' " Adams v. Williamson, 150 Conn. 105, 112, 186 A.2d 157 (1962), quoting Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545 (1928). It is essential to the validity of a contract between a fiduciary and a beneficiary concerning matters within the scope of that relationship that a full disclosure be made of all relevant facts which the fiduciary knows or should know. 1 Restatement (Second), Contracts §173; see Phillips v. Moeller, 148 Conn. 361, 371, 170 A.2d 897 (1961). We are not inclined to relax these high standards which the law demands of fiduciaries. Arrigoni v. Adorno, 129 Conn. 673, 679, 31 A.2d 32 (1943). Although Torino's relationship to his brothers as a fiduciary in whom they reposed confidence had ceased by the time the settlement agreement was made on October 2,1974, we are not persuaded that his duty of disclosure had also terminated at that time. He could not doff his obligations so readily. He was bound to reveal his defalcations before he could be absolved. The trial court found that the rashness of the plaintiffs in entering the settlement agreement against the advice of their accountant when they suspected the possibility of undiscovered misdeeds of Torino barred them from relief. Where a party realizes he has only limited information upon the subject of a contract, but treats that knowledge as sufficient in making the contract he is deemed to have assumed the risk of a mistake. 1 Restatement (Second), Contracts §154. We find this principle inapplicable to the circumstances of the Air-Freight account misappropriation. There is no evidence that Guido or Clarence had any idea that Torino had diverted to his own use in an entirely separate and concealed account a sum of the magnitude found by the court. "It is the duty of a director in such dealings with a corporation to made [sic] a full and frank disclosure. 1 Mechem, Agency (2d Ed.), § 1207. The extent to which that will be affected by the failure of the party adversely interested to pursue inquiries seems very limited." Arrigoni v. Adorno, supra, 679; see White v. Miller, 111 Conn. 53, 57, 149 A. 237 (1930). The plaintiffs were entitled to assume that the hooks of the corporations, which were under the control of Torino, correctly stated the financial status of the business. General Statutes $33-307(a). Despite their suspicion of Torino, they could also rely upon the fulfillment of his legal duty as a fiduciary to make a full disclosure. Where there is misrepresentation, the fault of the victim in failing to discover the truth does not preclude relief unless it is so extreme as to amount to a failure to act in good faith and in accordance with reasonable standards of fair dealing. 1 Restatement (Second), Contracts $ 172. The misjudgment of Guido and Clarence did not rise to such a level. Our conclusion that a settlement agreement and general release cannot shield an officer or director who has failed in his fiduciary duty to disclose information relevant to a transaction with those whose confidence he has abused is in accordance with the results reached in similar cases. See Irving Trust Co. v. Deutsch, 73 F.2d 121, 126 (2d Cir. 1934); Sher v. Sandler, 325 Mass. 348, 354, 90 N.E.2d 536 (1950); Greenan v. Ernst, 393 Pa. 321, 323-24, 143 A.2d 32 (1958). II "Fraud vitiates all contracts, written or verbal and sealed or unsealed." Feltz v. Walker, 49 Conn. 93, 98 (1881). This principle is certainly applicable to the stipulated judgment and general release relied upon by the defendant in this case. The plaintiffs, however, at the time of trial did not seek a rescission of the settlement agreement by which they had acquired Torino's interest in the family trucking business, but sought to recover damages for the Air-Freight account misappropriation and the tax liability resulting from the Boston depositary account. They wished not only to retain the benefit of the bargain made, but also to improve upon it by an award of damages. The distinction between fraud in the form of an express misrepresentation and in the form of nondisclosure becomes significant where a damage award rather than avoidance of the contract is the remedy sought. Although a cause of action sounding in fraud was cognizable both at law and in equity, courts exercising equitable jurisdiction broadened the legal conception of fraud as an affirmative misrepresentation to include more subtle guises, such as nondisclosure. 37 Am. Jur. 2d, Fraud and Deceit § 326. "That there may be a fraud in the ffiew of a court of equity, which is not so at law, has long since been declared." Broome v. Beers, 6 Conn. 198, 211 (1826). "Fraud, indeed, as known to equity jurisprudence, 'properly includes all acts, omissions and concealments, by which an undue and uneonscientious advantage is taken of another. . . . ' " (Citation omitted.) Story v. Norwich & Worcester R. Co., 24 Conn. 94, 113-14 (1855). Since the plaintiffs have elected to seek damages rather than rescission, they bear the burden of proving the amount of the diminution in the value of their bargain which was suffered because of the nondisclosure. See Johnson v. Flammia, 169 Conn. 491, 500, 363 A.2d 1048 (1975); Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 517, 271 A.2d 69 (1970). The essence of their claim is that a full disclosure of the Air-Freight misappropriation would have resulted in a settlement agreement giving them an additional sum equal to their share of the amount taken by Torino. The insurmountable difficulty with this position of the plaintiffs is that we cannot assume that Torino would have agreed to accept the same consideration as provided in the settlement agreement. It is fair to assume that his decision to accept the terms of the settlement and transfer his interest was influenced in some measure by an expectation that his theft would remain undiscovered and that he would continue to enjoy its benefits. We cannot speculate about what different terms might have been agreed upon if there had been full disclosure. The settlement was indivisible, and the plaintiffs cannot avoid its detriments without relinquishing its benefits. See D. Dobbs, Remedies (1st Ed.) § 9.4, p. 620. Their decision to retain the fruits of the bargain precludes them from any relief. Ill Prior to the commencement of the present action by the plaintiffs in June, 1976, the defendant, in December, 1978, sued the plaintiffs for failure to comply with the part of the settlement agreement relating to his interest in the profit sharing plan. This writ was dismissed on April 16, 1977, for failure to prosecute with reasonable diligence. See Practice Book § 251. The same claim was raised when the defendant filed his counterclaim in this action on August 8,1980. The plaintiffs pleaded the dismissal as a defense to this portion of the counterclaim. As the plaintiffs concede, the judgment of dismissal for lack of diligence was not an adjudication on the merits and could not be treated as res judi-cata. Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 196, 91 A.2d 778 (1952). They claim, however, that upon dismissal the applicable statute of limitations became General Statutes § 52-592, which allows commencement of a new action within one year after the original action has been defeated without a trial on the merits. Since the counterclaim was not filed until more than three years after the first action was dismissed, the plaintiffs maintain that this portion of the counterclaim is barred. This court in a similar situation explicitly has rejected the argument of the plaintiffs that § 52-592 supersedes other statutes of limitations. Ross Realty Corporation v. Surkis, 163 Conn. 388, 392-93, 311 A.2d 74 (1972). "There is nothing contained in the statute to indicate that the legislature intended to abridge the applicable Statute of Limitations." Id., 393. The trial court ruled correctly that § 52-592 did not bar this counterclaim. IV The plaintiffs have raised a statute of limitations defense also against the counterclaim upon the note given to Torino as part of the consideration for the purchase of his interest in the family corporations. The plaintiffs rely upon General Statutes § 52-588 which provides that "[n]o action shall he brought on a negotiable note, if the holder thereof has been notified in writing by the maker thereof, or his attorney or agent, that such note was obtained of the maker in pursuance of a conspiracy, or of a general intent to defraud, unless the same is brought within one year after such notice was given, or six months after such note became due ." The only notice which the plaintiffs claim to have given which would entitle them to invoke this statute of limitations is an allegation in a paragraph of the complaint served upon the defendants that "had full disclosure . . . and . no misrepresentations been made . the plaintiffs would not have accepted the agreement of October 2, 1974 and would not have executed the note and mortgages referred to in that agreement." If this allegation were deemed to constitute the notice prescribed by § 52-588, it is not disputed that the periods allowed by the statute for commencing an action upon the note had expired by the time the defendant filed his counterclaim or notified the plaintiffs of his intention to do so. For the purpose of the statute of limitations, an action upon the subject of a counterclaim is deemed to have begun when it is filed or, where permission to do so is necessary, when a proper motion for that purpose is served on the opposing party. Consolidated Motor Lines, Inc. v. M & M Transportation Co., 128 Conn. 107, 108-109, 20 A.2d 621 (1941). Where a party seeks the benefit of a statute requiring a prescribed form of notice to trigger its operation, we have insisted upon strict compliance with the statutory requirement. See Menzies v. Fisher, 165 Conn. 338, 345-46, 334 A.2d 452 (1973); Akin v. Norwalk, 163 Conn. 68, 73-74, 301 A.2d 258 (1972); Main v. North Stonington, 127 Conn. 711, 712-13, 16 A.2d 356 (1940). In the absence of some special provision, the commencement of suit does not satisfy a statutory notice requirement. Forbes v. Suffield, 81 Conn. 274, 275, 70 A. 1023 (1908); see Andrews v. Bristol, 120 Conn. 499, 500-501, 181 A. 624 (1935). The allegations of the complaint relied upon by the plaintiffs make no reference to the "pursuance of a conspiracy, or of a general intent to defraud" as prescribed by the statute, nor does it contain any other language sufficient to inform a reasonable person that the provisions of § 52-588 were to become operative. The purpose of the statute undoubtedly is to allow the maker of a note who claims fraud in its procurement to seek a prompt determination of the issue while memories are fresh and witnesses are available. This objective was achievable in this case once the plaintiffs began their suit, in which they relied upon fraudulent nondisclosure as the basis for their damage claim. They hoped to overcome the effect of the stipulated judgment which settled the prior litigation and pursuant to which the note was executed. Their complaint placed the issue of the validity of the note before the court without any counterclaim by the defendant. That issue was inextricably entwined in the controversy over the entire settlement. Under the circumstances the defendant was not obliged to view the complaint as a notice intended to invoke the limitation periods of § 52-588. The trial court correctly overruled this special defense. Y The only issue raised in the cross appeal of the defendant is whether the trial court erred in refusing to award attorney's fees for the collection of the note described in the counterclaim. The note contained a provision obligating the makers, in the event of default and the employment of an attorney to collect the note or to protect the mortgage securing it, to pay "a reasonable sum for attorney's fees." The court expressly denied the request for attorney's fees but gave no reason for such action. The plaintiffs speculate that the refusal to award attorney's fees resulted from the trial court's view that Torino had acted in an "abhorent, irresponsible and dishonest manner toward his brothers." We know of no principle whereby the amount due upon a note which has been found to be valid may be reduced because of conduct of the holder which has been found to be reprehensible but not violative of the legal rights of the maker. The provision for a reasonable attorney's fee was an integral part of the note and, like any other clause determining the amount due, could not be disregarded. Having decided that the note was valid, the court had no choice but to allow a reasonable attorney's fee as part of the debt. The plaintiffs do not question the sufficiency of the evidentiary basis for determining the amount of such an award. The defendant seeks to have us modify the judgment to include the amount of the attorney's fee and disbursements claimed at trial, but we cannot assume the role of trier of the facts. Additional proceedings in the trial court are necessary for this purpose. There is no error in the appeal. There is error in the cross appeal and the case is remanded for further proceedings to determine the amount of a proper allowance for attorney's fees and necessary disbursements in collecting the note. In this opinion the other judges concurred. The memorandum of decision gives "1973" as the date when Guido retained counsel. His lawyer, however, testified that he wrote a letter in behalf of his client in December, 1972. Although, the original complaint included a claim for rescission, the plaintiffs withdrew this claim in a trial brief dated September 23, 1980. General Statutes § 52-592 provides in part: "accidental failure of suit; allowance of new action. If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment." The plaintiffs have not claimed that any other statute of limitations would bar the counterclaim upon the settlement agreement. The counterclaim alleged an oral stipulation upon which a judgment was entered. The counterclaim was filed within six years of the date of the settlement agreement and, therefore, would not have been barred by General Statutes § 52-576 (six years). It appears from the allegation that judgment had entered that the defendant might, in any event, have claimed that General Statutes § 52-598 (twenty-five years) would have been applicable.

Peters, J. This case involves a dispute between a buyer and a seller of a house under construction. The plaintiff, the buyer Frances Gilman, brought an action for return of her deposit and ancillary expenses against the defendant, the seller Enok Pedersen. The defendant filed, responsively, an answer, special defenses, and a counterclaim. After a trial to the court, judgment was rendered for the plaintiff on the first and second counts of her complaint, sounding in express and implied contract, and on the defendant's counterclaim. The plaintiff was awarded damages in the amount of her down payment, interest and costs, and the defendant has appealed. The litigated controversy arises out of a written contract, dated December 11, 1976, in which the plaintiff agreed to buy for $140,000 a house then being constructed by the seller in Old Lyme. The contract required the seller to complete the house and to make certain specified changes. The contract required the buyer, in turn, to make a deposit of $13,500, and designated that sum as liquidated damages subject to forfeiture in the event of the buyer's default. The contract further provided, at the request of the defendant, a closing date of January 15, 1977. It is undisputed that the defendant was unable to close the transaction on January 15, 1977, and that the parties agreed to postpone the closing, first to February 15, and then to February 25. On February 19, 1977, the plaintiff informed the defendant that she would not proceed with the purchase of the house because of defects in its construction. The plaintiff's concerns were substantiated by an inspection undertaken by Charles H. Leiper, an engineer, who reported multiple problems with the house, including many serious violations of the state building code. In early March, after the receipt of Leiper's written report, the plaintiff asked for a return of her down payment. The defendant subsequently, on March 9, procured a certificate of occupancy from the town of Old Lyme, and thereafter announced his readiness, willingness and ability to transfer title on April 29, 1977. The defendant argues that the court erred in ordering him to return the plaintiff's deposit because the plaintiff's conduct amounted to an anticipatory repudiation of the contract of sale. This anticipatory repudiation, he maintains, allowed the defendant to invoke the forfeiture clause contained in the contract. Since we disagree, as did the trial court, with the defendant's premise, we find no error. The defendant's argument is premised on his characterization of the plaintiff's conduct on February 19, when she first notified him that she no longer wanted the house. This statement might have constituted an anticipatory repudiation; see, e.g., Martin v. Kavanewsky, 157 Conn. 514, 518-19, 255 A.2d 619 (1969); Sagamore Corporation v. Willcutt, 120 Conn. 315, 318, 180 A. 464 (1935); Wonalancet Co. v. Banfield, 116 Conn. 582, 586, 165 A. 785 (1933); had the defendant's performance at that time been in substantial conformity with the requirements of the contract. This the plaintiff denies. In other words, what divides the parties is whether it was the plaintiff or the defendant who first repudiated his obligations under the contract of sale. Repudiation can occur either by a statement that the promisor will not perform or by a voluntary, affirmative act that indicates inability, or apparent inability, substantially to perform. See Restatement (Second), Contracts § 274 (Tent. Draft No. 8, 1973); Calamari & Perillo, Contracts (2d Ed. 1977) § 12-3. Repudiation is actionable only in the absence of breach or repudiation by the other contracting party; only a party himself not in default has the right to claim that the other party's manifestation of an intention not to perform constitutes a breach of the contract. Trowbridge v. Jefferson Auto Co., 92 Conn. 569, 573, 103 A. 843 (1918); and see Stavnezer v. Cooley, 115 Conn. 452, 456, 161 A. 863 (1932). On this crucial issue, the trial court's factual findings are fatal to the defendant's appeal. These findings are subject to review in this court only to determine whether, in light of the evidence and the pleadings in the record as a whole, they are clearly erroneous. Practice Book, 1978, § 3060D; Stelco Industries, Inc. v. Cohen, 182 Conn. 561, 564, 438 A.2d 759 (1980); Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 219-20, 435 A.2d 24 (1980). There was ample credible evidence in the record, especially the testimony of the engineer, Leiper, and of the defendant's carpenter, Wilburt W. Phlomm, to support the finding of substantial default by the defendant. As of February 19, the house was substantially defective in many ways: there were violations of the building code, inadequate structural supports, sagging floors, and improperly installed windows and doors. The trial court could properly have found, furthermore, that the plaintiff had sufficient reason to doubt that these serious defects could be remedied by the time of the then contemplated closing date, only six days later, or within a reasonable time thereafter. There is no error. In this opinion the other judges concurred.

Loftgo, J. The plaintiffs, George and Elizabeth Filisko, brought suit in three counts claiming damages for injury allegedly caused to their property by polluted water running from the defendant town of Easton's refuse dump, across the defendant Bridgeport Hydraulic Company's property, and onto the plaintiffs' land. The first count of their complaint may be characterized as common-law nuisance; the second as a private right of action under General Statutes § 25-26, pertaining to the authority of the commissioner of environmental protection to regulate discharges of waste into the waters of this state; and the third as "inverse condemnation." The case was tried to a jury and judgment was rendered upon a verdict solely against the town in the amount of $51,000. The questions presented by the town's appeal to this court are whether (1) the evidence was sufficient as a matter of law to find the town liable; (2) certain evidence was properly admitted; and (3) the damages awarded were excessive. Where a complaint is divided into counts and a general verdict is returned, if any of the counts are good it will be presumed that the damages were assessed as to that count and the verdict will be sustained. Sheeler v. Waterbury, 138 Conn. 111, 114, 82 A.2d 359; Ziman v. Whitley, 110 Conn. 108, 112, 147 A. 370. Since the plaintiffs assert that their first count of common-law private nuisance is the strongest in law and fact, we will examine the sufficiency of the evidence as to that count. To establish a nuisance four elements must be proven: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages. Kostyal v. Cass, 163 Conn. 92, 99-100, 302 A.2d 121. Whether any of those essentials exist is ordinarily a question of fact. Chazen v. New Britain, 148 Conn. 349, 355, 170 A.2d 891. There was abundant evidence from which the jury could have determined that the plaintiffs had proved the first three elements of their' ease. A few highlights will suffice to illustrate. The plaintiffs and their children moved into a new home in Easton in 1955, and constructed a pond on the premises in 1957. They used the pond and its environs for a variety of recreational activities with family and friends, such as picnicking, sunbathing, swimming, fishing, boating, ice skating and sledding. Beginning in 1968 and continuing until the time of trial in 1976, polluted water and materials regularly seeped into the pond, rendering it so unsightly and so redolent of "rotten eggs" that the plaintiffs stopped using the pond and filled in some of it every year. An interceptor ditch they dug in 1970 failed to cure the problem. The plaintiffs' well was tested on several occasions and found to be contaminated by sewage-type bacteria; after 1969, the plaintiffs brought in bottled water for drinking and cooking. In the opinion of qualified witnesses employed by the department of environmental protection, the pollution of the plaintiffs' pond and well was attributable to conditions at the town's refuse dump, located uphill of the plaintiffs' property. Violating regulations of the department of health, the town consistently failed to spread, compact and cover the refuse daily. As a result pollutants infiltrated water collecting at the dump site. The polluted water seeped through, two earthen dams constructed and maintained by the town, the second built in 1968, and flowed across the Bridgeport Hydraulic Company's property, on and below the surface, emerging on the plaintiffs' low-lying property. The town principally argues that the plaintiffs failed to offer sufficient evidence, such as "dye tests or other scientific proof," that the nuisance at the dump was the proximate cause of the plaintiffs' injuries. There is no merit to this claim. The plaintiffs' expert witnesses testified that tests above and below the dam area indicated that surface waters and ground waters became contaminated by materials present in the dump. They observed and traced the flow of polluted water from the dam area to the plaintiffs' property. The flow was so obvious, and the appearance and odor of the water on the plaintiffs' property was so similar to that of the water at the dump, that it was deemed unnecessary to perform dye tests or other tests to identify the nature and source of the contaminants. We conclude there was ample evidence for the jury to find the town liable in nuisance. Error has been assigned in the admission into evidence of two orders to the town to abate water pollution at the dump: a 1970 order from the water resources commission signed by the chairman of the commission, and a 1973 order from the commissioner of environmental protection signed by a deputy commissioner. There is no dispute that the orders qualified as business entries under General Statutes § 52-180, since they were made in the regular course of business, it was the regular course of business to make such orders, and the orders were made within a reasonable time after inspection of conditions at the dump. Hutchinson v. Plante, 175 Conn. 1, 4, 392 A.2d 488; Mucci v. LeMonte, 157 Conn. 566, 570, 254 A.2d 879. The town takes issue only with the admissibility of the statement contained in both orders that the town through its operations at the dump was "causing pollution to the waters of the State." We have said that for an item contained in a business record to be admissible under § 52-180 of the General Statutes, it must be based on the personal knowledge of the entrant or on the information of others with personal knowledge who are under a business duty to transmit such information to the entrant. Hutchinson v. Plante, supra; Mucci v. LeMonte, supra, 568-69. That requirement was satisfied in this case. The witness through whom the orders were offered, Roger Moore, was the state employee who actually made the investigations upon which the orders, which he wrote, were based. The finding of polluting conditions at the dump was derived from his personal observations and he had a business duty to transmit it to his employers. While conclusory in form, the finding of pollution was an opinion which either Moore or his superiors who signed the orders would be qualified to offer in testimony, and Moore did so testify. Cf. Mucci v. LeMonte, supra, 569. It is of no importance that the subordinate findings underlying Moore's opinion did not appear in the orders. General Statutes § 52-180 directs that such circumstances may be shown to affect the weight of the evidence but not its admissibility. Moreover, Moore was available for cross-examination and defense counsel took full advantage of the opportunity. There was no error in admitting the orders into evidence. Another evidentiary claim arose when the plaintiffs called as a witness a real estate appraiser, Edwin Haflieh, to testify that, on the basis of an appraisal he had made three days before his testimony, the loss of the pond had reduced the property's fair market value by $14,000. The town objected that Haflieh should not be allowed to testify because of the prejudicial failure of the plaintiffs' counsel to comply with discovery rules. Pursuant to a pretrial motion for production, the plaintiffs' counsel had revealed only that there was a report from another appraiser showing damages in the amount of $5000; no express disclosure that Haflieh would testify was made during trial. The plaintiffs' counsel explained to the court that he had made a last-minute decision to have Haflieh appraise the property in order to present an up-to-date estimate of damages to the jury. The court found this to be the "saving feature" of counsel's conduct and it permitted Haflieh to testify. The court's ruling and our review of it are governed by Practice Book, 1963, § 172A, which imposes on counsel a continuing duty to disclose and provides that the court may impose sanctions for breach of that duty, such as exclusion of the evidence not disclosed. The decision rests within the sound discretion of the court. See Kiessling v. Kiessling, 134 Conn. 564, 568, 59 A.2d 532. In view of the representation that Haflich had been hired and had performed his appraisal only a few days before he was called as a witness, we cannot say the court abused its discretion in allowing him to testify. We note also that the town did not request a continuance, as was its right under Practice Book § 172A, to prepare for cross-examination or to procure an independent appraisal. The town finally argues that the $51,000 verdict was excessive and should be set aside, on two grounds. The first is that there was insufficient evidence to permit the jury to consider depreciation in fair market value as an element of damages. This claim rests on the distinction usually observed between permanent and temporary nuisances. A permanent nuisance has been said to be one which inflicts a permanent injury upon real estate; the proper measure of damages is the depreciation in the value of the property. Stratford Theater, Inc. v. Stratford, 140 Conn. 422, 424, 101 A.2d 279; Southern New England Ice Co. v. West Hartford, 114 Conn. 496, 507, 159 A. 470. A temporary nuisance is one where there is but temporary interference with the use and enjoyment of property; the appropriate measure of damages is the temporary reduction in rental value, not depreciation in market value. Krulikowski v. Polycast Corporation, 153 Conn. 661, 670, 220 A.2d 444; Nailor v. C. W. Blakeslee & Sons, Inc., 117 Conn. 241, 246, 167 A. 548. Whether a nuisance is temporary or permanent is ordinarily a question of fact. Southern New England Ice Co. v. West Hartford, supra, 509. The town contends that the plaintiffs failed to prove that a permanent nuisance existed, and that it was therefore incumbent on them to prove loss to their land of rental value rather than fair market value. This claim has no merit. The jury heard evidence that pollution of the plaintiffs' property had continued for eight years, up to the time of trial. The town has not referred us to any contrary evidence that, at the time the case was tried, conditions at the dump had improved or were likely to improve. It is too late for the town to claim on appeal that the dump was closed subsequent to the trial. The court charged the jury as to the definition of a temporary nuisance and a permanent nuisance, and the town has not claimed any error in the charge. The town further argues that even if the jury could properly award $14,000 for depreciation in the value of the plaintiffs' property, the only other items of special damages testified to were about $3000 for the costs of installing a water purification system, constructing an interceptor ditch, and filling in the pond, necessarily implying that the jury awarded approximately $34,000 to the plaintiffs for their physical discomfort and annoyance. While conceding that in a nuisance case the jury may properly consider discomfort and annoyance; Herbert v. Smyth, 155 Conn. 78, 84, 230 A.2d 235; McCormick, Damages § 127, p. 514; the town maintains that an award of $34,000 is so grossly excessive that the verdict should be set aside. As we have stated many times, the test of whether a verdict is excessive is not whether this court would have awarded more or less but whether the amount of the verdict falls within the necessarily flexible limits of fair and reasonable compensation or is so large as to offend the sense of justice and compel the conclusion that the jury was influenced by partiality, prejudice or mistake. Armstrong v. Garneau, 163 Conn. 610, 611, 316 A.2d 511; Gorczyca v. New York, N.H. & H.R. Co., 141 Conn. 701, 703, 109 A.2d 589. The jury was presented with a volume of evidence regarding the annoyance, discomfort and inconvenience experienced by the plaintiffs during eight years of continuous pollution to their property. They lost completely the enjoyable uses for which they had built the pond. They were subjected to the sight of "big globs of brown-yellow gooey stuff" oozing onto their property, and to the constant odor of "rotten eggs" that was at times so powerful that they had difficulty sleeping. Their well became so contaminated that clothes weren't clean after washing and they couldn't use the water for drinking and cooking. "In the nature of things such damages are not susceptible of exact pecuniary computation and must be left largely to the sound judgment of the trier." Nailor v. C. W. Blakeslee & Sons, Inc., 117 Conn. 241, 246, 167 A. 548; Nair v. Thaw, 156 Conn. 445, 453, 242 A.2d 757. The trial court heard the evidence and its refusal to set aside the verdict is entitled to great weight on appeal. Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714. The verdict, although generous, was not so plainly excessive as to compel the conclusion that a lesser amount should be awarded as a matter of law. There is no error. In this opinion the other judges concurred. "[Practice Book, 1963] See. 172A. — continuing duty to disclose; failure to comply If subsequent to compliance with an order issued pursuant to See. 167 or Sec. 168 and prior to or during trial, a party discovers additional material previously requested or ordered subject to discovery or inspection, he shall promptly notify the other party, or his attorney, and the court of the existence thereof. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with See. 167, with See. 168 or with an order issued pursuant to Sec. 167 or 168, it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a, continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems appropriate." Compare § 171 and 172 of the 1978 Practice Book.

The defendant's petition for certification for appeal from the Appellate Session of the Superior Court is denied by the court.

The plaintiff's motion for permission to amend his brief with a statement of issues omitted inadvertently is granted by the court.

Peters, J. This case concerns the scope of the apparent authority of the president of a de facto corporation to encumber corporate property. The appeal results from the consolidation in the trial court of two related law suits arising out of the execution of a mortgage on property owned by the John Lettieri Corporation (hereinafter the corporation) by Joseph Lettieri, the corporation's president, to the American Savings Bank (hereinafter the bank). In the first law suit, Charles J. Lettieri, John Lettieri and other members of the Lettieri family sued to have the mortgage set aside; in the second suit, the bank sued Joseph Lettieri and the corporation to foreclose the mortgage. Although other related matters were also litigated in the trial court, the principal issue there and on this appeal is whether the mortgage was executed without corporate authority. The trial court, Spallone, J., found all of the issues in favor of the bank on both law suits. From the judgments thereafter rendered, the corporation, Charles Lettieri and John Lettieri have taken the present appeal. The facts in this case reveal, on the part of both the corporation and the bank, patterns of conduct so informal as to border on the uncommercial. Neither party conducted its business affairs with the kind of customary business caution that normally attends transactions involving significant amounts of property. The trial court's memorandum of decision, supplemented by those material facts as to which there is no dispute; see Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); establishes the following: The John Lettieri Corporation was incorporated in 1959 as a closely held family corporation organized for the purpose of managing family real estate for the benefit of family members. The corporation has had, since its inception, only four shareholders, Joseph Lettieri, John Lettieri, Charles Lettieri and John Seelza. At all relevant times, Joseph has been the president and Charles the secretary, but Joseph has always managed the corporation and has done so without any accountability to the remaining directors and shareholders. The corporation has kept no books, no resolutions, no minutes of meetings, has issued no stock certificates, has held no formal annual meetings. The corporation failed to file with the secretary of the state annual reports as required by General Statutes § 33-298, 33-299. Therefore, on April 10, 1962, the corporation was dissolved by the secretary of the state through the filing of a certificate of dissolution by forfeiture. See General Statutes §33-387 (b). Nonetheless, it has continued to maintain a checking account, to hold real estate in its own name and to incur and pay debts. As the trial court stated, this was a corporation that operated in total disregard of corporate law and procedure. The trial court expressly found that the corporation has allowed Joseph Lettieri to exercise broad powers on its behalf. Joseph had, in the past, transferred or mortgaged corporate property by signing documents as president. He was the manager in charge of the corporation's real estate, and he was authorized to sign corporate checks. He was permitted, on behalf of the corporation, to engage counsel, whose bills the corporation paid both before and after this transaction. Significantly, the corporation has even yet done nothing to relieve Joseph of his presidency. The corporation acquired, in 1963, the Wethersfield property which Joseph mortgaged to the bank. Eecord title to this property remains in the corporation. In 1976, at approximately the same time that Joseph was negotiating the disputed mortgage, the corporation conveyed this property by an unrecorded quitclaim deed to the individual members of the Lettieri family. The bank's title search did not uncover this unrecorded deed, and the bank had no other knowledge, actual or constructive, that the property was not owned by the corporation. The temporal proximity of the quitclaim deed to the mortgage transaction remains unexplained. The bank's involvement with the mortgage transaction began early in 1976 when Joseph Lettieri approached the bank for a mortgage loan to enable him to buy a restaurant in Berlin. Although it was originally planned to procure a mortgage on the real estate on which the restaurant was located, this plan proved unfeasible. Joseph thereupon offered the bank instead a mortgage on the property of the corporation in Wethersfield. The property was appraised by the bank at a value of $110,000, against a loan committal of $70,000. In the process of its credit investigation, the bank learned that the corporation had been legislated out of existence but made no further inquiry into its present status. The bank allowed Joseph to sign the mortgage note for the corporation in his capacity as corporate president on the basis of documentation that was, at the very least, highly questionable. The bank required Joseph to produce a corporate resolution, but accepted a resolution signed only by Joseph himself, carrying a seal that was visibly hand drawn. The bank took the word of the corporation counsel that this resolution adequately conveyed corporate authority. In its dealings with the proceeds of the mortgage loan, the bank was more careful. Although it knew that the proceeds of the loan were being used for the purchase of a restaurant by Joseph, it paid the proceeds over by a check made payable to the corporation. The remaining shareholders, however, had no knowledge of this loan. There are no further findings of fact concerning the mortgage transaction, except for the conclusion, which necessarily underlies the judgment of foreclosure, that the mortgage note is in default. The trial court expressly refused to draw any inferences from the bank's knowledge that the proceeds of the loan were being used for the purchase of a restaurant by Joseph Lettieri. The court made no findings about the actual use of the proceeds, about the source of moneys for the mortgage instalments paid before default, or about the relationship between the restaurant business and the corporation's real estate investments. The parties in their briefs demonstrate that there is no agreement between them on these not insignificant lacunae in the factual posture of the case. It is clear that the trial court heard extensive testimony and took under advisement numerous exhibits offered by the parties. On the basis of the record thus compiled, the court concluded that the corporation had clothed its president, Joseph Lettieri, with apparent authority. The court also concluded that the corporation was estopped to deny Joseph's apparent authority. Although we consider the ease to be extremely close, we hold that the conclusions of the trial court, especially its fact-bound determination about Joseph's apparent authority, are not clearly erroneous. Practice Book, 1978, § 3060D. I The basic principles that govern the authority of a corporate president to bind his corporation are not at issue. Corporate presidency per se does not confer inherent authority to commit the corporation. "The corporation is only liable for the acts of its president if it is shown that his acts are so related to his duties as president that they may reasonably be held to have been done in the prosecution of the business of the corporation and while he was acting within the scope of his employment." Baptist v. Shanen, 145 Conn. 605, 608-609, 145 A.2d 592 (1958); Cohen v. Holloways', Inc., 158 Conn. 395, 406-407, 260 A.2d 573 (1969); Perry v. Simpson Waterproof Mfg. Co., 37 Conn. 520, 534 (1871). The liability of the corporation therefore depends upon whatever specific powers of agency have been conferred upon the president. See Kempin, "The Corporate Officer and the Law of Agency," 44 Va. L. Rev. 1273 (1958). In this case, all of the parties are in agreement that the authority conferred by the John Lettieri Corporation on Joseph Lettieri must be measured by the principles of apparent authority. No claim has been made that the corporation actually or impliedly authorized Joseph to encumber corporation property as security for a restaurant he intended to buy, nor has it been claimed that a small family-owned real estate corporation would inherently appear to a reasonable person to have authorized such an encumbrance. See Cross, Corporation Law in Connecticut, p. 284 (1972). The principles that determine whether an agent has apparent authority are similarly not at issue. Apparent authority must be derived not from the acts of the agent but from the acts of his principal. "[T]he acts of the principal must be such that (1) the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority, and (2) in consequence thereof the person dealing with the agent, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority." Nowak v. Capitol Motors, Inc., 158 Conn. 65, 69, 255 A.2d 845 (1969); Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 395-96, 324 A.2d 247 (1973); Cohen v. Holloways', Inc., 158 Conn. 395, 407-408, 260 A.2d 573 (1969); Lewis v. Michigan Millers Mutual Ins. Co., 154 Conn. 660, 665-66, 228 A.2d 803 (1967); Washington Cedar & Fir Products Co. v. Elliott, 91 Conn. 350, 353, 100 A. 29 (1917); Quint v. O'Connell, 89 Conn. 353, 357, 94 A. 288 (1915). See Seavey, Agency § 8 (1964); Restatement (Second), Agency § 8, 27 (1958). The issue of apparent authority is one of fact, requiring the trier of fact to evaluate-the conduct of the parties in light of all of the surrounding circumstances. Hollowyle Assn., Inc. v. Hollister, supra; Lee v. Jenkins Bros., 268 F.2d 357, 370 (2d Cir. 1959). Only in the clearest of circumstances, where no other conclusion could reasonably be reached, is the trier's determination of fact to be disturbed. McLaughlin v. Chicken Delight, Inc., 164 Conn. 317, 323-24, 321 A.2d 456 (1973). It is useful in applying the principles of apparent authority to this case to consider separately the two elements of (1) holding out by the principal and (2) good faith reliance by the third party seeking to bind the principal. With regard to the first element, there was overwhelming evidence to support the trial court's conclusion that the corporation had left Joseph in virtually unfettered managerial control of all aspects of the corporation's business. In contradistinction to the facts of Hollywyle Assn., Inc. v. Hollister, supra, there were no corporate bylaws limiting Joseph's authority. He was in charge. He had previously mortgaged corporate property, albeit for the benefit of the corporation. He had never had to account, in any orderly or systematic fashion, for the conduct of his stewardship as corporate president. It might well be argued that the corporation's failure to discharge him as president, even after this law suit was initiated, constitutes ratification of his conduct. It is difficult to imagine a clearer case of a principal's holding a corporate officer out as having authority to act. Although the appellants' brief continues to contest the question of holding out, that is not the gravamen of their challenge to the judgments of the trial court. They forcefully contest the sufficiency of the evidence with regard to the second element of the apparent authority test, the necessity for good faith reliance by the bank on the acts of the corporation. They urge that even if the corporation was derelict in its internal management, that dereliction was not known to the bank when the mortgage note was negotiated and could therefore not have induced good faith reliance by the bank. This arguable lack of connection between the conduct of the principal and the reliance by the third party is what makes the present controversy such a close case. Nonetheless, we are not persuaded that the trial court was clearly erroneous in finding that good faith reliance, the second element of apparent authority, was sufficiently established. Practice Book, 1978, § 3060D. It is true that the procedures followed by the bank in negotiating this loan with Joseph Lettieri on his own behalf and on behalf of the corporation do not comport with recommended cautionary business practices. It is customary when dealing with the officer of a corporation in any but routine business operations to ask for a resolution of the board of directors certified by the corporate secretary, not by the very corporate officer whose authority is in question. Cross, Corporation Law in Connecticut, 285 (1972); Kempin, "The Corporate Officer and the Law of Agency," 44 Va. L. Rev. 1273, 1285 (1958). The bank furthermore had other information that might well have raised doubts about the regularity of its transaction: It knew that the corporation had been legislated out of existence, and it was aware that corporation property was to be mortgaged only after other noncorporate security had been determined to be unavailable. The bank did, however, make some inquiry about the propriety of the mortgage, which the trial court might reasonably have found to have sufficiently indicated at least minimal good faith. The bank asked the attorney at the closing about Joseph's authority. This attorney, Francis B. Sablone, Jr., was attorney for the corporation, and he or his firm had represented the corporation before and after the loan transaction. While a written letter of corporate counsel attesting to an officer's authority to bind the corporation may be the better practice; see Cross, supra; we are hardly in a position to characterize as a lack of good faith an oral inquiry directed to the same person. The evidence of the bank's reliance, while similarly not overwhelming, was sufficient to sustain the trier's factual finding in that regard. It was undenied that Joseph was the corporation's president, and some reliance on the authority apparently created by that position was warranted. Furthermore, the bank was entitled to rely on the representation of counsel for the corporation that the transaction was authorized. We note, finally, that the record indicates that inquiry of the remaining corporation shareholders might well have been fruitless because of the confusion evidenced at trial about the corporation's books and the whereabouts of its shareholders. The totality of the circumstances in this case supports the trial court's conclusion that Joseph Lettieri had apparent authority to mortgage property of the corporation. Since the bank's reliance caused it to change its position by making the contemplated mortgage loan, we need not distinguish between apparent authority and estoppel as a basis for sustaining the action of the trial court. Seavey, Agency § 8 (1964). The conclusion that this corporation was bound by the acts of its president is consistent with the law's general recognition of the increased powers of corporate officers in modern corporate practice. See Cross, Corporation Law in Connecticut § 6.6 (1972). II The appellants have argued and briefed two additional claims of error. The first claim maintains that foreclosure should have been denied the bank because its conduct put the appellants into an inequitable position. The appellants invoke a principle which this court has often recognized; Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980); Hartford Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 463, 217 A.2d 694 (1966); Glotzer v. Keyes, 125 Conn. 227, 231, 5 A.2d 1 (1939); Brand v. Woolson, 120 Conn. 211, 214, 180 A. 293 (1935); Mackey v. Dobrucki, 116 Conn. 666, 670, 166 A. 393 (1933); Beach v. Isacs, 105 Conn. 169, 134 A. 787 (1926); but which is not applicable except on an appropriate foundation of fact. Hamm v. Taylor, supra; Atlas Realty Corporation v. House, 120 Conn. 661, 671, 183 A. 9 (1936). The trial court found the corporation and its shareholders, and not the bank, to bear principal responsibility for the difficulties that the corporation has now encountered. The trial court, as trier of the facts, has not ignored equitable considerations but has balanced the equities against the appellants. That conclusion is no more clearly erroneous than are any of the trier's other related findings of fact. The final claim of error raises a procedural point. The appellants maintain that the trial court should have granted the motion of the corporation to be added as a party plaintiff in the first suit, the suit to set aside the mortgage. Concededly the corporation, a named defendant, was a full participant in the second suit, the suit to foreclose the mortgage. As a general rule, joinder is indicated in any suit adjudicating title to land. See Graham v. Zimmerman, 181 Conn. 367, 372, 435 A.2d 996 (1980); Arnold v. Hollister, 131 Conn. 34, 38, 37 A.2d 695 (1944). The decision whether to grant a motion for the. addition of a party to pending legal proceedings rests generally in the sound discretion of the trial court. General Statutes § 52-102, 52-107, 52-108; Practice Book, 1978, § 85, 99, 100; Jones v. Ricker, 172 Conn. 572, 575 n.3, 375 A.2d 1034 (1977); Nikitiuk v. Pishtey, 153 Conn. 545, 555, 219 A.2d 225 (1966). In the exercise of that discretion, the trial court might reasonably have taken into account the failure of the corporation to file its motion until the time of trial, long after the pleadings had been closed, the possibility of prejudice to the bank in its third party actions, and the unlikelihood of prejudice to the corporation. Pope v. Watertown, 136 Conn. 437, 438, 72 A.2d 235 (1950); Starr Cash & Package Car Co. v. Starr, 69 Conn. 440, 445, 37 A. 1057 (1897); see 1 Moller & Horton, Practice Book Ann., 186-88 (1979). The real issue in any motion for joinder is the presence of all the interested parties, either as plaintiffs or as defendants, to enable the court to make a complete determination of all of the matters in controversy. Since the corporation was a party to the foreclosure action, it is difficult to see how it was prejudiced by its failure to be joined in the action to set aside the mortgage, when the two actions were from the outset consolidated for trial. The appellants have made no showing whatsoever that the corporation's absence from the first suit in any way disabled it from presenting any evidence or making any argument in the consolidated trial. In the light of all of these circumstances, we cannot say that the trial court's refusal to permit the joinder was an abuse of its discretion. There is no error. In this opinion the other judges concurred. This suit was brought by Charles J. Lettieri, Anna M. Callano, John Lettieri, Helen Barthol and Theresa Seelza. The first count alleged that the bank's mortgage was invalid because it had been executed subsequent to a quitclaim deed of the property by the corporation to the named plaintiffs. The second count alleged lack of corporate authority. The third count, against Joseph Lettieri, alleged lack of corporate authority and conversion, and on this count the plaintiffs prevailed in the trial court. The fourth count alleged lack of corporate authority by virtue of the corporation's dissolution. The named plaintiffs in the first law suit joined this second suit as party defendants. Although the record does not affirmatively so indicate, the parties and the trial court appear to have acted on the assumption that the secretary of the state followed the procedure of dissolution specified in General Statutes § 33-387 (b). Since that assumption is unchallenged, we will do likewise. The trial court denied the plaintiffs' claimed ownership rights in the mortgaged property, asserted in count one of their complaint, on this basis. Even though their quitclaim deed antedated the mortgage deed, the mortgagee's lack of knowledge entitled it to priority. General Statutes § 47-10. The plaintiffs have not appealed the judgment rendered against them on this count. The record discloses no effort to have the trial court supplement its memorandum of decision. Practice Book, 1978, § 3082. On appeal to this court, the appellants have raised no issues with respect to the findings of fact hut have limited their appeal to various claims of law.

Parskey, J. This dispute began on January 3, 1978, when the plaintiff filed a written complaint with the New Canaan police department alleging that a police officer used excessive force on a prisoner in his custody. After a preliminary investigation, the chief of police brought the charges to the attention of the police trial board (hereinafter the board), which considered the charges in closed sessions on February 16 and 23, 1978. Except when he testified, the plaintiff was excluded from the proceedings. The press and public were barred from the entire hearing. After these sessions, the board cleared the officer in question of all of the charges against him. About a year later, on March 21,1979, the present action was commenced. The plaintiff claimed that the board had violated the Freedom of Information Act; General Statutes § 1-15 et seq.; by improperly closing the sessions at which his original complaint was considered. Specifically, the plaintiff argued to the court below that the board's meetings were not properly "executive sessions" as defined in § l-18a (e) and that the sessions should have been open to the public under § 1-21. To remedy this wrongful exclusion, the plaintiff sought a writ of mandamus directing the board to hold an open meeting to reconsider the charges leveled by the plaintiff against the officer. The trial court granted the defendants' motion to strike, holding that the consideration of the charges by the board was a "[djiscussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee" and thus proper subject matter for an executive session under §l-18a (e) (1). From the judgment rendered, the plaintiff has appealed. The plaintiff alleged that he was aggrieved because his complaint against Sergeant William Ferri of the New Canaan police department was not heard in public. He therefore requested that the court order the board to conduct a public hearing on his complaint. Such an order would reopen a matter which the board had already concluded in Ferri's favor. Ferri was not made a party to the present action. Although as a general rule the only necessary party to a mandamus action is the officer, body, corporation or person whose duty it is to perform the act sought to be enforced; Jones v. Ricker, 172 Conn. 572, 575-76, 375 A.2d 1034 (1977); where the performance of the duty will adversely affect the rights of a third person, the determination to enforce the duty cannot be made unless the person whose rights may be so affected is made a party to the proceeding. See State ex rel. Guglielmo v. Bergin, 149 Conn. 631, 640, 183 A.2d 607 (1962); 52 Am. Jur. 2d, Mandamus § 398. In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion. Stradmore Development Corporation v. Commissioners, 164 Conn. 548, 551, 324 A.2d 919 (1973). Because nonjoinder of a necessary party was not specified in the defendants' motion, non joinder could not furnish a basis for the court's decision. On the other hand, without the presence of the necessary party the court could not fully adjudicate the matter before it. Cavalli v. McMahon, 174 Conn. 212, 215, 384 A.2d 374 (1978); Talarico v. Conkling, 168 Conn. 194, 197, 362 A.2d 862 (1975). In these circumstances, the trial court should have afforded the plaintiff a reasonable opportunity to cite in the necessary party. Upon failure of the plaintiff to do so the court, on its own motion with proper notice, could have stricken the complaint for nonjoinder. As presented to the court, the motion to strike relied solely on the discretionary nature of the relief requested by the plaintiff's complaint. See Light v. Board of Education, 170 Conn. 35, 38, 364 A.2d 229 (1975). A trial court in passing upon a motion to strike should not consider grounds other than those specified. Turrill v. Erskine, 134 Conn. 16, 19-20, 54 A.2d 494 (1947). There is error, the judgment is set aside and the case is remanded with direction to vacate the decision granting the motion to strike. In this opinion the other judges concurred. The police trial board is composed of all members of the police commission. Under the town charter, the commission is charged with the authority to remove, suspend or fine police officers after proper notice and a hearing. The court did not squarely rule on this ground. Thus we have no occasion to review the defendants' claim in that regard. Por similar reasons we decline to rule on the qüestion whether mandamus is inappropriate in this case since it appears that the plaintiff failed to appeal to the freedom of information commission, which in ordinary circumstances is the normal legal remedy for being wrongfully excluded from a public meeting. See General Statutes § l-21i(b). Although we may, on appeal, sustain a proper ruling even though reached on grounds other than those asserted in the motion; Joseph Rugo, Inc. v. Henson, 148 Conn. 430, 433, 171 A.2d 409 (1961); but cf. Webel v. Yale University, 125 Conn. 515, 526, 7 A.2d 215 (1939); Maltbie, Conn. App. Proc. § 65; the present posture of this case makes such an approach inappropriate.

Peters, J. The defendant appeals from the judgment rendered on his conviction for the crime of murder, in violation of General Statutes § 53a-54a. He was indicted by a grand jury and elected to be tried by a three judge court. The principal issue before the trial court and on this appeal is not whether the defendant, Jose Perez, killed the victim, Helen Toczydlowski, but rather whether he had the mental capacity to justify a finding of guilty of murder. The facts of the case are essentially undisputed. On August 27, 1977, the defendant saw the victim, who lived in a second floor apartment below his, go to a bathroom off the third floor hallway. When she left that room he grabbed her from behind, strangled her, dragged her into his apartment, covered her face with her housecoat, and went out to a club to drink beer. From the club he went to the home of his brother, Hector, and told him what had happened. After Hector verified the facts, he reported the crime to the Bridgeport police. The main issue at trial was whether, as a result of mental disease or defect, the defendant, at the time of the killing, lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. The defendant claimed that he lacked such capacity and that, pursuant to General Statutes § 53U-13, he was, therefore, not guilty of the crime. He offered evidence intended to substantiate this claim. While that evidence was not overwhelming, it was arguably sufficient to place upon the state the burden of proving the defendant's sanity. State v. Rossier, 175 Conn. 204, 209, 397 A.2d 110 (1978); State v. Brown, 163 Conn. 52, 66-67, 301 A.2d 547 (1972); State v. Vennard, 159 Conn. 385, 403, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S. Ct. 576, 27 L. Ed. 2d 625 (1971). Cf. State v. Roy, 173 Conn. 35, 43-44, 376 A.2d 391 (1977); State v. Conte, 157 Conn. 209, 212-15, 251 A.2d 81 (1968), cert. denied, 396 U.S. 964, 90 S. Ct. 439, 24 L. Ed. 2d 428 (1969). Considered from that vantage point, the focus of the appeal is thus whether there was sufficient basis in fact for the trial court's conclusion that the state had proved the defendant's mental responsibility beyond a reasonable doubt. We hold that there was. The defendant raises a second related claim, also based upon his mental capacity. Therein he asserts that, due to his mental disease or defect, he could not reasonably have been found capable of forming the specific intent to kill which is an essential element of the crime of murder under General Statutes § 53a-54a. See General Statutes § 53a-54a (b). As to this claim as well, we hold that the trier of fact could reasonably have found that the state had met its burden of proving beyond a reasonable doubt that the defendant had the requisite intent. The defendant's two claims differ principally in the degree of mental impairment which they allege. Because both challenge the reasonableness of the findings of the trier of fact, we discuss them together. Our review of the conclusions of the trier of fact is limited. State v. Zdanis, 182 Conn. 388, 391-92, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981); State v. Chetcuti, 173 Conn. 165, 172, 377 A.2d 263 (1977); State v. Benton, 161 Conn. 404, 410, 288 A.2d 411 (1971). That review is the same whether the trier is a judge, a panel of judges, or a jury. State v. DiBattista, 110 Conn. 549, 148 A. 664 (1930); State v. Frost, 105 Conn. 326, 135 A. 446 (1926). Upon a verdict of guilty we review the evidence in the light most favorable to sustaining the verdict. State v. Zdanis, supra, 391-92. It is not necessary for us to determine the reasons which the trier had for concluding that the defendant had substantial capacity both to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of law. Absent a special verdict, we need not consider the route by which the trier arrived at its result. State v. Zdanis, supra, 396-97. Appellate review is appropriate, however, to evaluate a claim that there was no basis upon which any reasonable trier of fact could have found as the trier of fact did. State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980); State v. Zdanis, supra, 391; State v. Ruiz, 171 Conn. 264, 276-77, 368 A.2d 222 (1976); State v. Benton, 161 Conn. 404, 406-407, 288 A.2d 411 (1971). We consider the three judge panel's verdict of guilty, then, to review whether it could reasonably have found, beyond a reasonable doubt, that the defendant was criminally responsible pursuant to the standard in General Statutes § 53a-13, and capable of forming the specific intent to kill. See General Statutes § 53a-54a (a); State v. Zdanis, supra, 395-96; State v. Holley, 174 Conn. 22, 25, 381 A.2d 539 (1977). The defense presented only one witness, a Dr. Mario Perez, who is a psychiatrist and was then employed at Fairfield Hills Hospital. Dr. Perez testified that he had examined the defendant for two hours on September 28, 1977, approximately thirteen months after the killing. During this interview the doctor took an extensive psychiatric and family history. He learned from this interview that the defendant was "slow" in school, had been physically abused by his father, had trouble holding a job, used alcohol heavily, and frequently used LSD, marihuana, and other drugs. The defendant told Dr. Perez that on the day before the killing he drank alcohol heavily and used marihuana, and that on the day of the killing he awoke at 3 a.m. and heard voices urging him to kill. He may have had visual as well as auditory hallucinations at this time. The doctor testified further that the defendant had reported having experienced such hallucinations, periodically, for six years, since the age of fifteen. The doctor testified that the use of LSD could have caused the defendant to suffer visual or auditory hallucinations and permanent brain damage. Dr. Perez also examined a report on the defendant by a Dr. Alexander, who had observed the defendant during his eight month hospitalization at the Whiting Forensic Institute, which commenced the day after the killing. He further examined an electroencephalogram of the defendant done there. Subsequent to interviewing the defendant, Dr. Perez jointly interviewed the defendant's brother, Hector, and a friend of the defendant whose name the doctor could not recall at trial. On the basis of the data obtained from these sources, Dr. Perez found that the defendant was psychotic, probably schizophrenic. It was his opinion that the defendant was psychotic at the time of the killing, and that the defendant's mental illness was accompanied by hallucinations urging him to kill. He therefore concluded that at the time of the killing the defendant lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. The state offered no witness on the subject of the defendant's mental condition or capacity but extensively cross-examined Dr. Perez. In the course of that questioning it introduced the medical records of the defendant during the period of his eight month hospitalization at Whiting, records which Dr. Perez had not previously examined. The records contained the observations and opinions of numerous experienced medical personnel who had had the opportunity to observe and talk with the defendant. The remarks in the records included the opinions that the defendant at various times pretended to be mentally ill and to be unable to speak or understand English. The records indicated, furthermore, that the defendant did not complain of hallucinations until he had been at Whiting for several months. In response to the evidence contained in the Whiting records, during his cross-examination, Dr. Perez admitted that the defendant's hallucinations were a subjective symptom the presence of which depended upon the veracity of the defendant's statements to him. He acknowledged that he had not tested the defendant's command of English because the doctor's own native language was Spanish so that it was natural to conduct the interview in that language. Dr. Perez testified, however, that although a subject of psychiatric examination could fake mental illness he did not believe that the defendant had done so, and that even if the defendant were lying about having experienced hallucinations, his diagnosis of the defendant would probably not change. The trier of fact was entitled to find that the cross-examination of Dr. Perez showed his testimony to be inadequately grounded in knowledge of the defendant's condition, medical data, and expertise of interpretation, or was not credible for other reasons. The trier was entitled, further, to find that the state had met its burden of proving the defendant's sanity beyond a reasonable doubt by introducing the medical records of his stay at Whiting. These records are fully probative even though they were introduced as part of the cross-examination of Dr. Perez rather than as part of the state's case in chief. In addition, the state could rely on the electroencephalogram done at WTiiting, which showed no organic defect. The trier of fact was entitled to evaluate the conflicting evidence. It was entitled to consider the basis of the testimony of the expert witness. In so doing it might weigh, as it saw fit, his expertise, his opportunity to observe the defendant and to form an opinion, and his thoroughness. It might consider also the reasonableness of his judgments about the underlying facts and of the conclusions which he drew from them. The trier was under no obligation to accept Dr. Perez's belief that the defendant suffered hallucinations as establishing that the defendant did indeed experience them. If it chose to accept that testimony as correct, it was under no obligation to accept Dr. Perez's conclusion that that symptom showed the defendant's legal insanity or incapacity to form a specific intent to kill. The psychiatric data, in sum, provide a basis upon which a reasonable trier of fact could have fomd that the defendant, at the time of the killing, had sufficient mental capacity to be convicted of the crime of murder. Even if the trial court had found that the defendant suffered from a mental disease, undifferentiated schizophrenia without organic disorder, it could consistently have found that the defendant did appreciate the wrongfulness of his conduct and could have conformed his conduct to the requirements of the law, and could have formed a specific intent. General Statutes § 53a-13; cf. State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979). There is no error. In this opinion the other judges concurred. General Statutes §53a-33 provides: "insanity as defense. In any prosecution for an offense, it shall be a defense that the defendant, at the time of the proscribed conduct, as a result of mental disease or defect lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. As used in this section, the terms mental disease or defect do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct." Dr. Perez is not related to the defendant. The doctor was not certain, but thought, at trial, that the defendant had said in the interview that he used marihuana.

Peters, J. This case concerns an assignee's right to enforce a waiver of defenses clause in a rental agreement. The plaintiff, Laurel Bank & Trust Company, sued the defendant Mark Ford, Ine., the lessee, and the defendant Dictograph Products, Inc., the lessor and the plaintiff's assignor, when Mark Ford, Inc. refused to make further payments on its lease. After judgment rendered against both defendants by the trial court, Aaronson, J., the defendant Mark Ford, Inc. has appealed. The underlying facts are not in dispute. Mark Ford, Inc. (hereinafter Mark Ford), a business located in Madison, and Dictograph Products, Inc. (hereinafter Dictograph), a Meriden dealer in communications equipment, entered into two related contracts on November 23, 1973. These contracts represented the culmination of lengthy negotiations between the parties about the nature and cost of a communications system. The two contracts were the so-called rental agreement, representing an equipment lease of designated components of a telephonic communication system, and a rental maintenance agreement obligating the lessor to provide repair services for the equipment. At the same time, the parties executed three other documents. One was a financing statement, a UCC-1 form, to permit filing pursuant to Article 9 of the Uniform Commercial Code, General Statutes § 42a-9-401 and 42a-9-402. The second was a delivery certificate certifying that the equipment had been furnished and installed in good condition on the Mark Ford premises. The third was an agreement rider giving the lessee the option to buy the equipment for the payment of one dollar at the end of the leasehold term upon payment of the sixty monthly instalments required by the rental agreement. These transactions, as the trial court correctly concluded, constituted the execution of a security agreement. See General Statutes §42a-9-203 and 42a-l-201 (37); Granite Equipment Leasing Corporation v. Acme Pump Co., 165 Conn. 364, 367-68, 335 A.2d 294 (1973). Because the collateral subject to the secur ity interest was in the form of specific goods, the security agreement constituted chattel paper under General Statutes § 42a-9-105 (1) (b). Three days after the execution of the rental agreement, the maintenance agreement, and the other related documents described above, Dictograph assigned its interest in the chattel paper to the Laurel Bank & Trust Company (hereinafter the bank). The terms of the rental agreement expressly contemplated such a possibility. In the rental agreement, Mark Ford consented to the assignment and agreed not to assert against the assignee any claim or defense whatsoever which it might have against Dictograph. In return for the payment of $24,227.28, the bank received an assignment from Dictograph, accompanied by the rental agreement, the UCC-1 form, and the delivery certificate but not by the rental maintenance agreement or the agreement rider. At the time of the assignment, neither Mark Ford nor Dictograph was as yet in default with respect to the obligations contained in the rental agreement or the maintenance agreement. Mark Ford made six of the sixty payments specified in the rental agreement but refused to make further payments because of the alleged failure of Dictograph to make needed repairs as stipulated in the maintenance agreement. The bank thereupon brought the present suit and recovered damages of $28,690.20 in the trial court. Mark Ford's defense, here and in the trial court, is that it had the right to refuse to pay the bank because of the default of Dictograph. As the trial court held, this case is governed by § 9-206 (1) of the Uniform Commercial Code, General Statutes § 42a-9-206 (1). That section provides : "agreement not to assert defenses against assignee; modification of sales warranties where security agreement exists. (1) Subject to any statute or decision which establishes a different rule for buyers or lessees of consumer goods, an agreement by a buyer or lessee that he will not assert against an assignee any claim or defense which he may have against the seller or lessor is enforceable by an assignee who takes his assignment for value, in good faith and without notice of a claim or defense, except as to defenses of a type which may be asserted against a holder in due course of a negotiable instrument under article 3. A buyer who as part of one transaction signs both a negotiable instrument and a security agreement makes such an agreement." Mark Ford falls within the operative provisions of § 9-206 (1) because the goods it leased are, with respect to Mark Ford, equipment and not consumer goods. The classification of goods is determined not by the uses to which they may be put, but by the uses to which they are put by a particular buyer or lessee. General Statutes § 42a-9-109 (1); U.C.C. §9-109 (1), comment 2 (1972 official text); 1 Gilmore, Security Interests in Personal Property § 12.3 (1965). The case of Fairfield Credit Corporation v. Donnelly, 158 Conn. 543, 264 A.2d 547 (1969), is therefore inapposite. Section 9-206 (1) allows the bank to recover because Mark Ford signed a waiver clause agreeing not to assert against an assignee such as this plaintiff the claims or defenses it might have against Dictograph. Mark Ford does not deny that its rental agreement contained such a clause, but it does argue that the bank has not met the conditions that qualify its rights under § 9-206. It is undisputed that the bank paid value. No evidence was presented that the bank lacked good faith other than the disclosure that the president of Dictograph was a director of the bank. That disclosure does not, by itself, demonstrate lack of "honesty in fact in the transaction concerned," which is the definition of good faith in General Statutes §42a-l-201 (19). Accord, Hartford National Bank & Trust Co. v. Credenza, 119 Conn. 368, 371, 177 A. 132 (1935). Nor can the bank be charged with notice of claims or defenses arising out of failures to repair which had not, at the time of the assignment, been foreseen or alleged. See General Statutes § 42a-l-201 (25) for the statutory definition of notice, and compare § 42a-3-302 and 42a-3-304, which make it clear that notice is to be determined as of the time when an instrument is taken. Mark Ford argues, finally, that § 9-206 should not be enforced because it is void as against public policy. We do not agree. A statute declares public policy. If that statute is constitutional it "can never . . . be declared to be against public policy." General Motors Corporation v. Mulquin, 134 Conn. 118, 132, 55 A.2d 732 (1947). The legislature might reasonably conclude that the free assignability of chattel paper facilitates access to financial markets that might otherwise be foreclosed. It is noteworthy moreover that the effect of § 9-206 is to limit rather than to expand the enforceability of contractual waiver of defenses clauses, since enforcement under the statute depends upon a showing of value, good faith and absence of notice of adverse claims or defenses. Section 9-206 thus represents a balancing of the interest of the obligor to preserve his defenses and of the creditor to preserve the free marketability of chattel paper. As have other courts that have addressed this issue, we find no reason to doubt the power of the legislature to validate waiver of defenses clauses in a commercial setting. See, e.g., Bankers Trust Co. v. Litton Systems, Inc., 599 F.2d 488 (2d Cir. 1979); F.D.I.C. v. Kassel, 72 App. Div. 2d 787, 421 N.Y.S.2d 609 (1979); ITT-Industrial Credit Co. v. Milo Concrete Co., 31 N.C. App. 450, 229 S.E.2d 814 (1976); John Deere Industrial Equipment Co. v. Delphia, 266 Or. 116, 511 P.2d 386 (1973). There is no error. In this opinion the other judges concurred. "[General Statutes] See. 42a-9-105. definitions and index of definitions. (1) In this article unless the context otherwise requires . . . (b) 'chattel paper' means a writing or writings which evidence both a monetary obligation and a security interest in or a lease of specific goods, but a charter or other contract involving the .use or hire of a vessel is not chattel paper. When a transaction is evidenced both by such a security agreement or a lease and by an instrument or a series of instruments, the group of writings taken together constitutes chattel paper." Commercial law, in related areas such as the negotiation of negotiable instruments and the issuance of letters of credit, has long recognized the desirability of permitting obligations to pay money to be separated from obligations to assume responsibility for the underlying transactions in goods and services. See White & Summers, Uniform Commercial Code § 14-1, 18-2 (2d Ed. 1980). It is likely that, without a waiver clause, this chattel paper would not have been readily marketable. The lessor might well have refused to enter into a five year contract with the lessee had the lessor's access to financing been so impaired. Had the lessee been required to obtain five year financing of its own to enable it to acquire this equipment, it would not ordinarily have been able to assert against its lender any defenses or claims that subsequently arose against the lessor.

The plaintiff's petition for certification for appeal from the Appellate Court is denied.

Dannehy, J. The defendants are recreational boaters who received infractions complaints during the sum mer of 1982 for their alleged failure to comply with General Statutes (Rev. to 1981) § 15-142, as amended by Public Acts 1982, Nos. 82-283, 82-348, which provides for the registration of vessels operating in state waters. Thirty-seven cases have been consolidated for the purpose of obtaining a determination by this court of certain issues raised in the infractions complaints. The defendants challenge the constitutionality of General Statutes § 15-142, and thus the basis on which the infractions complaints were issued, by way of five questions reserved to us under Practice Book § 3133. For the reasons which follow, we find that the questions were improvidently reserved and remand these cases for trial. We begin by outlining the statutory regulation scheme under which these infractions complaints were issued. Section 15-142 (a) of the General Statutes requires every vessel operating in Connecticut waters to display a valid registration number, issued by the state of Connecticut, another state or the United States. Vessels bearing a valid registration number issued by another state or the United States are expressly exempted from the Connecticut vessel registration numbering system. General Statutes (Rev. to 1981) § 15-143 (a) (6), as amended by Public Acts 1982, Nos. 82-283, 82-436, 82-472. Such vessels, however, if used in Connecticut waters for more than sixty days in any calendar year, must display a valid Connecticut registration decal. General Statutes § 15-142 (b). A registration number and a registration decal are obtained in the same manner. The registrant must file the proper application form and pay a registration fee to the commissioner of motor vehicles. General Statutes (Rev. to 1981) § 15-144 (a), as amended by Public Acts 1982, Nos. 82-283, 82-348, 82-436. The failure to display a proper registration number or decal in accordance with the statute is punishable by a fine of not less than $25 nor more than $200. General Statutes § 15-144 (h). We reproduce in a footnote the stipulation of facts submitted by the parties. From the stipulation and additional information gleaned at oral argument, the following facts appear. All except five of the defendants are Connecticut residents. The vessels in question are pleasure craft owned by unspecified Delaware corporations of which some of the defendants are shareholders. None of the vessels lists a location in Connecticut as its home port. During the summer of 1982 the defendants at various times "chartered" the vessels from the Delaware corporations for weekend boating and fishing trips and other boating activities on Long Island Sound. The vessels in question are "federally documented," i.e., registered and numbered under the laws of the United States. Although the vessels were used in Connecticut waters for more than sixty days during the summer of 1982, none of them bore a Connecticut registration decal as required by General Statutes § 15-142 (b), and each of the defendants was issued an infractions complaint for his or her operation of one of these vessels without the required decal. Some of the corporate owners attempted to obtain registration decals for their vessels by filing an application form and tendering the registration fee as provided in General Statutes § 15-144 (a). The commissioner of motor vehicles, however, refused to issue the decals because the owners had not paid the state use tax on the purchase price of the vessels. General Statutes (Rev. to 1981) § 12-411. The five questions reserved to us are as follows: "(A) [Is General Statutes § 15-142] violative of the due process clause of the [United States] Constitution? (B) [Is General Statutes § 15-142] contrary to the established federal system of admiralty jurisdiction as embodied in the [United States] Constitution, statutes and case law; specifically the judiciary act of 1789? (C) [Is General Statutes § 15-142] violative of the precepts of the commerce clause of the [United States] Constitution? (D) [Is General Statutes § 15-142] violative of Article 1, Section 10, clause 3, of the [United States] Constitution which prohibits a state from imposing a tonnage tax? (E) Are federally documented vessels owned by foreign corporations homeported in other states having no connection with Connecticut liable for a sales or use tax in Connecticut?" We begin with the observation that the reserved questions as phrased require us to pronounce upon the facial validity of General Statutes § 15-142. It is a settled rule of constitutional adjudication that a court will decide the constitutionality of a statute only as it applies to the particular facts at hand. State v. Madera, 198 Conn. 92, 105, 503 A.2d 136 (1985); State v. Pickering, 180 Conn. 54, 57, 428 A.2d 322 (1980); Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975). A party who challenges the constitutionality of a statute must prove that the statute has adversely affected a protected interest " 'under the facts of his particular case and not merely under some possible or hypothetical set of facts not proven to exist.' Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 471, 217 A.2d 698 (1966); State v. Cuvelier, 175 Conn. 100, 111-12, 394 A.2d 185 (1978); Gentile v. Altermatt, 169 Conn. 267, 307, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976); Kellems v. Brown, 163 Conn. 478, 483, 313 A.2d 53, appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1972); Adams v. Rubinow, 157 Conn. 150, 152-53, 251 A.2d 49 (1968)." Weil v. Miller, 185 Conn. 495, 501, 441 A.2d 142 (1981). This principle reflects the conviction that "under our constitutional system courts are not roving commissions assigned to pass judgment on the validity" of legislative enactments. Broaderick v. Oklahoma, 413 U.S. 601, 610-11, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). The effect of an answer in the affirmative to any one of the reserved questions would be to declare General Statutes § 15-142 unconstitutional in its entirety. The issue, however, as we must address it, is whether the statute has been unconstitutionally applied to these defendants. We are bound " 'never to anticipate a question of constitutional law in advance of the necessity of deciding it [and] never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' " United States v. Raines, 362 U.S. 17, 21, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960); Secretary of the State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 955, 104 S. Ct. 2839, 81 L. Ed. 2d 786 (1984); State v. Madera, supra, 105. "A judicial holding that a legislative Act is unconstitutional is one of very grave concern. We ought not, and will not, declare a statute to be unconstitutional unless our judgment is formed in the light of this rule of our law: 'It is our duty to approach the question with caution, examine it with infinite care, make every presumption and intendment in its favor, and sustain the Act unless its invalidity is, in our judgment, beyond a reasonable doubt.' Beach v. Bradstreet, 85 Conn. 344, 349, 82 Atl. 1030 [1912]." State ex rel. Brush v. Sixth Taxing District, 104 Conn. 192, 205, 132 A. 561 (1926); Beccia v. Waterbury, 192 Conn. 127, 133, 470 A.2d 1202 (1984); Logan v. O'Neill, 187 Conn. 721, 729, 448 A.2d 1306 (1982); Walkinshaw v. O'Brien, 130 Conn. 122, 134, 32 A.2d 547 (1943). These principles of constitutional jurisprudence are no less pertinent here merely because the issues have been presented by way of reservation. This court declared long ago that our reservation procedures do not "contemplate, and ought not to be construed to permit, that every question which a trial court may encounter . . might be brought here at once upon its being either met or scented from afar . . . ." Hart v. Roberts, 80 Conn. 71, 74-75, 66 A. 1026 (1907). We recognized that such a practice might "inevitably result in this court being called upon to formulate principles of law which would never enter into the determination of a cause, to formulate such principles in an abstract form suited to more or less general application and not as related to a concrete state of facts and narrowed and simplified by such relation, to create a mass of dicta embodying statements of abstract general principles which might some day rise up to harass judicial action, and to unnecessarily multiply the number of appearances in this court which an action might have before final disposition was made of it." Id., 75. We recently emphasized the importance of these "discretionary prudential concerns" to our determination of whether a reservation should be answered. State v. Sanabria, 192 Conn. 671, 684, 474 A.2d 760 (1984). Therefore, we will not review the facial validity of General Statutes § 15-142, and the only question which remains is whether that statute has been constitutionally applied in the cases before us. That determination is dependent to an unusual degree on the facts and circumstances of the individual case. The facts of record in the present matter, however, are insufficient to afford a basis for resolution of the issues presented. It is only where the parties fully and fairly disclose all of the relevant information that we may perform the careful inquiry and thorough examination required of us in constitutional determinations. Beach v. Bradstreet, supra. We have frequently declined to hear reservations where the factual record was deficient. Wiegert v. Pequabuck Golf Club, Inc., 150 Conn. 387, 391, 190 A.2d 43 (1963); State v. Doe, 149 Conn. 216, 231, 178 A.2d 271 (1962); Carroll v. Socony-Vacuum Oil Co., 136 Conn. 49, 66, 68 A.2d 299 (1949); New Haven Metal & Heating Supply Co. v. Danaher, 128 Conn. 213, 217, 21 A.2d 383 (1941); Claffey v. Bergin, 121 Conn. 695, 696, 183 A. 16 (1936). On occasion we have summarily remanded a case for trial where the record was "insufficient to afford a basis for an answer to the reserved questions." Doe v. Herrington, 191 Conn. 496, 466 A.2d 1 (1983). In such cases we have found that the questions "could be passed upon to much better advantage if the cause was tried and the facts fully developed." Barr v. First Taxing District, 147 Conn. 221, 225, 158 A.2d 740 (1960); Greenwich Trust Co. v. Brixey, 117 Conn. 663, 664, 166 A. 918 (1933); see Maltbie, Conn. App. Proc. § 233. In the present matter, for the guidance of the parties and the trial court on remand, we briefly identify certain factual areas which we believe require further development. Our discussion is by no means exhaustive. While the defendants purport to challenge the constitutionality of the vessel registration scheme provided in General Statutes § 15-141 et seq., and especially § 15-142 (b), their real complaint is with the attempted imposition of the state use tax upon the vessels in question. The commissioner of motor vehicles is presum ably directed by some statute or agency regulation— inexplicably left unspecified by the parties—to withhold a vessel registration decal until proof is furnished that any applicable sales or use tax has been paid. See General Statutes § 12-430 (3). The parties are surely aware that this court will not speculate as to the statute upon which a constitutional ruling is sought. General Statutes § 15-144 (a) provides that "[a]ny owner desiring to obtain a vessel registration number or registration decal shall apply to the commissioner of motor vehicles and shall file evidence of ownership by affidavit or document. Upon receipt of an application in proper form and the numbering fee, the commissioner of motor vehicles shall assign a registration number or registration decal . . . .''(Emphasis added.) According to the stipulation, the vessel owners followed these statutory procedures. As we understand General Statutes § 15-144 (a), the duty of the commissioner to issue a registration decal is ministerial. Since that statute is silent with respect to the use tax, the commissioner's refusal to issue registration decals unless the tax has been paid must be premised on statutes or administrative regulations other than General Statutes § 15-144 (a). Therefore, on remand the parties should identify the statutes or administrative regulations under which the commissioner acts in requiring pay ment of the use tax before issuing a registration decal as directed by General Statutes § 15-144 (a). See, e.g., General Statutes § 12-430 (3). We further recommend that the parties ascertain whether there exist any applicable rules or administrative procedures within the department of motor vehicles whereby one might avoid liability for the use tax under given conditions. See, e.g., General Statutes § 12-430 (5); Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597, 600-601, 362 A.2d 847 (1975). As our discussion suggests, we consider the issue in these cases to be whether the state may constitutionally impose the use tax on these vessels under the circumstances present here. Since we have not been presented with sufficient information to ascertain what those circumstances are, we must remand these cases for trial. On remand we believe the parties should devote particular attention to the following matters. The defendants claim that the vessels which they operated were engaged in "interstate commerce" and thus beyond the taxing authority of the state of Connecticut. We believe that more than a bald assertion is necessary to sustain the conclusion that these vessels were engaged in interstate commerce. We note that a use tax has been assessed upon a yacht which, although purchased in Delaware, was sailed repeatedly in Rhode Island waters. Randall v. Norberg, 121 R.I. 714, 720, 403 A.2d 240 (1979). The imposition of the Ohio use tax was upheld as applied to a vessel purchased in Florida, for use in Florida, which was docked in Ohio for two weeks for repairs and installation of new equipment. Louisville Title Agency v. Rosydar, 43 Ohio St. 2d 109, 330 N.E.2d 899 (1975); cf. Roberta, Inc. v. Inhabitants of Town of Southwest Harbor, 449 A.2d 1138 (Me. 1982). And in North Slope Borough v. Puget Sound Tug & Barge, 598 P.2d 924 (Alaska 1979), the Alaska ad valorem property tax was applied to out-of-state commercial seagoing vessels trapped for five months in frozen coastal waters. We expect that on remand the parties will present the trial court with some precedential authority for their constitutional claims. See generally annot., 3 A.L.R.4th 837, 888. If on remand it should be found that these vessels were, in fact, engaged in some form of interstate commerce, the defendants' task would not yet be at an end. The United States Supreme Court has held that "a state tax is not per se invalid because it burdens interstate commerce since interstate commerce may constitutionally be made to pay its way." Maryland v. Louisiana, 451 U.S. 725, 754, 101 S. Ct. 2114, 68 L. Ed. 2d 576 (1981). If the state tax "is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State," no impermissible burden on interstate commerce will be found. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S. Ct. 1076, 51 L. Ed. 2d 326, reh. denied, 430 U.S. 976, 97 S. Ct. 1669, 52 L. Ed. 2d 371 (1977); see Container Corporation of America v. Franchise Tax Board, 463 U.S. 159, 166-67, 103 S. Ct. 2933, 77 L. Ed. 2d 545, reh. denied, 464 U.S. 909, 104 S. Ct. 265, 78 L. Ed. 2d 248 (1983); Commonwealth Edison Co. v. Montana, 453 U.S. 609, 622-24, 101 S. Ct. 2946, 69 L. Ed. 2d 884 (1981). The vessels in the present cases are owned by Delaware corporations about which we are told nothing except that some of the defendants are shareholders. Since the defendants claim that these vessels are engaged in interstate commerce, we believe it only reasonable, on remand, that inquiry be made into the business of their corporate owners. We note that the nexus between these vessels and the state of Connecticut does not depend entirely on the owners' state of incorporation. Additional factual inquiry will be required on the subject of whether the use tax sought to be imposed in these cases was apportioned in relation to taxes paid in other states, if any; see General Statutes § 12-430 (5); whether the tax unfairly discriminates against interstate commerce, and whether the tax is fairly related to services provided by the state. See Commonwealth Edison Co. v. Montana, supra, 624. In short, the trial court should make the factual findings mandated in Complete Auto Transit, Inc. v. Brady, supra. In order that these issues may be properly focused on remand, we draw attention to a final matter. The defendants in their brief rely extensively on the "home port doctrine" as a rule of state taxation. According to that doctrine, an oceangoing vessel is taxable only in the jurisdiction of its home port, and not in each jurisdiction through which it happens to pass. Hays v. Pacific Mail Steamship Co., 58 U.S. 596, 15 L. Ed. 254 (1855). Since Connecticut is not the home port of any of the vessels under consideration here, the defendants contend that Connecticut has no jurisdiction to assess the use tax against them. In Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 99 S. Ct. 1813, 60 L. Ed. 2d 336 (1979), the United States Supreme Court traced the development and demise of the "home port doctrine," stating that "[t]his theory of taxation, of course, has fallen into desuetude, and . . . has yielded to a rule of fair apportionment among the States." Id., 442. The issue in that case was whether a state may impose an apportioned ad valorem property tax on instrumentalities of commerce "that are owned, based, and registered abroad and that are used exclusively in international commerce . . . ." Id., 444. While concluding that the tax could not constitutionally be imposed on the foreign instrumentalities at issue, the court assumed that if the instrumentalities had been used in "purely interstate commerce, Complete Auto would apply and be satisfied, and our Commerce Clause inquiry would be at an end." Id., 445. From this dicta we conclude that the "home port doctrine" as a rule of state taxation of vessels engaged exclusively in interstate commerce has been superseded by the apportionment rule in Complete Auto. Accord North Slope Borough v. Puget Sound Tug & Barge, supra. We recommend that the parties proceed accordingly. We do not answer the reserved questions; these cases are remanded for further proceedings not inconsistent with this opinion. No costs will be taxed to any party. In this opinion the other judges concurred. The reserved questions are as follows: "A. Are [Public Acts 1982,] No. 82-283 and [Public Acts 1982,] No. 82-348 violative of the due process clause of the U.S. Constitution? "B. Are [Public Acts 1982,] No. 82-283 and [Public Acts 1982,] No. 82-348 contrary to the established federal system of admiralty jurisdiction as embodied in the U.S. Constitution, statutes and case law; specifically the judiciary act of 1789? "C. Are [Public Acts 1982,] No. 82-283 and [Public Acts 1982,] No. 82-348 violative of the precepts of the commerce clause of the U.S. Constitution? "D. Are [Public Acts 1982,] No. 82-283 and [Public Acts 1982,] No. 82-348 violative of Article I, Section 10, clause 3, of the U.S. Constitution which prohibits a state from imposing a tonnage tax? "E. Are federally documented vessels owned by foreign corporations homeported in other states having no connection with Connecticut liable for a sales or use tax in Connecticut?" We note that Public Acts 1982, Nos. 82-283 and 82-348, are incorporated into various sections of General Statutes, title 15, especially § 15-142, 15-143 and 15-144. Although the parties have not amended the reservations, we assume that the specific statutory provision to which they refer is § 15-142 (b). See footnote 2, infra. "[General Statutes] Sec. 15-142. vessel numbering requirements. CERTAIN VESSELS REQUIRED TO DISPLAY REGISTRATION DECALS, (a) Every vessel upon the waters of this state shall be numbered, except as otherwise provided in this section and section 15-143. No person shall launch, moor or operate and no owner shall permit the launching, mooring or operation of any vessel unless (1) the owner holds a valid, effective certificate of number awarded by this state or by the United States or by another state pursuant to the provisions of the Federal Boat Safety Act of 1971 and the identification number set forth in such certificate is displayed on each side of such vessel at the bow, (2) the owner holds a valid marine document issued by the United States Coast Guard or (3) such vessel is otherwise not required to be numbered in this state under the provisions of said section 15-143. "(b) Each vessel with respect to which the owner holds a valid marine document issued by the United States Coast Guard, a valid certificate of number awarded by the United States pursuant to the provisions of the Federal Boat Safety Act of 1971 or a valid certificate of number awarded by another state, which vessel is used upon the waters of this state for more than sixty days in any calendar year, shall be required to display a Connecticut registration decal. No person shall launch, moor or operate and no owner shall permit the launching, mooring or operation of any such vessel unless (1) the owner holds a valid, effective certificate of registration awarded by this state and (2) the registration decal is displayed as directed by the commissioner of environmental protection. "(c) Violation of any provision of this section shall be an infraction." "[General Statutes] Sec. 15-143. exceptions to numbering requirement. (a) Vessels of the following classes are not required to be numbered by this state . (6) vessels principally used in another state for which valid, effective certificates of number were awarded by the United States or by such other state pursuant to the provisions of the Federal Boat Safety Act of 1971; provided, the owner of a vessel used in this state for more than sixty days in any calendar year shall be required to comply with the registration requirements in section 15-144 . . . ." "[General Statutes] Sec. 15-144. vessel registration number or REGISTRATION DECAL. SCHEDULE OF FEES PAYABLE TO COMMISSIONER OF motor VEHICLES, (a) Any owner desiring to obtain a vessel registration number or registration decal shall apply to the commissioner of motor vehicles and shall file evidence of ownership by affidavit or document. Upon receipt of an application in proper form and the numbering fee, the commissioner of motor vehicles shall assign a registration number or registration decal and provide the owner with a temporary certificate of number or temporary certificate of decal. The commissioner of motor vehicles shall issue two registration decals and a permanent certificate. A registration decal shall be displayed on each side of the vessel at the bow in a manner prescribed by the commissioner of environmental protection. The certificate shall state the name of the owner, his address, a description of the vessel, its hull identification number, the expiration date of the certificate and such other information as the commissioner of environmental protection may prescribe by regulations . . . ." "STIPULATION "The parties herein unite in requesting the Court to reserve the above entitled action for the advice of the Supreme Court upon the questions arising therein, and stipulate and agree as follows: "The facts upon which the questions arise are as follows: "1. Along the shores of Long Island Sound extending from Greenwich to Stonington there are numerous harbors in the navigable rivers and waters of Connecticut. At various harbors are scores of marinas and yacht clubs to service the needs of vessels in navigation. "2. During the course of a year thousands of vessels pass through the waters of Long Island Sound in navigation and interstate commerce using the facilities of the harbors and yacht clubs. "3. Long Island Sound and the harbors thereon are navigable waters of the United States some of which are within Connecticut or New York. "4. In navigating from port to port along or through Long Island Sound, vessels pass through navigable waters within the states of Connecticut and New York. "5. Throughout the summer months thousands of vessels ply these waters. "6. During the summer months many of these vessels' operators engage mooring facilities at marinas or yacht clubs in Connecticut for a period in excess of 60 days. "7. Other vessels will ply the waters cruising from port to port being in waters of Connecticut for more than 60 days using the facilities of several different marinas or yacht clubs in Connecticut. "8. Yacht clubs and commercial marina operators, pursuant to the terms of P.A. NO. 82-283 and P.A. NO. 82-348 are required to keep records in reference to vessels which are not registered in Connecticut which use their facilities. "9. Agents of the D.E.P. and local police charged with the enforcement of P.A. NO. 82-283 and P.A. NO. 82-348, formed marina squads and visited various harbors, marinas, and yacht clubs checking vessels not registered in Connecticut. "10. The marina squads gave written notice to unregistered vessels and their operators to register pursuant to P.A. NO. 82-283 and P.A. NO. 82-348. "11. Some of the owners had applied to the Department of Motor Vehicles of the State of Connecticut to register under the Connecticut Motor Boat Registration Act and tendered the appropriate fee. "12. They were denied registration solely for the reason the applicant could not show proof of having paid a Connecticut Sales Tax or a Use Tax in the amount of 7V2% of the purchase price of the vessel, and for refusal to pay a Sales or Use Tax of 7V2% of the purchase price of the vessel to the Department of Revenue Services. "13. The State of Connecticut, through various of its agencies is attempting to enforce the provisions of P.A. NO. 82-283 and P.A. NO. 82-348. "14. Agents of the D.E.P., local police, and other enforcement agents have issued summonses to the defendants for operating unregistered vessels in violation of provisions P.A. NO. 82-283 and P.A. NO. 82-348 even though the vessels are documented under Title 46 USC 11. "15. Agents of the D.E.P., local police, and other enforcement agents have issued summonses to various defendants for failure to display a regis tration decal on the vessel after having been used on navigable waters in Connecticut for a total of more than sixty days within the calendar year. "16. The defendant Daniel Cowan is a resident and domiciliary of Albany, New York. "17. The defendant Dr. Leo Zach is a resident and domiciliary of New York, New York. "18. The defendant Herbert W. Owen is a resident and domiciliary of Key Largo, Florida. "19. The defendant Dale Phelon is a resident and domiciliary of East Longmeadow, Mass. "20. The defendant Richard Gandelman is a resident and domiciliary of Moreo, Florida. "21. All of the vessels are documented under Title 46 USC 11 with homeports of Wilmington, Delaware or Fort Lauderdale, Florida, or jurisdictions other than Connecticut. "22. At the time of the alleged violation of the Connecticut Motor Boat Registration Act, (P.A. NO. 82-283 and P.A. NO. 82-348) each defendant was operating a vessel documented under 46 USC 11 in navigable waters of the United States and Connecticut. "23. Each of the vessels which each of the defendants was operating on the date of their arrest for a violation of P.A. NO. 82-283 and P.A. NO. 82-348 was owned by a Delaware Corporation, from which they were chartered. "24. Each vessel was and continues to be validly documented and registered pursuant to 46 USC 11 (The Shipping and Registry Recording Act) with a homeport of Wilmington, Delaware or Fort Lauderdale, Florida, or a jurisdiction other than Connecticut and in interstate commerce. "25. Each of the vessels involved had been on navigable waters of the United States within the State of Connecticut for a total of 60 days within the calendar year of 1982 and in interstate commerce. "26. Each of the vessels had been purchased by a Delaware corporation which had taken delivery of the vessel in a state other than Connecticut. "27. Other than being in interstate commerce the Delaware Corporations owning the vessel which the defendants operated had no connection with Connecticut and have not qualified to do business in Connecticut. "28. The other individual defendants are domiciliaries of Connecticut >) According to the stipulation, the vessels in question are registered under 46 U.S.C. § 11, which was repealed by Public Law No. 96-594, title 1, § 127, 94 Stat. 3459 (1980). We can only assume that these vessels are now registered under 46 U.S.C.A. § 12101 et seq. (1983). Since the defendants claim, in part, that General Statutes § 15-142 is "contrary to the established federal system of admiralty jurisdiction"; see footnote 1, supra, question "B"; we believe it appropriate on remand that they introduce into evidence the documents and federal statutes pertaining to the registry of these vessels. Only then may their claim under the supremacy clause be properly evaluated. " [General Statutes] Sec. 12-411. the use tax. (1) imposition and bate. An excise tax is hereby imposed on the storage, acceptance, consumption or any other use in this state of tangible personal property purchased from any retailer for storage, acceptance, consumption or any other use in this state at the rate of seven and one-half per cent of the sales price of the property, and in lieu of said rate of seven and one-half per cent at the rate of three and one-half per cent with respect to the rendering of any service described in subdivision (i) of subsection (2) of section 12-407. "(2) liability foe tax. Every person storing, accepting, consuming or otherwise using in this state services or tangible personal property purchased from a retailer is liable for the tax. His liability is not extinguished until the tax has been paid to this state, except that a receipt from a retailer engaged in business in this state or from a retailer who is authorized by the commissioner, under such regulations as he may prescribe, to collect the tax and who is, for the purposes of this chapter relating to the use tax, regarded as a retailer engaged in business in this state, given to the purchaser pursuant to subsection (3) of this section is sufficient to relieve the purchaser from further liability for the tax to which the receipt refers. . . ." This statement is especially trae with respect to the first four questions reserved to us. We find the fifth question particularly inappropriate for a different reason. The fifth question is: "Are federally documented vessels owned by foreign corporations homeported in other states having no connection with Connecticut liable for a sales or use tax in Connecticut?" (Emphasis added.) It should be quite obvious that items of personalty having no connection with this state are not subject to the use tax. Stetson v. Sullivan, 152 Conn. 649, 653-54, 211 A.2d 685 (1965). The question as phrased assumes its conclusion. The connection or nexus between these vessels, their corporate owners and the state of Connecticut is the precise fact at issue in this case. Therefore, this question is not, in our opinion, "reasonably certain to enter into the decision of the case" as required by Practice Book § 3133, and we do not answer it. General Statutes § 12-430 (3) provides: "(3) evidence op tax on motor vehicles, boats and snowmobiles. Each person before obtaining an original or transferral registration for a motor vehicle, boat or snowmobile in this state shall furnish evidence that any tax due thereon pursuant to the provisions of this chapter has been paid in accordance with regulations prescribed by the commissioner of revenue services, and on forms approved by the commissioner of revenue services and the motor vehicle commissioner. The motor vehicle commissioner shall, upon the request of the commissioner of revenue services, after hearing by the commissioner of revenue services, suspend or revoke a motor vehicle, boat or snowmobile registration of any person who fails to pay any tax due in connection with the sale, storage, use or other consumption of such motor vehicle, boat or snowmobile pursuant to the provisions of this chapter." General Statutes § 12-430 (5) provides: "(5) payment of sales or use tax to another STATE. If any service or article of tangible personal property has already been subjected to a sales or use tax by any other state or political subdivision therof and payment made thereon in respect to its sale or use in an amount less than the tax imposed by this chapter, the provisions of this chapter shall apply, but at a rate measured by the difference, only, between the rate herein fixed and the rate by which the previous tax upon the sale or use was computed. If such tax imposed in such other state or political subdivision thereof is equivalent to or in excess of the rate imposed under this chapter at the time of such sale or use, then no tax shall be due on such article." For example, if it should appear that these vessels were kept in Connecticut although nominally homeported in another taxing jurisdiction, this fact would be more relevant to imposition of the use tax than the fact of their ownership by a Delaware corporation. Our use tax is complimentary to the sales tax; Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 299, 57 A.2d 128 (1948); and by its terms applies, irrespective of residency, to "[ejvery person storing, accepting, consuming or otherwise using in this state . . . tangible personal property purchased from a retailer . . . ." General Statutes § 12-411 (2). The relevant inquiry thus concerns the use of the vessels in Connecticut and not their place of purchase, home port, or the residency of their corporate owners.

Dannehy, J. A jury found the defendant guilty of murder in violation of General Statutes § 53a-54a. His sole claim on appeal is that he was denied his constitutional right to a speedy trial. We find no error. On May 9, 1981, the defendant was arrested in Florida on a warrant charging him with the murder of Lee Jones in New Britain on February 9 or 10,1981. The defendant promptly waived extradition and was returned to Connecticut on June 1, 1981. He was arraigned the following day and indicted on August 21, 1981. After numerous assertions of his right to a speedy trial, the defendant was finally brought to trial on November 3, 1982, and found guilty as charged on December 28,1982. The defendant was unable to post bond and remained incarcerated during the entire eighteen month period between his arrest and the commencement of trial. Additional facts will be discussed as we consider the various aspects of the defendant's claim. "The Supreme Court of the United States and this court have identified four factors which form the matrix of the defendant's constitutional right to speedy adjudication: '[ljength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.' Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Lloyd, 185 Conn. 199, 208, 440 A.2d 867 (1981); State v. Nims, 180 Conn. 589, 591, 430 A.2d 1306 (1980)." State v. Johnson, 190 Conn. 541, 544-45, 461 A.2d 981 (1983). None of these factors standing alone would demand a set disposition; rather, it is the total mix which determines whether the defendant's right was violated. State v. Nims, supra, 592. While passage of time does not alone establish the defendant's claim that he has been denied his right to a speedy trial; State v. Morrill, 197 Conn. 507, 523-24, 498 A.2d 76 (1985); the state here concedes that the operative delay of seventeen months and twenty-five days is sufficiently long to prompt inquiry into the remaining factors set forth in Barker v. Wingo, supra. We proceed to a consideration of those factors. On November 3,1982, prior to the start of trial, the court conducted a hearing on the defendant's motion to dismiss based on the alleged denial of his right to a speedy trial. The court denied that motion in a written memorandum of decision dated December 2,1982. In its memorandum the trial court found that the delay in this case was due to court congestion and not the result of any tactical decision on the part of the state. " 'On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous.' Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); see Practice Book § 3060D. The trial court's conclusions must stand unless they are legally and logically inconsistent with the facts. State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983)." State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985). The defendant concedes that the rec ord adequately supports the trial court's finding that the local criminal docket was congested, but disagrees with the court's conclusion "that such demonstrated congestion was the operative cause of the instant delay." He contends instead that the delay was caused by the improper control of the state's attorney's office over the advancement of cases on the trial list and by the "failure of the judicial authority to afford the defendant a speedy trial when it was in its power to do so." The trial court specifically rejected both of these contentions and we must determine whether its decision was clearly erroneous. The defendant during his lengthy pretrial incarceration frequently and unequivocally asserted his right to a speedy trial. He first requested his court appointed counsel to file a motion for a speedy trial on August 21, 1981, the day he was indicted. He filed such a motion pro se on October 30, 1981. By a letter to the court dated December 5,1981, the defendant requested the appointment of new counsel because his then counsel had failed to press for a speedy trial. Finally, on February 1,1982, the defendant's counsel filed a speedy trial motion. This motion was granted by the presiding criminal judge on February 10,1982, but was subject to the "usual codicil that the case will not preempt other cases unless there's a compelling reason." The defendant continued to assert his right to a speedy trial until the November 3,1982 hearing on his motion to dismiss. At the hearing on the motion to dismiss the defendant called as a witness Raymond Cuatto, the chief criminal clerk for the Hartford judicial district. Cuatto testified that he maintains a master pending case list containing every case transferred from a geographical area court. Cuatto explained that cases are placed on the master list in chronological order. The older cases are then moved from the master list to a smaller list of cases ready for trial. Cuatto further testified that he did not know how or by whom cases were ultimately selected from the trial list for trial on any given day. He could only state that his office received a typed or handwritten list containing four or five case names from the state's attorney's office several times a week. Cuatto would then call in for trial the cases on these lists. Cuatto also testified that at times cases were called in for trial out of chronological order. He recalled a case which was tried ahead of the defendant's case, even though the defendant was incarcerated and the other defendant was free on bond, and despite the fact that the defendant's case ranked number 85 on the trial list while the other defendant was listed as number 122. The defendant's former court appointed counsel, who had by then withdrawn from the case, also testified at the hearing on the motion to dismiss. He stated that he had not filed a motion for a speedy trial sooner, as the defendant had requested, because he knew from experience that such motions were unlikely to cause a case to be advanced for trial. Counsel's impression as to the general futility of a motion for a speedy trial was corroborated by Cuatto, who testified from his experience that such a motion rarely achieved its desired result. The conclusions of these witnesses were uncontradicted and, in fact, borne out by the facts of this case. The trial court in its memorandum of decision carefully considered the backlog of criminal cases in the Hartford judicial district while the defendant was awaiting trial. The court observed that as of December 14, 1981, there were 1852 active felony cases in Hartford Superior Court and that the average length of disposition was 18.6 months. The court further recounted the tremendous increase in criminal cases throughout the state and the concomitant reduction in proportionate funds allocated to the judicial department. This court is aware that by the early 1980's the mounting burden of criminal cases in our courts had reached crisis proportions. The crisis reached its watershed in February, 1982, when the federal district court granted habeas relief and ordered the release of a convicted murderer because he had been denied his right to a speedy trial. McCarthy v. Manson, 554 F. Sup. 1275 (D. Conn. 1982), aff'd, 714 F.2d 234 (2d Cir. 1983). The trial court detailed the legislative response to the McCarthy decision, which led to the enactment of our speedy trial act; General Statutes § 54-82Z (effective July 1, 1983); and the judicial response at the district level. In this regard the court noted that "a comparison of the volume of active cases pending in this court between October 31, 1981, and October 31, 1982, reflects a reduction of approximately 800 active cases resulting from an intensive effort by the court to meet constitutional standards as well as to prepare for the transition required next July under our new Speedy Trial Act." We believe this record adequately supports the trial court's conclusion that docket congestion was responsible for the delay in this case. We find somewhat tautological the defendant's argument that, despite this congestion, "the criminal justice system had sufficient flexibility to afford him a trial earlier, had it been disposed to do so, and failure to exercise that flexibility rather than crowded court calendars was the reason for the substantial delay." The ingenuous assertion that the defendant could have been brought to trial sooner had the system been disposed to do so might honestly be said of any defendant awaiting trial during the period in question, and patently ignores the complex administrative difficulties which faced our then severely overtaxed criminal justice resources. Docket congestion, by its very nature, makes expeditious scheduling of cases for trial difficult, and requires the court to undertake some plan of action to reduce the backlog. Very often such a plan may include such stopgap measures as increased plea bargaining with reduced sentences, taking "ready" cases out of order, or trying shorter, less complicated cases first. As with any intractable situation, choices must be made. The defendant in his brief expressly disavows any challenge to the rationality of the plan devised to reduce the staggering criminal backlog then existing in the Hartford judicial district. Although the precise details of that plan are not before us, it appears from the testimony to have involved a concerted attempt to try cases in rough chronological order. That the defendant was not tried sooner under this plan is attributable not to official intransigence but to reasonable attempts to follow an established system of priority. To the extent that adherence to this system—even if not at all times absolute-caused the defendant to wait while others were tried before him, the delay is attributable to docket congestion and not to the fact that some method was developed in order to relieve it. While apparently acknowledging what we have said thus far, the defendant contends that his case is distinguishable by his forceful and consistent assertion of his right to a speedy trial and because there was no evidence to indicate that any defendant chronologically ahead of him wanted a speedy trial or would have objected to the defendant's case being advanced on the trial list. We find the defendant's assertion of his right in this case to weigh heavily in his favor. We do not, however, believe that the defendant's exemplary assertion of his right can logically be integrated into this phase of his argument and thereby become transformed into a reason for the delay. The assertion of the right and the reason for the delay are separate factors entitled to independent weight under Barker v. Wingo, supra. Delay in the face of forceful assertion becomes less excusable for that very reason. We count the defendant's assertion of his right heavily against the state, but we do so only once. We must, therefore, reject the defendant's attempt to bootstrap his argument with respect to the reason for the delay by incorporating therein the fact of his forceful and consistent assertion of his right to a speedy trial. We also reject the defendant's claim that the delay was caused by the "inexplicable control" over the jury trial docket exerted by the state's attorney's office. The basis of this claim was Cuatto's testimony that he called cases in for trial from lists provided him by the state's attorney. From this testimony, and evidence that a more recent case was tried out of turn, the defendant contends that the trial court's rejection of his claim that the state's attorney's office engaged in selective advancement of cases was contrary to the evidence presented. Control by the state's attorney's office over the calling of cases for trial would clearly violate our rules of practice. Practice Book § 978 provides, in pertinent part, that "[t]he judicial authority, acting through the clerk, shall control the time and the manner of scheduling all proceedings in criminal cases and shall have the cooperation of the prosecuting authority and defense counsel in carrying out his responsibilities." Cuatto testified that he did not know who selected the cases contained on the lists provided him. The trial judge, no doubt familiar with operational procedures employed in the courthouse where he worked, may reasonably have concluded that the lists submitted to Cuatto were prepared with the active participation or tacit approval of the presiding criminal judge, who bore the ultimate responsibility for the scheduling of criminal cases. Although the court must take special care to avoid even the appearance that its authority, and hence its neutrality, has been compromised, we recognize that an administrative relationship inevitably develops between the presiding criminal judge and the state's attorney with whom he deals on a daily basis. Moreover, even assuming that the defendant could establish a clear violation of Practice Book § 973, it would not necessarily follow that improper control over case scheduling by the state's attorney's office caused the delay in this case. We note that the presiding criminal judge, and not the state's attorney, granted the defendant's motion for a speedy trial, but subject to the "usual codicil that the case will not preempt other cases unless there's a compelling reason." The trial court in its memorandum of decision found particular significance in an instance where the same presiding judge had denied the state's motion to advance a case on the trial list which, according to the state, raised important questions of " 'public interest.' " The record adequately supports a conclusion that the presiding criminal judge, in close cooperation with the state's attorney, devised and followed a plan aimed at reducing the backlog of criminal cases. As previously noted, the defendant does not contest the rationality of the plan. If less than perfect in its conception and administration, the plan was nonetheless necessitated by a severely congested criminal docket and a criminal justice system underequipped to expeditiously manage it. Difficult problems breed uneasy solutions. But where, as here, a concededly rational plan is conscientiously undertaken in response to a difficult problem, we will not in the normal course accord it independent causal significance. In sum, we do not find clearly erroneous the trial court's conclusion that docket congestion was the reason for the delay. While docket congestion does not justify or excuse delay; State v. Davis, 192 Conn. 739, 742, 474 A.2d 776 (1984); it is considered a neutral reason and is "weighed less heavily against the state than purposeful delaying tactics." State v. Gasparro, 194 Conn. 96, 100, 480 A.2d 509 (1984), cert. denied, 474 U.S. , 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985). This reason must nonetheless be considered "since the ultimate responsibility for such circumstance must rest with the government rather than the defendant." Barker v. Wingo, supra, 531. The final Barker factor which we must consider is prejudice caused by the delay. As we stated in State v. Lloyd, supra, 209, "the linchpin of the speedy trial claim is a showing of prejudice . . . ." This prejudice may be actual or presumed; Moore v. Arizona, 414 U.S. 25, 26, 94 S. Ct. 188, 38 L. Ed. 2d 183 (1973); State v. Morrill, supra, 526; since none of the four factors identified in Barker v. Wingo is either a "necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial." Barker v. Wingo, supra, 533. Thus, an affirmative showing of actual prejudice is not essential to a speedy trial claim when the defendant is able to show that the other three factors weigh heavily against the state. Hoskins v. Wainwright, 485 F.2d 1186, 1192-93 (5th Cir. 1973). The defendant claims that the other three factors in this case weigh so heavily against the state that an affirmative showing of actual prejudice is not required. We disagree. The eighteen month delay here, while substantial, is not so extreme as to indicate a clear violation of the speedy trial right, and, indeed, is shorter than the delay in other cases where no violation has been found. State v. Morrill, supra, 522 (almost nineteen months); State v. Gasparro, supra, 100 (more than three and one-half years); State v. Davis, supra, 743 (twenty-six months); State v. Lloyd, supra, 209 (twenty-two months); see also Barker v. Wingo, supra, 533 (over five years); United States v. McGrath, 622 F.2d 36, 41 (2d Cir. 1980) (twenty-four months); United States v. Lane, 561 F.2d 1075, 1078 (2d Cir. 1977) (fifty-eight months). And the reason for the delay, court congestion, while not redounding to the state's credit, does not weigh heavily against it. While the defendant's assertion of his right to a speedy trial weighs heavily in his favor, this factor alone is not sufficient to excuse a showing of actual prejudice. "The reason for dispensing with the prejudice requirement entirely when the other three factors point heavily toward a violation of speedy trial is deterrence; the prosecution should not be permitted to engage in inexcusable misconduct on the hope that the defendant will not be able to make out a case of [actual] prejudice. Where such misconduct has occurred, the state cannot complain that the legitimate interests of its criminal justice system, being pursued in good faith, are being sacrificed because of an honest mistake in a case in which no ultimate harm has been done." Turner v. Estelle, 515 F.2d 853, 858 (5th Cir. 1975), cert. denied, 424 U.S. 955, 96 S. Ct. 1431, 47 L. Ed. 2d 361 (1976); see also Gray v. King, 724 F.2d 1199, 1204 (5th Cir.), cert. denied, 469 U.S. 980, 105 S. Ct. 381, 83 L. Ed. 2d 316 (1984). In this case there has been no showing of misconduct on the part of the state sufficient to warrant a presumption of prejudice. We therefore proceed to consider the defendant's claims of actual prejudice. Actual prejudice must be assessed in light of the interests which the speedy trial guarantee is designed to serve. These interests have been identified as: "(1) prevention of oppressive pretrial incarceration; (2) minimizing anxiety and concern of an accused; and (3) reducing the possibility of impairing the defense." State v. Gasparro, supra, 101; Barker v. Wingo, supra, 532. Of these three interests "the most serious is the last,cbecause the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Barker v. Wingo, supra; United States v. MacDonald, 435 U.S. 850, 860, 98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978). The defendant claims to have been prejudiced in a number of ways. He first claims that because of "tension and racial turmoil inside the Hartford jail, [he] was forced to spend 23 out of every 24 hours confined in his cell" during his lengthy pretrial incarceration. He further claims that due to his high bond he was officially labeled a "security risk" and thereby ineligible for work assignment inside the jail. Conditions at the jail also caused the defendant "a great deal of stress and anxiety, to the point where he was eventually forced to seek medical attention." The defendant also notes his limited ability "to communicate effectively with family and friends who might have aided his case. Throughout the entire period of his pretrial confinement he was permitted only one collect phone call per day, with a limit of 5 minutes placed on each such call." We appreciate the dislocation and frustration an accused must necessarily experience while incarcerated and awaiting trial. The anxiety is heightened where, as here, the defendant urgently desires a speedy adjudication of his guilt or innocence. We further recognize that the anxiety attending pretrial delay is not ameliorated by the knowledge that under our law a convicted person receives full credit against a subsequent prison term for time spent in pretrial confinement. General Statutes § 18-98. While prejudice in the nature of that asserted here is unfortunately present in every case of pretrial delay, general claims of anxiety are thought insufficient to invoke what has been termed "the unsatisfactorily severe remedy of dismissal." Barker v. Wingo, supra, 521; United States v. McGrath, supra, 41; United States v. Avalos, 541 F.2d 1100, 1115 (5th Cir. 1976), cert. denied, 430 U.S. 970, 97 S. Ct. 1656, 52 L. Ed. 2d 363 (1977). The defendant's showing of anxiety and frustration is not sufficiently grave in this case to warrant dismissal of the charges against him. The defendant also claims to have suffered actual prejudice in the preparation of his defense. Specifically, the defendant claims that due to the delay he was unable to procure for trial a witness who purportedly would have contradicted some of the state's evidence relating to the defendant's possession of the murder weapon. We review the evidence adduced at trial to properly evaluate this claim of prejudice. In the early morning of February 10,1981, New Britain police discovered the dead body of Lee Jones slumped over in the passenger seat of the defendant's automobile. The chief medical examiner testified that Jones died from a single .22 caliber bullet fired through his mouth and into his head. The medical examiner testified that the barrel of the gun was inside Jones' mouth resting on his tongue when the fatal shot was fired. The defendant and Jones were first seen together the day before, February 9, 1981, at about 3 p.m., when they entered Russ' Cafe in New Britain. Jones and the defendant began to drink, and at some point thereafter Jones borrowed the defendant's car, and did not return to the bar until approximately 7 p.m. After Jones left once again at 7:15 p.m., the defendant became angry with Jones for taking so long to return his car. There was testimony that the defendant threatened to shoot Jones when he returned. In the presence of ten or eleven patrons the defendant pulled out a small caliber black revolver and fired a shot into the back of the bar. Russ Wilson, the owner of Russ' Cafe, told the defendant to pocket the handgun. In response to several patrons who speculated that he must have fired blanks, the defendant displayed the .22 caliber bullets remaining in the chamber. When Jones returned to the bar he apologized to the defendant and there was no further evidence of ill will between them at that time. Jones and the defendant eventually left Russ' Cafe together at about 11:30 p.m. Sometime after 11 p.m. on February 9,1981, Peggy Coscuna, a friend of the defendant, received a phone call from Barbara DeGrandis, the defendant's girlfriend and housemate, from the defendant's apartment in New Britain. After they had spoken briefly, the defendant came on line and asked Coscuna to come over because "something was going on." When Coscuna queried the defendant as to what this might be, the defendant replied that "I think I may have shot somebody." Coscuna arrived at the apartment about one half hour later, and the defendant reiterated his belief that he might have shot someone. In response to further questioning, the defendant stated that the person was in his car. Coscuna and DeGrandis persuaded the defendant to go to his car and take a look. The defendant went to his car and returned after several minutes. He confirmed that indeed there was someone inside who had been shot, and that the person was still alive and "kind of gurgling." According to Coscuna, the defendant explained that earlier that evening he had loaned his car to someone whom he identified as "the kid." This person had taken too long to return the car and the defendant became angry. An argument flared up while the two were riding in the defendant's car, and the person started laughing. The defendant told Coscuna that "he put the gun up to the kid and said if you continue to laugh at me I'm going to blow your brains out." The "kid" continued to laugh and the defendant placed the gun barrel in his mouth. The defendant then stated that he thought he shot Jones. Coscuna testified that when she first entered the defendant's apartment she saw a gun on the kitchen table. After he had told Coscuna what happened, the defendant phoned two other friends, Melvin Brokow and Linda Shields, and asked them to come to his apartment. While awaiting their arrival, the defendant again began to relate the events of the evening. Coscuna testified that during this time the defendant was more relaxed and "almost was bragging, you know, like ha-ha, this is what happened." The defendant was "waving" the gun around during his narration. Shields testified that when she and Brokow arrived at the apartment the defendant told them that "Lee" had been shot because "he got in my face." According to Shields, the defendant stated that "he put the gun in [the victim's] mouth and went bang, bang, bang." She characterized the defendant's manner and tone as "very, very hateful and nasty." Shields also recalled that the defendant, while he spoke, was waving a black revolver back and forth. Brokow's testimony as to the defendant's incriminating admissions was largely corroborative of Coscuna's and Shield's, and need not be repeated. Brokow stated that he went to the defendant's car to check on the victim and found that he was still breathing. Eventually, the discussion in the apartment turned to what to do about Jones. The defendant abandoned his car four or five blocks away from his apartment with Jones' body in it. Brokow disposed of the defendant's clothes and shoes, and took the handgun to East Johnson Avenue in Cheshire where he hid it. Approximately seven months later, in September, 1981, Brokow showed police where he hid the gun and was present when they recovered it. Brokow admitted before the jury that at that time he was under arrest as an accessory to Jones' murder, but had entered into a written agreement with the state in exchange for his testimony. Brokow also admitted to various felony convictions, including nine counts of breaking and entering. Expert ballistics testimony established that the gun identified by Brokow had been used to shoot Jones. Tracing the gun by its serial number, police learned that it had been sold to Raymond Denker. Denker testified that he loaned the gun to the defendant, who never returned it. On cross-examination, Denker also admitted to having loaned the gun to Robert Wiley, his former upstairs neighbor, on a previous occasion. According to Denker, Wiley returned the gun to him after several days. With this factual backdrop we proceed to the defendant's claim of actual prejudice. On February 10,1983, the trial court conducted a hearing on the defendant's post trial motion to dismiss based on the alleged denial of his right to a speedy trial. The defendant claimed that pretrial delay caused Wiley to be unavailable to testify. According to the defendant, Wiley, who was in California on a job assignment during the defendant's trial, would have testified that Denker owed him money and had satisfied the debt by giving him the murder weapon sometime before February 9,1981. Wiley purportedly would have testified that he never returned the gun to Denker, thus contradicting Denker's version of how the gun originally came into the defendant's possession. The defendant called Harry VanWagner, Wiley's boss, to testify at the February 10,1983 hearing on the motion to dismiss. VanWagner stated that Wiley had left Connecticut to supervise a construction job in California on September 27, 1982, and was expected back in March, 1983. The defendant's trial occurred in December, 1982. VanWagner testified that Wiley frequently was required to work out-of-state for several months at a time. VanWagner recalled that Wiley had also been in California from May to July, 1982, and in Connecticut from July until he left on his then present assignment. On cross-examination by the state, Van- Wagner testified that information as to Wiley's whereabouts would have been available to anyone who contacted him. A defendant's inability, due to pretrial delay, to locate a witness material to the defense would certainly constitute actual prejudice under the speedy trial guarantee. Barker v. Wingo, supra, 532; Dickey v. Florida, 398 U.S. 30, 38, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970). In considering such a claim, however, the court must satisfy itself that the witness is in fact unavailable, and this requires some showing by the defendant that he has taken affirmative steps reasonably calculated to procure the witness for trial. Tarnef v. State, 492 P.2d 109, 113-14 (Alaska 1971); State v. Knapp, 123 Ariz. 402, 405, 599 P.2d 855 (1979) (due process); State v. Evans, 19 Or. App. 345, 527 P.2d 731, 735 (1975); Phipps v. State, 630 S.W.2d 942, 947 (Tex. Crim. App. 1982). Such witnesses are likely to be known only to the defendant, and he must bear the burden of establishing their unavailability. In the absence of this requirement, a defendant could always show actual prejudice by failing to summon a distant witness, known only to him, and then representing to the court the substance of his purported testimony. " £[I]f a defendant merely alleges . . . inability to locate known or unknown witnesses who might testify on his behalf, he has failed to illustrate prejudice with the required degree of specificity. United States v. Ewell, 383 U.S. 116, 122, 86 S. Ct. 773, 15 L. Ed. 2d 627 [1966]; United States v. Churchill, 483 F.2d 268, 273-74 (1st Cir. [1973]).' State v. L'Heureux, 166 Conn. 312, 321, 348 A.2d 578 (1974)." State v. Johnson, 190 Conn. 541, 546, 461 A.2d 981 (1983). In the present case the defendant produced Van-Wagner at the post trial hearing to testify to the whereabouts of Wiley. Yet, the defendant does not claim to have made any attempt before trial to contact either VanWagner or Wiley at his jobsite in California. The trial court in its oral decision on the defendant's February 10,1983 motion to dismiss could not recall Wiley's name even having been mentioned as a potential source of prejudice in the course of pretrial proceedings on the defendant's first speedy trial hearing. We note that Wiley's presence at trial could have been secured by interstate subpoena. General Statutes § 54-82Í (c). The defendant has not alleged any reason why Wiley, who maintains a permanent residence in New Britain, would not have returned to testify of his own accord had the defendant so requested. Moreover, given Wiley's frequent departures from the state, it is speculative whether he would have been any more available had the defendant's trial commenced sooner. VanWagner testified that Wiley was also in California between May and July, 1982, and, under the defendant's reasoning, Wiley would have been equally unavailable during that time. The state points out that Wiley would again have become "available" had the defendant's trial been delayed until March, 1983, when Wiley was scheduled to return to Connecticut. We conclude that the defendant has not made sufficient showing that Wiley was unavailable to testify, and that, in any event, Wiley's absence from trial was due more to the fortuity of his job assignments than to pretrial delay. State v. Johnson, supra, 546; State v. Troynack, 174 Conn. 89, 94, 384 A.2d 326 (1977); cf. State v. Jones, 46 Or. App. 479, 611 P.2d 1200, 1202 (1980). Moreover, even assuming an adequate showing of Wiley's unavailability, the substance of his purported testimony would not have materially assisted the defendant's case. State v. Davis, supra, 746. Assuming that Wiley testified that he never returned the handgun to Denker, there would yet remain the uncontroverted testimony of several witnesses that the defendant possessed a black revolver shortly before and shortly after the incident in question. The defendant's incriminating admissions before Coscuna, Brokow and Shields in his apartment were markedly consistent with his conduct and statements made earlier that evening at Russ' Cafe. Finally, while Wiley's purported testimony would have contradicted Denker's version of how the defendant initially obtained the handgun, it would not rule out his having acquired it at a later time. We cannot speculate on what, if anything, a thorough examination of Wiley might disclose. We believe that in this case a determination of actual prejudice cannot be made without the benefit of Wiley's actual testimony. Counsel have been aware of Wiley's status for some time now, and his testimony, if favorable, can best be developed in habeas corpus proceedings. On the record before us, however, we do not find that the defendant was prejudiced by Wiley's absence from the state during trial. There is no error. In this opinion the other judges concurred.

The plaintiff's petition for certification for appeal from the Appellate Court, 5 Conn. App. 579, is denied.

BALDWIN, J. The defendant has moved for permission to inspect the transcript containing the minutes of the grand jury and particularly that portion of the transcript containing the testimony given by the defendant. He alleges that upon threat of being punished for contempt he was compelled to appear before the grand jury and to give evidence against himself and to answer questions propounded to him by the State's Attorney and by members of the grand jury, which testimony was taken down by stenographers present in the grand jury room and later transcribed, and that the transcript is in the custody of the State's Attorney and that it is necessary in the preparation of his defense that his attorneys and he have access thereto for their inspection. In presenting this motion, he urges that his constitutional rights have been invaded and that the State is placed in a position of unfair advantage since the State's Attorney and his assistants were present throughout the taking of testimony by the grand jury and have in their custody a copy of such testimony, and that in order to make adequate preparation for trial and to contribute to the fairness of the trial, inspection of the minutes of the grand jury by his counsel and by him is necessary. The State insists that the right of inspection is contrary to law and is a violation of the principle of secrecy of the proceedings of the grand jury and in conflict with the elements, of secrecy included in the oath administered to the grand jury. Such examination of the authorities as time has permitted to be made fails to disclose precedent for the combination of conditions in this case presented. There is no such authority-in this State. The more common grand jury proceedings as known to us are in those cases where an accused person or persons are charged with murder. In such cases the prosecuting author', ity—the State's Attorney—is not present; the accused is pres' ent and is allowed to interrogate any witness but is not allowed to present evidence in his own behalf. In the instant case, the proceedings of the grand jury were an investigation for the purpose of determining whether such facts existed as to evidence the violation of any criminal law, and if so, by whom, and whether an indictment should be found. In the instant proceeding, the accused was not present except as a witness and while under examination he had no opportunity to in' terrogate any witness. He was not an accused until the in' dictment of the grand jury was found. In volume 12, R.C.L., pages 1037 to 1040, inclusive, a some' what illuminating discussion is found from which the follow' ing is quoted: "It has long been the policy of the law, in furtherance of justice, that the investigations and deliberations of a grand jury should be conducted in secret, and that for most in' tents and purposes all its proceedings are legally sealed against divulgence. The grand jurors are sworn to keep secret the state's, their fellows' and their own counsel. This language has obvious reference to all things which transpire in the grand jury room, and the principle under' lying this injunction of secrecy extends equally to all per' sons required by law to be present before the grand jury. The policy is to inspire the jurors with a confidence of security in the discharge of their responsible duties, so that they may deliberate and decide without apprehen' .sion of any detriment from an accused or any other per' sons; to secure the utmost freedom of disclosure of ah leged crimes and offenses by prosecutors; to conceal the fact that an indictment is found against a party, in order to avoid the danger that he may escape and elude arrest upon it before the presentment is made; to prevent per' jury and subornation of perjury by withholding the knowledge of facts testified to before the grand jury, which, if known, it would be for the interest of the aC' cused or his confederates to attempt to disprove by pro' curing false testimony; and also to save the citizens the trouble, expense, and the disgrace of being arraigned and tried in public on a criminal charge, unless there is sufficient cause for it. . . . So it seems that the duty of secrecy is not founded primarily on the oath of the juror, but on deep-seated principles of public policy of which the common form of oath is merely an expression. . . . But the rule of secrecy is not unlimited in scope. In a general way it may be said that the grounds of public policy on which the rule is founded demand that secrecy be maintained at least until the indictment is found and made ptiblic and the accused is in custody, in order that the state may not be impeded in any way in bringing the accused to a speedy trial. "Although, as has been shown . it is the policy of the law to require the utmost secrecy as to the grand jury's proceedings while the grand jury is in session, the purposes of this policy of the law are largely accomplished, so far as concerns the evidence adduced before the grand jury, after the indictment or presentment has been found and published, the custody of the accused had, and the grand jury finally discharged. The rule of secrecy concerning matters transpiring in the grand jury room, it has been said, is not designed for the protection of witnesses before the grand jury, but for that of the grand jurors, and in furtherance of the public justice. The witness has no privilege to have his testimony treated as a confidential communication, but must be considered as testifying under all the obligations of an oath in a judicial proceeding, and hence his testimony may be disclosed whenever it becomes material to the administration of justice. . . . Indeed, there is authority that a grand juror may, after the Grand Jury has been discharged and the accused has been taken into custody, disclose to the accused's counsel the evidence on which the indictment against him was based, in order to enable him to make defense." Atwell vs. U. S., 162 Fed. 97. This case has advanced to that stage where the element of secrecy insofar as the evidence produced before the grand jury relating to this accused is concerned, has substantially met its purpose. The well-founded policy of the law has surrounded each person accused of crime with many safeguards in order to protect such person from any unjust or unfair conviction. It is not necessary here to detail such safeguards. Under the circumstances present in this case, it appears to me to accord with the general policy of the criminal law to grant to this accused and his counsel permission to inspect the evidence produced before the grand jury insofar as such evidence relates to this accused and the offense with which he is charged, including the testimony of the accused. This does not include the right to inspect any minutes or records of any of the deliberations or any vote or votes of the Grand Jury. The motion is granted to the extent indicated herein.