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The named defendants' motion for a review of the order of the trial court dated May 25, 1976, terminating a stay of execution in the appeal from the Court of Common Pleas in Hartford County is granted and the relief sought therein is denied.

Callahan, J. The defendant, Roy A. King, was convicted of the crimes of attempted murder in violation of General Statutes § 53a-49 and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (3) and arson in the first degree in violation of General Statutes § 53a-111 (a) (2). In State v. King, 216 Conn. 585, 603-604, 583 A.2d 896 (1990), in which we set forth the relevant facts in detail, we ordered a new trial as to the counts of attempted murder and assault in the first degree. We also ordered further proceedings as to the arson count because we concluded that the trial court improperly had failed to order the production of a report prepared by a state police officer concerning interviews that the officer had conducted with certain inmates and that the trial court had failed to conduct an in camera inspection of that report. Id., 599-600. Specifically, we ordered the trial court to answer three questions concerning the report: (1) whether the report in question was a "statement" under Practice Book § 749; (2) if so, whether all of the statement or any portion of it should have been disclosed pursuant to Practice Book § 752 and 753; and (3) if all or a portion of the statement should have been disclosed, whether the defendant was prejudiced by the nondisclosure. Id., 599. On remand, the trial court conducted the required examination and concluded that the report was a "statement" under § 749 and that a portion of it should have been disclosed, but that the defendant had not been harmed by his inability to gain access to the undisclosed material. We granted the defendant's motion to file a supplemental brief challenging the trial court's findings, but limited our review to the question of whether the trial court properly determined that the nondisclosure of the information in the report did not prejudice the defendant. We have reviewed the defendant's and the state's briefs on this issue and conclude that the trial court properly found that the failure to disclose did not prejudice the defendant. See United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (undisclosed evidence is material only if there is a reasonable probability that the outcome of the proceeding would have been different if the evidence had been disclosed). The defendant, therefore, is not entitled to a retrial on the arson count. The judgment of guilty of arson in the first degree is affirmed. In this opinion the other justices concurred.

In the above-entitled matter the defendant did not file a petition for certification within the time provided by the rules of practice (§745). The defendant did file a motion for an extension of time to file a petition for certification but that motion was denied. Therefore, as no petition for certification is properly pending before this court, the state's "Motion to Dismiss, Expunge and Strike Defendant-Appellant's Petition for Certification" from the Appellate Session of the Superior Court is dismissed.

MacDonald, J. On a trial to a jury, the defendant was found guilty of one count of robbery in the first degree in violation of § 53a-134 of the General Statutes, one count of burglary in the first degree in violation of § 53a-101 and one count of conspiracy in violation of § 53a-48. On his appeal to this court, the defendant raises six issues, assigning error to several rulings on evidence made during the trial, the denial of his motion for a mistrial with respect to the testimony of one of the state's witnesses and the denial of his motion to set aside the verdict and order a new trial because of a claimed improper remark by the state's attorney during his summation. In order adequately to review the claimed errors, it is necessary to consider only the following facts as to which the state produced evidence and as set forth in the statements of facts printed in the briefs. On the evening of July 2, 1972, Sean T. Donnelly, Wayne J. Epprecht and Fred J. Hall went to the home of the defendant, Donald A. Rado, and discussed a proposed robbery of a jeweler's widow, Theresa A. Hyman, whose home was directly opposite and clearly visible from the back porch of the Rado home. Rado pointed out the Hyman house and stated that it could contain money and jewelry. The next day, July 3, Hall, Donnelly and Epprecht drove in Hall's car to Rado's home. Late in the afternoon, Donnelly went to the nearby home of Rado's neighbor, John Spinella, to help with some earpentry. After Donnelly's return, the four men met in the basement of Rado's home, where Rado gave Epprecht a .32 caliber pistol and Hall gave Donnelly a .38 caliber pistol. Rado instructed Donnelly and Epprecht that they were to use the pistols to rob the Hyman home, gave Donnelly a walkietalkie portable transceiver to carry with him during the robbery and agreed to remain at his home during the robbery "in the event anything happened." Hall drove Donnelly and Epprecht to the Hyman home and remained in his car while Donnelly and Epprecht forced their way into the house, struck and bound Theresa Hyman and ransacked the house, taking a number of items of jewelry. When surprised by a neighbor, Donnelly and Epprecht fled, dropping Rado's walkie-talkie in their haste, were picked up by Hall in his car, and returned to Rado's home, where they changed their clothes and gave the pistols back to Rado. The ownership of the walkie-talkie dropped by Donnelly was traced to Rado and, during a search authorized by a warrant, the pistol used by Epprecht during the robbery was found in the Rado home. Three of the errors claimed by the defendant pertain to rulings made by the court with respect to the testimony of Hall who, after pleading guilty to the crime of conspiracy to commit the robbery involved here, was called as a state's witness, the remaining charges against him of burglary and robbery having been nolled. Claiming error in the court's permitting the state even to produce Hall as a witness when the state "knew or should have known that he would refuse to testify," the defendant cites State v. Moynahan, 164 Conn. 560, 586, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 where we state: "A prosecutor or state's attorney, in a criminal case, may not call anyone who, in any capacity, has become so involved in the defendant's criminal activities as to be liable to prosecution for the same offense or for another offense growing out of the transaction from which the defendant's alleged offenses arise, with a design or purpose of extracting a claim of privilege against self-incrimination" (Emphasis added.) The inapplicability of this language to the defendant's claim is clearly indicated by the emphasized words. Hall, an accomplice of the defendant, already had pleaded guilty to his participation in the transaction from which the defendant's offenses arose and, accordingly, unlike the witness in Moynahan, no longer had the privilege against self-incrimination since he no longer could be incriminated by his testimony con cerning the crime under consideration. "It is well established that once a witness has been convicted for the transactions in question, he is no longer able to claim the privilege of the Fifth Amendment and may be compelled to testify." United States v. Romero, 249 F.2d 371, 375 (2d Cir.); Reina v. United States, 364 U.S. 507, 513, 81 S. Ct. 260, 5 L. Ed. 2d 249; Brown v. Walker, 161 U.S. 591, 597-600, 16 S. Ct. 644, 40 L. Ed. 819. Returning to the words emphasized in the above quotation from our opinion in Moynahan, there was no showing or suggestion here that the state knew or should have known in advance of the trial that Hall would attempt to invoke the privilege. See Namet v. United States, 373 U.S. 179, 83 S. Ct. 1151, 10 L. Ed. 2d 278, which held that the trial court's permitting the prosecution to ask witnesses incriminating questions concerning their relationship with the defendant with the knowledge that the witnesses would invoke the privilege against self-incrimination did not constitute reversible error, the court stating (p. 189): "We cannot find that these few lapses, when viewed in the context of the entire trial, amounted to planned or deliberate attempts by the Government to make capital out of witnesses' refusals to testify." As a matter of fact, the state might well have been in derogation of its duties if it had not called Hall as a witness for, as stated by the court in United States v. Romero, supra, 375, "[i]n view of the fact that . . . [Hall] had intimate knowledge of the transactions upon which the prosecution was based, the government ran the risk of argument to the jury by defense counsel that the government's failure to call an available witness raised the inference that his testimony would be unfavorable to the government's case." Clearly, it was not error, under the circumstances, for the court to permit the state's attorney to produce Hall as its witness nor, for the reasons given and under the authorities cited above, was it error, as claimed by the defendant, for the court to order Hall to testify despite his repeated invocation of the fifth amendment. The defendant also claims that the court erred in permitting the state's attorney to interrogate the witness Hall "from a document not in evidence and which was clearly hearsay, under the guise of refreshing his recollection." The document in question was the stenographic transcript of statements made in open court by Hall a few weeks prior to the trial in the course of his pleading guilty to the offense of conspiracy to commit the robbery and burglary in question. His determination not to testify as to events immediately preceding the commission of this crime was made apparent by his repeated statements that he could not remember them. The use of a transcript of his prior statements to refresh his recollection was entirely proper, as were the questions asked by the state's attorney in cross-examination of a witness who specifically had been found by the court to be hostile. "Any memorandum which can in fact stimulate the present recollection may be used, whether made by the witness or not, whether it be the original or a copy, or whether made at the time of the events testified to or not. In the case of the past recollection the memorandum may be laid in evidence as a part of the direct examination, while in the case of the present recollection it may not, since it is the recollection, not the memorandum, which is the evidence." Neff v. Neff, 96 Conn. 273, 278-79, 114 A. 126. The defendant claims support for his position in Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934, where the court held that it was a violation of the defendant's constitutional right to permit the state's attorney to use a confession signed by an accomplice to refresh the accomplice's recollection when he was called as a state's witness and relied on his privilege to refuse to answer. In pointing out that effective confrontation by cross-examination of the witness was made impossible by his refusal to answer, the court in Douglas, quoting Namet, stated (p. 420): "The circumstances are therefore such that 'inferences from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.' " Here, confrontation of Hall was made possible by his affirmation of the questions propounded to him by the state's attorney, specifically affirming that the prior statements he had made in open court, as recorded in the transcript, were his and were true and concerning which the defendant could and, in fact, did cross-examine him at length. The court did not err in permitting the state's attorney to cross-examine Hall from the transcript of his statements made in open court at a prior hearing. The defendant, in his statement of issues and argument to this court, claims error in allowing testimony from Epprecht and Hall "concerning evidence of another crime, said evidence being irrelevant and hearsay." The entire thrust of his argument on that issue before this court is addressed to the prejudicial nature of evidence of other crimes involving the accused, but the record discloses that this argument was not made to the trial court. The only exception taken during the introduction of the testimony under consideration was to the court's overruling an objection that evidence as to a statement made by the defendant was hearsay. Since the statement in question was not a confession or admission, the ruling was correct, and the state properly claimed that the grounds for objection now urged on appeal differ from those stated during the trial. "To assign error in the court's evidential ruling on the basis of objections never raised at the trial amounts to trial by ambuscade of the trial judge. . . . 'This court is not bound to consider claims of law not made at the trial.' " State v. Johnson, 166 Conn. 439, 444-45, 352 A.2d 294. Inasmuch as the record discloses that the other crime mentioned in the testimony admitted did not involve or concern the defendant, no prejudice to the defendant can be claimed to constitute "exceptional circumstances," as discussed in State v. Evans, 165 Conn. 61, 69-71, 327 A.2d 576, to require our consideration of the ground for objection now urged for the first time. The claimed error in denying the defendant's motion for a mistrial with respect to the testimony of the witness John Spinella came about when Spinella, a neighbor of the defendant, became ill while testifying for the state and was unable to return to court for cross-examination by the defendant. His testimony was merely corroborative of that of Donnelly wherein Donnelly stated that on the afternoon of July 3,1972, while he was at Rado's home, he and Rado had gone to Spinella's home and assisted him with some carpentry. "When Spinella was unable to return to court, his son, John Spinella, Jr., was called by the state and gave substantially the same testimony as had his father, with respect to which the defendant, although given the opportunity, failed to cross-examine. Under the circumstances, the state moved to strike the testimony of the elder Spinella as unnecessary and the court, over objection of the defendant, granted that motion and subsequently denied the defendant's motion for a mistrial based upon the grounds that his testimony could give rise to damaging inferences. The court, however, did instruct the jury to disregard the testimony of the elder Spinella in a charge set forth in the footnote. The decision to strike the testimony of the elder Spinella, accompanied by the cautionary instruction to the jury as an alternative to declaring a mistrial, was within the sound discretion of the trial court, especially where the son had testified to the same relatively unimportant facts as had his father and was not cross-examined by the defendant. The final assignment of error pertains to the denial of the defendant's motion to set aside the verdict and order a new trial because of an allegedly improper remark made by the state's attorney during his summation to the jury and which, it is claimed by the defendant, referred to his failure to testify. The remark to which objection was made was a statement that the defendant was "hiding behind the skirts of his wife and aging mother-in-law," and the entire record of the claimed improper remark and the action taken by defense counsel at the time appears in the footnote. It should be noted that, contrary to the defendant's claim in his brief that "a Motion for Mistrial was made because of this comment and was denied" and at variance with his statement of the issue presented as the denial of his motion for a mistrial, no such motion actually was made or denied nor was the objection so stated that the trial court had before it the exact basis of the defendant's objection. The first specific mention of this issue in the record was in an "Amendment to Motion to Set Aside the Verdict and Order New Trial for the Defendant" filed approximately one. month after the trial. In view of the fact, however, that the defendant has claimed a violation of a constitutional right, namely, his privilege against self-incrimination guaranteed by the fifth amendment to the United States constitution and article first, § 8, of the Connecticut constitution, and since he did make timely objection and noted an exception to the court's action in permitting the state's attorney to continue without further action at the time, we will consider this claim as being properly before the court. Section 54-84 of the General Statutes provides, in relevant part: "The neglect or refusal of an accused party to testify shall not be commented upon to the court or jury." In addition to this statutory protection it is, of course, undisputed that the defend ant is protected against any adverse comments concerning his failure to testify by such decisions of the United States Supreme Court as Grifin v. California, 380 U.S. 609, 85 S. Ct. 1229,14 L. Ed. 2d 106, rehearing denied, 381 U.S. 957, 85 S. Ct. 1797,14 L. Ed. 2d 730, and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824,17 L. Ed. 2d 705, rehearing denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241; see State v. Branham, 171 Conn. 12, 368 A.2d 63. An examination of the United States Supreme Court decisions cited by the defendant including Griffin and Chapman, however, discloses that the prosecutor's comments there under consideration were unmistakably and even flagrantly directed toward the failure of the defendant to testify. In the case before us, by contrast, no direct reference was made to the failure of the defendant to testify and any inference of such reference, under the circumstances of this case, can be found only by rather strained interpretation. In the concluding paragraph of his brief, the defendant states: "That such words were a comment on the defendant's failure to testify is evident because his two main witnesses were his wife and aging mother-in-law taking up most of the defense's case-in-chief." Inasmuch as it is apparent from this candid statement, without even consulting the record, that the defense was based almost entirely upon the testimony of the defendant's wife and mother-in-law, the state's attorney's characterization of the defense was a reasonably accurate assessment, even though in less than flattering language. The trial court, in order to make certain that the jurors, if they did interpret the remark as a reference to the defendant's failure to testify, would totally disregard it, charged them as to the defendant's right not to testify, and instructed them completely to disregard the remark in question, as fully set forth in the footnote. It also should be noted that the court omitted from its charge any further clarification of the defendant's right not to testify at the express request of the defendant. Under the particular circumstances of this case, it is difficult to see how the' remark of the state's attorney could be interpreted as a reference to the failure of the defendant to testify or, under any interpretation, how it prejudiced him. In State v. Monahan, 96 Conn. 289, 291, 114 A. 102, this court stated, in considering an allegedly unfair comment by the state's attorney in the light of the predecessor statute to our present § 54-84: "But disobedience of this statutory rule of practice does not entitle the accused to a new trial as of right, unless it appears to have injuriously prejudiced him before the jury. And failure of the court to enforce the statute will not of itself be ground for granting a new trial, for the accused may waive its enforcement 'by neglecting to move for a discharge of the jury at the time and by proceeding without further objection or motion to an adverse ending of the trial.' State v. Buxton, 79 Conn. 477, 480, 65 Atl. 957." And in language strikingly applicable to the facts of the present case, the court continued (p. 292): "The comment objected to was not comment upon the failure of the accused . to testify. It neither directly referred to that fact, nor could an inference to that effect be fairly drawn from the comment. The comment was to the failure of the defense to produce evidence which was essential to the case of the accused. The statute prevents prejudice to an accused from his failure to testify; it does not prevent prejudice to his ease from the failure to produce any evidence, or any sufficient evidence, to establish his case." Even if the remark under discussion were to be construed as an oblique reference to the failure of the defendant to testify, it is difficult to see how he could have been prejudiced thereby. In Chapman v. California, 386 U.S. 18, 87 S. Ct. 824,17 L. Ed. 2d 705, decided after both Monahan and Griffin, the United States Supreme Court held that before an error involving the denial of a federal constitutional right can be held harmless in a state criminal case, the reviewing court must be satisfied beyond a reasonable doubt that the error did not contribute to the defendant's conviction. It further observed (pp. 21-22): "We are urged . to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. Such a holding, as petitioners correctly point out, would require an automatic reversal of their convictions and make further discussion unnecessary. We decline to adopt any such rule." (Emphasis added.) One of the "facts and circumstances" of the present case that must be considered in determining whether the error, if any, was harmful, is the overwhelming evidence against the defendant as revealed by the record and even by reference to those portions of the evidence referred to in this opinion. In Milton v. Wainwright, 407 U.S. 371, 377, 92 S. Ct. 2174, 33 L. Ed. 2d 1, the court observed: "[T]he federal courts do not sit to re-try state cases de novo but, rather, to review for violation of federal constitutional standards. In that process we do not close our eyes to the reality of overwhelming evidence of guilt fairly established in the state court," and again (p. 372): "Assuming, arguendo, that the challenged testimony should have been excluded, the record clearly reveals that any error in its admission was harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250 . . . [89 S. Ct. 1726, 23 L. Ed. 2d 284]; Chapman v. California, 386 U.S. 18 . . . [87 S. Ct. 824, 17 L. Ed. 2d 705]. The jury, in addition to hearing the challenged testimony, was presented with overwhelming evidence of petitioner's guilt." Another of the "facts and circumstances" to be considered under the Chapman test is the fact that the trial court clearly instructed the jury to disregard the remark under consideration if, indeed, they construed it as a comment on the defendant's right not to testify. See footnote 4, supra. The court refrained from elaborating further on the defendant's constitutional right to remain silent only at the specific request of his attorney. See footnote 5, supra. We do not find that the remark under consideration constituted a reference to the defendant's failure to testify, but even if it were to be so construed, we find the court's action with reference thereto to constitute error that was harmless beyond a reasonable doubt. There is no error. In this opinion the other judges concurred. 'The Court: Now, ladies and gentlemen, just to bring you up to date, briefly, I indicated to you yesterday that the last witness you had- heard last week, a Mr. John Spinella, who had been on the stand here before I let you go for the weekend, yesterday it was brought to the Court's attention that he had been hospitalized after he left here last week, and the condition of his health was going to be checked upon by the State. It has been reported to the Court that he is still in the hospital. He is ill. And rathér than hold up this trial, the Court at this time the Court in your absence has stricken his entire testimony from the record in this case, and at this time I not only caution you, but I order you to completely disregard his entire testimony and to dismiss it from your minds." "Mr. Casella: I object, your Honor, to that last statement, 'hiding behind the skirts of his wife and aging mother-in-law.' "The Court: You may be seated, Mr. Casella. You may proceed, Mr. Scanlon. "Mr. Casella: May I have an exception? "The Court: Exception noted." In Griffin, for example, the remarks of the prosecutor (p. 611) included the following: "These things he has not seen fit to take the stand and deny or explain. And in the whole world, if anybody would know, this defendant would know. Essie May is dead, she can't tell you her side of the story. The defendant won't." In Chapman, an appendix to the opinion (pp. 26-42) includes seventeen pages of the prosecutor's comments containing literally dozens of caustic references to the failure of the defendants to testify. "The Court: Ladies and gentlemen, on reflection here, the point that Mr. Casella brought up as to any construction of the term 'hiding behind the skirts' of anyone, that Mr. Seanlon used here, I am going to ask you to completely disregard that. If at all, he was referring to the fact that the defendant did not take the stand, and I will later on explain that to you more fully, that the defendant does not have to take the stand. So I am going to order those remarks stricken from the record in compliance with the request of Attorney Casella, and ask you to disregard those remarks completely. "Mr. Scanlon: May I make one statement, your Honor? That was not the purpose. "The Court: All right." "The Court: All right, gentlemen, 1 am about to call the jury to charge them on the law. Mr. Casella, is there something you would like to say for the record at this point? "Mr. Casella: I would just like to state, your Honor, T filed no request to charge as to the defendant not taking the stand in this matter, and T would prefer that your Honor would give no — make no reference to that. "The Court: Even though the Court did make some reference to that fact when the Court stated he did not have to take the stand when you moved the jury be cautioned about the remarks of Mr. Seanlon? "Mr. Casella: Even though that is true. "The Court: At this time, you would request the Court not to make any reference to the fact that the accused did not take the stand? "Mr. Casella: Yes, your Honor. "The Court: All right. The record will so indicate."

The defendant's petition for certification for appeal from the Appellate Court, 24 Conn. App. 13, is denied.

It appearing that the defendant in the above-entitled case has failed to prosecute his appeal from the Superior Court for the judicial district of Waterbury with proper diligence, it is, under Prae tice Book § 696, ordered by the Supreme Court, suo motu, that the appeal be and hereby is dismissed unless the defendant on or before December 28, 1976, files his brief. Argued December 7 decided December 7, 1976 Michael J. Daly III, special public defender, for the appellant (defendant). Joseph A. Hill, assistant state's attorney, for the appellee (state).

House, C. J. This is an appeal from the judgment rendered on the verdict of a jury finding the defendant guilty of the crime of rape in the first degree in violation of then § 53a-72 of the General Statutes. The defendant was sentenced to a term of imprisonment of not less than five nor more than ten years. The defendant has briefed and argued three claims of error. He claims that the trial court erred in its charge and supplemental charge on the law of alibi and in failing to charge on that subject in language requested by the defendant, in its comments to the jury concerning the standards to be used in weighing the credibility of the witnesses for the defense, and in denying the defendant's motion to set aside the verdict. The state introduced evidence from which the jury could find the following: On January 12,1972, at approximately 10 to 10:30 a.m., the complaining witness, to whom we will refer as Mary, left her home in Stratford to drive to the Bridgeport library to complete a report for her art class scheduled for 4 p.m. at Housatonic Community College. En route to Bridgeport, she decided to see if a friend and fellow student, to whom we will refer as Olive, wanted to go to the library with her, so she left the thruway at the Pembroke Street exit. Olive lived in a second floor apartment at 202 Hough Avenue in Bridgeport. The house was owned by Mr. and Mrs. Harold Bennett who lived on the first floor with their daughter and son, the defendant. Olive had a part-time job while going to school so that she was not usually home in the morning. Mary was aware of this but midterm exams were at hand and she believed that, Olive might be staying at home to study. Mary had visited Olive at her apartment about twenty times prior to January 12 and had stayed there overnight on occasion. Mary arrived at 202 Hough Avenue approximately fifteen to thirty minutes after leaving her home. She knocked at the door and a man answered. She had seen that man at 202 Hough Avenue on at least two pripr occasions. Mary asked if Olive was home to which he responded that he did not know. Mary went upstairs to Olive's apartment but Olive was not there. When she came back down, the man was still in the downstairs hallway. She asked him to tell Olive that she had come by. As she started to drive away, the man waved her back saying that Olive had just called and that she would be right back. At the man's invitation, Mary entered the first floor apartment to wait for Olive. The man accompanied her into the apartment. At the trial, Mary identified the defendant as that man and the man she had seen on the premises on prior occasions. She sat on the couch in the living room, introducing herself as Mary. He said his name was Grary. No one else was in the apartment. There was some conversation. The defendant walked around and left the room on a couple of occasions. For a brief time he sat on the couch with Mary. He also went behind the couch occasionally as though looking out the front window for Olive to arrive. On such an occasion when the defendant was behind the couch, he suddenly threw a rope or cloth-like material over her head like a noose. The defendant tightened the noose around her neck so that Mary was unable to breathe. She slid from the couch on to the floor, unconscious. When she regained consciousness she was weak, in severe pain, and breathing with great difficulty. The defendant removed the noose from her neck and helped her to her feet. The defendant then took her to a back room in the same apartment. She was crying, too weak to resist the defendant, and "frightened to death." The room contained a sofa-type bed. The defendant forced her onto the bed, removed her slacks and underpants and forced her to submit to sexual intercourse. Mary identified the defendant in court as the man who forced himself upon her. After this assault, the defendant ascertained Mary's address and the identity of members of her family. He told Mary that he was a member of the Black Panthers and threatened harm if she were to tell what happened. He ordered her to tell her family that she had been attacked by Puerto Ricans in Stratford. Upon leaving the apartment, Mary drove to her home in Stratford, arriving at about noon. She collapsed on the stairs and her aunt, Jean Zahner, came to her assistance, finding her emotionally distraught and disheveled and complaining that her neck hurt. She told her aunt that she had been attacked by two Puerto Ricans on East Main Street in Stratford. While Mary was in bed at home prior to being taken to the hospital, Sergeant Alfred E. Dunn of the Stratford police department inquired about the attack on East Main Street. Because she was having difficulty speaking, she nodded as if to affirm this description of the attack. Owing to her physical and emotional state at the time, Mary did not recall any such communication. Mary was taken from her home to Milford Hospital by ambulance and immediately transferred to the intensive care unit. She remained in the hospital until January 18. James T. Keegan, the examining physician, expressed the opinion that the neck and facial injuries were caused by severe external compression. He ordered that the police not attempt to question Mary for two days. In the hospital emergency room, at approximately 1 p.m. on January 12, immediately after Keegan's examination, Mary admitted to her aunt that what she had told her previously was not, in fact, what occurred. On that evening, Jean Zahner visited Mary in the intensive care unit. Mrs. Zahner told her that she would have to give the police an accurate account. Mary replied, "I can't tell you anything. Don't say anything," and, also, to the effect that "he is a member of the Black Panthers" and "he will kill me if I tell on him." On the afternoon of January 12, Francis J. Hyland, a gynecologist, examined Mary at the hospital. He concluded that there were spermatozoa deposits in the vagina. Abraham Stolman, chief toxicologist for the state of Connecticut, received items of Mary's clothing at the state laboratory on July 18, 1972. At the trial, he testified that his examination revealed seminal stains on the outside of the crotch of her underpants and that her slacks had seminal stains on the inside of the crotch. The defendant testified in his own behalf as did several of his friends and schoolmates. They testified in detail to the effect that on the day in question the defendant had left for Harding High School at about 7:45 to 8 a.m. and had remained at school until he took the bus home at about 2:30 p.m. Two of the defendant's teachers, Mrs. Mary M. Clark and Michael Brown, also testified. Mrs. Clark testified that her attendance records indicated that the defendant was present in her class between 9:59 a.m. and 10:38 a.m. on the day in question; Brown testified that he did not take attendance on January 12 and could not recall whether the defendant was in class on that date. The defendant claims that the court erred in its charge and supplemental charge on the law regarding an alibi defense, and in failing to charge as requested by the defendant in language which was virtually verbatim the language approved in State v. Brauneis, 84 Conn. 222, 230-32, 79 A. 70. Instead of adopting the language from the older Brauneis case, the court charged in language taken almost verbatim from the court's charge in the more recent case of State v. Cari, 163 Conn. 174, 303 A.2d 7. On the appeal in the Cari case, we found no error in this charge as to the law applicable to an alibi defense. See State v. Malley, 167 Conn. 379, 382, 355 A.2d 292. The complete Cari charge is found in A-533 Records and Briefs and no good purpose would be served in repeating it at length in this opinion. As we noted in the opinion in Cari, supra, 182: "On numerous occasions this court has stated that the trial court in a criminal case may, in its discretion, make fair comment on the evidence and particularly on the credibility of witnesses. See State v. Tropiano, 158 Conn. 412, 428, 262 A.2d 147; State v. LaFountain, 140 Conn. 613, 620, 103 A.2d 138; State v. Pecciulis, 84 Conn. 152, 158, 79 A. 75. In addition, we have also declared that an instruction on the credibility of alibi witnesses similar to that challenged by this assignment of error is both proper and fair when weighed in the light of the other paragraphs of the charge. State v. Groos, 110 Conn. 403, 410, 148 A. 350; State v. Cianflone, 98 Conn. 454, 466, 120 A. 347 . It is well recognized that the credibility of alibi witnesses is a subject as to which fair comment by the court to the jury is allowed. See Sullivan v. Scafati, 428 F.2d 1023 (1st Cir.), cert. denied, 400 U.S. 1001, 91 S. Ct. 478, 27 L. Ed. 2d 452; Surridge v. State, 239 Ark. 581, 393 S.W.2d 246; Commonwealth v. Sullivan, 354 Mass. 598, 239 N.E.2d 5, cert. denied, 393 U.S. 1056, 89 S. Ct. 697, 21 L. Ed. 2d 698; State v. Griffin, 336 S.W.2d 364 (Mo.); Commonwealth v. Gates, 392 Pa. 557, 141 A.2d 219; Rogers v. State, 455 S.W.2d 182 (Tenn. Crim. App.); Bolin v. State, 219 Tenn. 4, 405 S.W.2d 768. We find no error in this portion of the charge to the jury." As we have repeatedly stated, "[t]he court is under no duty at any time to charge in the language of requests. Its duty is performed when it gives instructions calculated to give the jury a clear comprehension of the issues presented for their determination under the pleadings and upon the evidence, and suited to their guidance in the determination of those issues." Radwick v. Goldstein, 90 Conn. 701, 706, 98 A. 583; State v. Fine, 159 Conn. 296, 301, 268 A.2d 649; State v. Alterio, 154 Conn. 23, 27, 220 A.2d 451; State v. LaFountain, 140 Conn. 613, 618, 103 A.2d 138. The substance of the instruction in Brauneis which the defendant wanted to be given to the jury in this case was in fact included in the court's charge. In Brauneis, this court said (p. 231): "If, upon a fair consideration of the entire evidence, the jury entertained a reasonable doubt as to the defendant's presence at the scene of the crime, it was their duty to acquit, although they were not satisfied from the 'alibi evidence' that he was elsewhere." The court charged in the present case, in part: "The accused does not have to prove his claim that he was elsewhere. It is sufficient if on considering all the evidence there arises in your mind a reasonable doubt as to his presence at the scene of the crime when it was committed. If you do conclude that there is such a doubt, the accused is entitled to a verdict of not guilty." It further charged: "I tell you again that there is no burden on this accused to prove himself innocent of the crime charged, but it is the state's burden to prove him guilty beyond a reasonable doubt. And that burden rests upon the state throughout the entire trial." In complying with the jury's request to repeat the alibi instructions, the court, in its supplemental charge, essentially repeated its original charge on the subject, including the instruction we have just quoted. As this court has previously stated regarding a jury's request for a supplemental charge: "Far from indicating confusion on the part of the jury, as the defendant intimates in its brief, the request indicated a conscientious effort on the part of the jury to cope with perhaps the most important factual question in the case as it had been submitted to them." Gigliotti v. United Illuminating Co., 151 Conn. 114, 120, 193 A.2d 718. We find no merit to the claims of error addressed to the portions of the charge and the supplemental charge concerning the defendant's alibi defense. The defendant next assigns as error the trial court's comments to the jury concerning its task in weighing the credibility of the witnesses for the defense. This claim rests on two main points. First, the defendant argues that the comments in question unfairly included in the same category all of the defendant's alibi witnesses, when it was unreasonable to consider one of the defendant's schoolteachers with thirty-eight years of experience in the same group as the defendant's classmates who might be prone to fabricate an alibi. Second, the defendant submits that the comments in question were not an independent, legitimate response to the facts and testimony elicited at the trial, but a mere recitation of a standardized charge on alibi defenses. See State v. Cari, 163 Conn. 174, 181, 303 A.2d 7. As to the first point, the court did not include the teacher Mrs. Clark in the same category as the defendant's schoolmates but carefully tailored the charge approved in State v. Cari, supra, to the evidence in this case, noting that alibi evidence frequently, "in part at least," consists of testimony of those who are "in this case, family and schoolmates of the accused." Furthermore, the jury were asked by the defendant to rely on the accuracy of Mrs. Clark's attendance records which indicate not only that the defendant was present in class on the day of the crime, January 12, 1972, but also on the following day when the defendant himself admits he was absent. He testified that the only day he attended school that week was January 12. As to the second point stressed by the defendant, the court's comments concerning the tests it should apply in weighing the credibility of alibi witnesses were apt, relevant, and well within its discretion. State v. Cari, supra. We also find no error in the instruction of the court to the jury concerning the factors to he considered in weighing the credibility of the testimony of the defendant. Early in its charge, the court fully instructed the jury that it was their sole function to determine what witnesses they would believe and to what extent. It cautioned them that the testimony of a police officer is not entitled to any greater weight merely because the witness is a police officer, and, as we have already noted, properly commented on the factors which the jury might well consider in weighing the credibility of alibi witnesses. With respect to the testimony of the defendant, the court charged as follows: "Concerning the accused who testified here, I might add this: An accused person is not obliged to take the witness stand in his own behalf. On the other hand, he has a perfect right to do so, as this accused Gary Bennett has done. In weighing the testimony that he has given you, you should apply the same principles by which the testimony of other witnesses are tested, and that necessarily involves a consideration of any interest that he might have in the case. You will consider the importance to him of the outcome of this trial and his motive on that account for perhaps telling the truth. An accused person once having taken the witness stand, stands before you just like any other witness and is entitled to the same consideration and must have his testimony measured in the same way as any other witness, including, however, his interest in the verdict you will render. You should also consider any possible bias or prejudice or sympathy or friendliness which any witness may have, whether for or against the state or for or against the accused. You should consider a witness' interest or lack of interest of whatever sort in the outcome of the trial, his ability to observe facts correctly. And when I say 'his' I am also including females, I am not omitting females. Instead of saying his or hers each time, I am using the pronoun 'his.' " The only relevant exception which the defendant took to the charge aside from that with reference to alibi witnesses, which we have already indicated was proper, was in the following language: "By the same token, Your Honor said that the accused took the stand, and they must also bear in mind his interest in the outcome of the case. In other words, everybody's interest in the outcome of the ease relates to the defendant." At no time, either during the trial or on this appeal, has the defendant claimed that he was deprived of due process of law, and, in the portion of the charge which we have quoted, the court clearly did not limit the factor of interest to consideration of the testimony of the defendant's witnesses. Rather, it clearly included all witnesses in its instruction: "You should also consider any possible bias or prejudice or sympathy or friendliness which any witness may have, whether for or against the state or for or against the accused. You should consider a witness' interest or lack of interest of whatever sort in the outcome of the trial, his ability to observe facts correctly." In his brief, the defendant has limited his claim of error with respect to this portion of the charge to the single sentence in the portion we have quoted above: "You will consider the importance to him of the outcome of the trial and his motive on that account for perhaps telling the truth," emphasizing the last four words. In using the word "perhaps" instead of "not" the court departed from the usual charge given in such instances. State v. Jonas, 169 Conn. 566, 363 A.2d 1378; State v. Moynahan, 164 Conn. 560, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 219; Wright, Conn. Jury Instructions § 669. If anything, the court's use of the word "perhaps" rather than "not" was more favorable to the defendant and it clearly was not in any way prejudicial to him. It is well-settled law that "[t]he fact that the witness is a defendant in a criminal prosecution, or is a participant in the offense or in a related offense, creates an interest which affects his credibility." 81 Am. Jur. 2d 669, Witnesses, § 667. "Where a defendant in a criminal case testifies in his own behalf, his interest in the result is a proper matter to be considered as bearing on his credibility, and it has been considered that his position of itself renders his testimony less credible than if he were a disinterested witness, especially where he has a criminal record." 98 C.J.S. 484, Witnesses, § 543. As we said in State v. Guthridge, 164 Conn. 145, 151, 318 A.2d 87, cert, denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186: "The rule is well settled in this state that the court may advise the jury that in weighing the credibility of an accused's testimony they can consider his interest in the outcome of the trial." We have adhered to this rule in many cases. State v. Jonas, supra, 579; State v. Moynahan, supra, 574; State v. Palko, 122 Conn. 529, 534, 191 A. 320, aff'd, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288; State v. Sehleifer, 102 Conn. 708, 725, 130 A. 184; State v. Saxon, 87 Conn. 5, 22, 86 A. 590; State v. Fiske, 63 Conn. 388, 392, 28 A. 572. In Reagan v. United States, 157 U.S. 301, 15 S. Ct. 610, 39 L. Ed. 709, a unanimous United States Supreme Court, while recognizing that the controlling federal statute forbade all comment in the presence of the jury on the omission of an accused to testify, approved a charge stating (p. 304): "The law permits the defendant, at his own request, to testify in his own behalf. The defendant here has availed himself of this privilege. His testimony is before you and you must determine how far it is credible. The deep personal interest which he may have in the result of the suit should be considered by the jury in weighing his evidence and in determining how far or to what extent, if at all, it is worthy of credit." In its opinion, the court noted (p. 305) with respect to the testimony of an accused: "It is within the province of the court to call the attention of the jury to any matters which legitimately affect his testimony and his credibility. This doés not imply that the court may arbitrarily single out his testimony and denounce it as false. The fact that he is a defendant does not condemn him as unworthy of belief, but at the same time it creates an interest greater than that of any other witness, and to that extent affects the question of credibility. It is, therefore, a matter properly to be suggested by the court to the jury. . . . This rule is equally potent in criminal as in civil cases, and in neither is it error for the trial court to direct the attention of the jury to the interest which any witness may have in the result of the trial as a circumstance to be considered in weighing his testimony and determining the credence that shall be given to his story." After reviewing cases from several jurisdictions, the court concluded (p. 310): "The import of these authorities is that the court is not at liberty to charge the jury directly or indirectly that the defendant is to be disbelieved because he is a defendant, for that would practically take away the benefit which the law grants when it gives him the privilege of being a witness. On the other hand, the court may, and sometimes ought, to remind the jury that interest creates a motive for false testimony; that the greater the interest the stronger is the temptation, and that the interest of the defendant in the result of the trial is of a character possessed by no other witness, and is therefore a matter which may seriously affect the credence that shall be given to his testimony. The court should be impartial between the government and the defendant. On behalf of the defendant it is its duty to caution the jury not to convict upon the uncorroborated testimony of an accomplice. . . . And if any other witness for the government is disclosed to have great feeling or large interest against the defendant, the court may, in the interests of justice, call the attention of the jury to the extent of that feeling or interest as affecting his credibility. In the same manner in behalf of the government, the court may charge the jury that the peculiar and deep interest which the defendant has in the result of the trial is a matter affecting his credibility, and to be carefully considered by them." We find no error in the court's charge with respect to the considerations they should have in mind in testing the credibility to be given to the defendant's testimony. We also find no error in the court's denial of the defendant's motion to set aside the verdict on the ground that the evidence was insufficient to support a conviction. In reviewing the ruling on such a motion, the evidence must be given the construction most favorable to sustaining the jury's ver diet. State v. Benton, 161 Conn. 404, 406, 288 A.2d 411; State v. Raffone, 161 Conn. 117, 121, 285 A.2d 323. The evidence which we have heretofore summarized in this opinion amply supports the jury's verdict and in the light of our recent decisions in State v. Bennett, 171 Conn. 47, 368 A.2d 184, and State v. Jonas, 169 Conn. 566, 363 A.2d 1378, the defendant at the time of argument properly abandoned his briefed contention that it was necessary for the state to corroborate by independent evidence the existence of each element of the statutory offense of rape. There is no error. In this opinion Longo, Barber and MacDonald, Js., concurred.

The plaintiff's motion to set aside the judgment of the trial court denying his request for an injunction against bringing the defendant's counterclaim to arbitration, in the appeal from the Superior Court in Fairfield County at Stamford, is granted and it is ordered that arbitration proceed without integration of the counterclaim unless the defendant files its brief on or before January 11, 1977.

Barber, J. The plaintiffs, members of the special selection committee of the Fuller Scholarship Fund, instituted this action for instructions from the Superior Court, claiming to be unable to perform their duties in the administration of the trust fund without the advice of the court. The plaintiffs allege that they had been unable to choose a sufficient nunjiber of beneficiaries to expend all the annual income of the Fuller Scholarship Fund because of racial, sexual or religious restrictions on beneficiaries of the fund. To avoid imposition of federal taxes under § 4942 of the Internal Revenue Code, the plaintiffs sought the removal of the racial and sexual restrictions on beneficiaries, asking the court to decide whether such restrictions were impracticable and whether they were illegal. The attorney general, the only defendant to appear, filed a counterclaim requesting that the religious restriction be removed as well. The plaintiffs and the attorney general stipulated and agreed to the facts which they considered relevant. Frank Roswell Fuller died a resident of West Hartford on March 1, 1957, leaving a will dated January 4, 1957, which was duly admitted to probate. Article X of the will establishes a charitable trust to grant college scholarships from the income of the fund to beneficiaries chosen by the special selection committee created for that purpose. The will designates the group from which beneficiaries may be chosen as "needy, deserving boys from the graduating classes of the preceding month of June from the high schools of the County of Hartford and State of Connecticut, whose high school marks for their individual and respective entire high school course shall have been at least an average of seventy (70) points out of a possible one hundred (100) points or better, who are members of the Caucasian race and who have severally, specifically professed themselves to be of the Protestant Congregational Faith." The will provides further that the special selection committee may choose only those applicants who meet the racial, sexual and religious restrictions set forth in article X. In every year from 1971 through 1973, the committee chose as beneficiaries all the applicants who met the qualifications set forth in article X of the will, but the committee has not been able to choose a sufficient number of beneficiaries to expend on scholarships for beneficiaries all the income of the fund. The plaintiffs rely on churches, colleges and universities to publicize the availability of scholarships from the Fuller Scholarship Fund, but many of those institutions have refused to publicize the availability of such scholarships because of the racial, sexual or religious restrictions on the beneficiaries. The parties agreed that if the racial, sexual or religious restrictions are removed, the plaintiffs will be able to choose a sufficient number of beneficiaries for the trustees of the Fuller Scholarship Fund to expend all the annual income on scholarships for beneficiaries. The trial court applied the doctrine of cy pres or approximation to remove the racial and sexual restrictions on the beneficiaries of the scholarship fund. The court found, however, that the continued imposition of the religious restriction would not involve state action and, therefore, would not violate the fifth or fourteenth amendments of the constitution of the United States or the constitution of Connecticut, article first, § 20. The court further found that the removal of the racial and sexual restrictions on beneficiaries of the Fuller Scholarship Fund would allow the fund to attract a sufficient number of beneficiaries to award as scholarships all the fund's annual income, which was the general charitable intent of the testator, and that the continued imposition of the religious restriction would not impede this charitable intent. The court finally concluded that the religious restriction, being neither illegal nor impracticable, could not be removed through the application of the doctrine of cy pres or approximation. The defendant appealed from the judgment of the trial court and assigns as error the court's failure to remove the religious restriction on beneficiaries of the Fuller Scholarship Fund. On appeal, the defendant argues that the judicial removal of the gender restriction and the concurrent judicial preservation of the religious restriction constitute state discriminatory action which is illegal. I A trust for the advancement of education is charitable, and the beneficiaries of a charitable trust to provide scholarships generally may be limited to persons of a particular religion. Restatement (Second) 2 Trusts § 370, comment j; 4 Scott, Trusts (3d Ed.) § 370.6. "Indeed, the advancement of religion is one of the principal divisions of charitable trusts." 15 Am. Jur. 2d, Charities (Rev. 1976), § 39. See General Statutes § 47-2. As a charitable trust the Fuller Scholarship Fund must be construed so as to uphold it, if it is reasonably possible to do so. General Statutes § 45-79; Connor v. Hart, 157 Conn. 265, 275, 253 A.2d 9; Waterbury Trust Co. v. Porter, 131 Conn. 206, 214-15, 38 A.2d 598. For the purposes of this case, the constitution of Connecticut, article first, § 20, is the state counterpart of the equal protection clause of the fourteenth amendment to the constitution of the United States. These provisions of the federal and state constitutions "have the same meaning and impose similar constitutional limitations." Karp v. Zoning Board, 156 Conn. 287, 295, 240 A.2d 845. Both provisions therefore may be considered together. See Page v. Welfare Commissioner, 170 Conn. 258, 264,. 365 A.2d 1118; Tough v. Ives, 162 Conn. 274, 292, 294 A.2d 67; Proctor v. Sachner, 143 Conn. 9, 17, 118 A.2d 621. The defendant correctly notes in his brief that while the fifth amendment of the United States constitution contains no equal protection clause, it has been held to forbid discrimination that is so unjustifiable as to be a violation of due process. Schneider v. Rusk, 377 U.S. 163,168, 84 S. Ct. 1187, 12 L. Ed. 2d 218. "The approach to equal protection claims under the fifth or fourteenth amendments has always been precisely the same. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S. Ct. 1225, 43 L. Ed. 2d 514." Page v. Welfare Commissioner, supra, 259 n.l. The defendant's brief, however, discusses only state, not federal, activity which might constitute "state action." It has long been established that private conduct abridging individual rights does not violate the equal protection clause of the fourteenth amendment to the constitution of the United States. See Civil Rights Cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835. The equal protection clauses of our state and federal constitutions are designed as a safeguard against acts of the state and do not limit the private conduct of individuals or persons. 16 Am. Jur. 2d, Constitutional Law, § 491. There is an "essential dichotomy between discriminatory action by the State, which is prohibited by the Equal Protection Clause, and private conduct, 'however discriminatory or wrongful,' against which that clause 'erects no shield,' Shelley v. Kraemer, 334 U.S. 1,13 (1948) [68 S. Ct. 836, 92 L. Ed. 1161]." Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S. Ct. 1965, 32 L. Ed. 2d 627; Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45. Thus, private discriminatory action is not constitutionally proscribed, and for the defendant's appeal to be sustained the trial court must have erred in concluding that the defendant had not shown any significant state involvement in either the creation, implementation or enforcement of the restrictive provisions of the Fuller Scholarship Fund. We are not persuaded that the trial court did so err. In deciding whether the conduct under attack is governmental or private in nature, the United States Supreme Court has never adopted a precise, rigid test but has relied on a case-by-ease approach. See, generally, note, "State Action and the Burger Court," 60 U. Va. L. Rev. 840; see also note, "State Action: Theories for Applying Constitutional Restrictions to Private Activity," 74 Col. L. Rev. 656. In a case involving the distribution of religious literature by a Jehovah's Witness on the sidewalk of a company-owned town, the court used a balancing approach when the company invoked the state trespass laws to prevent an activity that a municipal government could not impede without abridging the first amendment: "When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion . we remain mindful of the fact that the latter occupy a preferred position." Marsh v. Alabama, 326 U.S. 501, 509, 66 S. Ct. 276, 90 L. Ed. 265. More recently, the court has again recognized the distinction between private and state activity and has offered further guidance: "[Private conduct abridging individual rights does no violence to the Equal Protection Clause unless to some significant extent the State in any of its manifestations has been found to have become involved in it. . . . [T]o fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an 'impossible task' which 'This Court has never attempted.' Kotch v. Pilot Comm'rs., 330 U.S. 552, 556 [67 S. Ct. 910, 91 L. Ed. 1093]. Only by sifting facts and weighing circumstances can the nonohvious involvement of the State in private conduct be attributed its true significance." (Emphasis added.) Burton v. Wilmington Parking Authority, supra, 722; Moose Lodge No. 107 v. Irvis, supra, 172. Whether governmental authority is so significantly involved in nominally "private" actions as to constitute state action is a determination involving both the nature of the discrimination and the extent of the governmental involvement. See Moose Lodge No. 107 v. Irvis, supra. State action apparently will be found much more readily if racial discrimination is claimed, as opposed to any other form of discrimination. See New York City Jaycess, Inc. v. United States Jaycees, Inc., 377 F. Sup. 481, 488, and n.30; note, Col. L. Rev., op. cit., 661. The Second Circuit Court of Appeals, in explaining the distinctions among cases in which state action was alleged, stated: "This dichotomy is explained in part by the double 'state action' standard which has been recognized—one, a less onerous test for cases involving racial discrimination, and a more rigorous standard for other claims." Jackson v. Statler Foundation, 496 F.2d 623, 629 (2d Cir.). The defendant objects to the trial court's preservation of a religious restriction established by the testator on the eligibility of beneficiaries under the Fuller Scholarship Fund. The first amendment to the constitution of the United States and the constitution of Connecticut, article first, § 3, both guarantee freedom of religion, and an individual's fundamental rights under the religion clause have always been "zealously protected, sometimes even at the expense of other interests of admittedly high social importance." Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S. Ct. 1526, 32 L. Ed. 2d 15. The basic principle governing state action in this area must be one of "benevolent neutrality": "Few concepts are more deeply embedded in the fabric of our national life . . . than for the government to exercise at the very least this kind of benevolent neutrality toward churches and religious exercise generally so long as none was favored over others and none suffered interference." Wale v. Tax Commission, 397 U.S. 664, 676, 90 S. Ct. 1409, 25 L. Ed. 2d 697. The defendant asserts that the court's removal of the religious restriction on the scholarship fund will not violate the free exercise clause because the fund is basically established to promote and foster education and not religion. This argument disregards the fact that one aspect of the constitutional guarantee of freedom of religion is the right to assure the future well-being of one's faith. See Wisconsin v. Yoder, supra. The testator's restriction of beneficiaries of his fund's scholarships to members of his own Congregational faith could work to assure the legitimate purpose that there would be well-educated and financially secure young followers to support the Congregational faith. Surely it cannot be said that any particular individual had a judicially recognizable "right" to the testator's charity, or an enforceable claim arising from the testator's "failure" to make a charitable gift to him. See Jackson v. Statler Foundation, supra, 640 (opinion of Friendly, J., dissenting). Under the facts of this case, the defendant's claim that state action is involved in the private discrimination of the testator is not persuasive, particularly in light of the testator's substantial interests deserving protection. It is true that the attorney general is a party to the action for instructions, but in Connecticut, as in most states, the attorney general is a necessary party in any litigation involving a public trust. Copp v. Barnum, 160 Conn. 557, 558, 276 A.2d 893; see 4 Scott, Trusts (3d Ed.) § 391. He is required by § 3-125 of the General Statutes to "represent the public interest in the protection of any gifts, legacies or devises intended for public or charitable purposes." If the mere fact of his official presence in this suit were enough to render the outcome "state" action, it is difficult to see how any restrictions in a charitable trust could be upheld. Nor was the court so significantly involved in the implementation of the religious restriction that it can be said that state action should be deemed responsible for what is essentially private discrimination from a private source. See Burton v. Wilmington Parking Authority, supra. The court did not create the religious restriction or independently substitute it as a condition of eligibility. The court merely applied neutral and nondiscriminatory principles of the doctrine of approximation in deleting two of the testator's restrictions and leaving the third. See Evans v. Abney, 396 U.S. 435, 446, 90 S. Ct. 628, 24 L. Ed. 2d 634. This was the extent of the court's involvement with the restrictive provisions of the fund. Two eases relied on by the defendant provide a clear contrast in the extent and nature of the state's involvement in, and responsibility for, discrimination which originated as private action. In Bank of Delaware v. Buckson, 255 A.2d 710 (Del. Ch.), the discrimination was a racial restric tion on scholarships. In addition to this especially suspect form of discrimination, the court found it significant that the testator's express intent was that state officials were to he "deeply involved" in the administration of the trust and were to form a majority of the committee selecting applicants for the trust's scholarships. Similarly, in the case of In re Will of Potter, 275 A.2d 574 (Del. Ch.), the racial restriction in the trust, legislative involvement, the active intervention of public officials, the 49 percent ownership by the state of Delaware of the Farmers Bank (the present trustee) are all factors clearly distinguishing the state action manifestly present in Potter from that in the present case. "The doctrine of state action must be subject to reasonable limitations. Quite obviously, the influence and beneficial activities of the State permeate virtually every area of human endeavor . . . [Ajlmost everything we do is in part the product of or is facilitated by some State action." Pennsylvania v. Brown, 270 F. Sup. 782, 788 (E.D. Pa.), aff'd, 392 F.2d 120 (3d Cir.), cert. denied, 391 U.S. 921, 88 S. Ct. 1811, 20 L. Ed. 2d 657. In the present case, the necessary participation in the action for instructions by the attorney general, who does not seek to maintain the religious restriction, and the impartial application of the doctrine of approximation by the trial court, do not amount to such significant state action within the purview of the equal protection clause as will shift the responsibility for the testator's private discrimination to the state. See Burton v. Wilmington Parking Authority, supra; Moose Lodge No. 107 v. Irvis, supra. "[Tjhere is nothing approaching the symbiotic relationship between lessor and lessee that was present in Burton, where the private lessee obtained the benefit of locating in a building owned by the state-created parking authority, and the parking authority was enabled to carry out its primary public purpose of furnishing parking space by advantageously leasing portions . to commercial lessees." Moose Lodge No. 107 v. Irvis, supra, 175. Upon the limited stipulation of facts the court did not err in concluding that the religious restriction of the trust was neither illegal nor impracticable. II Although we have determined the issues raised by the parties, there remains a further issue with which this court is concerned. That issue arises out of the removal of the gender restriction, upon a limited stipulation of agreed facts. The basic problem in this case involves the application of surplus funds. See Restatement (Second) 2 Trusts § 400. Where the doctrine of approximation is applicable, it will be applied "just as nearly as may be to effectuate the intent of the testator"; Shannon v. Eno, 120 Conn. 77, 89,179 A. 479; 15 Am. Jur. 2d, Charities (Rev. 1976), § 171; and in the case of disposing of surplus funds, "the court will ordinarily approve the framing of a scheme, as it does where the particular purpose of the testator is or becomes impossible of accomplishment." 4 Scott, Trusts (3d Ed.) 4 400, p. 3134; see Hoyt v. Bliss, 93 Conn. 344, 353, 105 A. 699 (surplus income properly authorized to increase the number of individual beneficiaries of the trust). A proper application of the doctrine of approximation requires the court to consider not only the language used in creating the trust but, if neees sary, extrinsic facts as well. Ministers Benefit Board v. Meriden Trust Co., 139 Conn. 435, 444, 94 A.2d 917; Restatement (Second) 2 Trusts § 399, comment (d). Neither the trustees; Seymour v. Attorney General, 124 Conn. 490, 499, 200 A. 815; nor the attorney general; Town of Brookline v. Barnes, 327 Mass. 201, 207-208, 97 N.E.2d 651; has the power to control the disposition of surplus funds. Veterans' Industries, Inc., of Long Beach, California v. Lynch, 8 Cal. App. 3d 902, 919-20, 88 Cal. Rptr. 303; 4 Scott, op. cit. § 399. It is for the .court to determine upon all the evidence what application should he made of surplus funds under the doctrine of approximation. Town of Milton v. Attorney General, 314 Mass. 234, 240, 49 N.E.2d 909. In doing so a court must not do violence to General Statutes § 45-79 which provides that such a charitable trust as this "to acquire education, shall forever remain to the uses and purposes to which it has been granted according to the true intent and meaning of the grantor and to no other use." The court in its memorandum of decision after noting that "[t]he removal of the racial and sexual restrictions will accomplish the necessary result" stated that "[w]hether or not the same result could have been achieved by the broadening of the geographical base from Hartford County need not be here considered by the court in view of the fact that the parties have restricted the factual foundation by the stipulation of facts submitted to the court." (Emphasis added.) It is significant that the complaint alleges that the "[p]laintiffs rely on churches, colleges and universities to publicize the availability of scholarships from the Fuller Scholarship Fund" and that "[t]he said racial and sexual restrictions have frustrated and continue to frustrate the gen eral charitable intention of Frank Roswell Fuller." The defendant pleaded no knowledge to the former allegation, but admitted the truth of the latter. The stipulation of the parties included the verbatim allegation of the complaint pertaining to the publicizing of the scholarships and concluded that the removal of the racial and sexual restrictions will allow the fund to attract a sufficient number of applicants to award all the annual income as scholarships. The court was obviously relying upon a restrictive stipulation of facts with no apparent adversary proceedings or investigation by the court or evidence as to what might be a proper scheme to carry out the purpose of the trust. It does not appear what the situation would be, for instance, if the trustees did not just rely on schools and colleges to publicize the availability of the scholarships but themselves publicized and advertised the availability of scholarships, or if only the racial restriction were removed, or if the geographical base were broadened. Because the judgment of the trial court was predicated solely upon such a limited stipulation of facts, with no evidence whatsoever to establish to the satisfaction of the court the actual existence of those facts or what alternate scheme might be a sufficient deviation to carry out the proper purposes of the trust, we are constrained to hold that the court erred in proceeding upon the restrictive stipulation of facts, without further evidence or investigation. There is error, the judgment is set aside and a new trial ordered. In this opinion House, C. J., Loiselle and Longo, Js., concurred. Our state constitution, article first, § 20, as amended, provides that: "No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin or sex."

Bogdanski, J. The plaintiffs, Morningside Association et al., hereinafter the Association, brought an action to restrain the defendants, Morningside Development, Ine., hereinafter the Corporation, and Philip J. Tucciarone, from converting certain property into a public street. After a trial, the court rendered judgment in favor of the Association against the Corporation but in favor of the defendant Tucciarone. Prom that judgment the Corporation has appealed, assigning error in the court's refusal to find material facts; in its finding facts without evidence; in its reaching conclusions not supported by the finding; and in its overruling of the Corporation's claims of law. On December 18, 1973, the defendant Tucciarone filed an application with the Milford planning and zoning board for approval of a subdivision concerning lot No. 6 and the easterly ten feet of lot No. 7 as shown on a map entitled "Yale Land Co. Map of Morningside Property Pond Point Milford, Conn., 1912," and certain other property adjacent thereto. Part of the proposed subdivision, containing nine building lots, lay outside the limits of "Morning-side." The property comprising the nine lots is landlocked except for the proposed access street over lot No. 6 and the easterly ten feet of lot No. 7 which would connect it with an existing street in "Morningside," Hilldale Road. The plaintiff, a specially chartered association empowered to perform certain functions within the limits of "Morningside," was incorporated in 1921. Subsequent to its incorporation, the Association relinquished to the city of Milford its responsibilities for all governmental functions within "Morningside," including the maintenance of the streets contained therein. In fact, the Association's functions are presently limited only to the maintenance and control of certain social and recreational facilities. At the time of the application, the Corporation had an option to purchase the described property. After the planning and zoning board approved the subdivision application, the Corporation purchased the property and began construction on it. The construction work was halted when the Corporation was served -with a temporary injunction. The trial court concluded that the subdivision constituted a resubdivision as defined by § 8-18 of the General Statutes, as it involved a change affecting a street layout shown on an approved map, and that the failure of the board to meet the notice requirements of General Statutes § 8-26 invalidated its approval. The court further found that the 1972 amendment to the special charter of the Association was validlv adopted in accordance with the provisions of the Home Rule Act, § 7-187—7-201 of the General Statutes. The Corporation contends that the trial court erred in arriving at those conclusions. The Corporation has challenged the court's finding and its conclusions. Numerous paragraphs of the finding are attacked as having been found without evidence. Those findings, which are crucial to the Association's case, relate to the trial court's finding (a) that the Association's original charter of January, 1921, was amended effectively on July 15, 1972, and (b) that the approval of the subdivision without a public hearing, newspaper notices, or any notice to the Association, was invalid. A finding of a material fact may be attacked as not supported by the evidence. The validity of such a claim is tested by the evidence printed in the appendices to the briefs. Practice Book § 628M; see, e.g., State v. Vars, 154 Conn. 255, 258, 224 A.2d 744; Maltbie, Conn. App. Proc. §7 330, 331. This court will not look beyond the appendices to the briefs in order to find supporting evidence. Practice Book § 628Q; Grodzicki v. Grodzicki, 154 Conn. 456, 459, 226 A.2d 656. "It is the duty of the parties to print all material evidence in the appendices to their briefs." Pass v. Pass, 152 Conn. 508, 511, 208 A.2d 753; Solari v. Seperak, 154 Conn. 179, 183, 224 A.2d 529; Cushing v. Salmon, 148 Conn. 631, 632, 173 A.2d 543; State v. Pundy, 147 Conn. 7, 9, 156 A.2d 193. "[T'Jhe testimony printed in the appendices shall be deemed to embrace all testimony produced at the trial material to the issues on the appeal, but . . . the court may, if sufficient cause appears, consult the transcript of evidence on file to supplement or explain that printed. The court will not, however, ordinarily do this . It is the duty of counsel to see that all necessary evidence is before the court." Maltbie, Conn. App. Proc. § 331. Findings of material fact not supported by the evidence or not based upon inferences reasonably drawn from the evidence must be stricken; Practice Book § 627; Grodzicki v. Grodzicki, supra, 460; and as the trial court's conclusions are tested by the finding; Klein v. Chatfield, 166 Conn. 76, 81, 347 A.2d 58; conclusions based on a stricken finding cannot stand. Grodzicki v. Grodzicki, supra. In the present ease, the Association filed no appendix setting forth evidence to support the attacked findings, and the Corporation's appendix recites no such evidence. As no supporting evidence was submitted, a reference by us to the transcript would be of no avail since there is no printed evidence to supplement or explain. We have no alternative but to conclude that the court's findings are not supported by the evidence and must therefore be stricken. Grodzicki v. Grodzicki, supra, 460. There is error, the judgment is set aside and the case remanded with direction to render judgment for the named defendant. In this opinion the other judges concurred.

The defendant's motion to dismiss the appeal from the Superior Court in Fairfield County is granted. Submitted September 30—decided October 13, 1976 Arthur T. Fattibene, in support of the motion. The plaintiff's motion for a review of the trial court's order dated September 2, 1976, terminating a stay of execution in the appeal from the Superior Court in Fairfield County is granted and the relief sought therein is denied.

Cotter, J. The plaintiff, Lewis Mack, was injured when he slipped and fell on an icy driveway between a building owned by the defendant, Henry Perzanowski, and one owned by James Clinch in New Britain. The driveway led to a rear parking area and to a six-family building also owned by Perzanowski in which the plaintiff was a tenant. The defendant has taken this appeal from a judgment rendered on a jury verdict in favor of the plaintiff. The defendant claims as error the denial of his motion to set aside the verdict, rulings on evidence and errors in the charge. One of the plaintiff's allegations in his complaint, crucial to his case as tried, was that the defendant was negligent in that "he allowed the driveway and, more particularly, the spot in the driveway where the Plaintiff was caused to fall to remain in a state of disrepair with large holes and ruts in it." "[I]t was incumbent upon the plaintiff to introduce evidence from which it would have been reasonable for the jury to find that the specific defect had existed for a sufficient length of time for the defendant, in the exercise of reasonable care, to have discovered it in time to have it remedied." McCrorey v. Heilpern, 170 Conn. 220, 221, 365 A.2d 1057. Such knowledge and realization of the specific condition causing the injury as alleged cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises. Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824; Bartholomew v. Catania, 161 Conn. 130, 13A-35, 285 A.2d 350. The court charged the jury, inter alia, that: "[I]f you find that the defendant . . . allowed the driveway, and more particularly the spot in the driveway where the plaintiff was caused to' fall, to remain in a state of disrepair, with large holes and ruts in it, when reasonable care required him not to do so . . . it constitutes negligence." The defendant excepted to this portion of the charge, on the ground that the plaintiff had introduced no evidence that a hole or rut existed in the driveway at the spot where the plaintiff fell. After a brief discussion of the evidence, the court stated: "All right. I should have charged it out." The court failed to recall the jury to correct its charge. The defendant was entitled to have the jury correctly and adequately instructed. Berniere v. Kripps, 157 Conn. 356, 360, 254 A.2d 496. The test of a proper jury charge is whether " 'it fairly presents the case to the jury, in such a way that injustice was not done under the rules of law to the legal rights of either litigant . . . .' Pratt, Read & Co. v. New York, N.H. & H.R. Co., 102 Conn. 735, 740, 130 A. 102." Borsoi v. Sparico, 141 Conn. 366, 371, 106 A.2d 170. A proper jury charge must be correct in law, adapted to the issues and ample for the guidance of the jury. D'Addario v. American Automobile Ins. Co., 142 Conn. 251, 254, 113 A.2d 361. Jury instructions should be confined to matters in issue by virtue of the pleadings and evidence in the case. Panaroni v. Johnson, 158 Conn. 92, 110, 256 A.2d 246. It is error to submit a specification of negligence to the jury in respect to which no evidence has been offered. Goggins v. Reinzo Trucking Co., 166 Conn. 240, 246-47, 348 A.2d 569; Fleischer v. Kregelstein, 150 Conn. 158, 160-61, 187 A.2d 241; McDonough v. Lenox Theater Co., 143 Conn. 646, 124 A.2d 520. The plaintiff points to numerous references to holes, potholes or ruts in the defendant's driveway in the evidence. The plaintiff argues that although "it can be readily established" that the court "may have been justifiably confused" in recalling the evidence relating to holes and ruts in the driveway, its instruction that the jury's recollection of the evidence governed and not that of the court impliedly would not create error. We cannot agree. Despite the numerous references to holes, potholes or ruts in the evidence, the court correctly stated it "should have charged . . . out" the question of holes and ruts at the particular location where the plaintiff fell. Its submission to the jury of a specification of negligence "stressed in the complaint but unwar ranted by the [evidence] cannot be regarded as harmless error. [Citations omitted.]" Cackowski v. Jack A. Halprin, Inc., 132 Conn. 67, 72, 42 A.2d 838. The confusion was most likely due to the substantial and conflicting evidence which was introduced by all of the parties to this action relating to the issue of who had "control" of the driveway where the injury was sustained. Such evidence included testimony as to the filling of potholes with stones at various locations in the driveway and during seasonal times in the year such as during the summer. The defendant also took exception to the court's use of the term "and/or" in its charge concerning the allegation of the plaintiff's contributory negligence consisting of five specifications. The defendant claims that the charge as given failed to inform the jury clearly that they should return a defendant's verdict if they found that any one of the acts alleged might constitute the ground upon which the plaintiff may be claimed to have been contributorily negligent, Hanken v. Buckley Bros., Inc., 159 Conn. 438, 440, 270 A.2d 556, even though the court at a later point correctly charged on the issue of contributory negligence. The term "and/or" is defined as "either and or or." Webster's New International Dictionary (2d Ed.). "It has been characterized as an equivocal connective, being neither positively conjunctive nor positively disjunctive." Holmes v. Gross, 250 Iowa 238, 250, 93 N.W.2d 714. The use of the term in legal writing has been heavily criticized, see generally, annot., 118 A.L.R. 1367; annot., 154 A.L.R. 866; 3 Words and Phrases "And/or"; most severely in Employers' Mutual Liability Ins. Go. v. Tollefsen, 219 Wis. 434, 263 N.W. 376. A number of courts have recognized that its use is confusing in jury instructions. Holmes v. Gross, supra; Snow v. Allen, 227 Ala. 615, 620,151 So. 468; State v. Smith, 51 N.M. 328, 331, 184 P.2d 301; Preble v. Architectural Iron Workers' Union, Local No. 63, 260 Ill. App. 435, 442. Since there is to be a retrial of this action, we need not decide whether, under the circumstances, this aspect of the charge was reversible error. It is sufficient to note the potential for confusion inherent in using "and/or" in jury instructions as was done here, so that the jury is left uncertain whether they must find all or only one of a series of specifications of contributory negligence to exist in order to preclude a plaintiff's verdict. It is unnecessary to discuss the defendant's remaining claims of error. There is error, the judgment is set aside and a new trial is ordered. In this opinion the other judges concurred. The defendant's exception, and discussion, occurred as follows: "Mr. Watstein: Your Honor talked in terms of the eomplaint stating holes and ruts, and later on in his charge told the jury that if they found or, you know, if he didn't take care of holes and ruts and snow and ice, then there would be responsibility; but there wasn't a shred of evidence of a hole or rut in this case. The Court: Mr. Johnson said there were holes. Mr. Watstein: I don't recall his saying— Mr. McKeon: Clinch, also. Mr. Watstein: —at this particular location. There are no holes or ruts where this man fell. The case law says specific defect. The Court: I remember it because Mr. McKeon came right back. He said, what did you say? He said holes. Mr. Watstein: I'm talking about the specific defect, and Your Honor may recall there wasn't any evidence on that part. The Court: All right. I should have charged it out." The court charged as follows: "Now, if you find that the plaintiff failed to maintain and keep a reasonable and proper lookout and/or failed to make reasonable and proper uses of his senses and his faculties and/or failed to take the necessary and proper precautions to observe the conditions then and there existing and/or failed to be watchful of his surroundings and/or failed to use reasonable care for his own safety commensurate with the existing circumstances and conditions, it is negligence, and if this negligence substantially, materially and directly contributed to his fall, it constitutes contributory negligence."

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

The motion by all parties in the appeal from the Court of Common Pleas in Fairfield County at Stamford to "Proceed Under New Rules" having been rendered moot by the adoption of the amendments to the rules of practice, effective October 15, 1974, is dismissed.

The defendant's motion for a review of the order by the trial court dated November 15,1974, terminating the stay of execution of judgment pending appeal from the Superior Court in Fairfield County is granted and the relief sought therein is denied.

Loiselle, J. The complaint in this negligence action alleged July 11, 1970, .as the date of injury. The writ was returnable on the first Tuesday of November, 1972, and was filed on October 3, 1972. The amended complaint further alleged that the action was brought "pursuant to Section 52-592 of the General Statutes, which in pertinent part provides : 'If any action . . . has failed to be tried on its merits . . . because the writ . . . has been erased from the docket . . . , the plaintiff . . . may commence a new action for the same cause at .any time within one year after the determination of the original action . . .'; this Court having on September 20, 1972 granted a motion to erase Docket No. 14 73 90 pertaining to the same cause of action ." The defendant demurred to the complaint and the court sustained the demurrer. The plaintiff has appealed from the judgment for the defendant rendered on the sustaining of the demurrer. In ruling on the demurrer in the present ease, the court took judicial notice of the file of a prior case between the same parties on the same cause of action. The action had been made returnable on the second Tuesday of July, 1972, but was not filed with the court until August 28,1972. Thereafter the case was erased for lack of jurisdiction. The court held that as the erasure of the prior case was based on a late filing, the complaint must allege and the plaintiff must prove the circumstances which would show that the failure to file seasonably was "due to unavoidable accident or the default or neglect of the officer to whom it was committed." General Statutes §52-592. Section 52-592 was originally enacted in 1862. In addition to certain other stated grounds, the first version of the statute permitted bringing a new action if "the writ fails of a sufficient service or return, by .any unavoidable accident, or by any default or neglect of the officer to whom it is committed." The first ease to construe the statute viewed it as remedial and applied it liberally. Johnston v. Sikes, 56 Conn. 589; see also Ross Realty Corporation v. Surkis, 163 Conn. 388, 393, 311 A.2d 74. In 1917, the statute was amended. The amend ment added erasure for lack of jurisdiction as a distinct, independent and self-sufficient ground which, could be used as the basis for commencing a new action. As it appears in the present statute, the clause relating to erasures for lack of jurisdiction is general and comprehensive, and neither embodies nor suggests dependency on or reference to any of the other enumerated grounds. The clauses in the statute which set forth the various grounds for commencing a new action appear in the disjunctive and provide alternate bases for instituting a new suit. By its very terms the statute expressly gives the plaintiff the right to bring another action within a year if the prior action was erased for want of jurisdiction. Section 52-592 requires that the initial suit be "commenced within the time limited by law." The defendant contends that the plaintiff's suit did not "commence" in that the writ was not returned in compliance with § 52-47. As the complaint pleaded § 52-592, the issue of whether the plaintiff commenced the initial suit within the time limited by law was a matter of proof and could not be disposed of by demurrer. See Senior v. Hope, 156 Conn. 92, 98, 239 A.2d 486. Aside from this, an action is commenced not when the writ is returned but when it is served upon the defendant. Seaboard Burner Corporation v. DeLong, 145 Conn. 300, 303, 141 A.2d 642; Consolidated Motor Lines, Inc. v. M & M Transportation Co., 128 Conn. 107, 109, 20 A.2d 621; Spalding v. Butts, 6 Conn. 28, 30. If the facts pleaded in the complaint supported the cause of action relied upon, the demurrer should be overruled. Covino v. Pfeffer, 160 Conn. 212, 214, 276 A.2d 895; Middletown Trust Co. v. Middletown National Bank, 110 Conn. 13, 21, 147 A. 22; Blakeslee v. Water Commissioners, 106 Conn. 642, 649, 139 A. 106. In its memorandum of decision, the court apparently found support for its ruling in Bassett v. Foster, 116 Conn. 29, 163 A. 456. In that case, the plaintiff relied on and pleaded the accidental failure of the return rather than an erasure for want of jurisdiction. Id., p. 30. It does not follow, however, that accidental failure must be shown under § 52-592 when a party brings a new action under another of the enumerated grounds. While the facts in the record are incomplete, it is possible that the plaintiff could have pleaded under the accidental return clause, but instead he elected to use the ground of erasure for lack of jurisdiction. Nothing in the statute prevents such an election since, .as pointed out above, each of the grounds may be used independently. There is error, the judgment is set aside and the case is remanded with direction to overrule the demurrer. In this opinion the other judges concurred. Section 52-592 of the General Statutes provides, in part, as follows: "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 writ was abated, or has been erased from the docket 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 arrested, 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. . . ." Public Acts 1862, c. 14. Public Acts 1917, c. 53. "The provisions of section 1127 [now § 52-592] of the general statutes . . . shall apply to any action erased from the docket of any court for want of jurisdiction . . . ." The background for the 1917 amendment is discussed in Gilbert v. Selleck, 93 Conn. 412, 416-17, 106 A. 439.

Loiselle, J. The defendant, John W. Ralls, was indicted by a grand jury for the crime of murder in the first degree in that he "wilfully, deliberately and premeditatedly did shoot one Barbara Howell . . . in violation of section 53-9 [repealed by Public Acts 1969, No. 828, effective October 1,1971] of the General Statutes of Connecticut." A jury returned a verdict of guilty of murder in the second degree. The defendant has appealed. Of the sixty-three assignments of error advanced by the defendant, thirty have not been briefed and are considered abandoned. State v. Weston, 164 Conn. 635, 636, 325 A.2d 457; State v. Bitting, 162 Conn. 1, 3, 291 A.2d 240. The remaining thirty-three assignments of error, variously presented, form the issues on this appeal, and specifically involve claims that: (1) the evidence was insufficient to support a verdict; (2) errors were committed in the admission of evidence; (3) the court's supplementary charge was coercive; and (4) effective assistance of counsel was denied. The defendant claims that there was insufficient evidence to submit the case to the jury, and hence, it was error to render judgment on the jury's verdict. This issue must be tested by the evidence presented in the appendices to the briefs. State v. Cobbs, 164 Conn. 402, 424, 324 A.2d 234; State v. Kearney, 164 Conn. 135, 136, 318 A.2d 100; State v. Mayell, 163 Conn. 419, 421, 311 A.2d 60. From the evidence printed in the appendix to the defendant's brief, the jury could reasonably have found the following facts: On Sunday, March 1, 1970, at about 1 or 1:30 p.m., the body of Barbara Howell, the defendant's mother-in-law, was discovered on the floor of a red Chevrolet parked behind the First National store on Dixwell Avenue in Hamden. Death had occurred between 9 and 11 a.m. that day, and had been caused by multiple gunshot wounds to the head and chest from a .32 caliber semiautomatic pistol. A search of the automobile revealed three spent .32 caliber cartridge casings, and one expended .32 caliber bullet. Two other bullets were removed from the victim's body. Of the five latent fingerprints lifted from the interior of the car, the only fingerprint with sufficient identifying characteristics was a thumbprint of the defendant taken from the right vent window. At the time of the murder, the defendant was separated from his wife and lived with his three daughters at the home of his parents. Gwendolyn Ralls, the defendant's wife, left him in September, 1969, after he had stabbed her in the leg. In May, 1969, she had Ralls arrested for aggravated assault after he hit her with a bottle. The defendant, on several occasions, had threatened to Mil her and her mother, Barbara Howell. Around 5 a.m. on, March 1, 1970, Ada Rawls, the defendant's mother, told the defendant to call his sister who had received a letter for the defendant from Ms wife. The defendant made the telephone call, and, after speaMng, he became upset and went to bed. Mrs. Rawls did not know about the defendant's feelings towards Ms mother-in-law but admitted that she had previously told the police that he had threatened to "get" Ms wife and his mother-in-law. The defendant left Ms home on March 1, 1970, around 9 a.m. and drove Ms car, a black Oldsmobile, to the home of Barbara Howell to pick up some clothes for Ms three cMldren. The defendant returned home with the clothes, left again and was seen driving away with the deceased in her Chevrolet shortly before 10 a.m. The defendant came home around 3 p.m. that afternoon, went out, returned at 6 or 7 p.m. that evening and then left again. The defendant's daughter, Sharron, aged eight, had seen a gun when her sister, Michelle, aged five, had laid it on the floor of their bedroom in the presence of her sister Jacquelyn and herself. Jacquelyn, aged Mne, testified that her sister had told her that their father was going to hurt their grandmother, but that she asked Mm and he said "no." Donald Rawls, the defendant's brother, had seen the defendant with a gun on the two mghts before the Sunday that Mrs. Howell was killed. Donald Rawls told the police that the gun he had been shown by the defendant was a .32 automatic. The defendant had told him that Gwendolyn, the defendant's wife, would not live to see Monday. The defendant went to the apartment of Samuel F. Bowens in West Haven on March 1, 1970, sometime between 10:30 and 11 a.m., and asked Bowens to cash a $500 United States Chemical Corporation check. The defendant had owed Bowens some money and received $300 for the check. Ralls left about 11 a.m. Bowens did not see any car driven by the defendant, but the defendant had said nothing about his car running out of gas or breaking down. Charles Cook, the defendant's coworker at United States Chemical, had seen the defendant one day at work in February, 1970, with a gun which appeared to Cook to be an automatic. Also, in February, 1970, the defendant had said to Donna Burkman, office manager for United States Chemical, where the defendant was employed, that if he had had a gun "last night" he would have killed his mother-in-law, his mother and his three children. He stated to her that his mother-in-law interfered in his marriage. After the homicide, on March 2 and 3, Donna Burkman discovered that two payroll checks made out to Ralls in advance and five blank checks, as well as $80 in petty cash, were missing from the office. One of the blank checks was the $500 check which Bowens had cashed on March 1, 1970. On the afternoon of Wednesday, March 4, 1970, the defendant went to Samuel Bowens' apartment and spoke with Mrs. Bowens for about ten minutes when the police arrived and arrested bim at approximately 5:30 p.m. At the time of his arrest the defendant had in his possession an envelope containing four checks and a petty cash receipt. When asked by the arresting officer about the weapon used to shoot Mrs. Howell, the defendant denied ever having a gun. He was taken to the West Haven police department and booked. While being transported to the Hamden police department for photographs and fingerprints, the defendant told detectives «that on Saturday evening, February 28, 1970, his automobile had broken down in West Haven on Orange Avenue in front of a Dunkin' Donut shop. He left his car and hitchhiked a ride home from an unknown male. The next morning, March 1, he started to walk to the home of Barbara Howell to pick up his children's clothes and on the way met James Senior who drove him to the Howell home. The defendant stated that Barbara Howell drove him home where he dropped off the clothes at about 9:45 a.m. He told Mrs. Howell that his car had run out of gas; he asked her to drive him to his car on Orange Avenue by the Dunkin' Donut shop in West Haven. They first stopped at an Atlantic gas station on the corner of Goodrich Street and Shelton Avenue to fill a gas can which was in the Howell car and then drove to the Orange Avenue Dunkin' Donut shop in West Haven. He transferred the gas to his car, started his car, and returned the gas can to Mrs. Howell. That was the last he saw of her. The defendant stated this was around 10:15 or 10:30 a.m. He said he returned home, went out, came back and went out again. The defendant explained that later that evening he learned that Mrs. Howell had been murdered, and that he went into hiding because he knew he would be blamed. The defendant at all times denied his guilt to the police. The defendant's account to the police of his activities was contradicted by several witnesses. James Senior saw the defendant on March 1, between 10:30 and 11 a.m., walking away from Dixwell Avenue where the body of Barbara Howell had been discovered. The defendant got into Senior's car and asked Senior to drive him to his car on Winchester Avenue, the street on which Barbara Howell lived. The ride took about three minutes. There had been no reports to the police about a disabled car in front of the Dunkin' Donut shop on Orange Avenue on the night of February 28,1970. Neither an employee of Dunkin' Donuts nor the manager of a car wash next door observed a disabled vehicle in the street when he arrived at work early in the morning on Sunday, March 1. Finally, the two men who were working at the gas station where the defendant said he and Barbara Howell had stopped testified that they had not sold gasoline in a gas can to anyone that morning. No gas can was found in the Howell automobile. It is clear that the defendant's claim that there was insufficient evidence to support a jury verdict is totally without merit. The defendant next claims that the admission into evidence of his fingerprint card denied him due process of law. During testimony by Sergeant James E. McDonald, a state policeman, concerning the fingerprints lifted from the interior of Barbara Howell's automobile, the sergeant identified the defendant's fingerprint card as one "which was on file at the Bureau of Identification, also C.S.P.I. 227299." In response to the question, "What is the C.S.P. number," Sergeant McDonald stated, "It is a central bureau for all the criminal arrest records in the State of Connecticut." The court interrupted with "Just a moment. I ought to caution this jury at this particular time, that whatever it was, it might have been just a minor matter. I don't know the extent of it. It doesn't affect this case, nor is it introduced for that purpose." At defense counsel's request the jury were excused. In the absence of the jury the court expressed that it could duly caution the jury, but that it was dangerously close to a mistrial. The defendant's counsel moved for a mistrial, which the court denied. An exception was noted. When the jury returned, the prosecutor stated, "I want to make it perfectly clear that the only purpose of offering this card is to show that Sergeant McDonald compared a latent print with the prints of John Ralls." The court then cautioned, "I don't know what the extent it covers, whether it might have been some minor matter, or it may have been an application of employment. You are not to give it any more weight than that. This man is being tried here on this ease only." The fingerprint card of the defendant was then received and marked as an exhibit. While the state is technically correct in asserting that no specific objection was made to the card's admission, we feel that the defendant's motion for mistrial which went to the manner of in-court iden tification of the card, a condition precedent to its being received in evidence, is sufficient objection to allow our consideration of the claim as advanced. State v. Savage, 161 Conn. 445, 449, 290 A.2d 221. The contention is that the defendant was prejudiced because the fingerprint card exhibit and the testimony surrounding its admission tended to prove the commission of crimes other than that charged and unconnected with the case being tried. That evidence tends to prove the commission of other crimes by the accused does not render it inadmissible if it is otherwise relevant and material; State v. Marshall, 166 Conn. 593, 353 A.2d 756; State v. Holliday, 159 Conn. 169, 172, 268 A.2d 368; see State v. Jenkins, 158 Conn. 149, 152-53, 157, 256 A.2d 223; and if the trial judge determines in the exercise of judicial discretion that its probative value outweighs its prejudicial tendency. 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; State v. Holliday, supra, 173. Under the principles of real or demonstrative evidence, authenticated fingerprints may be introduced into evidence and compared with other fingerprints found at or near the scene of a crime. 1 Wharton, Criminal Evidence (13th Ed.) § 192; 29 Am. Jur. 2d, Evidence, § 375. Such evidence as a useful system of identification has long been recognized and its admission, when competent, relevant and material, has long been accepted. State v. Chin Lung, 106 Conn. 701, 723, 139 A. 91. The admission of a fingerprint record containing extraneous material which in itself is incompetent, however, may constitute reversible error depending on whether the evidence of past crimes has been masked or obliterated; see Riley v. Sigler, 437 F.2d 258 (8th Cir.); Sibley v. United States, 344 F.2d 103 (5th Cir.); Moon v. State, 22 Ariz. 418, 198 P. 288; State v. Viola, 82 N.E.2d 306 (Ohio App.); or whether the prejudicial matter was before the jury. See United States v. Dressler, 112 F.2d 972 (7th Cir.); People v. Van Cleave, 208 Cal. 295, 280 P. 983; Manor v. State, 223 Ga. 594, 157 S.E.2d 431; see also annot., 28 A.L.R.2d 1115, 1135-36. Since all the exhibits have been certified to this court and the contents thereof have been made a part of the finding, we have examined the fingerprint card for such prejudicial material and have concluded that the exhibit as offered to the jury revealed no actual evidence of past crimes. The jury, at most, was exposed to an implication of arrest without any indication of conviction, which was dispelled by the court's cautionary instructions as to the limited purpose for which the fingerprint card was offered and as to the possibility that the prints were taken for a purpose unrelated to crime, such as employment. In this age and particularly in these times it is a matter of common knowledge that fingerprinting is used in numerous branches of civil service and is not itself a badge of crime. Edmonds and Stanley v. State, 5 Md. App. 132, 245 A.2d 618. "Whenever a fingerprint card is introduced as evidence, however, an implication of criminal history potentially arises which, of course, should be dispelled. Certainly, the better practice is to cover every questionable element of the card, including dates and other printed matter. No error was committed in denying the motion for mistrial, and admitting the fingerprint exhibit. The court, in the exercise of its judicial discretion, could properly determine that the probative value of the evidence outweighed its prejudicial tendency; State v. Moynahan, supra; State v. Marquez, 160 Conn. 47, 52, 273 A.2d 689; State v. Holliday, supra; and that, by its cautionary instructions, the defendant would be assured a fair and just outcome. State v. Grayton, 163 Conn. 104, 112, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495; State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312; State v. Savage, 161 Conn. 445, 449, 290 A.2d 221. Further, during the course of the trial, evidence was produced and admitted without objection that the defendant had been arrested for assault on his wife. The defendant next claims that activities conducted in the absence of his trial attorney denied him the assistance of counsel at critical stages of the proceedings and violated the sixth amendment. It is central to the constitutional principle that the accused shall enjoy the right to have the assistance of counsel for his defense and that "he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial." United States v. Wade, 388 U.S. 218, 226, 87 S. Ct. 1926, 18 L. Ed. 2d 1149; see United States v. Ash, 413 U.S. 300, 93 S. Ct. 2568, 37 L. Ed. 2d 619. The record discloses that sometime before 8:07 p.m. on the night of the verdict the defendant's public defender left the courthouse and did not return. During his absence the jury were instructed on two separate occasions and returned their verdict. The simple answer to the defendant's claim is that the record also discloses that an assistant public defender for New Haven County appeared for the defendant in the absence of the public defender. During this period, the court called the jury to give them supplemental "Chip Smith" instructions; see State v. Smith, 49 Conn. 376, 386; instructed the jury, in answer to their question: "In case of a murder one verdict, are we the sole judges of penalty of life imprisonment or death?"; and received the verdict of the jury. At no time during this period did any factual or adversary issues arise; the only matters which faced the assistant public defender concerned questions of law. At all times during this stage of the proceeding, the defendant stood with counsel competent to represent and protect him. The claim of a sixth amendment violation is without merit. Approximately two hours and forty-five minutes after the jury began their deliberations, at about 5 p.m., a time at which, traditionally, juries are excused for the day and in most instances even during their deliberations after a case has been submitted to them, the trial judge recalled the jurors into the courtroom, and the following occurred: "The Court: I have called you all because of the hour. I am not trying to hurry your deliberations at all. I want you to have time enough to consider them, and consider them with all the thought that you can. However, I would like to know if it is a matter of a couple of hours, 1 can send out and get sandwiches. If it is a matter of more than that, and you want to have dinner, it can be arranged. I can send out and make those arrangements. I cannot allow you to leave before I have some sort of a verdict. "You can readily see, if somebody got sick overnight, I would have to declare a mistrial, and this case would have to start all over again. It would be an impossibility. [Emphasis added.] "Is anybody in a position to tell me how long you feel that you want, or whether sandwiches would do, or would you like a sitdown dinner? "A Juror: I think it is going to be a while. "The Court: That is all I need to know. You may retire to the jury room, and arrangements will be made. Thank you very much." The defendant asserts that the italicized statements made by the trial judge to the jurors were violative of his constitutional right to due process of law and trial by an uncoerced jury. Despite the defendant's failure to raise this claim in the trial court, we consider it because a fundamental right is involved and review may be made upon the record. State v. Chesney, 166 Conn. 630, 353 A.2d 783; State v. Evans, 165 Conn. 61, 327 A.2d 576. The possibility of disagreement by the jury is implicit in the requirement of a unanimous verdict and is part of the constitutional safeguard of trial by jury. See United States v. Harris, 391 F.2d 348, 355 (6th Cir.); Thaggard v. United States, 354 F.2d 735, 740 (5th Cir.) (Coleman, J., concurring specially); Jenkins v. United States, 330 F.2d 220, 222 (D.C. Cir.) (Wright, J., dissenting), rev'd, 380 U.S. 445, 85 S. Ct. 1059, 13 L. Ed. 2d 957; Green v. United States, 309 F.2d 852, 856 (5th Cir.). For a judge to tell a jury that a case must he decided and that a mistrial would be an impossibility is not only compelling in nature but is misleading in fact. While a defendant is not entitled to an instruction that a jury may "hang"; United States v. Sawyers, 423 F.2d 1335, 1340 (4th Cir.); United States v. Bowles, 428 F.2d 592, 596 (2d Cir.), cert. denied, 400 U.S. 928, 91 S. Ct. 193, 27 L. Ed. 2d 188; he is entitled to a jury unfettered by an order to decide. Jenkins v. United States, 380 U.S. 445, 446, 85 S. Ct. 1059, 13 L. Ed. 2d 957. When considered out of context, the statements in issue convey such an order, and, as such, constitute an impermissible, albeit undesigned, transgression into the province of the jury. In assessing the impact of these statements, however, we must consider them from the standpoint of their effect upon the jury in the context and under the circumstances in which they were given. See Jenkins v. United States, 380 U.S. 445, 85 S. Ct. 1059, 13 L. Ed. 2d 957. We are not unmindful that a judge occupies a role of inherent power and dignity that commands a deference from the jury impossible to appraise precisely and that "[w]hat he tells the jury . . . has great weight with them." LaChase v. Sanders, 142 Conn. 122, 124, 111 A.2d 690. The charge to the jury, however, must be read as a whole, and an attempt to assert reversible error by culling a single phrase or inaccurate statement must fail unless it is reasonably probable that the jury were misled. State v. Tropiano, 158 Conn. 412, 433, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288; Penna v. Esposito, 154 Conn. 212, 215, 224 A.2d 536; Allard v. Hartford, 151 Conn. 284, 292, 197 A.2d 69. The judge's statements, to a jury which had shown no indication of a deadlock, were made "because of the hour" to explain the reason for retaining them through suppertime and to explain the potential for mistrial if a released juror were to become ill overnight. The judge prefaced these remarks with, "I am not trying to hurry your deliberations at all. I want you to have time enough to consider them, and consider them with all the thought that you can." Even if there were a potential for misconstruction, this case does not present any evidence of coercion. The jury had shown no indication of a deadlock; there was no hint as to division. The uneontroverted facts showed beyond any reasonable doubt the guilt of the accused. After the court's 5 p.m. inquiry, the jury continued deliberations for several hours, and did not return a verdict until 9:25 that evening. Moreover, the jury, both prior to and after the statements complained of, received the "Chip Smith" instructions relating to the duty of a jury to attempt to agree. The defendant claims that the "Chip Smith" instruction, which was given sua sponte at about 8 p.m., exacerbated any coercive effect of the statements in issue. The defendant alleges that the thrust of the court's instruction, which did not quote State v. Smith verbatim, urged the minority jurors to yield to the view of the majority, and that it was coercive to give the charge sua sponte and "without any indication of a jury deadlock." We disagree. "We repeat the language in State v. Walters, 145 Conn. 60, 63-64, 138 A.2d 786, cert. denied, 358 U.S. 46, 79 S. Ct. 70, 3 L. Ed. 2d 45: 'The attack on the charge from State v. Smith [49 Conn. 376, 386] on the ground that it amounted to a direction that the verdict be whatever a majority of the jurors thought is without semblance of merit. The accuracy of the charge as a statement of the jurors' duty is not open to question. Its use has been approved by the Supreme Court of the United States. Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 154, 41 L. Ed. 528. Better than any other statement which has come to our attention it makes clear the necessity, on the one hand, of unanimity among the jurors in any verdict, and on the other hand the duty of careful consideration by each juror of the views and opinions of each of his fellow jurors, something without which no intelligent body of twelve would be likely to reach a unanimous result in any case where there was any substantial factual dispute. Allen v. United States, supra. For practical reasons only, its use has customarily been deferred until after a disagreement has been reported. State v. Schleifer, 102 Conn. 708, 725, 130 A. 184. . . .'" Tough v. Ives, 162 Conn. 274, 278-79, 294 A.2d 67. With respect to the court's language, " [n] o specific words are required if jurors are properly instructed that each juror's vote must reflect his considered judgment as to how the case is to be decided. If the jurors follow such an instruction . . . each vote will be for either conviction or acquittal and one of three decisions will necessarily result: (1) not guilty; (2) guilty; or (3) disagreement. The right to disagree is implicit." United States v. Bowles, 428 F.2d 592, 595-96 (2d Cir.), cert. denied, 400 U.S. 928, 91 S. Ct. 193, 27 L. Ed. 2d 188. The court's words, which taken as a whole tracked "Chip Smith" and accurately conveyed the juror's duty, could only go to mitigate any alleged misleading or coercive effect of the court's earlier remarks. Even after the court had given the "Chip Smith" charge, the jury deliberated for another hour indicating that there was no coercion from the statement made by the court at 5 p.m. See State v. Walters, 145 Conn. 60, 63, 138 A.2d 786, cert. denied, 358 U.S. 46, 79 S. Ct. 70, 3 L. Ed. 2d 45. When they returned about an hour later, some four hours after the 5 p.m. statement, it was to inquire whether they would be judges as to the penalty. After the court replied in the affirmative, the jury returned in ten minutes with the verdict. It is clear from this sequence that the jury's final agreement was not reached because of submission to any improper urging of the court, but upon.their own deliberations and the answer given to them at the last inquiry. State v. Bradley, 134 Conn. 102, 112-13, 55 A.2d 114. We cannot conclude that, in the context and under the circumstances in which these statements were made, the jury were, actually or even probably, misled or coerced. Thus, considering the three supplementary charges as a whole, the court was not in error in its instructions to the jury. The defendant further claims that there was error in permitting the state to refresh the recollection of witnesses in the absence of a showing that recollection had been exhausted, in failing to instruct the jury as to the hearsay nature of the testimony of Jacquelyn Ralls, in admitting evidence through direct testimony of Gwendolyn Ralls that the defendant had committed other unrelated crimes, and in the court's failure to instruct the jury on the limited purpose of impeaching evidence. With regard to some of these claims, no objection was made; to others, no exception was taken. With regard to all, the court was not informed of them in timely or distinct fashion during the course of the trial or by request to charge. See State v. Smith, 156 Conn. 378, 385-86, 242 A.2d 763; State v. Bausman, 162 Conn. 308, 313, 294 A.2d 312. "We are constrained to determine the assignment of errors relating to a claimed violation of constitutional rights even though not raised at the trial level under circumstances previously stated, but claims of error in evidentiary matters where no exceptional circumstances require a departure from our rule will not be considered." State v. Chesney, 166 Conn. 630, 353 A.2d 783. The final assignment of error briefed by the defendant is that he was denied effective assistance of counsel. Proof of incompetent counsel is held to a stringent standard and where such a claim is raised, relief may be obtained only when representation has been so woefully inadequate as to make the trial a farce and a mockery of justice. Palmer v. Adams, 162 Conn. 316, 321, 294 A.2d 297; State v. Costello, 160 Conn. 37, 40, 273 A.2d 687. In support of this claim counsel on appeal argues that the public defender "filed no pre-trial motions whatever on behalf of the defendant. He filed no written motions at trial. Although the state's circumstantial case was extremely weak, he did not even move for a directed verdict or move to set the verdict aside. He presented no evidence at trial. He failed to object to highly damaging and clearly inadmissible evidence. Most shockingly, as the jury retired to decide whether his client should be placed in jeopardy of death, he left the courthouse never to return. Neither the record nor the transcript discloses his reasons for thus disappearing." In the course of this opinion we have discussed the merit of some of these claims incidentally, specifically the failure of trial counsel to move to set aside the verdict and the absence of trial counsel during the deliberation of the jury and the return of a verdict. See pp. 415-16, supra. The assertion is also made that trial counsel "failed to object to highly damaging and clearly inadmissible evidence." In support of this, appellate counsel claims that the court improperly allowed into evidence "highly damaging" statements made by the defendant while in police custody on grounds that the Miranda (Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694) warnings given by the arresting officer were inadequate. Inspector Malcolm E. McHenry of the Hamden police department testified that immediately after the arrest he warned the defendant "that he had a right to remain silent, anything he said could and would be used against him in a court of law. I also told him that he had a right to an attorney, and the attorney could be present while he was being interviewed by the police. I further advised him that if he could not afford an attorney, one would be provided for him free of charge. I also advised him that he could terminate any interview with the police at any time he so desired, and I also advised him that any statements he did make would have to be given freely and voluntarily without any promises given." The defendant contends that Miranda requires that the suspect must be informed by "express warning," that he is "entitled to have appointed counsel made available immediately," and "present at the station house or other place of interrogation," and that the warnings as given were inadequate. In resolving questions of the adequacy of the warning, courts have given precedence to substance over form. United States v. Lamia, 429 F.2d 373, 376 (2d Cir.). "Words which convey the substance of the warning along with the required information are sufficient." United States v. Vanterpool, 394 F.2d 697, 699 (2d Cir.). The words of warning to the defendant conveyed the substance of the Miranda requirement. The defendant was told that he had the "right to an attorney, and the attorney could be present while he was being interviewed by the police . . . that if he could not afford an attorney, one would be provided for him free of charge." The defendant having just been informed that he had a right to remain silent and that an attorney could be present while he was being interviewed by police was effectively warned that he need not answer any questions until an attorney was appointed if he so desired. That an attorney might not be available immediately or appointed until the time of presentment seems immaterial since the defendant was informed prior to questioning that he had the right to remain silent until the time when he did have an appointed attorney. See Massimo v. United States, 463 F.2d 1171, 1174 (2d Cir.); see also United States v. Carneglia, 468 F.2d 1084 (2d Cir.); United States v. Lamia, supra. We do not understand Miranda to require more. See State v. Cobbs, 164 Conn. 402, 417, 324 A.2d 234; State v. Benitez, 157 Conn. 384, 387, 254 A.2d 564. The related claim that admission into evidence of these custodial statements violated § 54-1b and 54-1c of the General Statutes will not be considered except to comment that it is clearly without merit. In another claim related to the defendant's in-custody statements, counsel on appeal asserts that permitting the jury to hear that the defendant invoked his constitutional right to remain silent violated the fifth, sixth and fourteenth amendments. During McHenry's testimony concerning the post-arrest conduct and statements of the defendant, the assistant state's attorney asked whether the defendant, while he was at the Hamden police department, received a call from anyone and from whom. McHenry answered that at 8 p.m. he received a call from an attorney who stated that he represented the defendant and wanted to speak with him. When the defendant "got off the phone, he stated, on the advice of his attorney, he was not going to carry on any further conversation with the police. I respected his wishes, and terminated any further interview with him." That was the last contact McHenry had with the defendant as far as interviewing him. The court, on its own motion, cautioned the jury that after speaking with his attorney, the defendant had a perfect constitutional right not to discuss anything further with the officers and that it was not to militate against him. It is well established that it is constitutionally impermissible for court or prosecutor to comment on a defendant's failure to testify in his own behalf. Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106. Because of an inference of guilt which arises, it is also impermissible for court or prosecutor to comment on the defendant's silence in the face of in-custody accusations or interrogation. State v. Bates, 140 Conn. 326, 99 A.2d 133; State v. Ferrone, 97 Conn. 258, 116 A. 336; see Miranda v. Arizona, supra, 468 n.37. The eases which the defendant cites in support of his claim and which stand for these propositions are inapplicable to the facts at hand. The defendant's statement that he would not carry on any further conversation was a voluntary one made after speaking with and on advice of counsel, as distinguished from a failure to deny an accusation. See State v. Tryon, 145 Conn. 304, 308, 142 A.2d 54. McHenry's earlier testimony had indicated that the defendant, after being given the Miranda warnings, had, rather than remaining silent in the face of accusation and interrogation, made statements and answered questions. The testimony in issue went to show not only why the interview was terminated, but also that the defendant had an opportunity to speak with counsel and that the interview ceased when the defendant so desired. Under such circumstances, the testimony was neither impermissibly elicited nor improperly admitted. Moreover, the court's clear and emphatic instructions to the jury that the defendant had a perfect right to terminate the conversation and that it should not militate against him would go to dispel any adverse inference which might have arisen. See State v. Tryon, supra, 309. Because these claims are so intertwined with the claim of incompetent counsel, we have decided to review them even though they were never raised and passed on in the trial court. Ordinarily, under such circumstances, some of these claims would not be considered. See State v. Bartee, 167 Conn. 309, 314, 355 A.2d 250. As to appeal counsel's other assertions of ineompetency, "[i]n determining whether a defense counsel was competent, we must be careful in using hindsight for in Almost any case a hindsight combing of the record will reveal possible alternatives in trial tactics.' United States v. Ballard . . . [423 F.2d 127, 134 (5th Cir.)]." Palmer v. Adams, 162 Conn. 316, 321, 294 A.2d 297. As we indicated in the Palmer case, referring to Kruchten v. Eyman, 406 F.2d 304, 312 (9th Cir.), the issue, therefore, is not what counsel should have done to constitute the proper representation of the defendant considering the case in retrospect, but rather, whether in the circumstances, as viewed at the time, the defendant received effective assistance of counsel. Upon review of the record and the entire transcript, even if we were to apply a less than literal interpretation of the stringent standard for finding incompetent counsel, we cannot say that trial counsel's omissions or commissions amounted to representation so inadequate as. to sustain such a claim. There is no error. In this opinion House, C. J., Shapiro and MacDonald, Js., concurred. Since the offers of proof are unnecessary to a determination of these issues, the assignments of error which seek corrections in them need not be considered. State v. Ferraro, 164 Conn. 103, 105, 318 A.2d 80. Ordinarily, however, the validity of a claim which goes to the substance of the court's charge or the refusal to charge is tested by the claims of proof. Practice Book $$609, '635; State v. Edwards, 163 Conn. 527, 528, 316 A.2d 387; State v. Brown, 163 Conn. 52, 58, 301 A.2d 547. Of the nine assignments of error directed to the finding, one is irrelevant to the issues briefed. The remainder request additions to the finding which would expressly indicate the court's failure to instruct on, comment on or strike testimony or which would indicate the public defender's failure to move to strike, object to or request instructions on the evidence. These requested corrections are implicit in the finding as set forth. A finding need not be in language identical with the draft finding. Walsh v. Turlick, 164 Conn. 75, 77, 316 A.2d 759. Moreover, where these requested inclusions are relevant to the defendant's claim of incompetent counsel they are unnecessary. When such a claim is raised the entire record and transcript may be used to review the omissions and commissions of defense counsel. Palmer v. Adams, 162 Conn. 316, 323, 294 A.2d 297; State v. Costello, 160 Conn. 37, 40, 273 A.2d 687. Since they are unnecessary, the requested corrections will not be made. See Lewis v. Lewis, 162 Conn. 476, 481, 294 A.2d 637. At the conclusion of the state's case, defense counsel orally moved for dismissal on grounds that there was no direct evidence that the defendant had committed the crime. The denial of a motion to dismiss is not properly assignable as error. State v. Dubina, 164 Conn. 95, 101, 318 A.2d 95; State v. Anderson, 152 Conn. 196, 198, 205 A.2d 488. No subsequent motions for a directed verdict or to set aside the verdict were made. Hence, this issue is not properly before us. Practice Book § 652. We have considered this claim solely because appeal counsel points to the public defender's failure, inter alia, to move to set aside the verdict as support for a claim of ineffective assistance of counsel. See pp. 427-31, infra. In the face of the overwhelming evidence of guilt, it can hardly be said that these omissions are indicative of ineompeteney. On the rear of the card at the top left corner is printed "Connecticut State Police, Hartford 1, Conn."; at the rear right, "State Bureau of Identification." At the rear bottom of the card is the statement, "Please furnish all additional criminal history and police record on separate sheet." Also, on the front of the card appears the date February 10, 1970. The rear portion of the card indicating a criminal history or record is covered by white paper taped to the back of the card. The words, as used in State v. Smith, 49 Conn. 376, 386, are: "Although the verdict to which each juror agrees must, of course, be his own conclusion and not a mere acquiescence in the conclusions of his fellows, yet in order to bring twelve minds to a unanimous result, the jurors should examine with candor the questions submitted to them and with due regard and' deference to the opinions of each other. In conferring together the jury ought to pay proper respect to each other's opinions, and listen with candor to each other's arguments." The court included in its original charge to the jury the following: "As you know, your verdict must be unanimous. It is true, of course, that the verdict to which each juror agrees must be his own conclusion and not mere acquiescence in the conclusion of his fellows. But that does not mean that each juror should pursue his own deliberations and judgment with no regard for the arguments and conclusions of his fellows, or that, having reached a conclusion, he or she should obstinately adhere to it without a conscientious effort to test its validity by other views entertained by other jurors on the jury, equally wise and justly resolved to do their duty." The court said: "Good evening, ladies and gentlemen. I sense that you must be having a little difficulty in reaching your verdict. However, as I have told you time and again, your verdict must be unanimous. It is true, of course, that a verdict to which each juror agrees, has got to be his own conclusion and not the mere acquiescence in or the conclusions of his fellows. That does not mean that each juror should pursue his own deliberations and judgment with no regard for the arguments and conclusions of his fellows, or that having reached a conclusion, he or she should obstinately adhere to it without a conscientious effort to test validity by the views entertained by the other jurors. I am not telling you what to do. I am going to send you back in. Follow that theory, that you will resolve yourselves to do your duty and follow the thoughts of other jurors whom, I am sure, are equally as wise and have heard the same evidence. You may return to the jury room, and I hope it has shed some light. Thank you." The suspect "must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694.

The defendants' petition for certification for appeal from the Appellate Court, 17 Conn. App. 130, is granted, limited to the following issues: "1. Did the enactment of General Statutes § 17-206k waive the sovereign immunity of the state with respect to violations of General Statutes § 17-206b and 17-206c? "2. Did the allegations of the plaintiffs' complaint sufficiently allege a violation of General Statutes § 17-206b and 17-206c?"

House, C. J. The commissioner of motor vehicles, after reviewing the evidence produced at a hearing held at the department of motor vehicles on April 18,1972, concluded that the plaintiff had violated the provisions of § 14-64 of the General Statutes. As a result, all licenses, general distinguishing registrations and the temporary stamp of the plaintiff were revoked for three days, it was required to post a $1000 bond and its official inspection station permit was revoked. Section 14-64 has since been amended; Public Acts 1973, No. 73-674; Public Acts 1974, Nov 74-107; but, as it read at tbe time of tbe incidents involved in this case, it provided for the imposition of these penalties by the commissioner when, after notice and hearing, it was determined that the holder of a motor vehicle dealer's or repairer's license had violated any statute pertaining to his business as a licensee or had made "any false statement as to the condition of any motor vehicle sold." In addition, the statute provided that such a person be fined not less than $25 nor more than $100. The commissioner made four findings of fact: (1) On August 25,1971, Harry Carter of Pawcatuck purchased a new 1971 Plymouth, identification number VL29C1B141664, from Paul Bailey's, Inc., 425 Broad Street, New London; (2) Paul Bailey's, Inc., admitted that the vehicle sold to Carter was not a new motor vehicle but was a demonstrator; (3) Paul Bailey's, Inc., testified that the incident was an honest error; and (4) Four days after the incident was brought to the attention of Paul Bailey's, Inc., the vehicle was taken back by Paul Bailey's, Inc., and Carter was paid for his loss. On the basis of these findings of fact, the commissioner reached the following conclusion of law: Paul Bailey's, Inc., violated § 14-64 of the General Statutes in that Paul Bailey's, Inc., should have known that .the 1971 Plymouth was not new, inasmuch as extensive repairs were performed on the vehicle prior to the sale to Carter. The plaintiff appealed to the Court of Common Pleas from the decision of the commissioner and its appeal was dismissed. From that judgment the plaintiff brought the present appeal to this court. The basic facts are not in dispute. In August, 1971, Carter went to the plaintiff's place of business and informed one of the plaintiff's salesmen that he wished to purchase a new car and asked in particular about a blue 1971 Plymouth Duster that was parked on the plaintiff's lot. The salesman represented to Carter that the Plymouth Duster was a new car and wrote up a purchase order which described the car as a new one. On the following day, Carter took delivery of the car and while driving it home noticed a shimmy án the front end of the vehicle. Carter called the salesman, reported the problem, and was told to bring the car in and it would be taken care of. He took the car to the plaintiff's place of business as directed, but was told that the salesman was not there. While he was waiting, Carter examined the car and found a misaligned front fender and repainting overspray. He then left the plaintiff's place of business and contacted his attorney who told him to take his car to the state garage at Norwich, Connecticut. As so directed, Carter took his car to the state garage where it was inspected by Sergeant Richard Cunha of the department of motor vehicles. Sergeant Cunha testified that his inspection showed that the right front fender and hood of the motor vehicle had been replaced, the body of the car showed evidence of straightening and repainting, and the tires exhibited significant wear. The plaintiff's salesman, Prank Davies, who had been in the business of selling automobiles for fourteen years, testified that all motor vehicles on the plaintiff's lot were registered by stock number. The card on which the stock number was affixed described the motor vehicle to which the number was assigned. On the purchase order, the motor vehicle sold to Carter was listed as being registered under stock number IY 10, which number corresponded to that of a new vehicle. On the invoice, however, the motor vehicle purchased by Carter was listed as being under stock number IV 9, a demonstrator. Nevertheless, both documents listed the car as being new. The motor vehicle registered under stock number IV 9 was described as being blue, while the motor vehicle registered under stock, number IV 10 was described as being green. Davies testified that he believed the car to be a new one, but, had he looked at the vehicle more closely, he would have discovered its true condition. He claimed that he had made a mistake in pulling the wrong card from the file, that he had on hand three cars of the same make, model and color, and that a "lot" worker had moved the car sold to Carter from the body shop to the new car lot. On its appeal the plaintiff has assigned as error the court's conclusion that there was ample evidence of a false statement having been made in violation of § 14-64 because, it asserts, there was no evidence of an intention to mislead on the part of the plaintiff. It further claims that in finding a violation of § 14-64 the commissioner used a standard not set forth in the statute and, accordingly, exceeded his authority and acted illegally and in abuse of his discretion. It is not the function of the court on review to retry the case or to substitute its judgment for that of the commissioner as to the weight of evidence on questions of fact. The court, however, may reverse or modify his decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are in violation of statutory provisions, because they are in excess of his statutory authority or are affected by other error of law, or because they are characterized by abuse of discretion or are clearly an unwarranted exercise of discretion. General Statutes § 4-183. Section 14-64 is penal in nature and, accordingly, the principle of strict construction applies. Fitzpatrick's Inc. v. Commissioner of Motor Vehicles, 165 Conn. 416, 419, 334 A.2d 476; State v. Cataudella, 159 Conn. 544, 555, 271 A.2d 99. This principle of law is applicable in this case to a determination of the meaning of the term "false statement" as used in § 14-64. We discussed the term in the same context in Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 564, 345 A.2d 520. There, in quoting from Sallies v. Johnson, 85 Conn. 77, 82, 81 A. 974, we noted: " ' "False" may mean untrue, or it may mean designedly untrue, implying an intention to deceive. When applied to the representations of one inducing an act to another's injury, it implies a purpose to deceive.' " In the Sallies case, ibid., quoting from Webster's New International Dictionary, we approved the definition of " 'false representation' " as " 'an untrue representation willfully made to deceive another to his damage' " and noted that "this is the approved definition and accords with the common understanding." Ballentine's Law Dictionary (p. 455) defines the meaning of the words "false statement" as "[a] statement which is false. For most purposes of the law, a statement which is wilfully false." Corpus' Juris Secundum, volume 35, False, notes (p. 614) that "[i]n the more important uses in jurisprudence, and even in its popular application, the word implies something more than a mere untruth, that is an untruth coupled with a lying intent; and this is described as the primary meaning of the word, importing moral delinquency, or somewhat more than the vernacular sense of erroneous or untrue; and implying an evil, or a guilty intent, an intent to deceive, or an intention to pérpetrate some treachery or fraud, including not only the element of error, but also that of intentional wrong." See also State v. Penley, 27 Conn. 587, 590. Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, supra, established that proof of a violation of § 14-64 by the making of a false statement requires proof of a mental element—a purpose or intent to deceive. It is thus an offense requiring a specific intent. See State v. Bitting, 162 Conn. 1, 5, 291 A.2d 240; State v. Husser, 161 Conn. 513, 515, 290 A.2d 336. Intent may be and usually is inferred from conduct. Of necessity, it must be proved by the statement or acts of the person whose act is being scrutinized and ordinarily it can only be proved by circumstantial evidence. State v. Cofone, 164 Conn. 162, 164, 319 A.2d 381. These considerations are relevant to the assignments of error pressed by the plaintiff and our decision on the merits of this appeal. It is unquestioned that the representation that the car sold to Carter was a new ear was untrue, but, as the plaintiff properly asserts, there is no finding by the commissioner that the statement, although untrue, was made with an intent to deceive Carter or was made with the knowledge that the statement was untrue. The plaintiff claimed that the representation was an honest error and that it did not know that the statement was untrue. The commissioner made no finding and reached no conclusion that the plaintiff had any purpose to deceive or that it knew that the statement was untrue. The commissioner went no further than to find that the representation was made and.to conclude that the plaintiff "should have known" that the car was not new. We would not suggest that the evidence considered by the commissioner was not sufficient for him to have concluded that the plaintiff did in fact know that the car was not new- and to have inferred that the representation was made with this knowledge and with the intent to deceive Carter by inducing him to purchase a used car in the belief that it was a new one. We go no further than to note that the finding and the conclusion of law filed by the commissioner do not disclose that he reached such conclusions and, accordingly, hold that his finding and his conclusion of law do not support his ultimate conclusion that the plaintiff violated the provisions of § 14-64 by making a false statement. There is error, the judgment is set aside and the case is remanded with direction to sustain the plaintiff's appeal. In this opinion the other judges concurred.

Shapiro, J. In June of 1972, the defendant Flower Estates at Cranbury, Inc., (hereinafter called Flower Estates) made application to the planning and zoning commission of the city of Nor-walk (hereinafter called the commission) for approval of a plan for a fifty-lot subdivision of a thirty-acre tract of unimproved land. The land, situated entirely in Norwalk, is bounded on the west by Wolf pit Avenue, on the north by Par trick Avenue and on the east by Cranbury Road; Cranbury Road forms a boundary between Norwalk and West-port. Tbe plaintiffs comprise tbe town of West-port, the Norwalk-Westport Cranbury Association, Inc., and various property owners in the area and vicinity of the proposed subdivision. On September 6, 1972, the commission approved the plan. The plaintiffs appealed to the Court of Common Pleas where the appeal was dismissed. Upon the granting of their petition for certification, the plaintiffs appealed to this court. The plaintiff's, in their brief, have abandoned their first assignment of error relating to a ruling on evidence. They assign error in the overruling by the court of various claims of law and in the claim that the court erred in employing improper standards of review to test the action taken by the commission with respect to the Flower Estates subdivision. We will discuss this last claim first. In their brief, the plaintiffs argue that the standards of judicial review as applied by the court "to this subdivision appeal were standards properly employed only in zoning cases where the central issue is the proper use of discretion by the zoning agency" and that the use of this standard by the court "never permitted it to reach the central issue of a subdivision case which is, did the application comply" with the subdivision regulations of the city of Norwalk. The trial court, in its memorandum of decision, recited that this is an appeal from the planning and zoning commission of the city of Norwalk "approving a subdivision plan for a tract of unimproved land" and that "the basic ground for said appeal is that the board acted illegally, unreasonably, arbi trarily and in abuse of its discretion, as more fully set forth in said plaintiffs' appeal." In their appeal, the plaintiffs allege that they are aggrieved by the action of the commission in approving the subdivision in that the approval is in violation of § 3.01 of the subdivision regulations and will result in increased flood damage to their properties; and in that such approval is in violation of § 3.07 of the subdivision regulations and will adversely affect traffic, fire protection and general safety in the area of the plaintiffs' properties. Nowhere in their appeal do the plaintiffs allege that "the board acted illegally, unreasonably, arbitrarily and in abuse of its discretion." In February, 1968, at the time of this court's decision in J & M Realty Co. v. Norwalk, 156 Conn. 185, 239 A.2d 534, planning in the city of Norwalk was governed by special act and not by the general statutes. At that time, approval of plans for a subdivision was required by the Norwalk planning commission in the first instance and then by the Norwalk common council. By special acts, in 1947 and 1955, a city planning commission was established in Norwalk. J & M Realty Co. v. Norwalk, supra, 188. By amendment to the charter of the city of Norwalk (1970), §1-368.1, effective January 1, 1971, the planning commission was granted "the powers and duties granted to and imposed on planning commissions under Chapter 126 of the Connecticut General Statutes, which are not inconsistent with the duties and powers set forth in said Charter." By virtue of a further charter amendment, § 1-368.2, provision was made whereby the common council was authorized to consolidate the planning and zoning commissions. By adoption on July 13, 1971, § 116-13 of the Code of the City of Norwalk provided that pursuant to authority under § 1-368.2 the planning commission was designated as the planning and zoning commission. By adoption of § 116-14, that commission was granted all the powers and made subject to all of the duties of zoning commissions under provisions of chapter 124 of the General Statutes, together with all powers and duties imposed upon the planning commission under the city charter and all powers and duties granted to and imposed upon planning commissions under chapter 126 of the General Statutes, not inconsistent with those set forth in the charter. "In exercising its function of approving or disapproving a subdivision plan, the planning board acts in an administrative capacity. In passing upon a plan, its action is controlled by the regulations adopted for its guidance. It has no discretion or choice but to approve a subdivision which conforms to the regulations." Langbein v. Planning Board, 145 Conn. 674, 679, 146 A.2d 412; Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 674, 236 A.2d 917. "Zoning, on the other hand, is concerned with the use of property." Purtill v. Town Plan & Zoning Commission, 146 Conn. 570, 572, 153 A.2d 441. In voting a change of zone of an area, a zoning commission exercises .a legislative function. See Burke v. Board of Representatives, 148 Conn. 33, 38, 166 A.2d 849; Kutcher v. Town Planning Commission, 138 Conn. 705, 709, 88 A.2d 538. Here, the trial court in its memorandum of decision regarding the commission's action used language appropriate to an appeal from a zoning commission. However, the effect of its decision is that, in view of the plaintiffs' appeal, the court, in its judgment, found the issues for the defendants and dismissed the appeal. The case was presented in the court below on the record of the proceedings before the commission. The only testimony in the record—that relating to a witness called on behalf of the plaintiffs—is not now before us, since a ruling thereon having been assigned as error was abandoned by the plaintiff. The court limited its finding to the issue of aggrievement. The plaintiffs, while arguing that they have been denied adequate judicial relief because their appeal was treated by the court as one taken from a zoning commission rather than one taken from a planning commission, nevertheless request us to review the record and determine the appeal on its merits. This we will do, while pointing out that a review of the record of the commission which was before the trial court and our determination of the remaining issues assigned as error, for the reasons enumerated below, lead us to the conclusion that the trial court was correct when it dismissed the appeal. "Simply because the trial judge relied on the wrong theory does not render the judgment erroneous. A correct decision can be sustained although it may have been placed on the wrong grounds. Emerick v. Monaco & Sons Motor Sales, Inc., 145 Conn. 101, 106, 139 A.2d 156." Powers v. Common Council, 154 Conn. 156, 161, 222 A.2d 337; Maltbie, Conn. App. Proc. §36. The plaintiffs make the claim that the approval by the commission of the subdivision plan was illegal in that it violated § 3.01 of the subdivision regulations. The plaintiffs contend that upon the evidence before the commission, it could not reasonably have come to any other conclusion than that the subdivision might aggravate the flood hazard and therefore the commission was required to disapprove the application. The burden was on the plaintiffs to prove that the action of the board was illegal. Blakeman v. Planning Commission, 152 Conn. 303, 306, 206 A.2d 425. Before a planning commission can exercise any control over the planning of a subdivision, regulations must be adopted for its guidance. J & M Realty Co. v. Norwalk, 156 Conn. 185, 191, 239 A.2d 534; South East Prop. Owners & Residents Assn. v. City Plan Commission, 156 Conn. 587, 590, 244 A.2d 394; Langbein v. Planning Board, 145 Conn. 674, 679, 146 A.2d 412. "[I]n passing on subdivision plans, the council is to be controlled by the regulations which it has adopted." J & M Realty Co. v. Norwalk, supra, 191; see South East Prop. Owners & Residents Assn. v. City Plan Commission, supra, 591; North Rollingwood Property Owners Assn. v. City Plan Commission, 152 Conn. 518, 521, 209 A.2d 177; Langbein v. Planning Board, supra, 679; Beach v. Planning & Zoning Commission, 141. Conn. 79, 83, 103 A.2d 814. If the subdivision plan conforms to the existing regulations the council "has no discretion or choice but to approve a subdivision." Langbein v. Planning Board, supra, 679; see South East Prop. Owners & Residents Assn. v. City Plan Commission, supra, 591; Beach v. Planning & Zoning Commission, supra, 84. Conversely, if the subdivision plan does not conform to the regulations the plan must be disapproved. South East Prop. Owners & Residents Assn. v. City Plan Commission, supra, 591; Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 675, 236 A.2d 917. Regulations concerned with subdivisions in Nor-walk had been adopted pursuant to 25 Spec. Laws 303, No. 214, § 5. One such regulation was Norwalk subdivision regulation § 3.01, the language thereof already having been quoted in footnote 1. Thus, the function of the commission in the present case was to determine whether the subdivision plan as submitted by Flower Estates conformed with this regulation. The first hearing on the application took place on June 20, 1972, before the subdivision committee of the commission. Following a favorable report of June 5, 1972, from the zoning officer, a second meeting of the subdivision committee was held, and on September 6, 1972, the subdivision plan was approved by the committee, although the effect of that approval was only to permit the .application to go before the commission. The hearing before the full commission took place on September 6, 1972. The appendices to the briefs disclose that the evidence at the hearing before the commission, offered by the plaintiffs and by Flower Estates, was in conflict, but its probative force was for the commission. Parish of St. Andrew's Church v. Zoning Board of Appeals, 155 Conn. 350, 359, 232 A.2d 916. There was evidence in behalf of the plaintiffs that there would be an increase of water from the subdivision, that this would aggravate the flood hazard, and that therefore the subdivision should be disapproved. There was also evidence in behalf of Flower Estates which challenged that claim pointing to a study of the subdivision which had been made to determine if the proposed development of the land would increase the storm drainage problem in Stony Brook. The study showed that the subdivision produces no runoff in the percentage of runoff increase and deals with the discharge before the main body of water runoff is presented to the area; that it is difficult to measure how much water falls within a certain area and then how long it takes to reach certain points to achieve the peak runoff period; that the major contributory to Stony Brook is at the Partriek Avenue culvert in Westport and the minor contributory area is this subdivision. Beference was made to charts showing what area of the subdivision contributes to Stony Brook and also where the other runoff comes, being mainly from the Partriek Avenue area. Poor maintenance practices are the reason for the problems and the proposed subdivision will not add any increase in the amount of storm runoff. The study also showed that the concern about flooding has arisen from the lack of proper stream encroachment regulations rather than increased development within the upstream tributary areas; that through the years extensive encroachments have been constructed by some of the property owners along the stream without proper engineering guidance or municipal regulations; and that this, together with the obvious lack of channel maintenance, is the real problem to be corrected. The subdivision committee of the commission, in its approval ot the Flower Estates subdivision plan, stated: "This is basically the same application as was previously approved by the Commission and the Common Council in May, 1969 but was later denied by the Supreme Court on grounds of a legal technicality." This committee referred to two proposed streets, Regency Drive to be 2050 feet in length and Queens Grate to be 400 feet iñ length. Reference was also made to the requirement of providing specific storm drainage, water mains, sanitary sewer mains, laterals, manholes and a sewage pumping station. Further conditions were imposed in that certain easements through the subdivision were retained by the city of Norwalk relating to drainage and sanitary sewer easements; a conveyance is to be made to the city of a portion of the subdivision, designated as Parcel A, for purposes of a sewage pumping station; the storm drainage from the area south of the subdivision is to enter a drainage pipe between lots 26 and 27 and continue under Regency Drive to Partriek Avenue and, at a fixed point, the flow is to be diverted into an adjacent pond; and the outflow from this pond is to continue in the pipe under Regency Drive and Partriek Avenue into a brook north of the latter street. This brook now flows through a thirty-six inch pipe under Cranbury Road into Stony Brook which flows into the town of Westport. The existing thirty-six inch pipe under Cranbury Road will be replaced with a thirty-eight-inch by sixty-inch low head pipe to provide additional discharging capacity for any increase in runoff from the subdivision. The drainage system for the subdivision has been designed so that fifteen acres of this property will drain into the brook north of Partriek Avenue, approximately eight acres will drain to Cranbury Road, and about seven acres will drain to Wolfpit Avenue. Drainage on Wolf pit Avenue will be piped and connected to the city storm drainage system. The drainage and the sewerage design for the subdivision have been checked and approved by the Norwalk Department of Public Works. A surety bond in the amount of $236,000 was recommended so as to insure the proper completion of the required improvements within ninety days of action by the commission. 1 At the commission meeting of September 6, 1972, the subdivision plans were approved "subject to the submission of a surety bond in the amount of $236,000 or proper completion of the required improvements within 90 days of Commission action and also subject to the submission of written sanitary sewer and storm drainage easements to the City of Norwalk." Whether the land in question "might . . . aggravate the flood hazard"; Norwalk Subdivision Regs., art. III § 3.01; presented debatable questions of fact which were within the commission's province to resolve. In testing the decision of the commission, its action "is reviewed in the light of the record developed before it." Blakeman v. Planning Commission, 152 Conn. 303, 306, 206 A.2d 425. "It is enough to point out the reasonableness of the conclusions arrived at . . 'The essential question, in any case, is whether . . . [the commission's decision] is reasonably supported. Courts do not substitute their own judgment for that of the commission so long as honest judgment has been reasonably and fairly exercised after a full hearing.' " Id., 308. We find that the record amply supports the action of the commission in approving the subdivision plan. It cannot be said that it acted illegally in that it violated § 3.01 of the regulations pertaining to subdivisions which might aggravate the flood hazard. Accordingly, the plaintiffs cannot prevail on this claim. The plaintiffs have assigned error claiming that the commission's approval of the subdivision plan was illegal in that it violated § 3.07 of the subdivision regulations which prohibits the creation of blocks by new subdivisions which are more than 1200 feet long. "[W]e have consistently held that, in exercising its function of approving or disapproving any particular subdivision plan, . a municipal planning commission is acting in an administrative . . . capacity." J & M Realty Co. v. Norwalk, 156 Conn. 185, 190, 239 A.2d 534. "Its action was controlled by the regulations adopted for its guidance." Blakeman v. Planning Commission, supra, 306. "Where the language is plain and unambiguous, as in the present case, the intent of the regulation is to be determined from its language." J & M Realty Co. v. Norwalk, supra, 192. "When the language . . . is clear and unambiguous, its meaning is not subject to modification by construction . It is not the function of the courts to read into clearly expressed legislation provisions which do not find expression in its words." Dental Commission v. Tru-Fit Plastics, Inc., 159 Conn. 362, 365, 269 A.2d 265; Little v. United Investors Corporation, 157 Conn. 44, 48, 245 A.2d 567. In analyzing § 3.07 of the regulations in the light of these principles it is clear that the language clearly and unambiguously indicates the intent that § 3.07 is to be considered only when "new" land in subdivisions is actually created in "block" form. It does not require that all newly developed land be divided into "blocks." In this regard, the regulation is not subject to modification by construction. Little v. United Investors Corporation, supra, 48; Hurlbut v. Lemelin, 155 Conn. 68, 73, 230 A.2d 36; State ex rel. Cooley v. Kegley, 143 Conn. 679, 683, 124 A.2d 898. Whether § 3.07 is relevant to the present case depends upon whether a "block" has been created by the subdivision plan as submitted by Flower Estates. Words used in statutes and regulations ".are to be construed according to their commonly approved usage." Klapproth v. Turner, 156 Conn. 276, 280, 240 A.2d 886. See Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 100, 291 A.2d 721; State v. Cataudella, 159 Conn. 544, 553, 271 A.2d 99; State v. Benson, 153 Conn. 209, 214, 214 A.2d 903. "Or, stated another way, statutory language is to be given its plain and ordinary meaning. State v. Taylor, 153 Conn. 72, 82, 214 A.2d 362." Klapproth v. Turner, supra, 280. Black, Law Dictionary (3d Ed.) defines "block" as "[a] square or portion of a city or town inclosed by streets . The platted portion of a city surrounded by streets." Webster, Third New International Dictionary defines the word, inter alia, as "a usu. rectangular space (as in a city) enclosed usu. by streets but sometimes by other bounds (as rivers or railroads)." See Berndt v. City of Ottawa, 179 Kan. 749, 298 P.2d 262; Sports Center, Inc. v. City of Wichita, 176 Kan. 84, 269 P.2d 399; Harrison v. People ex rel. Boetter, 195 Ill. 466, 63 N.E. 191; Block, Words & Phrases (Perm. Ed.), 781-89, and cases cited therein. In the present case, the subdivision map does not depict the subdivision as creating any "block" as intended by § 3.07 of the regulations in the light of the commonly approved meaning of the word. The tract of land in question is bounded by streets only on three sides—on the east by Cranbury Road, on the north by Partrick Avenue and on the west by Wolfpit Avenue. To the south the tract is bounded by privately-owned property which is not owned or controlled by Flower Estates; nor does Regency Drive, the proposed new street running approximately 2100 feet from Partrick Avenue to Wolfpit Avenue, enclose any of the tract so as to create a block. No block having been created, regulation § 3.07 requiring "blocks," only if in fact created, to be a certain minimum width and minimum and maximum length, is irrelevant to the present case and could not, a fortiori, be violated as the plaintiffs contend. On October 11, 1973, Flower Estates filed a bill of exceptions claiming that there is no jurisdiction "since the appeal was not taken from the final authority on planning within the City of Norwalk." This issue is argued by Flower Estates in its brief. Since we have reached the conclusion that there is no error, there is no need to consider the bill of exceptions filed by this defendant. Hill v. Birmingham, 131 Conn. 174, 179, 38 A.2d 604; Podzunas v. Prudential Ins. Co., 125 Conn. 581, 586, 7 A.2d 657; Maltbie, Conn. App. Proc. § 288. There is no error. In this opinion the other judges concurred. "[Norwalk Subdivision Regs., art. III § 3.01 (1968).] hazardous areas : Land shall not be subdivided if it is of such character that it cannot be safely used for building purposes because of danger to health, peril from fire, flood or other menace. Nor shall subdivisions be permitted which might increase the danger to health life or property, or aggravate the flood hazard." "[Norwalk Subdivision Regs., art. III § 3.07 (1968).] block width and length: Blocks created by new subdivisions shall be at least 200 feet wide and at least 200' long but not more than 1200' long." General Statutes chapter 124 relates to zoning. General Statutes chapter 126 relates to municipal planning. See Akin v. Norwalk, 163 Conn. 68, 70, 301 A.2d 258. See footnote 2.

The plaintiff's motion to dismiss the appeal by the . defendants William and Constance Whitehead from the Superior Court in Fairfield County at Stamford is denied.

House, C. J. The defendant, Edward Bowen, was charged in an information with the crime of sale of a narcotic drug, heroin, in violation of § 19-480 (a) of the General Statutes. A verdict of guilty was returned by the jury and from the judgment rendered thereon the defendant appealed to this court. The facts in the case, which are not the subject of dispute, may be simply stated as follows: Officer Michael Dilullo of the New Haven police department, while working as an undercover agent for the South Central Regional Crime Squad, was approached by the defendant and asked if he was "looking" to purchase narcotics. Officer Dilullo responded that he was and asked to purchase four bags of heroin. The defendant thereupon reached into his pocket and drew out four glassine bags containing a white powder and handed them to the officer. Officer Dilullo then paid the defendant $20 which concluded the transaction. Abraham Stolman, chief state toxicologist, reported as a result of testing in Hartford that the substance purchased by Officer Dilullo from Bowen contained heroin. Prior to the selection of the jury, the defendant moved for the dismissal of the entire jury panel on the grounds that it was made up entirely of persons who, as a matter of law, were no longer capable of sitting as impartial jurors. This motion was denied by the court and the voir dire examination of prospective jurors proceeded. The defendant exhausted his peremptory challenges of prospective jurors. Each time he exercised a challenge, he moved to excuse the entire panel for cause based op their inability, as a matter of law, to sit as impartial jurors. Each time his motion was denied. With respect to each juror selected after the defendant had exhausted Ms peremptory challenges, counsel for the defendant indicated that he would have exercised a peremptory challenge but for the fact that Ms challenges had been exhausted because of the refusal of the court to dismiss the entire panel. The defendant based his motion to dismiss the jury panel and Ms motions to excuse for cause on a claim that the jurors had become biased as a result oincidents in two unreported earlier trials, State v. Myrick and State v. Pastore, both of wMch cases were decided in the same term and involved the same jury array as did the present case. In the Pastore case, the jury returned a verdict of not grnlty. After accepting the verdict, the court made the following statement in the jury's presence : "The defendant may be discharged. Ladies and Gentlemen of the jury, I have accepted your verdict, and ordered it recorded. You may be excused. You may be excused with the thanks of the court, but you may also be excused from any further jury service. Adjourn court until tomorrow morning." The daybook kept by the clerk's office wMch summarizes the doings of the court and wMch is not a literal recording of what was said reads as follows: "Eight P.M. defendant is order [sic] discharged. Judge Cohen further directed that the jurors be discharged and permanently stricken from the jury list." In the case of State v. Myrick, the defendant elected to change his plea from not guilty to guilty after the trial had begun. The jury were permitted to remain in the courtroom while the plea was accepted and during the sentencing. Neither the case of State v. Myrick nor the case of State v. Pastore was in any way related to the case of State v. Bowen. The defendant's arguments as presented to the trial court in support of his motion and now pressed on appeal can be summarized as follows: First, with reference to the Myrick case, he contends that "one inevitable implication" of Myrick's change of plea was that the jury which observed it would be led to believe that it is not only the innocent who avail themselves of the constitutional right to a trial, and the jury could well have been led to believe that it is not only the innocent who assert their innocence. From the incident in the Pastore case, the defendant argues that the members of the array who had learned of the judge's disagreement with the verdict and the dismissal of the jury in that case would in future cases feel compelled to reach a verdict which would please the trial judge rather than one based on the evidence of the case; and, that the excusing of the Pastore jurors from the array subjected the defendant to a trial by a jury not selected from a fair cross section of the community. The defendant assigned error to the denial of his motion to dismiss the entire jury panel and the denial of his motion to excuse the individual veniremen for cause. Thus, the basic issue on the appeal is whether the trial court abused its discretion in denying the defendant's motions. The purpose of the voir dire is to provide information for the court to determine whether a venireman is qualified to act as a juror and to guide each party in exercising the right to peremptory challenges. Duffy v. Carroll, 137 Conn. 51, 56, 75 A.2d 33. The extent of the voir dire examination of prospective jurors rests in the discretion of the trial court. Duffy v. Carroll, supra; State v. Mendill, 141 Conn. 360, 362, 106 A.2d 178. "Clearly, therefore, if there is any likelihood that some prejudice is in the juror's mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case. Otherwise, the right of trial by an impartial jury guaranteed to him by article first, § 9, of the constitution of this state might well be impaired." State v. Higgs, 143 Conn. 138, 142, 120 A.2d 152; see State v. Potter, 18 Conn. 166, 171; State v. Wilson, 38 Conn. 126, 137. In the present case, the court permitted the defendant to conduct an extensive and exhaustive voir dire examination of each venireman as to what effect, if any, the Pastore and Myrick incidents may have had upon his qualifications to sit as a juror in the case. In addition, the court itself directly inquired of the individual veniremen to determine the existence of any possible bias or partiality. From the examination of several of the veniremen, the transcript of which appears as part of the findings, it is evident that most of them were aware of the Pastore case and the judge's remarks and that they were also aware of what had transpired in the Myrick case; indeed, four of the Myrick jurors also sat as jurors in the Bowen case. However, all the venire men questioned indicated that the knowledge of these events would have no effect on their ability to sit, and no other evidence whatsoever was presented to show that they would be unable to deliberate impartially in the defendant's trial. As a result of the voir dire examination and in response to the defendant's motion to dismiss the jury panel, the trial court concluded that the jurors selected in the case were capable of sitting impartially and rendering a true and just verdict; that no evidence had been adduced to show that the panel was in any way infected by reason of what had transpired in the Myrick or Pastore cases; that the panel from which the jurors were selected was representative of the defendant's community regardless of what had transpired in those cases; that the hearing on the voir dire failed to disclose any evidence that the panel was intimidated by the fact that the Pastore jury was excused from further service or that the Myrick jury was permitted to observe the proceedings related to that defendant's change of plea and the imposition of sentence. The defendant has assigned error to these conclusions as being against the weight of the evidence. The conclusions reached by the trial court are tested by the finding and must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case. State v. Villafane, 164 Conn. 637, 641, 325 A.2d 251; Lewis v. Lewis, 162 Conn. 476, 480, 294 A.2d 637; Connecticut Bank & Trust Co. v. Bovey, 162 Conn. 201, 205-206, 292 A.2d 899. We find ourselves in agreement with the court's conclusions which are amply supported by its unattacked finding. Justification for the dismissal of an entire jury panel or excuse of individual veniremen requires something more than defense counsel's speculation that knowledge of what had transpired in earlier-unrelated cases might adversely affect the jury in their consideration of the defendant's case. As we said in State v. Clark, 164 Conn. 224, 228, 319 A.2d 398, quoting Mikus v. United States, 433 F.2d 719, 724 (2d Cir.): "This court does not choose to create a set of unreasonably constricting presumptions that jurors be excused for cause due to certain occupational or other special relationships which might bear directly or indirectly on the circumstances of a given case, where, as here, there is no showing of actual bias or prejudice. See United States v. Haynes, 398 F.2d 980, 983-986 (2d Cir. 1968), cert. denied, 393 U.S. 1120, 89 S. Ct. 996, 22 L. Ed. 2d 124 (1969). 'Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.' United States v. Wood, supra, 299 U.S. at 145, 146, 57 S. Ct. at 185 [81 L. Ed. 78]. Rather, this court adheres to the principle that a defendant must 'raise a contention of bias from the realm of speculation to the realm of fact.' The trial court, in turn, when empaneling a jury, 'has a serious duty to determine the question of actual bias, and a broad discretion in its rulings on challenges therefor.' Dennis v. United States, 339 U.S. 162, 168, 171-172, 70 S. Ct. 519, 521, 94 L. Ed. 734 (1950). . . . 'Preservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury,' Dennis v. United States, supra, 339 U.S. at 171-172, 70 S. Ct. at 523 [94 L. Ed. 734]. We are satisfied that appellant's trial eonnsel was given that opportunity and, as noted earlier, we are unable to say that the trial court erred in not finding manifest prejudice, which would have raised the presumption of partiality upon which appellant is necessarily dependent." The defendant clearly failed to raise his contention from the realm of speculation to the realm of fact and "[t]he finding of the trial court upon that issue [the force of a prospective juror's opinion] ought not to be set aside by a reviewing court, unless the error is manifest." Reynolds v. United States, 98 U.S. 145, 156, 25 L. Ed. 244. The defendant's remaining assignment of error was not briefed and is, therefore, considered abandoned and requires no discussion. State v. Croom, 166 Conn. 226, 232, 348 A.2d 556; State v. Grayton, 163 Conn. 104, 109, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495; Maltbie, Conn. App. Proc. § 327. There is no error. In this opinion the other judges concurred.

The defendant's motion to dismiss the appeal from the Court of Common Pleas in New Haven County is denied.

House, C. J. On a trial to a jury the defendant was found guilty of attempting to obtain money by false pretenses in violation of General Statutes § 53-360 (repealed by Public Acts 1969, No. 828, effective October 1, 1971). In pertinent part, this statute provided for a penalty for any person "who, by any false token, pretense or device, obtains from another any valuable thing . . . with intent to defraud him or any other person." The defendant has appealed from the judgment rendered on the verdict. Of his four assignments of error, he has briefed three and the fourth is considered to have been abandoned. State v. Croom, 166 Conn. 226, 232, 348 A.2d 556; State v. Beaulieu, 164 Conn. 620, 621, 325 A.2d 263. The assignments of error which he has pressed on appeal are that the court erred (1) in denying his motion to set aside the verdict as contrary to the law and the evidence, (2) in denying his motion to dismiss the information, and (3) in admitting in evidence a check and a driver's license. We consider first the claim of the defendant that the court erred in denying his motion to set aside the verdict in that it was contrary to the law and not supported by the evidence. Whether the evidence supports the verdict is tested by the summary of the evidence as printed in the appendices to the briefs. State v. Siberon, 166 Conn. 455, 456, 352 A.2d 285; State v. Hall, 165 Conn. 599, 601, 345 A.2d 17. There was evidence from which the jury could find the following pertinent facts: About 7:30 p.m. on August 15, 1970, Coleman met James H. Lee, an illiterate person, on the street in Waterbury and invited him to go for a ride. Lee accepted the invitation and Coleman drove him to the Waterbury Shopping Plaza. Coleman told Lee that he had a check and asked Lee to cash it for him. He gave Lee a check payable to Richard Cam and also handed Lee a driver's license. Lee took the check and license to a large grocery store at the shopping plaza and asked a cashier to cash the check. She asked for identification and Lee then gave her the diiver's license which Coleman had given to him. The cashier recognized the cheek as one reported to have been stolen from Guilford Arts, of Madison, and refused to cash it. Lee then walked from the store back to Coleman's car, entered it and handed the check and driver's license to the defendant. Coleman drove to the rear of the plaza where he was stopped by police who had been dispatched to the scene upon receipt of a complaint that someone was attempting to cash a stolen check. The police arrested Coleman and Lee and searched the car. They found nothing; bnt, after the search, an officer observed Coleman drop something under the seat of the ear and discovered there a wallet which contained a driver's license in the name of Richard Cam and a check numbered 15587 bearing the name "Guilford Arts," which license and check were identified by the cashier as those presented to her by Lee. A bookkeeper for Guilford Arts testified that around July 15, 1970, he had discovered some company checks and a cheekwriter missing and reported this to the Madison police. He identified the check which Lee had tried to cash as being one of the stolen checks. At the trial, Lee admitted that he had pleaded guilty in the Circuit Court to a charge of attempting to obtain money by false pretenses. On this evidence, the jury could reasonably and logically conclude that Coleman was guilty as charged. They could properly infer that the attempt to obtain money by cashing the stolen check was an attempt to obtain money by the false representation that the check was a valid check issued by Guilford Arts to Richard Cam, and the false representation by means of the driver's license that Lee was in fact Richard Cam. "A representation may be found to be false either expressly or by implication and may consist of any act, word, symbol, or token calculated and intended to deceive." State v. Farrah, 161 Conn. 43, 49-50, 282 A.2d 879. The jury could also reasonably infer intent to defraud by the use of another person's driver's license, and infer guilty knowledge from the attempt to conceal the wallet containing the check and the driver's license when the police made the arrest. Intent to defraud, which is an essential element of the crime of obtaining money by false pretenses, is difficult to prove beyond a reasonable doubt by direct evidence but it may be inferred from the conduct of the accused. State v. Farrah, supra; State v. Smith, 157 Conn. 351, 354, 254 A.2d 447. The necessary intent may be inferred from the circumstances and from what was done by the accused. State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581. We find no merit to the contention of the defendant that the court erred in refusing to set aside the verdict as contrary to law and the evidence. There was also no error in admitting into evidence the check and the driver's license. They were positively identified by the cashier as the check and the license which were tendered to her in the attempt to have her cash the check. The arresting officer also identified them as being in the wallet which Coleman attempted to conceal under the seat of his car when he was apprehended in the parking lot of the shopping plaza, and the check was identified by the Guilford Arts' bookkeeper as one of those stolen from that company. Both items were sufficiently identified to be properly admitted as full exhibits for the consideration of the jury. The only remaining claim of the defendant is that the court erred in denying the defendant's motion to dismiss the information and to discharge the defendant "because the state of Connecticut, in said information and in the bill of particulars, failed to charge the defendant with a crime." The defendant was charged in a so-called short form information as permitted by § 493 of the Practice Book. This form of information was first authorized by an amendment to the 1922 Practice Book which was adopted April 6, 1929, effective September 1, 1929. The obvious purpose of the amendment was to dispense with the prolixity of common-law averments alleging criminal offenses while still assuring to an accused his constitutional right to be apprised by the state's pleadings of the essential elements of the crime with which he was being charged. State v. Beaulieu, 164 Conn. 620, 624, 325 A.2d 263; State v. Couture, 151 Conn. 213, 215-16, 196 A.2d 113; State v. Whiteside, 148 Conn. 208, 212, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S. Ct. 52, 7 L. Ed. 2d 33. To afford to an accused his full rights, § 495 of the present Practice Book (1963) also provides that if an accused feels that an information filed pursuant to § 493 of the Practice Book fails sufficiently to inform him of the offense with which he is charged to enable him to prepare his defense or to give him such information as he is entitled to under the Connecticut constitution, he may obtain further information upon filing a motion for a bill of particulars and, if still not satisfied, may seek an order of the court; Practice Book § 496; for a further bill of particulars. The information filed against Coleman charged him with "the crime of attempting to obtain money by false pretenses at Waterbury, on or about 8/15/70, in violation of Section 53-360 of the General Statutes." As we have noted, § 53-360 provided a penalty for anyone "who, by any false token, pretense or device, obtains from another any valuable thing . . . with intent to defraud him or any other person." Coleman filed a motion for a bill of particulars asking that the state make its charges more particular by stating: "1. The specific nature of the offense or offenses which the defendant is charged with. 2. The time, place and manner in which this offense was committed. 3. The specific acts performed by the defendant which constitute all necessary elements of the crime charged. 4. The general circumstances surrounding the alleged crime. 5. State with particularity, the date, time, of said alleged violation and the Section of the Connecticut General Statutes violated. 6. State with particularity, the name or names, including addresses, of all persons the State alleges were involved in said violation." In response to this motion, the state filed a bill of particulars stating: "1. On or about August 15, 1970 the defendant did attempt to obtain the sum of $87.79 from the Stop and Shop Market, Waterbury, by assisting one James H. Lee in presenting a stolen and forged check upon the account of Guilford Arts at the Union and New Haven Trust Company, New Haven, Connecticut. 2. August 15, 1970, Stop and Shop Market, Waterbury Plaza, Waterbury, Connecticut, at approximately 8:10 p.m. 3. See # 1 above. 4. See # 2 above. 5. See # 2 above. 6. The defendant and James H. Lee." The defendant at no time prior to or during the trial objected to the information or bill of particulars, nor did he move for a more specific statement or for a supplemental bill of particulars as permitted by § 495, 496 and 497 of the Practice Book. Nor did he move to quash the information as permitted by § 499 of the Practice Book on a claim that the particulars stated did not constitute the offense charged in the indictment. Rather, on the first day of trial, the court was expressly informed that the defendant was satisfied and was not seeking any further information. Nevertheless, at the conclusion of the state's case in chief, the defendant moved to dismiss the information and discharge the defendant, and has briefed a claim that the court committed error in denying the motion. It is his claim "that the State had not, by a Bill of Particulars, charged the defendant with a statutory crime." He asserts that the bill of particulars was defective because it did not contain an allegation of an intent to defraud. We find no error in the ruling of the court for three reasons, any one of which suffices to support the court's decision. In the first place, as we have noted, at the start of the trial the defendant expressly represented to the court his satisfaction with the information supplied by the state in response to his motion for a bill of particulars. If any uncertainty existed as to the state's pleadings or any further information was necessary to apprise the defendant of the statutory crime with which he was charged in the information in order to prepare his defense and to plead the judgment in bar of any further prosecution, the way was open to him to secure it by motion. Having expressed his satisfaction with the pleadings as they stood at the opening of the trial, the defendant waived any defect that might have been present in the information and in the bill of particulars. 21 Am. Jur. 2d, Criminal Law, §325. "[R]ights once waived cannot be regained by revoking the waiver." Lee v. Casualty Co. of America, 90 Conn. 202, 208, 96 A. 952; Hendsey v. Southern New England Telephone Co., 128 Conn. 132, 135, 20 A.2d 722. In the second place, the defendant has made no claim, and there is not the slightest indication in the record, that he was in any way prejudiced or that in its charge to the jury the court did not fully instruct them as to the burden of the state to prove an intent to defraud. The defendant has not attacked the charge and, accordingly, it is not printed in the record. It is, therefore, presumed to have been correct. Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 451, 254 A.2d 907; State v. Mallette, 153 Conn. 584, 587, 219 A.2d 447. "It is essential to any orderly trial that the jury be presumed, in the absence of a fair indication to the contrary, to have followed the instructions of the court as to the law." State v. Bausman, 162 Conn. 308, 314, 294 A.2d 312. In the third place, the bill of particulars did not exist in a vacuum. It must be read with the informa tion which the defendant asked he particularized. "The office of a bill of particulars is to supply both the accused and the court additional information concerning an accusation that the defendant has committed an act or acts constituting a criminal offense." (Emphasis added.) 41 Am. Jur. 2d, Indictments and Informations, § 163. "The function of the bill of particulars in a criminal case is to provide information fairly necessary to enable the accused to understand and prepare his defense against the charges without prejudicial surprise upon the trial. It is complementary to the shorter form of indictment." Brown v. Commonwealth, 378 S.W.2d 608 (Ky.). "In other words, the general rule is that a bill of particulars merely amplifies the indictment and limits the scope of the proof on the trial." Note, "Sufficiency of indictment as affected by bill of particulars," 10 A.L.R. 982, 983. The bill of particulars supplements rather than supplants the information or indictment. In the short form information, the defendant was expressly charged with the crime of attempting to obtain money by false pretenses "in violation of Section 53-360 of the General Statutes." This section of the statute, a violation of which was the specific charge lodged against the defendant, included in its definition of the offense the obtaining of any valuable thing from another, by any false token, pretense or device, "with intent to defraud him or any other person." The bill of particulars, answering the question asking for the nature of the offense by reciting that "the defendant did attempt to obtain the sum of $87.79 from the Stop and Shop Market, Waterbury, by assisting one James H. Lee in presenting a stolen and forged check," certainly did inform the defendant of the nature of the offense. 4 Wharton, Criminal Law and Procedure (Anderson Rev.) ^ 1773; 41 Am. Jur. 2d, Indictments and Informations, § 111. We conclude that there is no merit whatsoever to the present claim of the defendant that "the state of Connecticut, in said information and in the bill of particulars, failed to charge the defendant with a crime." There is no error. In this opinion Shapiro, Loiselle and MacDonald, Js., concurred. "[Practice Book] Sec. 493. charging the offense The indictment or information may charge, and is valid and sufficient if it charges, the offense for which the accused is being prosecuted in one or more of the following ways: (a) By using the name given to the offense by the common law or by a statute, (b) By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the accused notice of what offense is intended to be charged. The indictment or information may refer to a section or subsection of any statute creating the crime charged therein, and in determining the validity or sufficiency of such indictment or information regard shall be had to such reference." The following colloquy occurred between the presiding judge and counsel for the defendant on the first day of trial: "The Court: Mr. Daly, in looking through the file in this matter I notice there is a motion for bill of particulars and motion for production and disclosure. Mr. Daly: If your Honor please, I have had a response filed by the State's Attorney's office to the Bill of Particulars, and also a response filed to the Motion for Disclosure. The Court: They are satisfactory to you; is that correct? Mr. Daly: Yes, each question is answered. The Court: All right. There is nothing further, then, that you are seeking on either one of those? Mr. Daly: No."

The defendant's petition for certification for appeal from the Appellate Court, 17 Conn. App. 186, is denied.

Glass, J. In a substitute information filed on May 6, 1987, the defendant, Joseph Paolella, was charged with six criminal offenses. Counts one and two charged the defendant with kidnapping in the first degree with a firearm, in violation of General Statutes § 53a-92a (a), and kidnapping in the first degree, in violation of General Statutes § 53a-92 (a) (2) (A). Counts three and four charged him with sexual assault in the first degree with a deadly weapon, in violation of General Statutes § 53a-70a (a), and sexual assault in the first degree, in violation of General Statutes § 53a-70 (a). Counts five and six charged him with assault in the third degree, in violation of General Statutes § 53a-61 (a) (l), and carrying a dangerous weapon, in violation of General Statutes § 53-206. The defendant waived a jury trial and was tried to the court. At the close of the state's case, the defendant made an oral motion for judgment of acquittal on all six counts. Over the state's objection, the trial court granted the defendant's motion with respect to the two counts charging him with first degree sexual assault and the count charging him with carrying a dangerous weapon. The state excepted to the trial court's granting of the defendant's motion. At the close of all the evidence, the trial court, pursuant to the state's request, dismissed with prejudice the two first degree sexual assault counts and the count of carrying a dangerous weapon, and granted the state's request for permission to appeal. The state subsequently filed this appeal in the Appellate Court, claiming error in the trial court's granting of the defendant's motion for judgment of acquittal on the first degree sexual assault counts. The appeal was transferred to this court pursuant to Practice Book § 4023. We dismiss the appeal on the ground that double jeopardy bars review of the trial court's acquittal of the defendant. I A Background Facts Our disposition of this case requires only a brief recapitulation of the background facts. Evidence pre sented during the state's case revealed that the defendant and the complainant were married in May, 1978. Three children were born to them during their marriage. In April, 1986, the couple agreed to be divorced as a result of marital difficulties. On two occasions during April and May, 1986, the complainant took the children and left the marital home in North Haven to stay elsewhere because of her deteriorating relationship with the defendant. After leaving their North Haven home the second time, the complainant returned when the defendant moved out to stay with relatives. During this period, the defendant filed a divorce action, notice of which was served on the complainant. When he later intimated that he wished to withdraw the divorce action, the complainant filed a cross complaint for divorce. In addition, in May, 1986, the complainant obtained restraining orders ordering the defendant to refrain from harassing or assaulting her. The several charges against the defendant arose from incidents alleged to have taken place on May 25 and 26,1986. The state presented evidence that the defendant had sexually assaulted the complainant on May 25, 1986, in the North Haven marital home. Ultimately, the trial court found the defendant not guilty of count two, kidnapping in the first degree, but found him guilty of kidnapping in the second degree with a firearm, in violation of General Statutes § 53a-94a (a), a lesser included offense of count one, and count five, assault in the third degree. The defendant's convictions on those charges are not at issue in this appeal. B Facts Pertaining to the State's Appeal In making his oral motion for judgment of acquittal, pursuant to Practice Book § 884, the defendant argued that he was exempt from prosecution for violating § 53a-70 (a) and 53a-70a(a) because, under General Statutes § 53a-65 (2), the definition of "sexual intercourse" applicable to those offenses is expressly limited to persons who are not married to each other. The state claimed, however, that the marital exemption was inapplicable because the parties no longer maintained a "viable" marriage despite their continued legal marital status, and that the marital exemption of § 53a-65 (2) conceivably violated equal protection guarantees. In granting the defendant's motion for judgment of acquittal on the two first degree sexual assault counts, the trial court stated: "I would make it quite clear, however, on the record, that the Court['s] granting of [the defendant's] Motion for Judgment of Acquittal . . . is based on the fact that the evidence demonstrates quite clearly that these two people were married on [the] day [of the alleged assault]. Certainly there is ample evidence at this point for the court to find that the other, the basic elements of the rape have been proven. The basis of the ruling as I indicated is the opinion of the Court that the spousal exemption is valid and the evidence indicates clearly . . . that these parties were still legally married on that day, and it is for that reason I am granting the Judgment of Acquittal as to these two counts." The state excepted to the court's ruling and requested permission to appeal. It argued that an appeal was not barred by double jeopardy because the question of the marital exemption's applicability was "simply a legal question." The defendant, however, claimed that an appeal was improper because the trial court's ruling was based on a flaw in the state's evidence. The trial court reserved a ruling on the state's request for permission to appeal, but stated: "I'm not sure I would call it an evidentiary failing. What I did is grant [the defendant's] Motion for Judgment of Acquittal because I believe the statutory exemption . is clear and . . . has been proven, the fact that they are legally married, and I did not accept [the state's] . . . legal argument that the exemption does not apply to people who are not married in fact . I have no hesitation in finding [as] a fact that on the date of this offense these people were not married in fact. They were married in law but not in fact." When the trial concluded on May 29,1987, the trial court granted the state's motion to dismiss with prejudice the first degree sexual assault counts, and also granted the state's request to appeal. The judgment, filed on May 29, indicated that the defendant was acquitted of the sexual assault counts. Pursuant to the state's motion, however, the judgment file subsequently was amended to indicate that the trial court, on May 29, 1987, had dismissed with prejudice the first degree sex ual assault counts and had granted the state permission to appeal. On June 6, 1987, the state filed its appeal, indicating that it was appealing from the judgment, rendered on May 29,1987, acquitting the defendant of the first degree sexual assault counts. After filing its appeal, the state filed two questions seeking the trial court's articulation pertaining to the disposition of the first degree sexual assault counts. To the first question, "[d]id the trial court evaluate the state's evidence on the elements of § 53a-70 and 53a-70a, and acquit the defendant on those counts, by making a determination of factual innocence," the trial court responded, "[y]es." (Emphasis added.) To the second question, "[d]id the trial court dismiss the sexual assault counts on the legal ground that the marital exemption barred prosecution," the trial court responded, "[n]o." On appeal, the state reiterates the claims made at trial (1) that the marital exemption of § 53a-65 (2) does not apply to persons who are no longer married "in fact," whether or not they are still legally married, and (2) that the marital exemption violates equal protection guarantees of the federal and Connecticut constitutions by denying to female victims married to their assailants the same protections accorded female victims not married to their assailants. Further, the state asserts that its appeal is proper because the trial court's disposition of the first degree sexual assault counts turned solely on the legal question of the applicability of § 53a-65 (2). The defendant asserts two jurisdictional defects to the state's appeal, claiming (1) that the state has not appealed from a final judgment, and (2) that double jeopardy bars appellate review of the trial court's judgment of acquittal. We conclude that there was a final judgment and that the judgment was a true acquittal for double jeopardy purposes, therefore barring us from reviewing the state's claims. II The defendant first claims that the state improperly appealed from a "partial judgment." He argues that the state sought to appeal from the trial court's action granting the motion for judgment of acquittal made at the close of the state's case. He further asserts that because the appeal was not taken from the imposition of a sentence, nor from an appealable interlocutory order; see State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983); the appeal was not taken from a "final judgment," and, therefore, must be dismissed. The state maintains that its appeal is from the trial court's judgment of May 29, 1987, dismissing with prejudice the first degree sexual assault counts. The state argues that the trial court had the authority to modify its prior action granting the defendant's motion for judgment of acquittal to a dismissal with prejudice; see State v. Wilson, 199 Conn. 417, 437, 513 A.2d 620 (1986); and that a dismissal with prejudice is a final judgment from which the state may take an appeal. General Statutes § 54-96 permits the state to appeal from rulings and decisions of the Superior Court upon questions of law arising in criminal trials. Appellate jurisdiction is limited to appeals from final judgments. See General Statutes § 52-263; State v. Southard, 191 Conn. 506, 508, 467 A.2d 920 (1983). "The appealable final judgment in a criminal case is ordinarily the imposition of sentence. State v. Curcio, supra, 31; State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). We have recognized, however, in both criminal and civil cases, that certain otherwise interlocutory orders may be final judgments for appeal purposes. . . . 'An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.' State v. Curcio, supra, 31, citing State v. Bell, 179 Conn. 98, 99, 425 A.2d 574 (1979)." State v. Southard, supra, 509-10. Unless the appeal is authorized under the Curcio criteria, absence of a final judgment is a jurisdictional defect that results in a dismissal of the appeal. Guerin v. Norton, 167 Conn. 282, 283, 355 A.2d 255 (1974). The defendant incorrectly identifies the trial court's action granting the motion for judgment of acquittal as the order from which the state sought to appeal. The trial court did not render judgment on the granting of that motion, or grant the state permission to appeal, until the conclusion of the trial on May 29,1987. Practice Book § 884 requires the trial court to rule on a motion for judgment of acquittal made at the close of the state's case at the time it is made, but does not require the court to render judgment on a ruling granting the motion at that time. Further, the state's appeal form, which indicates that the appeal was sought from the May 29, 1987 decision "granting the defendant's motions for judgment of acquittal," clearly demonstrates that the state has appealed from the judgment rendered on the motion at the conclusion of the trial. Thus, the record establishes that the state has appealed from the May 29,1987 judgment rendered on the trial court's mid-trial action granting the defendant's motion for judgment of acquittal. The finality of a judgment of acquittal under General Statutes § 52-263 is self-evident. See State v. Avcollie, 178 Conn. 450, 452, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980) (state appeals from judgment of acquittal rendered by trial court after setting aside jury verdict of guilty). Such a judgment concludes the rights of the parties regarding the charges of which the defendant has been acquitted. See State v. Curcio, supra. Further, a judgment of acquittal achieves the same finality as the imposition of a sentence since it terminates the prosecution of the charges to which it applies and negates the possibility of an imposition of a sentence. Because the present appeal was taken from a judgment rendered at the conclusion of the trial, the state's appeal does not implicate the problems of " 'delays and disruptions attendant upon intermediate appeal[s],' which the [final judgment] rule is designed to avoid . . . ." State v. Powell, 186 Conn. 547, 551, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982); see also Burger & Burger, Inc. v. Murren, 202 Conn. 660, 663, 522 A.2d 812 (1987). We conclude that the judgment rendered on the trial court's action granting the defendant's motion for judgment of acquittal was an appealable "final judgment." Ill The defendant next claims that double jeopardy bars the state's appeal. The double jeopardy clause of the fifth amendment to the federal constitution prohibits the prosecution of appeals from judgments of acquittal. United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977); see also State v. Evans, 205 Conn. 528, 537, 534 A.2d 1159 (1987), cert. denied, 485 U.S. 988, 108 S. Ct. 1292, 99 L. Ed. 2d 502 (1988) (double jeopardy protections incorporated into due process clause of article first, § 8, of Connecticut constitution). Although the trial court characterized its disposition of the first degree sexual assault counts during the trial as an "acquittal" and in the amended judgment file as a "dismissal with prejudice," neither characterization is dispositive. This court must make its own inquiry into the trial court's disposition to determine, for double jeopardy purposes, whether the court "acquitted" the defendant of the two first degree sexual assault counts. See United States v. Scott, 437 U.S. 82, 96, 98 S. Ct. 2187, 57 L. Ed. 2d 65, reh. denied, 439 U.S. 883, 99 S. Ct. 226, 58 L. Ed. 2d 197 (1978) (trial court's characterization of action not dispositive); State v. Evans, supra, 534 (issue is whether ruling resolved some or all of factual elements of offense charged, regardless of label). "Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that '[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.' United States v. Ball, 163 U.S. 662, 671 [16 S. Ct. 1192, 41 L. Ed. 300] (1896)." United States v. Martin Linen Supply Co., supra, 571. "A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal." United States v. Scott, supra, 91. An "acquittal" results from "a resolution, correct or not, of some or all of the factual elements of the offense charged"; United States v. Martin Linen Supply Co., supra, 571; or from the trial court's conclusion that the state has failed to present sufficient evidence to rebut a defendant's essentially factual defense. United States v. Scott, supra, 97-98; Burks v. United States, 437 U.S. 1, 4, 16, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). The state argues that double jeopardy does not bar its appeal because (A) the trial court's disposition of the first degree sexual assault counts was based on a legal matter unrelated to the defendant's guilt or innocence; (B) even if the marital exemption of § 53a-65 (2) requires proof of marriage, the exemption is a "non-exculpatory defense" not implicating the defendant's criminal responsibility; and (C) even if the defendant had been "acquitted," a reversal of the trial court's decision would not subject the defendant to another trial. We are not persuaded. A As noted above, General Statutes § 53a-65 (2), which defines the sexual intercourse prohibited under § 53a-70 (a) and 53a-70a (a), excludes married people. Under this statutory scheme, a defendant married to the alleged assault victim cannot be found guilty of violating those sexual assault statutes. A finding of non-culpability based on the "marital exemption" of § 53a-65 (2) necessarily depends upon proof of the fact that the victim and the defendant were legally married. See State v. Scott, 11 Conn. App. 102, 119, 525 A.2d 1364, cert. denied, 204 Conn. 811, 528 A.2d 1157 (1987) (marital exemption not available where defendant failed to produce any evidence that he and victim were married). Under § 53a-70 (a) and 53a-70a (a), a finding by the trier that the alleged offender and the victim were married exonerates the alleged offender, regardless of the proof of forcible sexual intercourse. In the present case, the state's presentation of the complainant's testimony established that the defendant and the complainant were married on the day of the alleged assault. This evidence was, in essence, an admission by the state that the couple were married. As such, it constituted a "failure of evidence" pertaining to the sexual assault counts. Burks v. United States, supra. Consequently, the defendant's acquittal on the sexual assault counts turned on a factual basis related to his guilt or innocence of the offenses charged. United States v. Scott, supra. The state's claim that the trial court's disposition of the first degree sexual assault counts was based solely on the court's legal conclusion that § 53a-65 (2) applied to exclude all married offenders and victims, regardless of the quality of their marital relationship, is directly controverted by the trial court's posttrial articulation. Although at trial the court indicated that it was "not sure [that its granting of the motion for judgment of acquittal was based on] an evidentiary failing" of the state's case, the court's articulation, made upon the state's motion, definitely establishes that the court had based its disposition of the first degree sexual assault counts on a factual determination that the parties were married. As the state conceded before the trial court in a posttrial hearing, the court's articulation that its disposition was based on a "factual" rather than "legal" ground rendered "academic" the state's motion to amend the printed record to reflect that the trial court "dismissed" the first degree sexual assault counts. Further, we disagree with the state's related argument that double jeopardy does not bar its appeal because the defendant deliberately chose to forego a pretrial hearing on his marital exemption claim. We first note that the record discloses that the defendant did seek to dismiss the sexual assault counts prior to trial, but that the trial court never ruled on his motion. Moreover, the tacit premise of the state's argument appears to be that it was the defendant's obligation to ensure that the state charged him with a crime corresponding to the facts likely to be adduced at trial. We are not persuaded that a criminal defendant must oblige the state in this manner in order to invoke the protections of the double jeopardy clause. The state also claims that, under United States v. Scott, supra, a defendant may not insulate a legal issue from appellate review by securing on his own initiative a mid-trial termination of the proceedings on a basis unrelated to his factual guilt or innocence. It also points to the language in United States v. Scott, supra, 96-97, that "an appeal is not barred simply because a ruling in favor of the defendant 'is based upon facts outside the face of the indictment' . or because it 'is granted on the ground . . . that the defendant simply cannot be convicted of the offense charged . . . . ' " See also State v. Evans, supra. Our discussion above makes it clear that the trial court's action granting the defendant's motion for judgment of acquittal at mid-trial terminated the prosecution of the sexual assault counts on a basis directly related to his guilt or innocence. Moreover, the language of United States v. Scott suggesting that an appeal is not barred simply because the trial court relies on facts outside the indictment in disposing of the charges cannot be fully comprehended without examin ing the facts of that case. In United States v. Scott, supra, 84, the defendant moved to dismiss the first count of an indictment on the ground of pre-indictment delay. The District Court granted the motion to dismiss at the close of all the evidence. Upon the government's appeal, the defendant claimed that double jeopardy barred the appeal. The United States Supreme Court rejected this claim, concluding that the motion to dismiss based on pre-indictment delay was not related to the defendant's factual guilt or innocence of the crime charged. Id., 98-99. Similarly, in State v. Evans, supra, 533, the trial court granted the defendant's motion to dismiss on the basis that the state had failed to apprise the defendant of the exact date of the alleged sexual offense, thereby compromising the defendant's ability to present an effective alibi defense. In granting the motion to dismiss, the trial court stated that " '[this decision] is in no way related to my opinion as to whether or not the defendant is guilty or not guilty of these charges. . . .' " Id. We concluded that "[b]ecause the motion to dismiss was granted at the request of the defendant, and because no evidence has been presented to enable the trier to make any factual determination in this case . . . the dismissal [does not bar] . . . the state's appeal . . . . " Id., 539. In the present case, the "fact outside the indictment" resulting in the defendant's acquittal was an evidentiary fact intrinsically related to the defendant's guilt or innocence of the offense charged. In United States v. Scott, supra, and State v. Evans, supra, however, the dismissals were based on procedural matters unrelated to the defendant's guilt or innocence. Thus, the principle that double jeopardy may not apply in certain circumstances even where the trial court refers to matters outside the information in disposing of the counts in the defendant's favor has no application to the present case. B The state also argues that an "acquittal" based on the marital exemption of § 53a-65 (2) is not an "acquittal" for double jeopardy purposes. Relying on United States v. Moore, 613 F.2d 1029 (D.C. Cir. 1979), cert. denied, 446 U.S. 954, 100 S. Ct. 2922, 64 L. Ed. 2d 811 (1980), the state asserts that the marital exemption is a "non-exculpatory" defense that has no bearing on the accused's factual guilt or innocence. The state's position, however, is flatly contradicted by judicial interpretation of § 53a-65 (2). In State v. Scott, supra, 112, our Appellate Court held that "[o]n the basis of the common law and statutory history from which General Statutes § 53a-65 and 53a-70 (a) evolved, the logic of the various provisions of the sexual assault statutes, and case law in other jurisdictions, we conclude that the absence of a marital relationship between the defendant and the victim of a sexual assault is not an essential element of the crime. Rather, the existence of a marital relationship can be raised as an exemption or defense to prosecution for sexual assault in the first degree under § 53a-70 (a)." The Appellate Court noted that "[t]he general rule at common law was that . . . marriage [of the defendant and the victim] was a matter of defense"; id., 113; and concluded that it was clear that § 53a-65 (2) incorporated the common law marital exemption as a defense to prosecution under § 53a-70 and 53a-70a. Id., 118. As the court in United States v. Moore, supra, noted, "essentially factual" defenses relating to the ultimate question of guilt or innocence include those which " 'necessarily [establish] the criminal defendant's lack of criminal culpability.' " Id., 1036, quoting United States v. Scott, supra, 98. Under the Appellate Court's interpretation in State v. Scott, supra, § 53a-65 (2) does not merely operate as a procedural bar to prosecution under § 53a-70 and 53a-70a (a). The accused's marital relationship with the victim necessarily establishes his lack of criminal culpability under § 53a-70 (a) and 53a-70a (a). United States v. Scott, supra; United States v. Moore, supra. C The state finally asserts that even if the trial court's action is deemed to be an acquittal, its appeal is not barred by double jeopardy because a reversal of the trial court's decision would not subject the defendant to a retrial. It argues that the trial court found as a fact that the other elements of the first degree sexual assault counts had been established. It claims that no retrial would be necessary because the trial court directed the defendant to present his evidence pertaining to the existing counts, that the defendant did so, and that in the course of doing so the defendant denied that the sexual assault had taken place. Consequently, the state maintains, if we reversed the trial court's acquittal on the legal ground that § 53a-65 (2) does not exclude persons who are not married "in fact," on remand the trial court could render a judgment of guilty on the first degree sexual assault counts. United States v. Martin Linen Supply Co., supra. We acknowledge that "where a [state's] appeal [from an acquittal] presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended . . . . " Id., 569-70. Generally, this exception to the double jeopardy bar arises where the trial court renders a judgment of acquittal after setting aside a valid jury verdict of guilty. Id., 570. "Since reversal on appeal would merely reinstate the jury's verdict, review of such an order does not offend the policy against multiple prosecution." United States v. Wilson, 420 U.S. 332, 344-45, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975); see also State v. Avcollie, supra, 453. The fundamental flaw in the state's argument is that the trial court's comments, made at the close of the state's case, that "[c]ertainly there is ample evidence at this point for the Court to find that the other, the basic elements of the rape have been proven," scarcely resemble a verdict of guilty. Moreover, the trial court did not direct the defendant to defend against the first degree sexual assault counts after it had granted the motion for judgment of acquittal. If the trial court's decision were reversed, further proceedings would be necessary to protect the defendant's due process rights to notice of the charges against him and to present a defense. Cf. State v. Flower, 176 Conn. 224, 226, 405 A.2d 655 (1978) (where no record upon which determination of guilt could be made without further proceedings, double jeopardy barred appeal). Because the trial court acquitted the defendant of the two first degree sexual assault counts, double jeopardy bars us from considering the state's claim that § 53a-65 (2) does not exclude from the definition of sex ual intercourse persons who, although legally married, are separated and are no longer married "in fact." Even assuming that the state's contention is correct, the trial court's acquittal of the defendant may not be reviewed on appeal "even if the legal rulings underlying the acquittal were erroneous." Sanabria v. United States, 437 U.S. 54, 64, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978). As the Court of Appeals for the Ninth Circuit aptly stated, "[ijnasmuch as we find the judgment below to be a true acquittal, the Double Jeopardy Clause bars appeal even if the [trial] court based the acquittal on an erroneous interpretation of governing legal principles or upon legal principles which are themselves overturned." United States v. Schwartz, 785 F.2d 673, 678 (9th Cir. 1986); see also United States v. Scott, supra, 98 (acquittal resulting from erroneous interpretation of law affects accuracy of determination but does not alter its essential character). The state's appeal is dismissed. In this opinion Peters, C. J., Healey, Callahan, Covello and Hull, Js., concurred. General Statutes § 53a-92a (a) provides: "A person is guilty of kidnapping in the first degree with a firearm when he commits kidnapping in the first degree as provided in section 53a-92, and in the commission of said crime he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be convicted of kidnapping in the first degree and kidnapping in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information." General Statutes § 53a-92 (a) (2) (A) provides: "A person is guilty of kidnapping in the first degree when he abducts another person and when . . . (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually." "[General Statutes] Sec. 53a-70a. sexual assault in the first degree WITH A DEADLY WEAPON: CLASS B FELONY; FIVE YEARS NOT SUSPENDABLE. (a) A person is guilty of sexual assault in the first degree with a deadly weapon when such person commits sexual assault in the first degree as provided in section 53a-70, and in the commission of such offense he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a deadly weapon. No person shall be convicted of sexual assault in the first degree and sexual assault in the first degree with a deadly weapon upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information." "[General Statutes] Sec. 53a-70. sexual assault in the first degree: class B felony: one year not suspendable. (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." General Statutes § 53a-61 (a) (1) provides: "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 1985) § 53-206 provides in relevant part: "Any person who carries upon his person any slung shot, air rifle, BB. gun, blackjack, sand bag, metal or brass knuckles, or any dirk knife, or a switch knife, or any knife having an automatic spring release device by which a blade is released from the handle, having a blade of over one and one-half inches in length, or stiletto, or any knife the edged portion of the blade of which is four inches or over in length, or any other dangerous or deadly weapon or instrument, unless such person has been granted a written permit issued and signed by the first selectman of a town, the mayor or chief of police of a city or the warden of a borough, authorizing such person to carry such weapon or instrument within such town, city or borough, shall be fined not more than five hundred dollars or imprisoned not more than three years or both." The state has not appealed from the judgment rendered on the trial court's action granting the defendant's motion for judgment of acquittal on count six, charging the defendant with carrying a dangerous weapon. "[General Statutes] Sec. 53a-94a. kidnapping in the second degree with a firearm: class b felony: one year not suspendable. (a) A person is guilty of kidnapping in the second degree with a firearm when he kidnaps in the second degree, as provided in section 53a-94, and in the commission of such offense he uses or is armed with and threatens the use of or uses or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be convicted of kidnapping in the second degree and kidnapping in the second degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information." See footnote 3, supra. Practice Book § 884 provides: "If the motion [for judgment of acquittal] is made after the close of the prosecution's case in chief, the judicial authority shall either grant or deny the motion before calling upon the defendant to present his case in chief. If the motion is not granted, the defendant may offer evidence without having reserved the right to do so." General Statutes § 53a-65 (2) provides: "As used in this part, except section 53a-70b, the following terms have the following meanings . "(2) 'Sexual intercourse' means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio aiid does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim's body. Its meaning is limited to persons not married to each other." Practice Book § 819, which was in effect at the time of the trial, provided in pertinent part: "If the dismissal is with prejudice . . . the prosecuting authority may, where he is entitled by law, appeal the dismissal . In State v. Ross, 189 Conn. 42, 49, 454 A.2d 266 (1983), we held that a dismissal with prejudice under Practice Book § 819 was "unquestionably" a final judgment from which the state could appeal. Practice Book § 819 was repealed as of October 1, 1987. General Statutes § 54-96 provides: "Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused." "[General Statutes] Sec. 52-263. appeals from superior court, exceptions. Upon the trial of all matters of fact in any cause or action in the superior court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8, 8-9, 8-28 and 8-30." See also General Statutes § 51-197a (governing appeals from final judgments of Superior Court to Appellate Court). As we discuss below, double jeopardy barred the trial court from "modifying" its action granting the motion for judgment of acquittal to a "dismissal with prejudice." Consequently, we read the judgment file as it existed prior to the amendment indicating that the first degree sexual assault counts were dismissed with prejudice. In its original state, the judgment file indicated that the trial court, at the close of the case, rendered judgment on its action granting the defendant's motion for judgment of acquittal. Although we reach a result on this issue favorable to the state, we do not agree with the state's position that the final judgment in this case was the trial court's dismissal with prejudice of the sexual assault charges. In State v. Wilson, 199 Conn. 417, 432-33, 513 A.2d 620 (1986), we addressed the question whether the trial court had jurisdiction to amend a finding in its original written memorandum of decision some three years after that memorandum had been filed. We stated that " '[djuring the continuance of a term of court the judge holding it has, in a sense, absolute control over judgments rendered; that is, he can declare and subsequently modify or annul them.' " Id., 436. "Neither our General Statutes nor our Practice Book rules define the period during which a trial court may modify or correct its judgment in a criminal case. On the civil side, however, Practice Book § 326 provides that any civil judgment . . . may be opened or set aside 'within four months succeeding the date on which it was rendered or passed.' We see no reason to distinguish between civil and criminal judgments in this respect, and we therefore hold that... a criminal judgment may not be modified in matters of substance beyond a period of four months after the judgment has become final." (Emphasis in original.) Id., 437. The state argues that, because the trial court "modified" its original action granting the defendant's motion for judgment of acquittal to a dismissal with prejudice within the four month period prescribed by Wilson, the controlling order for purposes of appeal was the trial court's dismissal with prejudice. Because we conclude below, however, that the trial court's disposition of the first degree sexual assault counts was a "true" acquittal for double jeopardy purposes, it necessarily follows that, once the court had granted the defendant's motion for judgment of acquittal, it could not thereafter "modify" that order by "dismissing" the counts. As a consequence, Wilson is inapplicable to the present case. We note that General Statutes § 53a-70b, enacted in 1981; see Public Acts 1981, No. 81-27; provides in pertinent part: "(b) No spouse or cohabitar shall compel the other spouse or cohabitar to engage in sexual intercourse by the use of force . ." The limitation of General Statutes § 53a-65 (2), excluding married persons from the definition of sexual intercourse, does not apply to prosecutions under § 53a-70b. See State v. Suggs, 209 Conn. 733, 553 A.2d 1110 (1989); State v. Preyer, 198 Conn. 190, 502 A.2d 858 (1985). Our disposition of this case does not require us to determine whether General Statutes § 53a-65 (2) sets up an affirmative or nonaffirmative defense to prosecutions under General Statutes § 53a-70 or 53a-70a. The Appellate Court, in State v. Scott, 11 Conn. App. 102, 525 A.2d 1364, cert. denied, 204 Conn. 811, 528 A.2d 1157 (1987), found that the defendant, claiming the exemption on appeal, had not presented any evidence of being married to the victim. Consequently, the Appellate Court was not required to determine whether § 53a-65 (2) was an affirmative or nonaffirmative defense. The court did state, however, that a "defendant who seeks to avail himself of the marital exemption would have to raise his marital status as a defense"; id., 116; and thereafter cited General Statutes § 53a-12 (a). Section 53a-12 (a) provides that "[w]hen a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt." We express no opinion on the Appellate Court's disposition of Scott. In the present case, the state in the presentation of its case included testimony from the complainant that she and the defendant were married.

The action requested of this court in the document entitled "Supplemental Brief to Reply to May 28th Motion to Dismiss Notices of Appeal," dated October 4, 1974, is denied.

Cotter, J. This action alleging a breach of contract was brought hy The Fidelity and Casualty Company of New York (hereinafter referred to as Fidelity) as subrogee, assignee and successor in interest of a depositor, the Easy Finance Company (hereinafter referred to as the finance company), against the depositor's hank, Constitution National Bank (hereinafter referred to as the hank). The Court of Common Pleas rendered judgment for Fidelity to recover of the bank $8,678.44, with costs, from which the hank has appealed. In 1967 the finance company opened a commercial checking account with the hank in which it made deposits and against which it drew checks under the customary and ordinary rules and restraints applicable to banking institutions. Under the provisions of the account, the bank agreed to credit the finance company's account with all amounts deposited therein and to charge its account with amounts paid out in accordance with and on proper orders issued by the finance company. During August and September, 1967, the finance company maintained a credit balance in its account with the bank sufficient to pay all checks drawn by the finance company on that account during these months. At that time, Richard C. Bissette, the finance company's manager, was authorized to sign and issue checks on its behalf. At various times during August and September, 1967, an automobile dealer in Chicopee Falls, Massachusetts, telephoned in loan applications to the finance company's office. Douglas McPheters, who at the time was a salesman for a Chicopee Falls automobile dealer, then submitted to the finance company loan applications and promissory notes allegedly signed by nine individuals. The finance company then gave Douglas McPheters contracts, payment books and checks made payable to and to be given to these individuals, in amounts altogether totalling $8,678.44. McPheters had formerly been a salesman in the Hartford area who had helped customers finance purchases through the finance company. In drawing and issuing the nine checks, the finance company ordered the bank to pay the payees named thereon or to pay in accordance with the order of the named payees. Instead of deliver ing the checks as instructed, however, McPheters and an accomplice signed each of the checks in the name of the named payee, so that the resulting endorsements were forgeries, for none of the named payees had authorized anyone to sign his name. The nine checks were then cashed by either the Safe Deposit Bank and Trust Company of Springfield, Massachusetts or by the Chicopee Bank and Trust Company of Chicopee. The defendant bank thereafter paid each of the checks as it was presented for payment by the intermediary banks; at the time, it had no notice or knowledge of the facts and circumstances surrounding the issuance of the checks by the finance company, and nothing appeared on the checks themselves to indicate unauthorized endorsements, or any infirmity of title. The defendant bank then charged the amounts of the checks paid to the finance company's account. None of the named payees ever received the checks or the proceeds from the checks. On discovering the forgery, the finance company notified Fidelity, on or about October 9, 1967, and then informed the banks through which the checks had passed of the forged endorsements. On October 17 the finance company notified the defendant bank of the forgeries; the bank, however, refused to recredit the finance company's account in the amount of the nine cheeks ($8,678.44). Pursuant to the forgery provisions of the small loan companies' blanket bond it had previously executed, Fidelity paid the finance company's loss for the nine cheeks in their total amount. By reason of this payment, the finance company specifically assigned all its rights against the defendant bank to Fidelity, which became the subrogee, assignee and successor in interest of the finance company. Fidelity brought this action to recover damages including the aggregate amount of the checks drawn by the finance company, paid by the defendant bank and charged to the finance company's account. The bank has assigned error in several of the trial court's findings and conclusions involving the application of § 42a-3-406 of the General Statutes (§3-406 of the Uniform Commercial Code), which provides: "Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee's or payor's business." (Emphasis supplied.) At the outset we note that it has long been established in this state that "[a] conclusion of negligence is ordinarily one of mixed law and fact, involving the determination of the applicable standard of care, which is a question of law, and its application to the. facts of the particular case, which is a question of fact. Faille v. Hollett, 152 Conn. 720, 721, 211 A.2d 701; Marley v. New England Transportation Co., 133 Conn. 586, 591, 53 A.2d 296; see 2 Harper and James, Torts § 15.3, p. 880." Smith v. Leuthner, 156 Conn. 422, 424, 242 A.2d 728. Neither § 42a-3-406 nor any other part of title 42a of the General Statutes (Uniform Commercial Code) defines "negligence." Noting this lack of statutory guidance, two commentators on the code have stated that "[t]he acts sufficient 'sub stantially to contribute' to a material alteration or the making of an unauthorized signature are limited only by the limits of man's capacity for conducting slovenly business transactions." White & Summers, Uniform Commercial Code § 16-6. Nonetheless, courts which have interpreted this section of the code have held that "negligence" therein means the failure to exercise "reasonable" or "ordinary" care. Dominion Construction, Inc. v. First National Bank of Md., 271 Md. 154, 315 A.2d 69; Terry v. Puget Sound National Bank, 80 Wash. 2d 157, 160, 492 P.2d 534; Exchange Bank & Trust Co. v. Kidwell Construction Co., 463 S.W.2d 465, 469 (Tex. Civ. App.). By "reasonable care" in cases involving a question of negligence we mean the care which "the ordinarily prudent person under the circumstances" would exercise. Steinhaus v. Steinhaus, 145 Conn. 95, 97, 139 A.2d 55. Failure to exercise such care amounts to negligence. Id. The duty of reasonable care imposed upon the drawer under § 42a-3-406 is owed, furthermore, to the drawee, inter alia, to protect him from material alterations on the instrument or from the making of unauthorized signatures thereon. See Fidelity and Deposit Co. of Md. v. Chemical Bank N.Y. Trust Co., 65 Misc. 2d 619, 621, 318 N.Y.S.2d 957, aff'd, 39 App. Div. 2d 1019, 333 N.Y.S.2d 726; 19 Connecticut General Statutes, Annotated (West Ed.), comment 4 (B). It is for this reason that no distinction is made under this code provision as to whether the signature which is forged is the signature of the negligent person. See 2 Anderson, Uniform Commercial Code, p. 945. Thus the provision applies where the drawer is deemed negligent in permitting a situation to arise in which the wrongdoer forges an endorsement of the payee's name. Ibid.; see also Society National Bank v. Capital National Bank, 30 Ohio App. 2d 1, 7, 281 N.E.2d 563. The test of conduct amounting to "negligence" within the meaning of § 42a-3-406 appropriate to the facts of this case was whether a prudent person in the position of the finance company's manager, Bissette, having at his disposal only that amount of information and experience Bissette had concerning the purported loan applications, would have foreseen the danger of subsequent forgery by McPheters and his accomplice involved in making the purported loans and drawing and issuing checks the way Bissette did; if a prudent person would have foreseen such a danger, then the drawer, the finance company, acting through Bissette, cannot be said to have properly exercised its duty of ordinary care to the bank as required by the statute in so making the purported loans and in so drawing and issuing the checks. Connecticut Savings Bank v. First National Bank & Trust Co., 138 Conn. 298, 304, 84 A.2d 267. To support its claim that Bissette's conduct on behalf of the finance company constituted negligence within the meaning of § 42a-3-406, the bank introduced evidence that the finance company undertook no credit investigation, which would have revealed that the purported loan applicants had never in fact applied for loans from the finance company. In recent years, courts in other jurisdictions when ruling on the issue of the drawer's negligence under this section of the code have been inclined to hold that the failure to verify information on reports prior to drawing and issuing checks pursuant thereto amounts to negligent business conduct, either as a matter of fact; Thompson Maple Products, Inc. v. Citizens National Bank, 211 Pa. Super. 42, 47, 50, 234 A.2d 32, cited with approval, In re Royal Electrotype Corp., 485 F.2d 394 (3d Cir.); or as a matter of law; Fidelity & Deposit Co. of Md. v. Chemical Bank N.Y. Trust Co., supra; cf. Prudential Ins. Co. of Am. v. Marine Nat. Exch. Bank, 55 F.R.D. 436, 438 (E.D. Wis.). In so holding, the courts have adhered to the principle of construction embodied in the code to the effect that the statute's provisions should be "liberally construed and applied to promote its underlying purposes and policies"; § 42a-1-102 (1); one of these purposes being "to . . . modernize the law governing commercial transactions." §42a-1-102 (2) (a). See White & Summers, Uniform Commercial Code §4. (Significantly, such was the attitude adopted by this court in construing the predecessor to the current code, the Uniform Negotiable Instruments Law. Austin, Nichols & Co. v. Gross, 98 Conn. 782, 785, 120 A. 596.) In this connection, it is noteworthy that the concept of negligence on the part of the drawer precluding its recovery in the event of forgery of the payee's endorsement has experienced dramatic transformations during the course of the history of modern commercial transactions. The law originated with the concept that there was no duty upon a depositor to look for forged endorsements, as there was with respect to forged signatures hearing .the drawer's own name. See, generally, Jordan Marsh Co. v. National Shawmut Bank, 201 Mass. 397, 411, 87 N.E. 740; Kessler, "Forged Indorsements," 47 Yale L.J., 863, 891. However, as cases involving forgeries by employees or agents of the drawer came more frequently before the courts, the rule emerged that the drawer was under some sort of duty to the drawee both to prevent and to report forged endorsements, a duty which recognized the broader principle that the drawer owes a duty to the drawee to do whatever seems reasonable under the circumstances to prevent his own employees or agents from forging endorsements of checks drawn by him. See Robertson Banking Co. v. Brasfield, 202 Ala. 167, 79 So. 651; Osborn v. Corn Exchange National Bank, 218 Ill. App. 28, 38; Britton, Bills and Notes (2d Ed.) § 143. Today, in holding the drawer precluded from recovery from the drawee under § 3-406 of the Uniform Commercial Code because of negligence which facilitates the forgery of endorsements executed by a person who is not the drawer's own employee or agent but is merely someone with whom the drawer has done business, courts are carrying this historical development a further step and enlarging the scope of the traditional principle of commercial law that, as between two innocent persons, the one whose negligence was the cause of the loss should bear the consequences; Hartford Accident & Indemnity Co. v. Middletown National Bank, 126 Conn. 179, 185, 10 A.2d 604; so as to place the ultimate loss upon the person who first dealt directly with the wrongdoer and was careless in so dealing, thereby providing the wrongdoer with the means of carrying out his offense. See, generally, Hardex-Steubenville Corp. v. Western Pa. National Bank, 446 Pa. 446, 285 A.2d 874; see also Goldsmith v. Atlantic National Bank, 55 So. 2d 804, 805 (Fla.); note, 42 A.L.R.2d 1070, 1072-73; note, "Allocation of Losses from Check Forgeries under the Law of Negotiable Instruments and the Uniform Commercial Code," 62 Yale L.J., 417, 462 n.229; note, "The 'Know Your Customer' Rule of the New York Stock Exchange: Liability of Broker-Dealers under the Uniform Commercial Code and Federal Securities Laws," 1973 Duke L.J. 489; see also 2 Anderson, Uniform Commercial Code, p. 945. It is for this reason that drawers are held to he precluded from asserting the unauthorized signature against a drawee where such negligence has been a key to the success of the forgery and, thus, substantially contributed to the making of the unauthorized signature within the meaning of § 3-406 of the code. See, e.g., Fidelity & Deposit Co. of Md. v. Chemical Bank N.Y. Trust Co., 65 Misc. 2d 619, 621, 318 N.Y.S.2d 957, aff'd, 39 App. Div. 2d 1019, 333 N.Y.S.2d 726; Thompson Maple Products, Inc. v. Citizens National Bank, 211 Pa. Super. 42, 46, 234 A.2d 32; Dominion Construction, Inc. v. First National Bank of Md., 271 Md. 154, 315 A.2d 69; 2 Anderson, op. cit. The trial court, however, although requested, refused to find as a fact that Bissette, the finance company's manager, failed to conduct a credit investigation to verify the information on the purported loan applications. "Where the finding fails to include admitted or undisputed facts, this court has the power to correct it. Morrone v. Jose, 153 Conn. 275, 277, 216 A.2d 196; National Broadcasting Co. v. Rose, 153 Conn. 219, 223, 215 A.2d 123." Brockett v. Jensen, 154 Conn. 328, 330, 225 A.2d 190; Practice Book §628 (a); Malthie, Conn. App. Proc. § 157. An "undisputed" fact is a fact "which the court has not deemed sufficiently material to add to the finding, or has inadvertently omitted from it." Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 541, 129 A. 527; Black's Law Dictionary (4th Ed. Rev.) 1697. Elaborating upon this definition, we have stated that "[t]o secure an addition on this ground, it is necessary for an appellant to point to some part of the appendix, the pleadings, or an exhibit properly before ns, which discloses . . . that the fact in question was true or that its truth was conceded to be undisputed." Stoner v. Stoner, 163 Conn. 345, 347, 307 A.2d 146; Brown v. Connecticut Light & Power Co., 145 Conn. 290, 293, 141 A.2d 634; Practice Book § 628 (a); Maltbie, Conn. App. Proc. § 158. In this case, the evidence in question consisted of testimony by Roger Knight, an investigator of the Underwriters Adjusting Company, of which group Fidelity is a member, Fidelity's own witness, who stated that no credit investigation had been conducted by the finance company. It has been stated that "testimony supporting a fact may be such that the court could not reasonably disbelieve it; thus where the court accepted all the other testimony of a witness, it was held that it could not disregard a statement consistent with that testimony and reasonable." Maltbie, Conn. App. Proc. § 156; Judd v. Metropolitan Life Ins. Co., 111 Conn. 532, 537, 150 A. 514. Here, the court accepted all of Knight's other testimony relating to his investigation of the forgery. In light of the foregoing, the finding must be corrected to include the fact that Bissette failed to conduct a credit investigation, a finding which is material to the questions of law presented on the appeal. The defendant bank has assigned error in the conclusion of the trial court that it failed to meet the burden of proving its special defense that Bissette's conduct amounted to negligence within the meaning of § 42a-3-406. Such a conclusion must be tested by the finding. Hutensky v. Avon, 163 Conn. 433, 437, 311 A.2d 92. At least four material facts found by the trial court were of significance in its reaching this conclusion. . The court found that an automobile dealer telephoned in applications for the purported loans to the finance company; that later McPheters delivered to Bissette written loan applications allegedly signed by the purported loan applicants; that McPheters delivered promissory notes to Bissette also allegedly signed; and that McPheters had been a salesman in the Hartford area previously who had helped customers finance purchases through the finance company. It cannot be said that the court was correct in finding that the written loan applications submitted to Bissette by McPheters were in fact "signed." Knight testified that there were in existence copies of the purported loan applications which McPheters is supposed to have submitted to Bissette. However, Knight at no time testified that any of these applications actually bore signatures allegedly made by the purported loan applicants; as a matter of fact, with respect to copies of at least one of the applications in his possession, his testimony might be interpreted as indicating that no signatures appeared thereon. This court -will strike a finding where it is unsupported by evidence. Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 245, 287 A.2d 379. In addition, a finding cannot be based on incompetent, equivocal, or speculative evidence. Masti-Kure Products Co. v. Appel, 161 Conn. 108, 114, 285 A.2d 346. There was no other evidence before the trial court tending to support its finding that the applications were "allegedly signed" by the individuals who were to become the payees named on the checks. That portion of the finding, then, must be stricken. Whether the applications submitted to Bissette by McPheters bore any signatures was of consider able importance to the trial court in its evaluation of Bissette's conduct as negligent or nonnegligent. The significance of a signature appearing on documents like the automobile loan applications iii this case lies in the fact that a signature is "the name of a person written with his own hand to signify that the writing which precedes accords with his wishes or intentions." Webster's Third New International Dictionary 2116. The signature to a writing is placed there, moreover, for the purpose of authenticating it. United States v. Wortman, 326 F.2d 717, 721-22 (7th Cir.); Brown v. State Auto. Ins. Assn. of Des Moines, 216 Minn. 329, 337, 12 N.W.2d 712; 80 C.J.S. 1286, Signatures, §1. The appearance of the signature of the purchaser on documents involved in the financing of automobile sales is of special significance; indeed, we have elsewhere taken judicial notice of the custom in situations analogous to those presented by the facts of this case, of financing automobile sales by a purchaser's signing a conditional sales agreement with the dealer and giving the dealer notes for the balance due on the purchase price, after which the dealer assigns the notes and bills of sale to a company engaged in the automobile financing business. Walcott v. Skilton, 139 Conn. 424, 425, 426, 94 A.2d 792. If there were no signatures on the loan applications presented to Bissette, then, he may well have been obliged to challenge the authenticity of the documents, and to question whether the nine named individuals had indeed ever really applied for the loans. We cannot determine the extent to which the trial court relied upon its unsubstantiated finding that the applications were signed and its refusal to find that no credit investigations were made by Bissette to determine either the identity of the purported loan applicants or their ability to repay the loans in reaching its conclusion that the bank failed to meet its burden of showing that Bissette's conduct amounted to negligence under § 42a-3-406. This court has deemed it appropriate in the past to order a new trial where it has appeared that a trial court's conclusion may have been influenced by an erroneous finding and unsupported by the subordinate facts. Golden v. Lyons, 151 Conn. 21, 25, 27, 193 A.2d 487; see also Providence Electric Co. v. Sutton Place, Inc., supra, 245; Churchward v. Churchward, 132 Conn. 72, 79, 80, 42 A.2d 659. Such a disposition is proper in this ease as well, so that the trial court may correctly determine whether the conduct of Bissette on behalf of the finance company constituted negligence within the meaning of § 42a-3-406 as elucidated herein. There is error; the judgment is set aside and a new trial is ordered. In this opinion, Shapiro, Loiselle and Bogdanski, Js., concurred. In Thompson Maple Prodmcts, a clover nonlog hauler simply forged documents indicating that he had delivered logs to the drawer. The drawer's bookkeeper then made checks payable to various parties for these fictitious deliveries and the deceitful non-log hauler forged the endorsements of these payees. The drawer itself had failed to follow its own procedure which required that its employee receiving the logs retain one copy of the document which showed the delivery; it had also left blank sets of documents readily accessible; and in effect it had sent the checks back to the purported payees in the hands of the same truckers who had allegedly delivered the logs. The Pennsylvania court held that the conduct exemplified by these facts, "viewed in its entirety," was sufficient to support a trial court's finding of negligence within the meaning of § 3-406 of the code. Thompson Maple Products, Inc. v. Citizens National Bank, 211 Pa. Super. 42, 47, 50, 234 A.2d 32. In Fidelity, the New York court found the "know your customer" rule of the New York Stock Exchange helpful in determining the care owed by drawers of checks under § 3-406 of the Uniform Commercial Code. That rule requires brokers to use due diligence to learn the essential facts relative to their customers. The court held that the failure of a registered representative broker of the plaintiff's subrogor to attempt to verify the information it had received about customers from another person over the telephone, or to contact those customers personally, constituted negligence as a matter of law under that section of the code. Fidelity & Deposit Co. of Md. v. Chemical Bank N.Y. Trust Co., 65 Misc. 2d 619, 620-21, 318 N.Y.S.2d 957, aff'd, 39 App. Div. 2d 1019, 333 N.Y.S.2d 726. In Prudential, the District Court held that in an action to recover funds from defendant banks which had paid cheeks drawn by the plaintiff insurance company and on which the payees' endorsements were forged, the defendant banks' affirmative defense that the plaintiff in issuing the cheeks and in causing them to be delivered to addresses supplied by its agent was negligent in failing to verify with the policyholders the validity of each policyholder's loan application and permitting its agent to process false applications, and in hiring as its agent a person with a questionable background, constituted a valid defense under § 3-406 of the Uniform Commercial Code. Prudential Ins. Co. of Am. v. Marine Nat. Exch. Bank, 55 F.R.D. 436, 438 (E.D. Wis.). This was a ruling on a motion by the plaintiff to strike the affirmative defense. By implication, the court indicated that should the defendant banks prove their allegations, the plaintiff would be found to have been negligent and hence precluded from seeking recovery from the banks under § 3-406.

Shapiro, J. The plaintiff brought suit against the defendant seeking damages for the conversion of certain of the former's personal property. The defendant filed a counterclaim in which he sought damages, alleging that he was employed as a salesman for the plaintiff; that he was to be paid by means of a monthly drawing account against a commission of 5 percent of gross sales; that he had gross sales in a claimed amount for which he received a partial payment leaving due him a balance ; and that he sold certain tractor units entitling him to a bonus of ten dollars for each unit sold. The trial court rendered judgment for the plaintiff on the complaint in the sum of $1939.87 and for the defendant on his counterclaim in the sum of $3286.66. The trial court set off the plaintiff's recovery against the defendant's recovery and accordingly awarded the defendant the net amount of $1346.79. Only the plaintiff has appealed. The plaintiff claims that the trial court's conclusion that the defendant's "bonus could be reasonably . . . calculated" was not supported by the finding. The court's conclusions are tested by the finding. They must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case. Hall v. Weston, 167 Conn. 49, 355 A.2d 79. The finding, which is not subject to correction, recites the following pertinent facts: The plaintiff, engaged in the business of selling power equipment at wholesale, employed the defendant as a salesman from October 1, 1967, through November 4, 1968, at which time he was discharged. The agreement for the defendant's employment and compensation was the result of oral discussions and never was reduced to writing. The plaintiff claimed that its agreement with the defendant provided that he was to receive an annual salary of $8000, an additional $2000 for expense reimbursement and certain fringe benefits including insurance, medical coverage and a bonus arrangement at the end of the year. The plaintiff had no fixed formula for determining the amount of this annual bonus. The basis of compensation was not the same for all of the plaintiff's salesmen. For the year 1968, in the territory served by him, the defendant had gross sales of $268,817.05, some of which sales were generated by orders submitted by him to the plaintiff while the balance resulted from direct orders to the plaintiff from customers for which the defendant was entitled to credit. For the period that he was employed, the defendant received gross compensation of $833.33 each month which included expense reimbursement. In July, 1968, the defendant received an additional $1000, which the plaintiff in its records identified as a bonus. During the time of the defendant's employment, the plaintiff employed four or five other salesmen, each of whom was compensated, at least in part, on a salary basis. Two of these salesmen, Ayer and Lemire, had been employed for over ten years, and each one received an annual salary of $15,000. In addition, at the end of the 1968 calendar year, Ayer received a bonus of $8500 and Lemire $7500. These bonuses were based on a variety of undefined factors including the plaintiff's profits, sales of the individual salesmen, cost of covering the territory, and how well the salesman collected from and serviced the customers in his territory. Three other salesmen received monthly salaries. In June, 1968, the plaintiff notified each of its salesmen, including the defendant, that each would receive a special bonus or "spif" for each tractor unit which he sold. Under the terms of the "spif" programs each salesman had the responsibility of submitting evidence of sales eligible for the "spifs" separately from the orders which he submitted in the ordinary course of business. The defendant sold twelve of said units and has not been paid a special bonus of $120. In calendar year 1968 the plaintiff had gross sales in excess of two million dollars. There was no challenge to the court's conclusion 'that no credence could be given to the defendant's claim that he was entitled to a 5 percent commission on gross sales. The court properly could conclude that no credence could be given to the plaintiff's claim that the agreement of the parties was that the defendant's compensation was to be limited to a payment of $10,000 per year. It could also conclude quite properly that the parties impliedly agreed that the defendant was to receive a monthly draw and that, in addition thereto, it was intended and contemplated by both parties that the defendant was to receive additional compensation in some form, in payment of a bonus, on the basis of its unchallenged finding that the plaintiff testified that the defendant would receive the same fringe benefits as its regular salesmen received, and its finding that "[fjringe benefits included . a bonus arrangement at the end of the year, based on the company's profits and an evaluation of a salesman's performance, including the amount of his sales and payment of accounts." The court, however, could not conclude that the bonus could reasonably and equitably be calculated on the basis of a pro rata additional payment of a bonus because it found that no fixed formula existed for determining the amount of the bonus, that the basis of compensation was not the same for all salesmen, and that the basis for difference in the bonuses of Ayer and Lemire, two of its salesmen, did not appear. Thus, there was absolutely no basis for its conclusion that the bonus could reasonably and equitably be calculated on the lower of the bonuses paid to Ayer and Lemire, or $7500, that since the annual base salary of the defendant was $10,000 or two-thirds of Lemire's salary of $15,000, the defendant reasonably may be entitled to additional compensation in the form of a bonus of $5000, and that having been discharged after only ten months of the calendar year 1968, the defendant should receive $4166.67 or ten-twelfths of said $5000. Neither side presented any significant evidence in an appendix. This court resorted to a search of the transcript pursuant to Practice Book § 721 and we were unable to find any testimony as to the payment of the defendant's customers accounts, especially as compared to salesmen receiving bonuses, or to any other basis of evaluation of the defendant's performance compared to the plaintiff's other sales men. It does not appear that there was any testimony, argument or consideration at the trial with respect to ascertaining a formula for calculating the defendant's bonus, other than the defendant's 5 percent of gross sales theory, which was expressly rejected by the trial court. This was so despite warning by the court and its attempt at requiring the parties to deal with the issues. If the court has heard no evidence there is ordinarily no basis upon which it can make a finding of facts. Wilusz v. Ives, 152 Conn. 352, 354, 206 A.2d 841; Maltbie, Conn. App. Proc. § 126. It is true that an objection to a variance of proof from the pleadings is waived if not taken at the trial. Winsor v. Hawkins, 130 Conn. 669, 670, 37 A.2d 222; Weiner v. Loew's Enterprises, Inc., 120 Conn. 581, 584, 181 A. 921; Antinoszi v. Pepe Co., 117 Conn. 11, 13, 166 A. 392; Chinigo v. Ehrenberg, 112 Conn. 381, 383, 152 A. 305. Here there was no proof by either party nor was there any offer of evidence as to a variance, and it appears that the first time either party would have been able to object to a variance would have been after the judgment of the court was rendered. Since there was no opportunity to object to the variance before the end of the trial, it cannot be said that the plaintiff waived his right to object to the court's judgment which was limited to the pleadings and to the proceedings at the trial. In an action at law based upon contract, the party seeking recovery has the burden of proving by the fair preponderance of evidence the amount of his damages. See Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199, 286 A.2d 308; Dorne v. Williams, 140 Conn. 193, 201, 98 A.2d 796. The court must have evidence by which it can calculate the damages, which is not merely subjective or speculative, but which allows for some objective ascertainment of the amount. Cf. Hedderman v. Robert Hall of Waterbury, Inc., 145 Conn. 410, 414, 144 A.2d 60; but cf. United Aircraft Corporation v. International Assn. of Machinists, 161 Conn. 79, 104, 285 A.2d 330, cert. denied, 404 U.S. 1016, 92 S. Ct. 675, 30 L. Ed. 2d 663. Had the defendant sought recovery in quantum meruit, the court, on the basis of the evidence before it, would have been free to apply an evaluation of the reasonable amount of damages. Bianco v. Floatex, Inc., 145 Conn. 523, 525, 144 A.2d 310; Freda v. Smith, 142 Conn. 126, 136, 111 A.2d 679. The defendant, however, failed to comply with § 89 of the Practice Book which states that " [a] party seeking equitable relief shall specifically demand it as such, unless the nature of the demand itself indicates that the relief sought is equitable relief." The defendant, in his pleadings, in his brief, in his appendix, and at trial, failed to allege or even to submit any testimony as to what constituted a reasonable bonus, leaving the trial court without basis by which to accord him relief. See Buol Machine Co. v. Buckens, 146 Conn. 639, 643, 153 A.2d 826. The subordinate facts as found by the court fail to support its conclusion that the defendant is entitled, reasonably and equitably, to receive additional compensation for his services in the form of a bonus, above the $1000 bonus previously paid by the plaintiff to him. The court concluded that the defendant was entitled to recover of the plaintiff the sum of $120 in special bonuses on the sale of twelve tractors. Under its finding of the subordinate facts, the court found that under the terms of the plaintiff's "spif" programs, it is the responsibility of each salesman to submit evidence of the sales eligible for the "spifs" separately from his regular order. Then the court found that the defendant sold twelve of the units and has not been paid a special bonus of $120. Since the court's conclusions are tested by the finding, the conclusion must stand, since it is logically and legally consistent with the fact of the sale as found by the court. While the plaintiff argues that there is no finding that the defendant ever submitted the evidence of the eligible sales, this is implicit in the court's finding that the twelve units were sold by the defendant. There is error in the amount of the judgment only, the judgment is set aside and the ease is remanded with direction to render judgment for the plaintiff in the amount of $1819.87. In this opinion the other judges concurred. "[Practice Book] Sec. 721. -printed testimony deemed to include all material testimony The testimony printed in the appendices will be deemed to embrace all testimony produced at the trial material to the issues on the appeal, although this court may, ii sufficient cause appears, consult the transcript of evidence on file to supplement or explain that printed."

Pee Cttrtam. This appeal is ancillary to a welfare department fair hearing proceeding wherein subpoenas were issued by the plaintiff's counsel directing the welfare commissioner and two of his subordinates to appear as witnesses at that hearing. Neither the welfare commissioner nor his subordinates appeared as directed. Thereafter, the plaintiff brought an application to the Superior Court seeking a citation to compel them to appear in court and answer questions pursuant to the previously issued subpoenas. Upon the issuance of a citation by the court, the defendants filed a plea in abatement alleging that "the court had no jurisdiction to sign the citation order." The court overruled the plea in abatement from which decision the commissioner has appealed to this court. An appeal to this court may be taken only from a final judgment. General Statutes § 52-263; Practice Book § 600; Tough v. Ives, 159 Conn. 605, 606, 268 A.2d 371; Howarth v. Northcott, 152 Conn. 460, 462, 208 A.2d 540. The absence of a final judgment goes to the jurisdiction of the court. Any appeal which is not from a final judgment must be rejected even though that issue has not been raised by the parties. Hoberman v. Lake of Isles, Inc., 138 Conn. 573, 574, 87 A.2d 137. The overruling of a plea in abatement does not constitute a final judgment. Morse v. Rankin, 51 Conn. 326, 328-29; Maltbie, Conn. App. Proc. § 15; 4 C.J.S., Appeal and Error, § 119. The ruling was interlocutory. " 'Such rulings are those made in the course of the proceeding, the object of which is to bring the parties to, and present to the court for determination, the ultimate issues which determine the right of a party to the relief he claims, but which neither terminate the action nor determine those issues in such a manner as to put it beyond the power of the court to alter its decision except as it may reopen the judgment it has rendered. Batesville v. Ball, 100 Ark. 496, 500, 140 S.W. 712.' State v. Kemp, [124 Conn. 639, 643, 1 A.2d 761]." Luliewicz v. Eastern Malleable Iron Co., 126 Conn. 522, 525, 12 A.2d 779. Since the lack of a final judgment is a jurisdictional defect, the appeal must be dismissed. Sewer Commission v. Norton, 164 Conn. 2, 6, 316 A.2d 775; Cone v. Darrow, 148 Conn. 109, 112, 167 A.2d 852; Costecski v. Skarulis, 103 Conn. 762, 763, 131 A. 398. The appeal is dismissed.

The petition for certification by the defendant Kosow Construction Corporation for appeal from the Court of Common Pleas in Fairfield County is denied.

The application by the Connecticut Bar Association for leave to file a brief as amicus curiae in the appeal from the Superior Court in Fairfield County at Stamford is granted provided the brief is filed on or before November 29, 1974, and is prepared in accordance with the requirements of § 723 and 724 of the Practice Book, as amended.

The petition for certification for appeal by the defendants Frances F. Dunning et al. from the Court of Common Pleas in Fairfield County is granted.

It appearing that the plaintiff in the above-entitled case has failed to prosecute his appeal from the Court of Common Pleas in Hartford County with proper diligence, it is, under Practice Book § 696, ordered by the Supreme Court, suo motu, that the appeal be and hereby is dismissed.

The defendant's motion for a review of the order of the trial court terminating the stay of execution in the appeal from the Court of Common Pleas in Hartford County is granted and the relief sought therein is denied.

Per Curiam. These joint appeals involve the relationship of disability benefits under two overlapping statutes, the federal Longshore and Harbor Workers' Compensation Act (LHWCA) and the Connecticut Workers' Compensation Act. The plaintiffs, Charles McGowan and Sebastian Semataro, were each injured while working for the defendant, General Dynamics Corporation/Electric Boat Division. Each plaintiff collected benefits under LHWCA relating to his injury that exceeded, in their totality, the amount to which each plaintiff was entitled under workers' compensation. Each then claimed an entitlement to recover additional scarring benefits, pursuant to General Statutes § 31-308 (d), despite the general rule that payments under one compensation scheme are to be credited against benefits collectible under the other. Because LHWCA's compensation scheme does not include awards for scarring, the workers' compensation commission held additional benefits for this separate category to be separately compensable. The defendants were unsuccessful in their appeal of these scarring awards to the compensation review division. On further appeal to the Appellate Court, the defendants prevailed in their contention that the awards for scarring were improper because a category by category credit scheme would result in impermissible double recovery in violation of federal law. McGowan v. Gen eral Dynamics Corporation/Electric Boat Division, 15 Conn. App. 615, 618-25, 546 A.2d 893 (1988). We granted certification limited, in each appeal, to the following issue: "Did the Appellate Court correctly conclude, in the circumstances of this case, that disability benefits paid under LHWCA should be credited against the plaintiff's Connecticut disability benefits?" McGowan v. General Dynamics Corporation/Electric Boat Division, 209 Conn. 813, 550 A.2d 1083 (1988); Semataro v. General Dynamics Corporation/Electric Boat Division, 209 Conn. 814, 550 A.2d 1083 (1988). After examining the record on appeal, and after considering the briefs and arguments of the parties, we conclude that the judgments of the Appellate Court must be affirmed. The issue on which we granted certification was properly resolved in the thoughtful and comprehensive opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion therein contained. Affirmed. The defendant's insurer, Aetna Life and Casualty, is a codefendant in each appeal.

Loiselle, J. The plaintiffs, Carmen Maneini and Patrick J. Joyce in one action, and John LaCapra in another, sought to recover from the defendant for injuries and damage incurred when an after-blast of dynamite occurred in the area where they were working. Each plaintiff brought an action in two counts, one based on negligence, and a second on absolute liability. The negligence counts were framed in terms of the defendant's own negligence in failing to take preventive measures to protect the plaintiffs although it knew that the work to be performed on its behalf involved an inherently dangerous operation, and that injury and damage would naturally and obviously result unless precautions were taken. Cf. Bonczkiewicz v. Merberg Wrecking Corporation, 148 Conn. 573, 172 A.2d 917. The absolute liability counts charged that the work performed on behalf of the defendant involved an inherently dangerous operation which necessarily or obviously exposed the plaintiffs to injury and which caused their injuries. After a joint trial, the jury returned separate verdicts on each count for the defendant, and the plaintiffs joined in filing this appeal. The plaintiffs claimed to have proved the following: The vast majority of sewers laid on behalf of the defendant were laid by independent contractors, but some were laid by the defendant's employees. The defendant's charter authorized the defendant to build, create, maintain, alter or repair sewers throughout its district. In July, 1963, the defendant entered into a contract with Helm Construction Company, hereinafter referred to as Helm, to install a sewer line in the town of Rocky Hill. The contract required Helm to remove any rock found during excavation and provided for additional payments for this work. The removal of rock would frequently require blasting, and the specifications of the contract contained provisions regulating the transportation, storage and handling of explosives. On Wednesday, December 11,1963, dynamite was exploded in a certain area in the trench under the direction of an employee of Helm. Five holes had befen drilled for the blast, and three sticks of dynamite had been placed in each hole. Four instantaneous- and six delayed-blasting caps had been used to detonate the dynamite. Only seven of the sticks of dynamite and five of the caps exploded, leaving eight sticks of dynamite and five blasting caps unexploded. On Friday, December 13,1963, the plaintiffs were working in the area of the trench when the plaintiff Maneini, operating a jack hammer, hit a blasting cap causing the explosion which injured the plaintiffs. The cap and dynamite which exploded on that day were from a hole in which dynamite had been placed on the previous Wednesday. The defendant claimed to have proved that it was subject to workmen's compensation laws, and was authorized by its charter to build, create, maintain, improve, alter or repair sewers. The claims of proof of the plaintiffs and the defendant were far more extensive, but the above-recited facts are sufficient to discuss the dispositive issue on appeal. Under § 31-291 of the General Statutes, the principal employer of an independent contractor may be liable to pay for injuries sustained by an employee of the latter under the Workmen's Compensation Act. If a principal employer is liable for compensation under the act, the employee is barred from any common-law action against it. Farrell v. L. G. DeFelice & Son, Inc., 132 Conn. 81, 89-91, 42 A.2d 697; Zimmerman v. MacDermid, Inc., 130 Conn. 385, 388, 34 A.2d 698; Bogoratt v. Pratt & Whitney Aircraft Co., 114 Conn. 126, 133-35, 157 A. 860. The defendant pleaded its liability as a principal employer under this statute as a special defense to each count of each plaintiff's complaint. The court correctly charged the jury as follows: "Three main essentials are involved in the statute. One, the relation of the principal employer and contractor must exist in work wholly or in part for the former. Two, the work must be in, on or about premises controlled by the principal employer; and, three, the work must be a part or process in the trade or business of the principal employer." See Kasowitz v. Mutual Construction Co., 154 Conn. 607, 611, 228 A.2d 149; Battistelli v. Connohio, Inc., 138 Conn. 646, 649, 88 A.2d 372; Crane v. Peach Bros., 106 Conn. 110, 113, 137 A. 15. The plaintiffs contend, however, that the court subsequently committed error because the charge on this special defense, in effect, directed the jury to find two of the elements for the defendant, and because the charge improperly guided the jury and failed to direct the jury to find for the plaintiffs on the remaining element, control of the premises. After the outline of the three factors quoted above, the court discussed each one in greater detail. On the first element, the court charged as follows: "The . . . first requirement you should have little trouble with as all parties practically admit this fact. That is the relation of principal employer and contractor must exist in work wholly or in part for the former." After discussing the element of control of the premises, the court proceeded to charge the jury on the "part .and process" requirement: "[0]f course you know that we have before us here the Charter of the company and the Charter of the company says that the Metropolitan District was engaged in the construction, that they had powers, at any rate, under this Charter to construct sewers and I think some of the evidence was presented to you here to the effect that not only did the Metropolitan District hire independent contractors to dig sewers or to construct sewers but they also did it on their own. So, I don't think you will have very much trouble in deciding that question because if the work is of such character that it ordinarily or appropriately would be performed by the Metropolitan District's own employees in the performance of its business, or as an essential part in the maintenance thereof, it is part and parcel of the work of the Metropolitan District, otherwise not." In .addition to the instructions directly involved with the issue of the principal employer-contractor relationship, and the "part and process" requirement, the court's charge on control also instructed on how the jury were to deal with the other two elements. Immediately after first discussing the principal employer issue, the court stated: "The real controversy revolves around the question as to whether the area where the blasting was being done was in, on or about the premises controlled by the defendant within the purview of the statute." On three subsequent occasions, in distinguishing between control as it arose in another defense and control of the premises under the workmen's compensation statute, the court's instructions were substantially as follows: "If under the principal employer defense you find that Helm was in control of the premises then this defense would be of no avail on the part of the defendant. If you find that the defendant has proven it was in control of the premises, this would defeat the plaintiffs on all counts." On none of these occasions did the court mention the other two elements required under the statute. The cumulative effect of these instructions was to limit the jury's consideration of this defense to whether the defendant had established that it had control of the premises. On occasion, some or all of the elements of the statute have been removed from the consideration of the jury. See Gigliotti v. United Illuminating Co., 151 Conn. 114, 118, 193 A.2d 718; Hoard v. Sears Roebuck & Co., 122 Conn. 185, 188 A. 269. Generally, however, whether the work in which the independent contractor is engaged is a "part or process in the trade or business" of the principal employer is a question of degree and fact. Grenier v. Grenier, 138 Conn. 569, 571, 87 A.2d 148; see Gigliotti v. United Illuminating Co., supra, 120. The plaintiffs contend that there was no evidence as to whether the defendant had engaged in blasting when laying sewer lines. Although there is some support for the argument that the "work to be done" is to be given this narrow construction; cf. Battistelli v. Connohio, Inc., supra; Crane v. Peach Bros., supra; doing so would contravene the frequent sup port given to a broad interpretation of the act. See King v. Palmer, 129 Conn. 636, 640, 30 A.2d 549; Massolini v. Driscoll, 114 Conn. 546, 553, 159 A. 480. Furthermore, under the terms of the statute, the actual cause of the injury is irrelevant to its applicability. Consequently, the absence of any showing that the defendant engaged in blasting is not fatal to the defense. "[T]he words 'process in the trade or business' . . . [include] all those operations which entered directly into the successful performance of the commercial function of the principal employer." King v. Palmer, supra, 640-41. The issue has also been framed in terms of whether the defendant's employees ordinarily or appropriately would perform the work in question; Kasowitz v. Mutual Construction Co., supra, 613; Gigliotti v. United Illuminating Co., supra, 119; Grenier v. Grenier, supra; although this test is not necessarily conclusive. See Fox v. Fafnir Bearing Co., 107 Conn. 189, 195, 139 A. 778. Taking a broad approach, the "work" to be performed by Helm for the defendant can be characterized as laying sewer lines. Given that the defendant's charter authorized such construction, and that the plaintiffs' own claims of proof contain the statement that some of the sewers laid on behalf of the defendant were laid by the defendant's employees, the court did not err in directing the jury on this issue. Cf. Massolini v. Driscoll, supra, 553. For different reasons, the same conclusion applies to the instructions on whether the defendant, as "principal employer," had procured "any work to be done wholly or in part for him by a contractor." There can be no doubt under the evidence presented in this case that the plaintiffs' immediate employer, Helm, was performing work for the defendant. For the limited issue of the special defense that the Workmen's Compensation Act afforded the plaintiffs their sole remedy, the question of fact foreclosed by the court's instruction—Helm's status as an independent contractor—was not determinative. "If the work is part or process of defendant's business and done on or about its premises, whether performed by an independent contractor or not, the work comes within the provisions of the Workmen's Compensation Act and the defendant is liable thereunder." Hoard v. Sears Roebuck & Co., supra, 190. The plaintiffs next argue that the court erred in its instructions on the remaining element of the statute, the requirement that the work be "performed in, on or about the premises under . . . [the principal employer's] control." The plaintiffs contend that the court erred in submitting this question to the jury, first, because as a matter of law, under the circumstances of this case, there can be no "premises" under the defendant's control, and second, because there was insufficient evidence on control by the defendant. The plaintiffs rely on Bates v. Connecticut Power Co., 130 Conn. 256, 33 A.2d 342, in which compensation was denied where the decedent was an employee of a contractor engaged in erection of power lines along a public highway. This court upheld the determination of the trial court that the defendant had failed to prove that it had control of the premises, quoting the following in support (p. 261): "Speaking of 'premises,' Buckley, L.J., in Andrews v. Andrews & Mears, [1908] 2 K.B. 567, 570, says: 'That word implies some definite place with metes and bounds, say land, or land with buildings upon it. A public street is not, in my opinion, within these words at all.' In Doherty's Case, 294 Mass. 363, 365, 2 N.E.(2d) 186, occurs the statement: 'Certainly the highway was not "under the control or management of the insured." ' In State v. Ehr, 52 N.D. 946, 953, 204 N.W. 867, in holding that .an abutting owner did not own or control the street in front of his premises, the court said: 'In general, to have "control" of a place is to have the authority to manage, direct, superintend, restrict or regulate.' " "Most compensable injuries are due to conditions of employment the danger from which could be prevented or minimized by sufficient oversight or control. The underlying purpose of the restriction as to the place of employment in the various acts was obviously to limit liability to those situations where such conditions might be assumed to be largely within the control or observation of the principal employer." Wilson v. Largay Brewing Co., 125 Conn. 109, 112, 3 A.2d 668. The proposition that the public highway did not constitute a "premises" over which the defendant in Bates, supra, exercised con trol was sound, within the facts of that case. Cf. Wilson v. Largay Brewing Co., supra; Downing v. Stamford Community Chest, Inc., 125 Conn. 728, 4 A.2d 329; contra, Massolini v. Driscoll, 114 Conn. 546, 159 A. 480. As can be seen in the memorandum of decision of the Superior Court in Bates, however, the court's approach on review there was unnecessarily broad. In a later discussion of the requirement of control of the premises, this court stated: "[T]he fundamental and principal intent of the legislature in using the phrase in question was to limit the principal employer's responsibility for accidents to such accidents as occurred within a definite, specified area. The use of the phrase 'under his control' is merely descriptive of that area. It is used instead of such words as 'owned by him' or 'in his possession' in order to describe the area in a more inclusive fashion. The emphasis is upon limitation of the area within which the accident must happen rather than upon actual control of the implements which caused the accident." Crisanti v. Cremo Brewing Co., 136 Conn. 529, 535, 72 A.2d 655. Under this approach, and under a careful reading of Bates, supra, we conclude that, in some circumstances, portions of a public highway in which work is being performed may be a "premises" so as to satisfy the requirement of the statute. Conse quently, the issue of whether the court should have directed this factual question for the plaintiffs turns upon the presence of any evidence from which the jury could conclude, either directly or by reasonable inference, that the defendant was in control of the premises. Cf. Martino v. Palladino, 143 Conn. 547, 548, 123 A.2d 872; Loomis v. Norman Printers Supply Co., 81 Conn. 343, 347, 71 A. 358; State v. Benton, 161 Conn. 404, 410, 288 A.2d 411. The finding discloses the following claims of proof of the plaintiffs relevant to the issue of control of the premises: The defendant entered into a contract with Helm to install a sewer line. The specifications of the contract provided, in part, that "[t]he work will be conducted under the supervision of the Engineer [a deputy manager in the Metropolitan District] acting through assistants and inspectors . They shall have .access to the work at all times when proper for the full discharge of their duties, both at the site of the work and also at the sources of material." The contract also required Helm to employ only competent workers, and provided that the defendant's engineer could require Helm to discharge any employee who was incompetent, disorderly or detrimental to the good progress of the work. James Jewett, employed by the defendant as an inspector, was assigned to the job by the defendant's engineer to protect the defendant's interests. The plaintiff, Maneini, saw Jewett on the job .almost every day. Jewett could intervene and deal with Helm on matters needing immediate attention. The defendant was not only interested in laying the pipe, but also in the general safety of the area and in -the correct performance of the work. The plans which are part of the contract depict a right-of-way for the defendant's sewer line which in part runs within the limits of the highway. The defendant secured .a permit for this job from the state highway department. This permit gave the defendant the right to excavate in the public highway. The job site was within the limits of the public highway. Alfred Quintilano, the police chief of the town of Rocky Hill, noted that the signs on the horses and equipment in the area of the accident were Helm's. The defendant made the following claims of proof relevant to this issue: Jewett did not control the work in any way, but he was in charge of the results of the work. Helm had a workmen's right-of-way to put its equipment around the trench or nearby, which it was granted by the defendant under the contract. On these claims of proof, it was not error for the court to submit to the jury the factual question of whether the defendant was in control of the premises under § 31-291. As there were no interrogatories, each verdict rendered by the jury on the two counts pleaded by each plaintiff was a general one. The plaintiffs have failed to demonstrate any error in the court's charge on the special defense which pleaded that the Workmen's Compensation Act provided their sole remedy. Accordingly, the verdict must stand. Hally v. Hospital of St. Raphael, 162 Conn. 352, 363, 294 A.2d 305; Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 453, 254 A.2d 907; Himmelstein v. General Electric Co., 144 Conn. 433, 436, 133 A.2d 617; Meglio v. Comeau, 137 Conn. 551, 553-54, 79 A.2d 187. There is no error. In this opinion the other judges concurred. The plaintiffs have attacked one paragraph in the defendant's offer of proof as unsupported. As the defendant failed to include an appendix to its brief, this paragraph is stricken. The plaintiffs have not pursued any other attack on the finding in their brief. "[General Statutes] Sec. 31-291. principal employer, contractor and subcontractor. When any principal employer procures any work to be done wholly or in part for him by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in, on or about premises under his control, such principal employer shall be liable to pay all compensation under this chapter to the same extent as if the work were done without the intervention of such contractor or subcontractor." For a general discussion of this statute, see Wolf, "An Analysis of the Principal Employer Statute," 29 Conn. B.J. 318. In Doherty's Case, 294 Mass. 363, 2 N.E.2d 186, the decedents were killed while transporting a principal employer's goods from Albany, New York, to Boston. The Massachusetts Supreme Judicial Court concluded that the public highways connecting these two cities were not a "premises" and that consequently there was no coverage under a compensation statute which provided that it would "'not aPPly to any case where the injury occurred elsewhere than on, in or about the premises on which the contractor has undertaken to execute the work.' " Id., 365. In closing, the court noted (p. 368) : "We do not mean to intimate that if the contractor has engaged to perform work in or upon the highway itself, such as construction of the way, paving, laying pipes or other work which is distinct from the uses of the way for purposes of travel, those portions of the way upon which such work is actually done might not be deemed to be 'the premises on which the contractor has undertaken to execute the work' . We now decide only that . . . [the statute} does not apply to work on a publie way which consists merely in using the way under the publie right for the purpose of travel." la its memorandum of decision, the trial court pointed out that the stipulation of facts filed by the parties indicated that the decedent was standing in the traveled portion of the highway and not within the fixed limits of any defined right-of-way. After agreeing with the defendant's contention that permanent control was unnecessary, the court also noted that the stipulation failed to suggest that any steps had been taken to mark off an area of the highway so as to establish or maintain control over a portion of it and that the effect of such a procedure was not at issue. In the present case, digging ditches and laying the sewer pipeline was necessarily within a definite right-of-way.

Arthur H. Healey, J. After a trial to the jury on a substitute information, the defendant, Angel Rodriguez, was convicted of the crimes of kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a (a) and of sexual assault in the first degree with a deadly weapon in violation of General Statutes § 53a-70a. This appeal followed. On appeal, the defendant claims that the trial court erred in permitting a juror to testify at his trial concerning a conversation between that juror and the defendant, thus denying him due process of law and a fair trial. We find no error. From the conflicting evidence presented at trial, the jury could reasonably have found the following: Prior to October 18, 1985, the defendant and the victim R had lived together for several years. Although they were not married, the defendant was the father of R's third child. They had lived apart for several months prior to October 18,1985, during which time he sought to return on two or three occasions. R refused to permit this. At about 8:15 p.m. on October 18, 1985, R and her friend, Maria Centeno, went to the Aqui Mequedo International Restaurant on Main Street in Hartford. Upon their arrival in front of the restaurant, they were met by the defendant. An argument ensued in front of the restaurant during which the defendant swore at R and slapped her several times in the face. He then grabbed R by the hair and, holding her, forced her to walk to his van. Centeno walked behind them along the street to the van. On the way to the van, the defendant displayed a pistol to R and threatened her. The defendant took R to a motel in Newington, where inside one of the rooms he asked her to renew their terminated relationship. When she refused, he threatened her with a pistol by pointing it at her head and then putting it in her mouth. He then removed her clothes and had vaginal intercourse with her against her will. After intercourse, she washed herself at the motel. After this incident, the defendant drove R to her home. Upon their arrival, the defendant and R learned that the police had been notified and the defendant left. R told the police what had taken place. Despite some pain, she did not seek medical attention, although the police asked her to go to the hospital to be examined. R did, however, give the police the panties that she had worn after the assault and accompanied the police to the motel where the incident took place. The chief state toxicologist testified that the panties were examined for the presence of semen and the tests were positive. We turn now to the circumstances involving the defendant's claim. Selection of a jury of six and two alternates began on Tuesday, July 7,1987. Five jurors were selected on that date and each juror was sent home after his or her selection and ordered to return on the morning of Friday, July 10, 1987. Scott Han- nan was voir dired as a prospective juror on Wednesday, July 8,1987, and selected on that date as the sixth juror. He was also sent home with instructions to report on July 10, 1987. Two alternates, James Bishop and Allan LaChappelle, were also selected on that date. Court was then adjourned to Friday, July 10, 1987. On the morning of July 10, 1987, before the jury and the alternates were sworn, the court said that "counsel has been alerted that this morning, the Court was informed by the jury clerk that one of the jurors on the panel [Scott Hannan] reported to the jury clerk being approached by the Defendant. And the manner in which the juror reported this incident, it does appear to the Court to be sufficient to disqualify the juror." The court further indicated that, prior to doing so, it would call the juror in and inquire about this event and that counsel would also have the opportunity to inquire. It also observed that "because of the manner in which the incident was reported by the jury clerk, if reported the same way, [it] would have some prejudice to the Defendant," but the trial court would make that determination after questioning Hannan. Hannan then took the witness stand and indicated that the incident took place at approximately 9:15 a.m. that morning as he had just finished buying a pastry and milk at the truck that is downstairs outside the front of the court building. He said that the defendant, whose name he knew because of what he had previously seen in court, "first approached" him and asked, "You don't know who I am, do you?" Hannan indicated that he did know who he was and then the defendant "began to say something else, started off with 'woman's' and as soon as I heard that I cut him off." He then told the defendant that he did not think that he should be talking with the defendant. Hannan then said: "[The defendant] agreed. He acknowledged it; he said, 'O.K., I understand.' And that was the end of it. And I wasn't sure what I should do. So I asked the clerk." During further testimony by Hannan, he said that he harbored no bias or prejudice about sitting on the case and that he would not let the incident "influence [his] judgment at all." In the absence of Hannan, the state expressed concern over the incident possibly playing a role in the trial in "perhaps—consciousness of guilt" as well as "potential further criminal charges." The state also indicated that it intended to call Hannan as a witness, for which he would have to be disqualified as a juror, and that it intended "to show similar consciousness of guilt evidence," saying that it anticipated bringing out that "[the defendant had] approached other witnesses." Defense counsel argued against disqualifying Hannan maintaining that the incident related was not probative, as the state claimed, and that Hannan had said that it had not influenced or prejudiced him. Sensing that the court might excuse Hannan, defense counsel then noted that, if that in fact took place, it would mean that the remaining jurors would then be familiar with and know a witness in the case. The court was concerned about the defendant's approach to Hannan, noting that the defendant had sat through the voir dire and heard the court admonish the jurors not to talk to anyone about the matter. Hannan thereafter returned to the courtroom and, upon further inquiry by the court, said that the other jurors chosen knew that he also had been selected as a juror, that he had "a general conversation [with them] as a group" but not about the case, and that they knew he was in the courtroom "right now" but that they had no idea why he was there. Proceeding again in the absence of Hannan, the court noted that the question now arose whether the defendant would request a mistrial concerning the balance of the panel. The state argued that there was no "additional prejudice" arising from letting Hannan testify before the "five same jurors" or "six totally different jurors," especially because the defendant's conduct created the problem. The court opined that the matter of prejudice could best be met by inquiring of the remaining jurors. Defense counsel moved for a mistrial, arguing that it would be highly prejudicial to have Han-nan testify before his fellow jurors, maintaining that Hannan "had to [have formed] some kind of relationship with them" having spent a number of hours a day "with this group of people for the last week." After a luncheon recess, the state reiterated its intention to call Hannan as a witness on the matter of consciousness of guilt. The defendant again moved for a mistrial, making his motion under Practice Book § 887. The court again said that it was going to voir dire the remaining jurors not only to ascertain whether "this has created any particular bias or prejudice," but also "whether or not anybody ever approached them." A further motion for mistrial was made, which was denied, and the defendant took an exception. Hannan returned to the courtroom and the court excused him from sitting on the case, indicating that counsel for the state wanted to talk with him. Thereafter, the court adjourned. On Monday, July 13, 1987, the defendant objected to the proposed voir dire of the remaining jurors, maintaining that they would "have to have a bias or prejudice, because [Hannan is] a fellow juror of their[s] . " Thereafter, the trial court itself separately questioned each of the remaining five jurors and the two alternates. That voir dire indicated that, if Han-nan testified as a witness, none of them would have any bias or prejudice for or against his testimony and that none of them had overheard any discussion of the case or discussed it with anybody else. A renewed defense motion for mistrial was denied and an exception taken. Thereafter, the jury of six and one alternate was sworn. The state presented ten witnesses in its case-in-chief. The first witness to testify for the state was R, the victim of the crimes alleged. Hannan was the state's second witness; he testified after further objection by the defendant. He testified that, as he stood in line to buy a pastry and milk at the coffee truck, he noticed the defendant standing behind him "three—four—five feet away." Hannan glanced up several times to see if the defendant was still standing where he first noticed him and "[the defendant] was moving along the same as [Hannan] was," "[the defendant] definitely could see [Hannan]" as "he was facing directly toward [Han-nan]." After Hannan paid for his food and started to walk away, the defendant approached him and asked, "you don't know me, do you?" Hannan answered, "yes," and as he started "walking toward the door, to go into the courtroom," the defendant "started say ing something about 'woman's' " and Hannan cut him off and told the defendant that he (Hannan) "didn't believe that [Hannan] should be speaking to him." Han-nan testified that the defendant responded, "I understand." Hannan had the "impression" that the defendant knew who he was. In Hannan's mind, when the defendant said "woman's," Hannan "definitely" believed that he was going to start talking about the case. During the trial, the state, in addition to offering Hannan's testimony on the issue of consciousness of guilt, presented other evidence that it argued went to that issue. This included testimony by R that, about two weeks after the alleged assault, the defendant offered her money to drop the charges. Centeno testified that, about two weeks before the trial, the defendant spoke to her and asked her to say everything "was a lie." She said she went to see the defendant's attorney and told her that "everything that [R said] was a lie." Centeno, however, at the trial, repudiated her repudiation. At the trial, the state also elicited evidence from the defendant that, although he was working prior to October 18,1985, he never returned to that job but just quit and lived in New Britain. This evidence was cast in terms of consciousness of guilt or flight or the defendant's making himself inaccessible. Other similar evidence was the defendant's testimony that he failed to visit his child from October 19,1985, until his arrest in March, 1986. Further evidence of flight or inaccessibility was introduced through Flynn O'Keefe, the defendant's probation officer, who said that the defendant reported to her on September 9, 1985, but failed to keep his next appointment on October 25, 1985. He did, however, see her on December 31,1985, at which time O'Keefe said that he indicated that approximately one and one-half months earlier he had had a fight with his wife, that his wife later told him that she had filed a complaint and that there was a warrant outstanding in that matter. During the final arguments, counsel emphasized the crucial nature of the issue of credibility. Counsel for the state reviewed the evidence, stressing the issues of consciousness of guilt and flight. In doing so, he discussed Hannan's testimony. Certain legal principles that are helpful in resolving the issue before us are appropriately set out at this point. It cannot be questioned that the due process clause of the fourteenth amendment extends to state court defendants the right to be tried by an impartial jury. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 551, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976); Ristaino v. Ross, 424 U.S. 589, 595 n.6, 96 S. Ct. 1017, 47 L. Ed. 2d 258 (1976); Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) (sixth amendment right to jury trial); Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961) (due process right to trial by an impartial jury). The modern jury is regarded as an institution in our justice system that determines the case solely on the basis of the evidence and arguments given them in the adversary arena after proper instructions on the law by the court. See Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965); Patterson v. Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 51 L. Ed. 879 (1907). We have noted that the right to a fair trial is implicit in the term "due process of law." State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975). "Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). This is wholly in keeping with our view of jury impartiality as a core requirement of the right to trial by jury. State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982). "In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the [prosecution] to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. Mattox v. United States, 146 U.S. 140, 148-50 [13 S. Ct. 50, 36 L. Ed. 917 (1892)] . , . ." Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 98 L. Ed. 654 (1954); United States v. Hillard, 701 F.2d 1052, 1061 (2d Cir.), cert. denied, 461 U.S. 958, 103 S. Ct. 2431, 77 L. Ed. 2d 1318 (1983). Where an accused makes a plausible claim that his constitutional right to a fair trial may be violated because the jury is not impartial, the burden is upon the state to rebut the presumption of prejudice that denies a fair trial. See, e.g., Remmer v. United States, supra. A trial judge is generally in the best position to evaluate the critical question of whether the juror's or jurors' exposure to improper matter has prejudiced a defendant. See, e.g., United States v. Wiley, 846 F.2d 150, 157 (2d Cir. 1988); State v. Asherman, supra, 736. A trial court has wide discretion in deciding how to pursue an inquiry into the nature and effect of information that comes to a juror improperly as well as its potential effect upon the jury if it learns of it. See generally Marshall v. United States, 360 U.S. 310, 312, 79 S. Ct. 1171, 3 L. Ed. 2d 1250 (1959); Remmer v. United States, supra, 229-30; United States v. Hillard, supra, 1064. Where, as here, the impartiality of the jury was challenged by a motion for mistrial, the trial court's determination will be reversed only where it can fairly be said that it abused its discretion in denying the mistrial. See generally United States v. Wiley, supra, 158; State v. Brigandi, supra, 543-44. In noting that a trial court has wide discretion in passing on motions for mistrial, we have said that " '[t]he general principle is that a mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated.' " State v. Brigandi, supra, 543; State v. Cavros, 196 Conn. 519, 526, 494 A.2d 550, cert. denied, 474 U.S. 904, 106 S. Ct. 233, 88 L. Ed. 2d 232 (1985); State v. Marra, 195 Conn. 421, 436, 489 A.2d 350 (1985). In our analysis of this case, we first point out that the core impartiality of a jury in a criminal trial presents an unusual problem where a "sitting juror" is called upon to be, and becomes, a witness in the very proceeding that he and his fellow jurors were carefully selected to decide. We have already set out at length the relevant circumstances in the record that, upon application of appropriate legal principles, demonstrate that the trial court did not abuse its discretion in denying a mistrial. We reject the state's claim that the essential claim of error involves only an evidentiary claim, i.e., weighing the probative value of Hannan's evidence against its prejudicial effect, upon which the defendant has the burden. Rather, the defendant's preserved claim is of constitutional dimension directly implicating his due process right to a fair trial upon which the state has the burden of showing no reversible error. The state has sustained that burden. Although Hannan was not a "sitting" juror, because the jury had not actually been sworn, and although the "trial" had not yet commenced insofar as the presentation of evidence to the factfinder to determine the defendant's guilt or innocence, cases involving attempts to influence conduct of a "sitting juror" where evidence is in the course of being presented to the jury furnish certain guidance. For example, in Smith v. Phillips, supra, 215, where, unlike this case, there existed a genuine issue as to juror misconduct, the United States Supreme Court said that it had "long held that the rem edy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias." See Remmer v. United States, supra; State v. Almeda, 189 Conn. 303, 313, 455 A.2d 1326 (1983). Where the constitutional due process guaranty of a fair trial before an impartial jury is fairly raised, as it is in this case, a presumption of prejudice to the defendant arises, which the state has the burden to rebut. The burden properly rests on the state for several reasons: the overarching importance of protecting the defendant's constitutional right to a fair trial, the continuing maintenance of the integrity of the jury system and the necessity of continuing to preserve the trust reposed in criminal jury verdicts. In determining whether the state has successfully rebutted that presumption and, thereby, demonstrating that the defendant's right to a fair trial was not violated, it is necessary to decide whether the trial court abused its discretion in denying the mistrial. The task of the trial court in this case was not only delicate, but also difficult because, as Chief Justice Hughes said in speaking about an impartial jury: "Impartiality is not a technical conception. It is a state of mind." United States v. Wood, 299 U.S. 123, 145, 57 S. Ct. 177, 81 L. Ed. 78 (1936), reh. denied, 299 U.S. 624, 57 S. Ct. 319, 81 L. Ed. 459 (1937). Although articulated in a dissenting opinion, Justice Harlan's state ment that " '[I]t is an impossible standard to require that tribunal [the jury] to be a laboratory, completely sterilized, and freed from any external factors' " brooks of little cavil. (Brackets in original.) Parker v. Gladden, 385 U.S. 363, 369, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966) (Harlan, J., dissenting), quoting Rideau v. Louisiana, 373 U.S. 723, 733, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963) (Clark, J., dissenting). Recently the United States Supreme Court, quoting Smith v. Phillips, supra, 217, said "that the constitution 'does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.' " Rushen v. Spain, 464 U.S. 114, 118, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983). It is apparent that the trial court was concerned about the potential for "some prejudice" to the defendant if the incident, as reported by the jiiry clerk, actually occurred in that manner. Appropriately, it indicated that it would make that determination after questioning Hannan. The trial court did this in the presence of counsel for the state, as well as counsel for the defendant, and at that time Hannan reiterated that he could still be an impartial juror. In Hannan's absence, the trial court was then confronted with the state's claim that this incident might play a part in the upcoming trial perhaps on the issue of "consciousness of guilt," and that the state intended to call Hannan as a witness. The state also intended to show "similar consciousness of guilt evidence," claiming that the defendant had approached other witnesses. In questioning Hannan, the trial court raised the prospect that, if he were excused as a juror to become a witness, then the defendant might claim a mistrial concerning the balance of the panel. Confronted with the state's intention to use Hannan as a witness, as well as its position that the defendant be tried before this jury, and the defendant's claim that it would be prejudicial to have Hannan testify as a witness before a jury on which he had been selected to serve, the trial court decided that the best way of meeting the defendant's claim of prejudice was to go further and examine the remaining jurors and the two alternates. Significantly, it stated that it planned also to question them on "whether or not anybody ever approached them." This was done and each juror indicated that not only would each not have any bias or prejudice for or against Han-nan's testimony, if he did testify, but also that none of them had discussed the case with anyone else or had overheard any discussions of the case. We appreciate that the testimony of the jurors themselves that each would be fair and impartial, while not determinative, is significant. See Irvin v. Dowd, supra, 727-28; Bayramoglu v. Estelle, 806 F.2d 880, 888 (9th Cir. 1986). We are not inclined to disregard the statements of those jurors interviewed as "inevitably suspect." United States v. Williams, 737 F.2d 594, 612 (7th Cir. 1984), cert. denied, 470 U.S. 1003, 105 S. Ct. 1355, 84 L. Ed. 2d 377 (1985); see Smith v. Phillips, supra, 217 n.7. In Dennis v. United States, 339 U.S. 162, 171, 70 S. Ct. 519, 94 L. Ed. 734 (1950), a jury impartiality case, the United States Supreme Court said: "One may not know or altogether understand the imponderables which cause one to think what he thinks, but surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter." But in such an inquiry, which is essentially factual, the trial court that conducts it is in the best position to assess the testimony of those on the jury panel, including its impact on the fairness of the trial, and its conclusion is entitled to "substantial weight," United States v. Madrid, 842 F.2d 1090, 1092 (9th Cir. 1988); see Rushen v. Spain, supra, 120; State v. Brigandi, supra, 543; State v. Coburn, 220 Kan. 743, 746-47, 556 P.2d 376 (1976). Considerable deference is to be accorded to the trial court since " '[t]he trial judge is uniquely qualified to appraise the probable effect of information on the jury, the materiality of the extraneous material, and its prejudicial nature.' " United States v. Steele, 785 F.2d 743, 746 (9th Cir. 1986), quoting United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir. 1981), cert. denied, 456 U.S. 962, 102 S. Ct. 2040, 72 L. Ed. 2d 487 (1982). It was only after this thorough inquiry by the trial court that it then excused Hannan as a potential juror, and decided, after denying the mistrial, to permit the case to proceed before the jury consisting of the five jurors originally selected with the addition of one of the alternates. In doing so, the trial court did not abuse its wide discretion. On the record before it, the trial court could have found that the state had successfully rebutted the presumption of prejudice to the defendant and that he could receive a fair trial before that jury. While the trial court could initially have discharged the jurors and alternates originally selected and drawn a new jury, the alternative it adopted properly protected the defendant's right to a fair trial and was not an abuse of discretion. Because of the unique circumstances of this case, including the fact that the presentation of all of the evidence actually took place after the challenged motion for a mistrial, we have examined the entire record of the trial in order to determine whether a constitutionally fair trial ensued. In doing so, we point out that the denial of the mistrial was not a ruling that can be constitutionally or conceptually compartmentalized once made or preserved in a procedural cocoon for appellate review. It was a ruling that permitted this jury to hear all of the evidence and decide the defendant's guilt or innocence after a trial during which Hannan testified. The trial transcript discloses that guilt or innocence did not hinge upon any "swearing" contest solely between those witnesses allegedly involved in this crime. It is true that R, the victim, and her friend, Centeno, told one version of the incident that the defendant, who testified, denied. There was, however, as we have already pointed out, considerable evidence that went to "consciousness of guilt" other than that offered by the state through Hannan. Briefly, that encompassed (1) the evidence of the defendant's offer of money to R to drop her complaint, (2) the defendant's effort to have Centeno repudiate her statement inculpating him, (3) the defendant's own testimony that he did not visit his child who lived with R after the incident of October 18, 1985, until his arrest in March, 1986, (4) the defendant's own testimony that, as of the day after the alleged assault, he never returned to a job which he had held up to that time, and (5) the testimony of Keefe, his probation officer, concerning his failure to report and his December, 1985 reference to a complaint of R against him. The defendant's testimony before the jury included his version of the contact with Hannan. The record of the entire trial discloses that nothing occurred during the trial that derogated from the defendant's right to a fair trial. The trial court was entitled, as we are, to assume that the jurors not only followed its instructions at the end of the trial but also its instructions during its individual voir dire. Moreover, on a number of occasions during its final instructions to the jury, the trial court cautioned the jury to decide the case on the evidence disclosed in court and the law. "The jury, in the absence of a fair indication to the contrary, is presumed to have followed the instructions of the court." State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984); State v. Maye, 199 Conn. 389, 396, 507 A.2d 1001 (1986). There is no fair indication to the contrary in the record. In appeals involving a claim that a criminal defendant's jury was not impartial as constitutionally mandated because of some incident involving the jury, our focus is not solely on the alleged incident, but also on whether ultimately that incident generated prejudice such that the defendant was denied his right to a fair trial. "The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome." State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312 (1972); State v. Brigandi, supra, 543. The trial court did not abuse its discretion in denying a mistrial; this defendant received a fair trial. There is no error. In this opinion the other justices concurred. The substitute information was in four counts and charged the defendant with four crimes: kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A); kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a (a); sexual assault in the first degree in violation of General Statutes § 53a-70 (a); and sexual assault in the first degree with a deadly weapon in violation of General Statutes § 53a-70a. General Statutes § 53a-92a (a) provides: "kidnapping in the first DEGREE WITH A FIREARM: CLASS A FELONY: ONE YEAR NOT SUSPENDABLE. (a) A person is guilty of kidnapping in the first degree with a firearm when he commits kidnapping in the first degree as provided in section 53a-92, and in the'commission of said crime he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be convicted of kidnapping in the first degree and kidnapping in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information." General Statutes (Rev. to 1985) § 53a-70a (a) provides: "SEXUAL assault IN THE FIRST DEGREE WITH A DEADLY WEAPON: CLASS B FELONY; FIVE YEARS NOT SUSPENDABLE. (a) A person is guilty of sexual assault in the first degree with a deadly weapon when such person commits sexual assault in the first degree as provided in section 53a-70, and in the commission of such offense he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a deadly weapon. No person shall be convicted of sexual assault in the first degree and sexual assault in the first degree with a deadly weapon upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information." R testified that she saw a gun. Centeno testified that she never saw a gun. Centeno followed them not only out of solicitude for R but because she herself felt threatened. Both R and Centeno testified that each of them had to get into the defendant's van. R and Centeno each testified that it was about a five minute walk from the restaurant to the van. Each also testified that the defendant stopped the van and let Centeno out near her home. A Hartford policewoman who went to R's home on the night of the assault testified that Centeno had notified the police. Hannan also testified that as soon as he "got to the truck, [the defendant] walked up behind [him]" and at this time there were "one or two" people standing in front of Hannan at the truck. Although Hannan noticed the defendant standing there, he tried to avoid contact with Rodriguez. Thereafter, and before talking to the clerk who told him not to mention it to anyone, Hannan went upstairs in the courthouse and he "sort of wasn't too sure what [he] should do," and he did mention the incident to two persons. One of these was a member of the initial group of jurors that constituted the panel from which the defendant's jury was actually selected; that person had been voir dired as a prospective juror and was excused by the state. The other person Hannan spoke to was in the courthouse on jury duty but had not been on the panel from which the defendant's jury was selected. Hannan testified that he had asked both not to say anything. Practice Book § 887 provides: "Upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant's case. If there are two or more defendants, the mistrial shall not be declared as to a defendant who does not make or join in the motion." When the defendant testified at the trial, he admitted that he spoke to Hannan at the coffee truck. When defense counsel asked what his intention was when he spoke to Hannan, he answered: "A. My intention was not to—because he was in the coffee line. I was behind about two [or] three feet away, because I was going to get coffee, too, on the same line. He turned around, and said 'Hi,' with his head. I repeated 'Hi,' back to him. And I told him—first he goes—when he said 'Hi' to me, I turned and say, 'You remember me, huh?' And he say, 'Yes, I do.' That's when he say, 'You know I'm not allowed to talk to you.' I told him, 'Yes, I understand that.' "Q. Did you make any attempt to pursue the conversation after that? "A. No, I didn't. "Q. Did you have any intention of discussing anything involving the case with him? "A. No. "Q. This Court case? "A. No." He also said, on direct examination, that he made no attempt to pursue the conversation after that and that he did not have any intention of discussing anything involving the case with Hannan. On cross-examination, the defendant said that he did not "follow [Han-nan] at the time" because he, like Hannan, was there to buy coffee, which he did. The defendant denied that he made any statements that included the word "woman's" or that he said anything like that. He admitted being in the courtroom when each of the jurors and Hannan were instructed not to discuss the case and that he heard those instructions, but he maintained that he started talking to Hannan because Hannan had said "Hi" to the defendant first. He testified that the only thing he said "was only if he knows me; so he knows me, that's all. I didn't say nothing particular." O'Keefe testified for the state on rebuttal after the defendant had testified that he did not know until March, 1986, that the police had a warrant for him, at which time he immediately turned himself in to the police. The Seventh Circuit Court of Appeals, in noting that "[n]ot every improper ex parte contact with jurors requires a mistrial," also said that "[o]ur system of justice has not delegated to every reprobate the power to effect a mistrial." United States v. Williams, 737 F.2d 594, 612 (7th Cir. 1984), cert. denied, 470 U.S. 1003, 105 S. Ct. 1355, 84 L. Ed. 2d 377 (1985). Similarly, the Court of Appeals for the District of Columbia Circuit, while recognizing the long-standing rule against "unauthorized communications between jurors and others . in order to safeguard the accused's constitutional right to an impartial jury," said: "But courts must not allow this protection to 'delegate[] to every reprobate the power to effect a mistrial.' " United States v. Williams, 822 F.2d 1174, 1190 (D.C. Cir. 1987). During its final instructions, the trial court, in referring to the evidence, included references of that evidence claimed to go to consciousness of guilt and it also instructed on the law in that regard. See, e.g., State v. Moynahan, 164 Conn. 560, 595-96, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973).

The application by the named defendant for the suspension of the rules pursuant to § 762 of the Practice Book, as amended, in the appeal from the Superior Court for the judicial district of Waterbary is denied.

The plaintiff's "Motion to Disqualify" in the appeal from the Superior Court in Fairfield County is denied. See Evans v. Gore, 258 U.S. 245, 40 S. Ct. 550, 64 L. Ed. 887.

The defendant's pro se motion "Affidavit in Support of Motion to Accept Layman's Appeal Brief As Is and G-rant Appeal on the Pull Record" is denied in the absence of a finding.

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

Bogdanski, J. This appeal arises from an action brought by the plaintiffs to recover damages for personal injuries allegedly caused by the negligence of the defendants, George C. Fox and Samuel R. Palmisano, whose respective vehicles collided at the intersection of West Putnam Avenue and the Old Post Road No. 4 in the town of Greenwich. The jury returned a verdict for the plaintiffs against the defendant Palmisano only. Prom that judgment and the denial of his motion to set aside the verdict, Palmisano, hereinafter referred to as the defendant, has appealed to this court. The only issues briefed by the defendant concern the court's charge to the jury. The remaining assignments of error are therefore considered abandoned. Pappas v. Pappas, 164 Conn. 242, 243, 320 A.2d 809. "Claims of error addressed to the charge are to be tested by the claims of proof as they appear in the finding. Practice Book § 635; DePaola v. Seamour, 163 Conn. 246, 249, 303 A.2d 737; Intelisano v. Greenwell, 155 Conn. 436, 444, 232 A.2d 490." Conlon v. G. Fox & Co., 165 Conn. 106, 108, 328 A.2d 708. The claims of proof reveal that on July 19, 1968, at 6:14 p.m., the plaintiffs were passengers in an automobile operated by the defendant Pox in an easterly direction on West Putnam Avenue. At the same time, the defendant Palmisano "was operating his motor vehicle westerly on West Putnam Avenue with the intent to make a left turn onto Old Post Eoad No. 4. As the Palmisano vehicle was in the process of making a left turn onto Old Post Road No. 4, a collision between the two vehicles occurred. The defendant requested the court to charge the jury as follows: "1. If two parties each contribute to a wrong against the plaintiff, the proximate cause is the wrongful act in which they concurrently participate. Although each operator acted independently of the other, so far as purpose and intent are concerned, if the negligence of each concurred and cooperated with the other in the production of a single and injurious result, the plaintiff is entitled to recover from either party or both parties so concurring in the production of the injurious result. . 2. Where a plaintiff is harmed by concurrent acts of negligence of joint tortfeasors, the degree of culpability as between the concurrent wrongdoers is immaterial, and both are responsible for the whole injury." The trial court adopted the first request and charged the jury in the specific language of that request. The court refused, however, to adopt and charge the second request. The defendant took exception to the failure to charge the second request. The defendant now raises the claim that the court erred in charging in the specific language of the first request. He acknowledges that where the negligence of two persons concurs to produce a single result, a plaintiff can elect to sue either or both. But he argues that the court's charge was an inaccurate statement of the law where the plaintiffs have, in fact, sought recovery from both tortfeasors; that the court should have charged that a verdict must be returned against both defendants if the negligence of each was a substantial factor in producing the plaintiffs' injuries; and that the language used by the court was erroneous and resulted in an injustice to him. A party may not complain of an alleged error in a charge to the jury when he himself has specifically requested that instruction. Tough v. Ives, 162 Conn. 274, 287, 294 A.2d 67; Andrews v. Dougherty, 96 Conn. 40, 46, 112 A. 700; Maltbie, Conn. App. Proc. § 96, p. 117. "Since, by his request to charge, . . . [the defendant] induced the trial court to instruct the jury as it did, he is not now in a position to press his claim that the court erred in doing so. Rinalli v. Kurtz, 117 Conn. 165, 170, 166 A. 916." Hofacher v. Fox, 142 Conn. 179, 185, 112 A.2d 217. Moreover, the nature of the present action precludes a showing of prejudice upon appeal. The plaintiffs brought this action against the two defendants as joint tortfeasors and claimed that both were liable jointly and severally. The plaintiffs have chosen to accept the judgment absolving the defendant Fox of liability. A plaintiff may elect to satisfy his damages against any culpable defendant since there is ordinarily no contribution between joint tortfeasors. Rose v. Heisler, 118 Conn. 632, 633, 174 A. 66. See Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co., 133 Conn. 536, 538, 52 A.2d 862. A codefendant cannot complain that a charge is too favorable to another codefendant, since, if both are liable, they are liable jointly and severally. Griswold v. Connecticut Co., 131 Conn. 248, 250, 38 A.2d 676. It thus follows that the defendant is in no position to complain. With respect to the claimed error in the trial court's refusal to charge the second request, an examination of the record discloses that the trial court adequately covered the legal issue brought to its attention by this request when it instructed the jury on the issue of proximate cause. The defendant's final claim is that even though the court correctly set forth the applicability of § 14-246 of the General Statutes (Rev. 1958, revised to 1966), it failed to set forth the circumstances under which the defendant Palmisano would have the right of way under the statute. Section 14-246 provided that: "The driver of a vehicle intending to turn to the left within an intersection shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard." The court's charge relating to that statute was adequate and fair to both defendants. It properly limited the application of § 14-246 to the situation where the jury found that the vehicles operated by both defendants arrived "at the intersection at approximately the same time, or under such circumstances as to involve an immediate hazard." Within the framework of that limited situation, the court further stated that even if the defendant Fox were found to have the statutory right of way, "he is not absolved from all care in the use of that right of way. He is required to operate his car as would a reasonable prudent person under the same circumstances, with the knowledge that he had the statutory right of way." There is no error. In this opinion the other judges concurred. Section 14-246 of the General Statutes was repealed by 1971 Public Acts, No. 66, § 2. See now § 14-242 (e) of the General Statutes.

The plaintiff's "Motion for an Order Directing Trial Court to File a Limited Finding" is denied by the court.

Peters, J. The plaintiff brought an action for compensation for personal injuries and appeals from a judgment following a jury verdict for the defendants General Motors Corporation and Dailey Chevrolet, Inc. The plaintiff, an employee in a garage, was injured in an accident involving an automobile being repaired at the garage. His original suit named not only the defendants involved in this appeal, but also Lawrence Kohler, the owner of the automobile. The suit against Kohler alleged negligence; it was settled during the course of the trial. The suit against General Motors and Dailey Chevrolet alleged strict liability in tort, to which the defendants responded by claiming lack of proximate cause, and misuse and abnormal handling of the automobile. The plaintiff on this appeal raises a number of assignments of error concerning the charge to the jury. The pertinent facts are substantially as follows: Lawrence Kohler purchased a new 1968 Camaro with a standard four-speed transmission from Dailey Chevrolet in January, 1968. In September, 1968, Kohler noticed a problem with the ignition switch, which was failing to return automatically from the "start" position to the "on" position as it should; it required a manual return to the "on" position. At the time, the car was still covered by the General Motors new parts warranty; nonetheless, Kohler did not immediately have the switch repaired because "he just didn't get around to it." A few weeks after Kohler first noticed the ignition switeh problem, he took the ear to the DiLauro and Elliott garage, the plaintiff's employer, for unrelated body repair work. He testified at the trial that he did not recall telling anyone at the garage about a malfunctioning return spring. On the day of the accident, the vehicle was in the garage, ready to be painted; it was located with its front bumper two and one half to three feet from a wall. The car was in gear, the emergency brake was not set, and the key was in the ignition. Donald G. DiLauro jiggled the key in order to remove it from the ignition. Thereupon the motor engaged, the car lurched forward, and the plaintiff was pinned against the wall with resultant severe injuries, leading to the present suit. Before we consider the assignments of error in the charge to the jury, we should note that the verdict for the defendants was a general verdict, without special interrogatories. "Since the verdict was a general verdict, all the issues of fact are presumed to have been found in favor of the defendants. . . . Regardless of possible error . . . when . . . the parties are at issue on two or more distinct defenses, a general verdict will be sustained if it can be supported on the basis of one of them." Hally v. Hospital of St. Raphael, 162 Conn. 352, 362-63, 294 A.2d 305 (1972); see Eckstrand v. Union Carbide Corporation, 169 Conn. 337, 343-44, 363 A.2d 124 (1975). The inferences that may appropriately he drawn from a general verdict are significant in this ease, because the jury might well have found for the defendants on the factual basis of absence of proximate cause, regardless of alleged errors of law in the charge. The parties were at issue not only as to the question whether the ignition switch was defective within the meaning of Restatement (Second), 2 Torts §402A, but also over the causal relationship between the alleged defect and the accident. The plaintiff contends that the ear would not have lurched forward with proper spring pressure, because the starter would not then have turned over. There was testimony, however, that contradicted this explanation for the occurrence of the accident. First, the spring mechanism, whether defective or not, comes into play only between the "on" and the "start" positions, and its operation could therefore not have affected the movement of the car unless DiLauro had first moved the ignition switch from "off" to "on." Kohler testified that on no occasion did the ignition switch ever spontaneously fall from "on" to "start." Second, automotive experts testified that, regardless of the condition of the ignition switch, any standard shift car started while in a forward gear, with the emergency brake off, will move forward. The credibility of evidence is a question for the jury. Dulski v. Appel, 172 Conn. 187, 190, 374 A.2d 177 (1976). Acceptance by the jury of the defendants' evidence concerning proximate cause would have sufficed to support the jury's verdict for the defendants. We shall nonetheless review the plaintiff's five assignments of error in the charge. The first arises out of the court's charge concerning the settlement with Kohler. The jury were instructed that Kohler's payment of $18,000, in consideration for the plaintiff's covenant not to sue, was an item to be considered in mitigation of the amount of damages. The plaintiff excepted, claiming that disclosure of the covenant was more prejudicial than probative, especially since mathematical adjustment of the verdict could readily be effected by the court alone. At the time of this trial, it was the generally approved practice to charge the jury precisely as did the court below. Bonczkiewicz v. Merberg Wrecking Corporation, 148 Conn. 573, 578, 172 A.2d 917 (1961); see Tough v. Ives, 162 Conn. 274, 286-87, 294 A.2d 67 (1972). Subsequently, the legislature enacted General Statutes § 52-216a (1976 Public Acts, No. 76-197), which provides that a covenant not to sue may not be read to a jury or introduced into evidence. Although the statute expresses the better policy, removing whatever possibility for prejudice may exist, the trial court cannot be required to have anticipated the will of the legislature. Furthermore, even if the charge could be deemed erroneous, the plaintiff did not sustain his burden of demonstrating that the error was prejudicial. State v. Roy, 173 Conn. 35, 44, 376 A.2d 391 (1977); Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 575, 316 A.2d 394 (1972). We should not speculate that the jury took information about the covenant to signify that the person making the payment is responsible for the injury. That was not the tenor of the instruction, nor the tenor of the jury's inquiries about the charge, which repeatedly requested further information about the elements of strict liability as they affected the legal responsibility of Dailey Chevrolet and General Motors. The plaintiff next contends that the charge was inconsistent and confusing regarding the requirement that the defective condition be unreasonably dangerous at the time the car left the possession of General Motors, because it created the impression that the "seeds of defect" must render the vehicle unreasonably dangerous at the time it left the factory. While the plaintiff claims that the ear need not have been unreasonably dangerous when it left the factory, as long as the "seeds of defect" were present, the defendant contends that it must be established that the product was unreasonably dangerous at the time of sale. We need not reach this issue, however, since the court charged essentially as the plaintiff had requested, and the charge was in fact favorable to the plaintiff's position. He ean not now complain of an instruction that in essence charged as he requested. Tough v. Ives, 162 Conn. 274, 287, 294 A.2d 67 (1972); see Guglielmo v. Klausner Supply Co., 158 Conn. 308, 316-17, 259 A.2d 608 (1969). The plaintiff's third complaint about the charge stems from the court's supplemental charge concerning the "no substantial change" requirement. On the second day of jury deliberations, in response to the jury's request for a recharge on strict liability, the court repeated part of its original instruction, including the requirement that the plaintiff prove that the automobile and ignition switch reached the injured person without substantial change in the condition in which it was sold. The plaintiff objected that the recharge on substantial change was inadequate, because it left the jury without a controlling legal standard as to what constitutes "substantial change." The recharge, however, was simply a repetition of an element of the original charge to which the plaintiff had not objected. An exception to a charge must be taken "immediately after the charge is delivered." Practice Book, 1963, § 249; DeMichele v. Vermilye, 170 Conn. 184, 186, 365 A.2d 1062 (1976). Since the plaintiff did not immediately except to the charge, we are not bound to consider this claim of error. Practice Book, 1963, § 249. It was fortuitous that the jury requested that the charge be repeated; an unobjectionable charge does not become erroneous by repetition. For the same reason, the plaintiff's fourth objection to the charge must fail. In its initial charge to the jury, and in the fifth supplemental charge, the court read to the jury the special defense alleging misuse, which referred to the actions of "certain agents, employees or officers of DiLauro and Elliott, Incorporated." The plaintiff claims error in the use of the term "agents," on the ground that no evidence of an agency relationship had been presented, yet the plaintiff did not object when the charge was given initially. The objection surfaced only after the recharge on the next day; the exception was therefore not timely. Practice Book, 1963, § 249; DeMichele v. Vermilye, supra. In context it must have been clear to the jury that the court was merely reciting a special defense from the answer of the defendant General Motors. The charge to the jury must be read as a whole; "individual instructions are not to be judged in artificial isolation from the overall charge." State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977). The test is whether the charge as a whole fairly presented the case so that no injustice was done. Tezack v. Fishman & Sons, Inc., 173 Conn. 183, 186, 377 A.2d 272 (1977); State v. Roy, supra. Since there was no charge on the law of agency, it is improbable that the jury were misled by the inadvertent mention of the word "agents." State v. Malley, 167 Conn. 379, 355 A.2d 292 (1974). Finally, the plaintiff assigns error to the court's failure to charge the jury in accordance with several of the plaintiff's requests to charge. An examination of the charge reveals that the court charged fully on the issues that constituted the essence of these requests to charge. The charge "was sufficient for the guidance of the jury and the court was not required to adopt the precise language of the plaintiff's request." Hally v. Hospital of St. Raphael, 162 Conn. 352, 361, 294 A.2d 305 (1972); see Hanauer v. Coscia, 157 Conn. 49, 55, 244 A.2d 611 (1968). There is no error. In this opinion the other judges concurred. '[Restatement (Second), 2 Torts] § 402A. special liability OF SELLER OF PRODUCT FOR PHYSICAL HARM TO USER OR CONSUMER. (1) One who sells any produet in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller." The plaintiff requested the court to charge, in part, that "you must decide whether it was clear there was a substantial change made in the ignition switch mechanism from the time it was sold by General Motors to Dailey Chevrolet until the time of the accident. Accordingly, the disputed issues are whether the ignition switch and spring mechanism therein was in a defective condition, unreasonably dangerous to any user or bystander at the time of the sale by General Motors to Dailey, and whether that defect eventually caused the vehicle to continue to move forward striking and pinning Mr. Kosko against the cabinet and wall." (Emphasis added.) The court in fact charged the jury as follows: "Now, if you find that the ignition switeh was in a defective condition which was unreasonably dangerous, then the plaintiff must go further. He must prove that at the time the automobile left the possession of the defendant, the defective condition or the seeds of such defect were present. In other words, it must be proven in the case of the plaintiff against General Motors that at the time this automobile with the ignition switch left its possession, the ignition switch was in such a defective condition as alleged or the seeds of such defect were present." (Emphasis added.)

The plaintiff's petition for certification for appeal from the Superior Court in the judicial district of Hartford-New Britain at Hartford is denied by the court. Submitted January 26 decided February 2, 1979 Joseph F. Skelley, Jr., and J. Rottner, in support of the petition. Carl B. Ajello, attorney general, Edward F. Osswalt and Bichard M. Sheridan, assistant attorneys general, in opposition.

The plaintiff's petition for certification for appeal from the Appellate Court, 5 Conn. App. 438, is denied.

Loiselle, J. The plaintiff, Linda Slicer, brought this action against the defendants David Quigley, Dennis Quigley and Reynold Burger, Jr., seeking damages for personal injuries allegedly caused by the negligence of the defendants. The jury returned a verdict in favor of the plaintiff against the Quigleys, but a defendant's verdict in favor of Burger. The plaintiff appeals from the judgment rendered and assigns error in the court's charge in several respects. The defendants David Quigley and Reynold Burger, Jr., were minors, nineteen and twenty years old, when the following events took place. The two met at Burger's home on July 18, 1972, at approximately 5:30 p.m. The evidence was conflicting as to how much time was spent there but, admittedly, they left Burger's home together at about 7 p.m. with Quigley operating the motor vehicle. They stopped at a package store where Burger purchased two six-packs of beer and gave five or six cans to Quigley. Both drank the beer as they drove around. They stopped at a restaurant where Quigley consumed more beer, then resumed drinking beer and driving around until the accident happened at 9:30 p.m. Burger was in the motor vehicle as a passenger at all times, and the beer Quigley drank that night was purchased by Burger who gave it to Quigley. A police toxicologist's report showed Quigley's blood alcohol level at .13 percent which is prima facie evidence that Quigley was driving under the influ enee of intoxicating liqnor. General Statutes § 14-227a (c) (3). The plaintiff, a passenger on the motorcycle with which Quigley's automobile collided, suffered severe injuries. A month later, as a result of the accident, her leg was amputated below the knee. The plaintiff's first claim of error is that the court refused to charge in accordance with the complaint's allegation of negligence that Burger gave alcoholic beverages to the defendant David Quigley, when he knew Quigley had driven after drinking in the past and knew that Quigley was going to driye during and after drinking the beverages supplied. This allegation is one of common-law negligence. This court, on at least three occasions, has followed the common-law rule on the sale or furnishing of intoxicating liquor. Nelson v. Steffens, 170 Conn. 356, 365 A.2d 1174 (1976); Moore v. Bunk, 154 Conn. 644, 228 A.2d 510 (1967); Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383 (1967). See also Pierce v. Albanese, 144 Conn. 241, 249, 129 A.2d 606 (1957), appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957); London & Lancashire Indemnity Co. v. Duryea, 143 Conn. 53, 59-60, 119 A.2d 325 (1955). "At common law it was the general rule that no tort cause of action lay against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another. The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, hut the consumption of it by the purchaser or donee. The rule was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it." Nolan v. Morelli, supra, 436-37; see also 45 Am. Jur. 2d, Intoxicating Liquors § 553-55; 48 C.J.S., Intoxicating Liquors § 430; 75 A.L.R.2d 833. The court's instructions followed the common-law rule approved by this court in charging the jury on this specification of negligence. The complaint also alleged that Burger was negligent in that "he gave and/or delivered to the defendant David Quigley, a minor, alcoholic beverages in violation of Connecticut General Statutes § 30-86." The plaintiff assigns error to the court's refusal to charge as requested and in accordance with this allegation that a violation of the statute was negligence per se and that proximate cause was for the jury to determine. In Moore v. Bunk, supra, this very issue was decided contrary to the claim of the plaintiff, again, based on the common-law rule. David Quigley was nineteen years old at the time of the accident. Since he was more than sixteen years old, he may be presumed, if he consumes liquor, to have done so voluntarily. Moore v. Bunk, supra, 648. Since Quigley's consumption of beer is presumed to have been voluntary, under the common-law rule it is Quigley's consumption, not Burger's alleged violation of General Statutes § 30-86, which was the proximate cause of Quigley's intoxication and the injuries claimed to have resulted therefrom. Id., 649. The common-law rule as to proximate cause applies in any common-law action of negligence, even though that action includes one or more alleged statutory violations, such as a violation of General Statutes § 30-86, which prohibits the furnishing of intoxicating liquor to minors. Id., 647. The court followed the law as stated by this court in charging on this element of negligence. The plaintiff argues against the common-law rule, recognized and followed by this court, claiming that it should be rejected by this court as it has been by a substantial number of other jurisdictions. The plaintiff cites a string of cases to support her argument. In examining the cases cited by the plaintiff to support her claim that the common-law rule should be modified, it is interesting that the California Supreme Court in the leading case of Vesely v. Sager, 5 Cal. 3d 153, 157, 486 P.2d 151 (1971), concluded that where a plaintiff third party is injured, the furnishing or selling of liquor to the defendant tortfeasor may be the proximate cause of the injury, but that where the injured plaintiff is the intoxicated person, the drinking, and not the furnishing of liquor is the proximate cause. Cooper v. National R. R. Passenger Corporation, 45 Cal. App. 3d 389, 394, 119 Cal. Rptr. 541 (1975), citing Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383 (1967). The plaintiff's argument was recently made in Nelson v. Steffens, supra, 360. There the court concluded that: "Por over one hundred years, except for those years when the eighteenth amendment to the federal constitution was in effect, this state has determined by its adherence to the common-law rule, as modified by the dram shop act, that the reasoning by both the courts and the legislature was best suited and was in the best interests of the citizens of this state." Id., 360. It is also significant that since Nelson v. Steffens, supra, which was decided in 1976, the general assembly, which has enacted extensive legislation concerning alcoholic beverages, has seen fit not to expand liability any further than that allowed by the dram shop act; General Statutes § 30-102; which requires a sale. The plaintiff further alleged negligence on the part of Burger in that "he knew or should have known that the conduct of David Quigley constituted a breach of duty to other persons like Linda [Slicer] Young, and gave substantial assistance or encouragement to David Quigley to so conduct himself." A request to charge on this allegation was submitted to the court, but the court refused to charge as requested. To the extent that a portion of this request was contrary to the well-established common-law rule discussed above, the court did not err by refusing to charge as requested. State v. Holmquist, 173 Conn. 140, 142, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977); State v. Green, 172 Conn. 22, 25, 372 A.2d 133 (1976). In addition to the facts previously stated concerning the alcoholic beverages, the plaintiff offered evidence to show that Burger's behavior just prior to the collision may have encouraged Quigley's tortious conduct. Quigley stopped at a traffic signal next to the motorcycle on which the plaintiff was a passenger. She saw both Burger and Quigley holding dark bottles. Quigley cut in front of the motorcycle and then jammed on his brakes. Quigley kept driving fast and then braking in front of the motorcycle. At the next traffic signal the motorcycle and Quigley again were side by side with Quigley and Burger in the right turn lane. The motorcycle driver made some remark to Quigley, then Burger said to Quigley, "Let's get that - motorcycle." Instead of turning right, Quigley immediately pulled to the left, into the same lane as the motorcycle, sped up and crashed into the motorcycle. There was also evidence that moments before the collision, Burger screamed to Quigley to watch out for the motorcycle. In Carney v. DeWees, 136 Conn. 256, 70 A.2d 142 (1949), this court followed the principle expressed in Restatement, 4 Torts §876 that "[f]or harm resulting to a third person from the tortious conduct of another, a person is liable if he . . . (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself." The Restatement comment on this principle states " [i]f the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the consequences of the other's act." Id., comment on clause (b), cited in Carney v. DeWees, supra, 262. The error claimed by the plaintiff is that the court's instructions restricted the jury's consideration of those events that occurred in the moments just prior to the collision, and did not include comment on the evidence which showed that Burger was drinking beer and driving with Quigley for two hours prior to the accident. Aside from the evidence commented upon by the court, which included what the plaintiff claimed Burger said and his comment just prior to the collision, there was no evidence other than Burger's purchase and furnishing of beer to Quigley and the fact that he rode with Quigley that evening which would show that Burger had given substantial assistance or encouragement to Quigley to drive while intoxicated. The only facts to which the plaintiff points to substantiate this allegation of negligence, other than the events commented on by the court, are that Burger and Quigley's other friends knew that Quigley, at times, drove after drinking; that Burger gave bottles of beer to Quigley at Burger's home; that they took more bottles of beer from Burger's home to the car when they left; that Quigley had never bought anything at a package store even though he had consumed alcoholic beverages in Connecticut before; that the cans of beer bought at the package store by Burger were bought by him rather than by Quigley because Burger was the older looking of the two; that the cans were given by Burger to Quigley and drunk by them; and that Burger said nothing to Quigley at any time during the evening to discourage Quigley's driving while drinking. Under the common-law rule, Burger's furnishing beer to Quigley in and of itself cannot be considered the proximate cause of Quigley's intoxication. The remaining facts do not show that Burger's conduct constituted a "substantial factor in causing the resulting tort." Restatement, 4 Torts § 876, comment on clause (b). The court did not err in its charge on this allegation of negligence. The plaintiff also alleged that Burger was negligent in that "he failed to discourage, protest and/or object to the manner in which the said David Quigley, a minor, was operating said vehicle." The court instructed the jury that this allegation was difficult to prove because it required proof of a negative. The court discussed the evidence regarding Burger's warnings to Quigley moments before the collision, then said "it would not appear that the plaintiff has sustained the burden of proving that particular allegation." The court continued its charge, however, by saying: "That is the testimony as I recall it. If your recollection is different from mine and you feel that there were facts that would sustain that allegation, then I will leave it to your determination. I don't recall any, but, again, it is a question of fact. It is up to you to recall the testimony." No exception to this portion of the charge appears in the briefs or in the transcript. There is no error in the court's charge on this allegation of negligence. The final claim of error is that the court failed to instruct the jury on the credibility of the witnesses whose testimony was obtained by deposition. No useful purpose would be served by a detailed discussion of this claim. The charge on this issue was adequate. There is no error. In this opinion Cotter, C. J., and Healey, J., concurred. At the time of the accident, General Statutes § 1-1d established the age of majority at twenty-one. "[General Statutes] Sec. 30-86. sales to minors, intoxicated persons and drunkards. Any permittee who, by himself, his servant or agent, sells or delivers alcoholic liquor to any minor, or to any intoxicated person, or to any habitual drunkard, knowing him to be such an habitual drunkard, and any person, except the parent or guardian of a minor, who delivers or gives any such liquors to such minor, except on the order of a practicing physician, shall be subject to the penalties of section 30-113." The plaintiff cites cases from other jurisdictions to show that "at least in some circumstances, the furnishing of alcoholic beverages to another can be actionable as the proximate cause of injury to a third person." New such eases involve the liability of a person furnishing, not selling, intoxicating liquor to a minor who then, under the influence of intoxicating liquor, injures a third party. Giardina v. Solomon, 360 F. Sup. 262 (M.D. Pa. 1973) (applying Pennsylvania law); King v. Ladyman, 81 Cal. App. 3d 837, 146 Cal. Rptr. 782 (1978); Bennett v. Letterly, 74 Cal. App. 3d 901, 141 Cal. Rptr. 682 (1977); Brockett v. Kitchen Boyd Motor Co., 24 Cal. App. 3d 87, 100 Cal. Rptr. 752 (1972); Brattain v. Herron, 159 Ind. App. 663, 309 N.E.2d 150 (1974); Thaut v. Finley, 50 Mich. App. 611, 213 N.W.2d 820 (1973); Linn v. Rand, 140 N.J. Super. 212, 356 A.2d 15 (1976); Wiener v. Gamma Phi, ATO Frat., 258 Or. 632, 485 P.2d 18 (1971); Hulse v. Driver, 11 Wash. App. 509, 524 P.2d 255 (1974). These cases do not uniformly uphold such liability, particularly where the person furnishing the liquor is a minor and where he did nothing more than give it to the minor defendant whose acts were the direct cause of the injury. Bennett v. Letterly, supra; Hulse v. Driver, supra.

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

Per Curiam. The plaintiff instituted an action in trespass against the defendants. The defendants pleaded a general denial and, by way of a counterclaim, alleged that they have acquired title to the said premises by adverse possession. The trial court found the defendants failed to sustain their burden as to the issue of adverse possession. Prom the judgment rendered for the plaintiff, the defendants have appealed. The sole issue on the appeal is whether the court erred in concluding that the defendants failed to sustain their claim of adverse possession. Where title is claimed by adverse possession, the burden of proof is on the claimant. Loewenberg v. Wallace, 147 Conn. 689, 699, 166 A.2d 150 (1960). The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner. Stevens v. Smoker, 84 Conn. 569, 574, 80 A. 788 (1911). The use is not exclusive if the adverse user merely shares dominion over the property with other users. Short Beach Cottage Owners Improvement Assn. v. Stratford, 154 Conn. 194, 199, 224 A.2d 532 (1966). Such a possession is not to be made out by inference, but by clear and positive proof. Robinson v. Myers, 156 Conn. 510, 517, 244 A.2d 385 (1968). In the final analysis, whether possession is adverse is a question of fact for the trier. Padula v. Padula, 138 Conn. 102, 110, 82 A.2d 362 (1951). In effect, the defendants are seeking to have this court retry the case. This, of course, we cannot do. Bent v. Torell, 139 Conn. 744, 748, 97 A.2d 270 (1953). Our examination of the memorandum of decision and the statements of fact in the briefs of the parties discloses that the evidence fully supports the conclusions reached. We note also that at the request of the parties the court viewed the boundary line as claimed by the plaintiff and the boundary line as claimed by the defendants. The record further reveals that the court did not apply any erroneous principles of law to the facts found. There is no error.

Speziale, J. The dispositive issue in this case is whether § 7-194 (26) of the Home Rule Act authorizes a municipality to grant to its governing or legislative body the power to issue subpoenas. We hold that it does not. The defendant, Jon Hall, is an investigative reporter for the Journal Courier, a daily newspaper. Hall wrote a series of articles about public school lunch programs in the greater New Haven area, including the school lunch program of the city of West Haven. In these articles it was reported, inter alia, that despite its policy requiring competitive bidding for all contracts greater than $1000, the city of West Haven did not use competitive bidding procedures in contracting with major food suppliers of its lunch program, that the use of such bidding procedures might have resulted in a savings of as much as $100,000, and that, for a brief period, an official of the West Haven school system had been employed simultaneously by the city of West Haven and by the supplier of its school lunches. Subsequently, the plaintiff, the city council of the city of West Haven (hereinafter the city council), commenced under chapter IY, § 9 of the city charter an investigation of the public school lunch program. Unable to confirm the defendant's findings, the city council by letter requested Hall to appear voluntarily before it both to discuss bidding procedures and to set forth the manner in which he arrived at his calculations. The letter indicated that the investigation would encompass the following areas: "(1) Bidding Procedures. (2) Price differences between the West Haven School Food Service Program and the Journal Courier. (3) Charges that the Food Service Program Director was on the payroll of the West Haven School Food Service Program during the same week." Hall declined the informal request to appear and testify before the city council. He, however, advised the city council that he had obtained all his information regarding bidding procedures and price differentials from the public records of the city of West Haven and from those of other municipalities. Hall also offered to meet informally with city council members as well as with the city council's attorney to answer questions about the price differences. The information Hall had regarding the dual employment of a city official was available from public records and from the city's supplier of school lunches; Hall's knowledge about this topic was disclosed and published in its entirety in the newspaper articles. Hall was served with two identical subpoenas commanding him to appear before the city council on March 27,1979. One subpoena was signed by the chairman of the city council; the other was signed by the corporation counsel for the city of West Haven. Hall did not appear before the city council on the above date and subsequently refused to testify before the city council pursuant to the two subpoenas. The city council filed suit seeking, inter alia, an order compelling Hall to testify before it. The trial court (Hadden, J.) rendered judgment for the city council finding that the city had the statutory authority under § 7-194 (26) of the Home Rule Act to adopt chapter IV, § 9 of the city charter, which expressly grants the city council the power to issue subpoenas if certain conditions, which are not challenged here, are met. The conrt ordered the defendant to appear before the city council when requested to do so by the corporation counsel of the city of West Haven and to comply with § 51-85 of the General Statutes. The trial court also stated that if Hall "feels that he has a constitutional right not to answer any particular question, then he should assert that right on a question by question basis." Prom the judgment for the city council, Hall has appealed. The basic issues raised in this case are: (1) whether § 7-194 (26) of the Home Rule Act empowers a municipality to adopt a charter provision authorizing its governing or legislative body to issue subpoenas in investigative hearings; (2) whether the trial court erred in not concluding that the city council's inquiry into a journalist's thoughts, opinions, and conclusions was violative of the first amendment to the United States constitution; and (3) whether the trial court erred in concluding that the city council need not meet a constitutionally mandated burden of proof when subpoenaing a newspaper reporter. Because our resolution of the first issue is decisive of the case, there is no need to reach the latter issues. We conclude that § 7-194 (26) of the Home Rule Act does not authorize a municipality to grant to its governing or legislative body the power to issue subpoenas. Section 7-194 of the General Statutes provides, in relevant part, that "all towns, cities or boroughs which have a charter or which adopt or amend a charter under the provisions of this chapter shall have the following specific powers in addition to all powers granted to towns, cities and boroughs under the constitution and general statutes: . . . (26) to make and enforce police, sanitary and other similar regulations and to protect or promote the peace, safety, good government and welfare of the town, city or borough and its inhabitants." (Emphasis added.) We have long recognized that as a creation of the state, a municipality has no inherent powers of its own. Pepin v. Danbury, 171 Conn. 74, 83, 368 A.2d 88 (1976); New Haven Water Co. v. New Haven, 152 Conn. 563, 566, 210 A.2d 449 (1965); State ex rel. Coe v. Fyler, 48 Conn. 145, 158 (1880); see also Baker v. Norwalk, 152 Conn. 312, 314, 206 A.2d 428 (1965); Bredice v. Norwalk, 152 Conn. 287, 292, 206 A.2d 433 (1964); Crofut v. Danbury, 65 Conn. 294, 32 A. 365 (1894). Unlike the inherent powers that appertain to state legislatures; 4 McQuillin, Municipal Corporations (3d Ed. Eev. 1979) § 13.03, p. 510; the only powers a municipal corporation has are those which are expressly granted to it by the state. Pepin v. Danbury, supra, 83. We also have recognized that a municipality has such powers as are "necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation." Board of Police Commissioners v. White, 171 Conn. 553, 559, 370 A.2d 1070 (1976); Avonside, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 236, 215 A.2d 409 (1969). The above-quoted language regarding powers that are "necessary" is relied upon heavily by the city council to support its claim that the legislature delegated to municipalities under § 7-194 (26) the power to issue subpoenas even though such power is not expressly mentioned in this section of the Home Eule Act. We disagree. The legislature certainly has the authority to grant subpoena power to municipalities, and, in fact, specifically has authorized certain persons to issue subpoenas compelling the attendance of witnesses before municipal boards of police commissioners. General Statutes § 7-279. We do not believe, however, that § 7-194 (26) can be read so expansively as to permit the conclusion that it contains a legislative grant of the subpoena power. The power to issue a subpoena is a great power. " 'It is the duty of every witness, lay or expert, to respond to a subpoena and, unless privileged, to testify to factual matters relevant to a controversy.' " DiPalma v. Wiesen, 163 Conn. 293, 303, 303 A.2d 709 (1972); Thomaston v. Ives, 156 Conn. 166, 172, 239 A.2d 515 (1968); cf. Nixon v. United States, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). Therefore, it is noteworthy that the legislature in § 7-194 granted in express terms powers which may be considered of lesser magnitude than the subpoena power. For example, there is authorization under § 7-194 (13) for a municipality "to provide for the planting, rearing and preserving of shade and ornamental trees on the streets and public grounds" and under § 7-194 (23) "to permit, regulate and prohibit games, coasting, sliding and, subject to the provisions of the General Statutes, the use of velocipedes, bicycles and tricycles, on the streets or sidewalks of the town, city or borough." A fortiori, if the legislature had intended to include this very important authority to issue subpoenas, it would have specifically so stated. The power to subpoena, however, does not appear in § 7-194 of the General Statutes as revised to 1979. In State ex rel. Barnard v. Ambrogio, 162 Conn. 491, 497-98, 294 A.2d 529 (1972), we noted: "That the legislature went to the extent of precisely enumerating [numerous] specific powers without mentioning [a subpoena power] indicates that it did not intend to grant the municipalities such a power by way of a charter adoption." It is generally held that the express enumeration of powers granted to municipalities constitutes an exclusion of all other powers not expressly delegated to them. 2 McQuillin, Municipal Corporations (3d Ed. Rev. 1979) § 10.23, p. 802. See also State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957) ("enumeration of powers in a statute is uniformly held to forbid the things not enumerated"). Finally, of importance is that during the January, 1979 session the legislature amended the Home Rule Act by enacting Public Act 79-618, § 3, effective October 1,1979. This section specifically grants the power to subpoena to a board, commission, council, committee, or other agency which has been established by charter provision or ordinance to investigate allegations of unethical conduct, corrupting influence, or illegal activities levied against any municipal official, officer, or employee. If the power to subpoena already had been delegated to municipalities under §7-194 (26), there would have been no need for the legislature to have expressly authorized the use of subpoena power in Public Act 79-618, § 3. It should be presumed that a law was adopted in view of existing relevant statutes and that the legislature intended it to be read with them so as to constitute one consistent body of law. Engle v. Personnel Appeal Board, 175 Conn. 127, 130, 394 A.2d 731 (1978). Further, we may not presume that the legislature has enacted futile or meaningless legislation or that a change in a law was made without a reason. Hartford Electric Light Co. v. Sullivan, 161 Conn. 145, 151-52, 285 A.2d 352 (1971); In re Application of Plantamura, 149 Conn. 111, 114, 176 A.2d 61, cert. denied, 369 U.S. 872, 82 S. Ct. 1141, 8 L. Ed. 2d 275 (1961); Brown v. Cato, 147 Conn. 418, 421, 162 A.2d 175 (1960). In conclnsion, we hold that § 7-194 (26) of the Home Rule Act does not authorize a municipality to include in its charter a provision conferring subpoena power on its governing or legislative body. There is error, the judgment is set aside and the case is remanded with direction to enter judgment for the defendant. In this opinion the other judges concurred. Chapter IV, § 9 of the city charter of the city of West Haven provides: "investigation : The City Council shall have power, by two-thirds vote of its entire membership, to investigate any officer, department or board and shall have power to compel the attendance of witnesses and the production of data at any meeting of the City Council or any committee thereof, and for that purpose may issue subpoenas, which shall be signed by the Chairman of the Council. The investigation may be conducted by a committee appointed by the Council for that purpose, provided that not more than half of the members of such committee shall be members of the same political party." For the text of this section see footnote 1, supra. "[General Statutes] Sec. 51-85. authority and powers of commissioners of the superior court. Each attorney-at-law admitted to practice within the state, while in good standing, shall be a commissioner of the superior court and, in such capacity, may, within the state, sign writs and subpoenas, take recognizances, administer oaths and take depositions and acknowledgments of deeds. Each such attorney may also issue subpoenas to compel the attendance of witnesses and subpoenas duces tecum in administrative proceedings. If, in any administrative proceeding, any person disobeys such subpoena or, having appeared in obedience thereto, refuses to answer any proper and pertinent question or refuses to produce any books, papers or documents pursuant thereto, application may be made to the superior court or any judge thereof for an order compelling obedience." Chapter 99 of the General Statutes, which is comprised of § 7-187 to 7-201, is referred to as the Home Rule Act. Pizzuto v. Newington, 174 Conn. 282, 284, 386 A.2d 238 (1978); Pepin v. Danbury, 171 Conn. 74, 76, 368 A.2d 88 (1976). Public Acts 1957, No. 465, An Act Concerning Home Rule, contained, inter alia, the provision currently before us. Although that act has been amended on numerous occasions; Public Acts 1961, No. 517, §89; Publie Acts 1961, No. 490; Public Acts 1967, No. 19; Public Acts 1971, No. 802, § 12; Public Acts 1972, No. 279; Public Acts 1975, No. 516; Public Acts 1979, Nos. 79-531, §2, and 79-618, §2; subsection (26) has remained unaltered since its enactment in 1957. The city council has not claimed that a special act granted the subpoena power to West Haven. See General Statutes § 7-188; Board of Selectmen of the Town of Fairfield v. Kellis, 35 Conn. Sup. 668, 406 A.2d 9 (1979). The trial court also specifically agreed with the defendant's contention that § 51-85 of the General Statutes must be construed as allowing a commissioner of the superior court to subpoena a witness in an administrative proceeding only when the administrative body has independent subpoena power. The plaintiff did not file a cross appeal from that ruling and, in fact, unlike the defendant, does not directly address this issue in its brief. Inasmuch as the ruling below on this issue was for the defendant, and the plaintiff neither filed a cross appeal nor raised the issue in a preliminary statement of issues, we do not consider the merits of this contention. Practice Book, 1978, as amended, § 3003 & 3012 (a); cf. Board of Police Commissioners v. White, 171 Conn. 553, 557, 370 A.2d 1070 (1976). The constitution of Connecticut, article tenth, § 1 provides: "The general assembly shall by general law delegate such legislative authority as from time to time it deems appropriate to towns, cities and boroughs relative to the powers, organization, and form of government of such political subdivisions. The general assembly shall from time to time by general law determine the maximum terms of office of the various town, city and borough elective offices. After July 1, 1969, the general assembly shall enact no special legislation relative to the powers, organization, terms of elective offices or form of government of any single town, city or borough, except as to (a) borrowing power, (b) validating acts, and (c) formation, consolidation or dissolution of any town, city or borough, unless in the delegation of legislative authority by general law the general assembly shall have failed to prescribe the powers necessary to effect the purpose of such special legislation." "This Court has often recognized that political subdivisions such as cities and counties are created by the State 'as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them.' Hunter v. Pittsburgh [207 U.S. 161, 178, 28 S. Ct. 40, 52 L. Ed. 151 (1907)]. See also, e.g., Sailors v. Board of Education [387 U.S. 105, 108, 87 S. Ct. 1549, 18 L. Ed. 2d 650 (1967)]; Reynolds v. Sims [377 U.S. 533, 575, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964)]. In Hunter v. Pittsburgh, the Court discussed at length the relationship between a State and its political subdivisions, remarking: 'The number, nature and duration of the powers conferred upon [municipal] corporations and the territory over which they shall be exercised rests in the absolute discretion of the State.' Ibid. While the broad statements as to state control over municipal corporations contained in Hunter have undoubtedly been qualified by the holdings of later cases such as Kramer v. Union Free School Dist. [395 U.S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969)], .we think that the ease continues to have substantial constitutional significance in emphasizing the extraordinarily wide latitude that States have in creating various types of political subdivisions and conferring authority upon them." Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 71, 99 S. Ct. 383, 58 L. Ed. 2d 292 (1978). Publie Acts 1979, No. 79-618, §3 provides: "Any town, city or borough may, by charter provision or ordinance, establish a board, commission, council, committee or other agency to investigate allegations of unethical conduct, corrupting influence or illegal activities levied against any municipal official, officer or employee. Any such board, commission, council, committee or other agency established pursuant to this section may issue subpoenas or subpoenas duces tecum, enforceable upon application to the superior court, to compel the attendance of persons at hearings and the production of books, documents, records and papers."

Loiselle, J. The plaintiff appealed to the Court of Common Pleas pursuant to General Statutes § 8-8 as an abutting landowner aggrieved by the action of the defendant zoning board granting an application for several variances from the Burlington zoning ordinances. The court sustained the plaintiff's appeal. Upon the granting of certification, the defendants appealed to this court. The land in question is a 100 foot by 100 foot parcel set back 100 feet from Johnny Cake Mountain Road with access to the road over a 20 foot by 100 foot strip. Except for the frontage on the road, the parcel is surrounded on all sides by property owned by the plaintiff Johnny Cake, Inc. (hereinafter Johnny Cake). For many years, the state of Connecticut owned the land and used it to operate a 60 foot high wooden fire watch tower. Both properties, that of Johnny Cake and that of the state, were located in a residence "A" zone as defined by the regulations of the town planning and zoning commission. The residence "A" zone required a 150 foot lot width, a 60 foot rear yard and a 35 foot front yard. On October 22,1973, the state conveyed the parcel to the defendant Hartford Roman Catholic Arch diocesan Corporation (hereinafter the Archdiocese). On December 7, 1973, the defendant St. Thomas Seminary (hereinafter the Seminary), as tenant, applied to the zoning board of appeals for four variances. The requested variances sought relief from the 60 foot rear yard requirement, the 1050 square foot minimum building area requirement and two use restrictions so as to allow construction of a 75 foot high radio antenna mast in place of the fire watch tower, along with a 204 square foot radio transmitter building. In its application for the variances, the Seminary claimed the following hardships: "The premises now contain an obsolete nonconforming fire tower, which is not suitable for an P.M. Radio Antenna Mast desired by applicant. Applicants' lot is 100 feet by 100 feet in size, nonconforming, and cannot be built on without variances, since the zone requirement requires a 60 foot rear yard, a 35 foot front yard, two 25 foot side yards, leaving an area of 5 feet by 50 feet which can be built on without variances." A hearing on the application was held by the zoning board of appeals and on January 30,1974, the board granted the variances. Johnny Cake, as an abutting landowner, appealed to the Court of Common Pleas. The court sustained the appeal and rendered judgment for Johnny Cake on the grounds that the hardship claimed by the defendants was self-created. Although the court recognized that the board was empowered to exercise liberal discretion in determining whether to grant the variance; Bora v. Zoning Board of Appeals, 161 Conn. 297, 299, 288 A.2d 89 (1971); the court regarded the defendants' purchase and lease of the parcel, in view of the use intended, as a self-inflicted or self-created hardship which could never be considered proper grounds for a variance. The court held that Abel v. Zoning Board of Appeals, 172 Conn. 286, 374 A.2d 227 (1977), was dispositive. There we said that "where the claimed hardship arises from the applicant's voluntary act, a zoning board lacks power to grant a variance." Id., 289. The defendants assign four errors, all of them attacking the Court of Common Pleas' application of Abel v. Zoning Board of Appeals, supra, to this case. Since this is the sole issue presented on appeal, the errors assigned will be considered together. In Abel, the purchaser of a .704 acre lot in the city of Norwalk applied for a variance from the one-acre area requirement mandated by the ordinance's "AAA" residential zone classification where the lot was located. The applicant requested the variance in 1973, six months after he had purchased the lot, in order to obtain permission to construct a dwelling. Upon examination of the manner in which the applicant had obtained title to the lot, however, the court observed that it had been created in 1961 as the remains of a subdivision which had yielded five separate building lots of one acre each and a sixth area designated on the recorded map as follows: "(Reserve) Area = .704 Acre This area is not to be constituted as a building lot but to be used as a park reserve for Sisters of Saint Thomas of Villanova (across the street.)" These were the terms of the subdivision plan as approved by the Norwalk planning commission in 1961. Yet the board granted the variance and its decision was upheld by the Court of Common Pleas. On an appeal to this court brought by the abutting landowners, we agreed with the appellants' assertion that the hardship found by the board had been voluntarily assumed by the applicant and could not constitute grounds for the grant of a variance. "[W]here the claimed hardship arises from the applicant's voluntary act, a zoning board lacks power to grant a variance." Abel v. Zoning Board of Appeals, supra, 289. On its face the broad rule stated in Abel would appear dispositive of this appeal. But review of the precedent underlying the rule reveals that .it is not. There has always existed a distinction between circumstances such as those in Abel, where the applicant or his predecessor in interest creates a hardship such as an undersized lot, and a situation where the hardship which would justify the grant of a variance originates in the zoning ordinance itself. "Where a nonconformity exists, it is a vested right which adheres to the land itself. 'And the right is not forfeited by a purchaser who takes with knowledge of the regulations which are inconsistent with the existing use.' 1 Anderson, American Law of Zoning (2d Ed.) § 6.37, p. 445." Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483, 408 A.2d 243 (1979). Where the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance. Abel v. Zoning Board of Appeals, supra; Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972) ; Highland Park, Inc. v. Zoning Board of Appeals, 155 Conn. 40, 43, 229 A.2d 356 (1967). But if the hardship is created by the enactment of a zoning ordinance and the owner of the parcel could have sought a variance, then the purchaser has the same right to seek a variance and, if his request is sup ported in law, to obtain the variance. Petruzzi v. Zoning Board of Appeals, supra. Otherwise the zoning ordinance could be unjust and confiscatory. The state owned the 12,000 square foot parcel and used it to operate a fire watch tower since 1929. The town of Burlington's first zoning ordinance was not adopted until 1958. The hardship created for the owners of the lot was imposed by the ordinance's subsequent classification of the area which included the tiny parcel as an "A" residence district. The trial court was in error in its interpretation of Abel v. Zoning Board of Appeals, supra. The record of the appeal to the court included the zoning regulations. It is clear that $ 10 of the regulations does not allow the extension of a nonconforming use. Whether a permitted use of the lot could be made, with or without a variance, cannot be determined. See Florentine v. Darien, 142 Conn. 415, 428, 115 A.2d 328 (1955). If such use can be made, the defendant board of appeals had no power to extend the nonconforming use. On the basis of the record before the trial court, the court was not in error in sustaining the appeal. Where the trial court reaches a correct decision on incorrect grounds, that decision will be sustained if correct grounds exist to support it. Royce v. Freedom of Information Commission, 177 Conn. 584, 588, 418 A.2d 939 (1979); Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978). There is no error. In this opinion the other judges concurred.

Cotter, C. J. This is an appeal from the denial of a hearing by the Superior Court, O'Brien, J., on a second application brought by the plaintiff for a writ of habeas corpus based on an alleged illegal imprisonment due to his fugitive from justice status arising out of a manslaughter conviction in New York state. The narrow issue presented by this appeal is whether a plaintiff is entitled to a hearing upon a second application for a writ of habeas corpus if this second application is based on a different ground from any asserted in the initial habeas corpus application although not based on new evidence or new facts that were not reasonably available to the plaintiff at the time of the hearing on the first application. The underlying factual situation which brings this issue before this court is intricate, albeit undisputed, and requires delineation at some length. On November 30, 1972, the plaintiff was indicted in the state of New York for murder. Subsequently, while released on bail, the plaintiff failed to appear for his New York trial in January, 1974, and in his absence he was convicted of manslaughter in the first degree. A New York warrant for his arrest for failure to appear was issued on or about January 9, 1974. In February of 1977, the plaintiff was arrested on a Connecticut charge of attempted murder for an offense which allegedly occurred on January 3,1977. On March 7, 1977, the plaintiff was charged in Connecticut with being a fugitive from justice from the state of New York. Also on March 7,1977, the plaintiff was bound over to the Connecticut Superior Court on the charge of attempted murder in Connecticut. Later, on April 18, 1977, the state of Connecticut entered a nolle prosequi to the fugitive from justice charge; at that time the plaintiff was detained, in any event, on the charge of attempted murder in Connecticut. Approximately seven months after the plaintiff was bound over to the Superior Court, the Connecti cnt state's attorney's office began corresponding with New York state authorities concerning the plaintiff's extradition to New York. This correspondence led to the signing of a governor's warrant by Governor Grasso of Connecticut on May 24,1978, for the purpose of extraditing the plaintiff to the state of New York. The governor's warrant was executed on June 13, 1978, and on July 10, 1978, the plaintiff made an application to the Superior Court for a writ of habeas corpus challenging his arrest on that warrant. This initial habeas corpus action involved a number of claims described in detail later in this opinion. Some were made by the plaintiff pro se and others were contained in a supplemental application made by the attorney then representing the plaintiff. The court, O'Brien, J., considered these claims at a hearing on August 24,1978, and in a lengthy and detailed memorandum of decision rendered October 19, 1978, denied the claims and dismissed the writ of habeas corpus. On November 8, 1978, following dismissal of the first habeas corpus action, the plaintiff obtained new counsel and filed another application. That application was summarily denied without a hearing on November 29, 1978, by the court, O'Brien, J., and after certification was granted to appeal that denial to this court, the plaintiff filed the present appeal on December 19, 1979. Early in 1979, the plaintiff was acquitted of the attempted murder charge against him for the episode which occurred in Connecticut in 1977. Thus, since that time, the plaintiff has been incarcerated pursuant to the governor's warrant which was signed on May 24, 1978. The plaintiff claims that the court below erred in denying him a hearing on the merits of his second application for a writ of habeas corpus because it involved a legal claim which had not been presented previously to the court. The plaintiff does not contend that this legal claim in the second application was unavailable at the time of the hearing on his first habeas corpus action but only that it was not deliberately withheld at the time of the initial habeas corpus application. He maintains that the trial court's denial of a hearing on the second application constituted error in that it was in violation of the rules and statutes of this state and in violation of article first, § 10 of the Connecticut constitution. Thus, the threshold question raised by the plaintiff's claim of error is whether, and if so, with what guidelines, the rules and statutes of this state mandate a hearing upon a second application for a writ of habeas corpus if the second application is based upon a different ground from any relied on in the initial habeas corpus application. I When the plaintiff filed his second application, the procedures governing habeas corpus proceedings were set forth either in Practice Book, 1978, § 529 through 536 or in chapter 915 of the General Statutes, §52-466 through 52-470. The plaintiff contends, and we agree, that the question of whether a hearing is mandated in a second application is controlled by Practice Book, 1978, § 531. Section 531 provides: "If the petitioner has filed a previous application, it and the action taken thereon shall be summarily described in the pending application. If a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing." The language of § 531 is clear on its face and prescribes that trial courts may dismiss a second application without a hearing only if that application asserts the same grounds and fails to state new facts or proffer new evidence not reasonably available to the petitioner at the hearing on his previous application. The necessary implication of this prescription is that if different grounds are asserted, a hearing on the second application is indicated. It is also clear that in this context "ground" must mean a "sufficient legal basis for granting the relief sought." Sanders v. United States, 373 U.S. 1, 16, 83 S. Ct. 1068, 10 L. Ed. 2d 148. The plaintiff maintains that the trial conrt, in denying him a hearing on his second application, had determined that the new petition presented a legal claim which was not alleged in the earlier petition. Thns, he argues that our determination that Practice Book, 1978, § 531 provides for a hearing where the second or successive application states a different ground, that is, legal basis for granting the relief sought, should be dispositive of this appeal and contends that this court need not and should not address the question of whether the plaintiff's new application does constitute a different ground from any relied on in his first application. We disagree. Even if we were to read the trial court's reason for denial as conceding that a different ground had been raised in the plaintiff's second application, our inquiry into whether that ground had been raised would be warranted by the oft-repeated holding of this court that where the trial court arrives at a correct decision, but on incorrect grounds, that decision will be affirmed if proper grounds do exist to support it. See, e.g., Royce v. Freedom of Information Commission, 177 Conn. 584, 588, 418 A.2d 939; Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974; Morris v. Costa, 174 Conn. 592, 598, 392 A.2d 468; Maltbie, Conn. App. Proc. § 36. If the second application failed to raise a different legal ground, the trial court would not have erred in denying a hearing pursuant to Practice Book, 1978, § 531. It is thus necessary to determine whether the plaintiff's application does assert a new ground or is, as the defendant contends, merely a verbal reformulation of previously rejected claims. II At the time of the first application for a writ of habeas corpus the plaintiff pro se raised the following claims: New York state had violated the Uniform Criminal Extradition Act; Connecticut General Statutes § 54-157 through 54-185; in failing to apply for a governor's requisition in timely fashion pursuant to General Statutes § 54-171. The entering of a nolle prosequi on April 18, 1977, by the state of Connecticut on its fugitive from justice charge operated collaterally to estop New York from extraditing the plaintiff. Underlying this argument was the assumption that the entry of a nolle prosequi was an action on the merits of the New York manslaughter conviction and that extradition would thus be barred by the constitutional protections against double jeopardy. The trial court denied this claim, and the plaintiff on appeal concedes its lack of merit. The nolle was obviously not a ruling on the merits of the New York manslaughter charge and the claim that the actions of the state of Connecticut can circumscribe the powers of New York state under the Uniform Criminal Extradition Act was effectively barred by Glavin v. Warden, 163 Conn. 394, 311 A.2d 86. In the plaintiff's first application, as supplemented, his attorney raised the following additional claims in seeking a determination that the plaintiff's detention pursuant to the governor of New York's requisition and to the governor of Connecticut's warrant was illegal: Connecticut General Statutes § 54-163 in authorizing the governor to execute extradition warrants of arrest violates provisions of the federal and state constitutions; the plaintiff's arrest violates provisions of the federal and state constitutions because Governor Grasso signed the warrant without affording the plaintiff a hearing. The governor's warrant was based on information which failed to set forth facts constituting probable cause that: the plaintiff was convicted of a crime in the state of New York; he was in New York when the conviction was reached; and he knowingly fled the state of New York on learning of the charges against him. Connecticut General Statutes § 54-171, a provision of the Uniform Criminal Extradition Act, had been violated by New York by its failure to act in timely fashion to obtain a governor's warrant in the state of Connecticut. New York state had violated the plaintiff's rights under article V, section (c) of the Agreement on Detainers; Connecticut General Statutes § 54-186; in delaying action on their detainer once it had been filed and in seeking or requesting a governor's warrant from Connecticut over a lengthy period of time. In the plaintiff's second application, when he was represented by his present attorney, he claimed that the state of Connecticut was barred from delivering the plaintiff to New York authorities because of its violation of its own statutes and rules of practice. The plaintiff specifically contended that the state's entry of a nolle prosequi to the fugitive from justice charge, at a time when the plaintiff was involuntarily absent from the courtroom, followed by a more than thirteen month period before the reinstitution of the fugitive from justice charge pursuant to the issuance and execution of a gov ernor's warrant violated General Statutes § 54-46, 54-142a (c) and Practice Book, 1963, § 2137 (§ 726 of the 1978 Practice Book). The plaintiff argued that to permit the state of Connecticut, in the face of these alleged violations, to surrender the plaintiff into the custody of the state of New York would be a violation of his constitutional guarantees of due process and equal protection of the law. On this appeal the plaintiff maintains that although both habeas corpus applications involve issues concerning the entry of a nolle prosequi to the fugitive from justice charge, the legal basis for the relief sought in the second application is fundamentally different from the grounds raised in the first application. We agree. In the first application, each claim of a violation of the Uniform Criminal Extradition Act or of a constitutional guarantee was addressed to the authority of the state of New York to receive the plaintiff into its custody. The legal basis for the relief sought in the second application was that the state of Connecticut, because of alleged violations of its own court rules and statutes, was barred from surrendering the plaintiff to the custody of New York authorities. In other words, while one of the grounds of the plaintiff's first application was an attack on the demanding state's continuing authority to subject the plaintiff to its penal laws in light of the alleged impact of Connecticut's entry of a nolle prosequi to the fugitive from justice charge, the second application challenges the asy lum state's authority to surrender the plaintiff in light of the alleged impact, under the asylum state's rules of practice and statutes, of the entry of a nolle prosequi on the fugitive from justice charge followed by the lapse of time in this case before the asylum state renewed prosecution of the fugitive charge. The defendant claims that the plaintiff's applications both rely on the same ground under the Sanders v. United States, supra, definition of that term. He asserts that the arguments advanced in both applications assume that the nolle of the fugitive from justice charge constitutes a decision on the merits that extradition is inappropriate. In order, however, to deem the legal claim made in the second application as the equivalent of one made in the first application, we would have to define "ground" in this case as any claim that relies on the entry of the nolle prosequi to challenge the legality of the extradition proceedings. Such a definition and the defendant's assertion would confuse "ground" with both the legal argument underlying the ground in this case and the factual allegations that form the basis of the underlying legal argument. In the second application a completely different legal effect is being ascribed to the entry of the nolle prosequi. To reiterate, in the first application the entry of the nolle prosequi was alleged to be a decision on the merits of the underlying manslaughter charge in New York which barred the state of New York from receiving the plaintiff; in the new application the nolle and its aftermath were alleged to be a jurisdictional bar to Connecticut's surrender of the plaintiff to New York authorities. In the new habeas corpus application the alleged ground or legal basis for granting the relief sought is that the state of Connecticut is barred from surrendering the plaintiff to the New York authorities; the underlying legal argument supporting this ground is that the entry of the nolle prosequi along with a lapse in the reinstitution of the fugitive from justice charge violates the state of Connecticut's rules of practice and statutes for processing criminal matters so as to create this bar; and the factual allegations involved are, inter alia, the time of the entry of the nolle prosequi and the subsequent reinstitution of the fugitive from justice charge. In other words, on remand for a hearing on his second application the plaintiff would have to show that the nolle and the subsequent actions by the state of Connecticut on the fugitive from justice charge do, in the particular circumstances of this case, violate Connecticut's rules of practice and statutes, which violations in turn serve to bar Connecticut from surrendering the applicant to New York authorities to be sentenced on his New York conviction for manslaughter in the first degree. The present case is thus distinguishable from the possibilities the Sanders court notes that would not occasion another hearing: identical grounds which are proven by different factual allegations, are supported by different legal arguments, are couched in different language or are varied in immaterial respects. Sanders v. United States, supra, 16. Nonetheless, because of the conceptual difficulties which the parties acknowledge attend this case we include the Sanders court admonition that "[sjhould doubts arise in particular cases as to whether two grounds are different or the same, they should be resolved in favor of the applicant." Id. In view of our disposition of this case, we need not address the plaintiff's alternative claim that the court's ruling also constituted a violation of the Connecticut constitution. We thus follow the recognized policy of self-restraint and the basic judicial duty to eschew unnecessary determinations of constitutional questions. Pepin v. Danbury, 171 Conn. 74, 88, 368 A.2d 88. See also Rescue Army v. Municipal Court, 331 U.S. 549, 568-73, 67 S. Ct. 1409, 91 L. Ed. 1666; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47, 56 S. Ct. 466, 80 L. Ed. 688 (Brandeis, J., concurring). See generally Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Polities (1962). There is error, the judgment is set aside and the ease is remanded for a hearing consistent with this opinion. In this opinion the other judges concurred. The defendant asserts in Ms brief that bond has been set, but not met. The only statutory provision which might be considered to bear upon this question is General Statutes § 52-470 which reads in relevant part: "The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the ease, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the ease as law and justice require." By referring exclusively to the duties of the "court or judge hearing any habeas corpus," § 52-470 serves, however, only to delineate the proper scope of a hearing if one is legally required. To determine whether a hearing is, in the first instance, legally required, Practice Book, 1978, § 531 must be considered. Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148, is the leading United States Supreme Court ease on the subject of whether a second application for habeas corpus relief merits a hearing and its definition of "ground" is utilized. Looking to federal law to support a definition of "ground" in Practice Book, 1978, § 531 is particularly appropriate in this context because the federal constitutional and statutory framework for habeas corpus relief is similar to the one provided by Connecticut's constitution, statutes, and rules of practice, and there is no decision of this court which discusses the scope and applicability of § 531 or its predecessors. The writ of habeas corpus is constitutionally guaranteed by article one, § 9 of the United States constitution; compare article first, § 12 of the Connecticut constitution; but the right to a hearing is statutorily limited by 28 U.S.C. $ 2244 which provided in pertinent part at the time of the Sanders decision: "No . . . judge shall be required to entertain an application for a writ of habeas corpus . if it appears that the legality of [the] detention has been determined . on a prior application for a writ of habeas corpus and the petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry." (Emphasis added.) It was in the context of formulating basic rules to guide the lower federal courts in determining whether to hear successive habeas corpus actions pursuant to 28 U.S.C. § 2244 and other federal statutes that the Sanders court rendered its definition of "ground." In 1966, 28 U.S.C. § 2244 was amended to provide in part: "When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a court of the United States or a justice or judge of the United States release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application for a writ of habeas eorpus in behalf of such person need not be entertained by a court of the United States or a justice or judge of the United States unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ." 28 U.S.C. § 2244 (b). This amendment did not in any way restrict the availability of habeas corpus nor was it apparently intended to do so. See Report of the Senate Judiciary Committee, 1966 U.S. Code Cong. & Adm. News., p. 3664. It simply altered the procedures by which a federal district court would determine that an applicant's conduct barred him from a right to be further heard. See Johnson v. Copinger, 420 F.2d 395, 398 (4th Cir.). The Supreme Court in Sanders had recognized that such conduct could serve to bar further hearings. Sanders v. United States, supra, 17-19. The court orally stated its reason for denying a hearing on the second application: "I think if you have constitutional claims, they should be raised at the earliest time that is possible to raise them and you can't come in and raise one and then you get denied on one and make the other, and continually raise constitutional questions as they occur to the mind of the defendant or to his counsel and so, therefore, we've had one hearing on this, and I think he should have raised it at the initial time. He didn't do it, and I think he's foreclosed of raising it at this time, and so for that reason I will deny the writ." This statement does not leave the court's rationale for its denial totally free from uncertainty. A possible interpretation is that the phrase "if you have constitutional claims" is the equivalent of "assuming arguendo you have different constitutional claims" and thus no concession has been made that different grounds do necessarily exist. Pursuant to General Statutes § 54-46 and Practice Book, 1963, § 2137, the plaintiff is given the opportunity to object to the entry of the nolle prosequi and to demand either an immediate hearing on the underlying charge or its dismissal. We are constrained to remark on the defendant's concern that our disposition of this case may open the floodgates to unwarranted successive applications for habeas corpus relief which will needlessly burden the courts of this state with endless litigation. See also Sanders v. United States, 373 U.S. 1, 23, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (Harlan, J., dissenting). We do not share the defendant's pessimism for several reasons. First, the nature of habeas corpus relief indicates that an applicant would normally seek to present all his claims as early as possible in order to be free of the alleged illegal detention. Second, under Practice Book, 1978, § 531, an applicant desirous of a second or successive hearing on the basis that he is alleging a different ground must show that his application does, indeed, involve a different ground, not merely a verbal reformulation of a previous ground, different legal arguments, or different factual allegations. Finally, it has been recognized that "habeas corpus has traditionally been regarded as governed by equitable principles. . . . Among them is the principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." Fay v. Noia, 372 U.S. 391, 438, 83 S. Ct. 822, 9 L. Ed. 2d 837. The Sanders court in reiterating this principle added: "Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, to entertain collateral proceedings whose only purpose is to vex, harass, or delay." Sanders v. United States, supra, 18. This court would not afford the trial courts of this state less protection from needless vexation than the United States Supreme Court would grant federal district courts. Full consideration of the merits of the new application can be avoided if there has been an abuse of the writ remedy. Certainly a deliberate bypass of a ground on the first application would constitute one such abuse. Fay v. Noia, supra, 439.

Bogdanski, J. In 1977, the individual defendants, as owners of two separately acquired but contiguous parcels of land, one consisting of approximately twelve acres and the other of thirteen acres, filed an application for a certificate of approval with the Shelton zoning board of appeals. Following a public hearing, the defendant board granted the application of the individual defendants "for [a] certificate of approval for relocation of 110 existing mobile home sites, all entirely within an existing trailer park and to create 16 additional conforming sites, to be located on the property of the applicants at 501 Bridgeport Avenue." The plaintiff, as an abutting land owner, appealed to the Superior Court from the action of the defendant board. The trial court found that the board had not acted illegally or in abuse of its discretion in granting the application and dismissed the appeal. After a petition for certification had been granted, the plaintiff appealed to this court. The dispositive issue is whether the defendants sustained their burden of establishing that in 1966, when the zoning regulation prohibiting the operation of trailer parks was enacted, the land on which the trailer park was being operated consisted of twenty-five acres and that there were 126 prepared and usable trailer sites on the subject premises. Absent such proof, there can be no legal basis to support the action of the board and the decision of the trial court. In August of 1966, the city of Shelton enacted zoning regulations which specifically prohibited the use of trailer parks, except that any trailer park then lawfully existing could be continued subject to the following requirements: "a. The trailer park shall include only those trailer sites which, on the effective date of this Paragraph, were prepared and usable and were provided with improved access and a piped central water supply system, b. Within 60 days after the effective date of this Paragraph, the owner of the trailer park shall present to the Zoning Enforcement Officer a statement signed by the Lower Naugatuck Valley District Public Health Department certifying that satisfactory provision has been made for water supply, sewage disposal and refuse collection for all of the trailer sites in the trailer park." The regulations also provide that upon their effective date, the "Zoning Enforcement Officer shall make a survey of all trailer parks in the City of Shelton to determine the number of prepared and usable trailer sites in each park." The required survey was not conducted until 1976. The Shelton zoning regulations also prohibit the enlargement of any nonconforming use and provide that a nonconforming use which is changed to a conforming use or one that is less nonconforming cannot be subsequently changed back to a nonconforming use. The effective date of all of the foregoing regulations was August 5,1966. It is conceded that in 1966, at the time the relevant zoning regulations were enacted, a trailer park was being operated at "501 Bridgeport Avenue." What is disputed is the size of that trailer park and the number of trailer sites which it contained. The evidence before the board as to the location and number of trailer sites was as follows: (1) testimony by the zoning enforcement officer that in 1976 there were 110 trailer sites on what he believed to be the twelve acre portion of the subject premises; (2) a permit issued in 1974 by the state of Connecticut real estate commission for 126 trailer sites at 501 Bridgeport Avenue; (3) testimony of an abutting land owner that the tax records and a survey prepared at the direction of the board of aldermen indicated that there were seventy-one trailer sites on the subject properties in 1966; (4) a map prepared in 1974 showing the twenty-five acre tract divided into two distinct parcels, of which approximately 110 rectangles appear on the twelve acre portion and eighteen on the thirteen acre portion; (5) testimony that the defendant board had granted an application for a used car lot on the thirteen acre portion of the subject premises and that that portion had never been used for a trailer park. There was also evidence that the individual defendants acquired title to the two parcels of land which comprise the twenty-five acres at different times in 1974. Prom the record before the board, it is impossible to determine what the situation was with respect to either the existence or location of complying sites on the effective date of the relevant zoning regulations. Because the evidence does not support a finding that in August of 1966, there existed 126 prepared and usable trailer sites on the twenty-five acre parcel of land, it was beyond the power of both the zoning and planning commission and the zoning board of appeals to issue a certificate of zoning compliance. Therefore, contrary to the determination of the court below, we conclude that the defendants' application must be treated as a request for a variance. Clearly, an enlargement of a nonconforming trailer park was being sought both in terms of area and number of trailer sites. Because a variance was, in fact, being sought, it was incumbent upon the defendants to establish that the enlargement requested was permitted under the provisions of the governing zoning regulations. Bogue v. Zoning Board of Appeals, 165 Conn. 749, 754, 345 A.2d 9 (1974); Scobie v. Idarola, 155 Conn. 22, 23, 229 A.2d 361 (1967). The Shelton zoning regulations, however, as noted above, not only expressly prohibit the enlargement of any nonconforming use, they also provide that a nonconforming trailer park shall consist of only those trailer sites which were prepared and usable on the effective date of the regulations. There is nothing in the zoning regulations which gives the board authority to grant a variance to a nonconforming trailer park. Clearly, the regulations in question are designed to protect the right of a trailer park owner to continue only the same use of his property as it existed before the adoption of the zoning regulations. It is also clear that the purpose of the zoning regula tions is to seek the elimination rather than the enlargement of nonconforming uses. Raffaele v. Planning & Zoning Board of Appeals, 157 Conn. 454, 458, 254 A.2d 868 (1969); Baccante v. Zoning Board of Appeals, 153 Conn. 44, 47, 212 A.2d 411 (1965). The board's decision held, in effect, that the present nonconforming nse conld be extended to an additional area and enlarged to include additional trailer sites. In so ruling, the board exceeded its authority. Because the defendant board lacked the authority to grant the requested variance, the plaintiff's appeal must be sustained. There is error, the judgment is set aside and the case is remanded with direction to sustain the appeal. In this opinion the other judges concurred. "#1277-5 — Nicholas Conti of Stratford and David A. Einbinder of Woodbridge, Trustee for Nicholas Conti, for certificate of approval for relocation of 110 existing mobile home sites, all entirely within an existing trailer park and to create 16 additional conforming sites, to be located on the property of the applicants at 501 Bridgeport Ave., partially 1A2 and partially LIP Zone." In 1975, the defendant board had granted the individual defendants a variance to permit the relocation of 107 trailer sites, but had specified that the permit had to be used within two years of its granting. Since an appeal taken by another abutting land owner had not been resolved at the time the permit by its own terms expired, the individual defendants filed the application which is the subject matter of this appeal. The numbers on the rectangles on the twelve acre parcel are unrelated to the number of rectangles shown. The rectangles on the thirteen acre parcel are not numbered. This testimony was given in opposition to the 1975 application. A transcript of the 1975 hearing before the defendant board was introduced as an exhibit at the 1977 hearing. Under Shelton's zoning regulations, an application for a certificate of zoning compliance must be approved by the planning and zoning commission before "[any] land, building, or other structure or part thereof, or use thereof, shall be occupied, changed in use, constructed, reconstructed, enlarged, extended, moved or structurally altered." An application may be approved only when the proposed use conforms to all of the requirements of the zoning regulations. The zoning and planning commission ruled that it did not have jurisdiction to act upon the individual defendants' 1975 application for a certificate of zoning compliance. In 1977, the individual defendants went directly to the defendant zoning board of appeals with their application. Section 4.1 of the Shelton zoning regulations provides as follows: "The Zoning Board of Appeals shall have all the powers and duties prescribed by these Regulations and the General Statutes of the State of Connecticut . . . Section 8-6 of the General Statutes provides in relevant part: "The zoning board of appeals shall have the following powers and duties: . (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not he permitted hy variance in districts in which such uses are not otherwise allowed. . . ." (Emphasis added.) While it is true that a zoning board of appeals may have the statutory authority to grant variances under certain circumstances, it is clear that this statutory authority may be limited by zoning regulations which specify the extent to which uses shall not be permitted by variance in areas in which such uses are not otherwise allowed. See footnote 6. Such is the case here.

Peters, J. The sole issue on this appeal is whether a motion for modification of an order for permanent alimony was properly denied. The plaintiff, Charlene Cummock, moved for modification of alimony for two reasons: (1) loss of support payments when her two daughters went to live with their father, the defendant David Cummock, and (2) diminution in her earnings. After a full hearing the trial court, Higgins, J., denied the motion for modification and this appeal was taken by the plaintiff. The underlying facts are not in dispute. The plaintiff and the defendant were divorced in 1976, at which time custody of the two minor daughters was awarded to the plaintiff. The divorce decree contained various provisions for alimony, support, and assignment of property. It stated, furthermore, that "it is agreed that . . . when the Defendant takes and has the children with him for six (6) consecutive days inclusive, he will be allowed a per diem reduction in the monthly support for the child or children with him during that period of time." First the older daughter and now the younger one have come to live with the defendant, their father, and the decree has accordingly been modified with regard to their custody. Correlatively the previous orders of support have been revoked, so that the defendant, now the custodial parent, is no longer obligated for support payments to the plaintiff. The trial court denied the two parts of the motion for modification of alimony on two different grounds. To the extent that the plaintiff mother claimed that a change in her earnings warranted a change in the alimony order, the court found that the financial affidavit and the other factual evidence produced at the hearing did not support this contention. That conclusion is not at issue on this appeal. With respect to the plaintiff's other claim, that loss of support payments constituted a change of circumstances, the court found that change in custody and the consequent loss of support could not, as a matter of law, constitute a material change of circumstances. This conclusion is the principal issue before us. The court was asked, at trial, to permit amendment of the motion for modification, to allow a change in the defendant's financial circumstances to be a ground for altering the alimony award. The court refused to do so, for the reason that the defendant had not been given fair notice that such an issue would be raised. This ruling also is claimed to have been erroneous. The established rules that govern motions for modification of alimony are not in dispute. Modification requires the moving party to show a substantial change of circumstances. "The court must be satisfied that the changed circumstances requiring a modification were not contemplated by the parties at the time of the entry of the decree, that they are substantial, and that they arose subsequent to the entry of the original decree." Swayze v. Swayze, 176 Conn. 323, 337, 408 A.2d 1 (1978); Friedly v. Friedly, 174 Conn. 279, 280, 386 A.2d 236 (1978); Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976) ; see General Statutes § 46b-86 (formerly § 46-54). The trial court's findings are reviewed by this court to determine whether there was a reasonable basis for its conclusions. Corbin v. Corbin, 179 Conn. 622, 427 A.2d 432 (1980); Swayze v. Swayze, supra, 337. In these matters, as in other questions arising out of marital disputes, this court relies heavily on the exercise of sound discretion by the trial court. See, e.g., Corbin v. Corbin, supra, 622; Fucci v. Fucci, 179 Conn. 174, 180-81, 425 A.2d 592 (1979); Jacobsen v. Jacobsen, 177 Conn. 259, 262-63, 413 A.2d 854 (1979). In this case, however, the trial court's conclusion to deny modification was based not on an exercise of discretion but on a purported principle of law. The court decided that there was no legal precedent for permitting loss of support payments to be considered a material change of circumstances and therefore refused to determine whether there was a factual basis for the mother's motion for modification of alimony. While it is true that this court has never expressly ruled on the relationship between support and alimony payments, we have repeatedly noted that a broad range of circumstances is relevant in deciding whether a decree of alimony may be modified. Jacobsen v. Jacobsen, 177 Conn. 259, 264, 413 A.2d 854 (1979); Sanchione v. Sanchione, 173 Conn. 397, 401-402, 378 A.2d 522 (1977) . See 2A Nelson, Divorce and Annulment §17.01 (1961). The same criteria that determine an initial award of alimony are relevant to the question of modification, and these require the court to consider, without limitation, the needs and financial resources of each of the parties, as well as such factors as health, age and station in life. General Statutes § 46b-82 (formerly §46-52). Without in any way prejudging what decision the trial court should have reached upon a factual determination of the relevant circumstances, we find the court to have been in error in refusing a modification as a matter of law. The defendant father urges that modification, if not precluded by the presumptive independence of support and alimony payments, is nonetheless in this case inappropriate because of the specific terms of the divorce decree. The father argues that the decree's provision for abatement of support when the children are in his custody as their father conclusively establishes that abrogation of support payments was contemplated at the time of the divorce and hence cannot qualify as a change of circumstances. This ground was not relied upon by the trial court. We are not persuaded that the language of the decree is so unambiguous, that it so clearly contemplates total abrogation rather than partial diminution of support, that its effect should be determined by this court as a matter of law. What meaning each of the parties attached to this language, and whether there was any basis for misunderstanding of its meaning, are questions to be resolved upon a further hearing below. Cf. Kenworthy v. Kenworthy, 180 Conn. 129, 132, 429 A.2d 837 (1980); Monroe v. Monroe, 177 Conn. 173, 182-83, 413 A.2d 819, appeal dismissed, cert. denied, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). Although our legislation, General Statutes § 46b-86, permits a divorce decree to preclude modification of periodic alimony, such an interpretation is not favored, and ambiguous orders of periodic alimony are treated as modifiable. Scoville v. Scoville, 179 Conn. 277, 280, 426 A.2d 271 (1979); Sanchione v. Sanchione, 173 Conn. 397, 404, 378 A.2d 522 (1977). The trial court should therefore have reached and decided the question whether the plaintiff: mother's loss of support payments and any resultant reduction in financial contributions to her household were a sufficiently substantial change of circumstances, in the light of whatever factual evidence the plaintiff might offer, to warrant modification of the alimony order. Since a new hearing is required, it is not necessary for us to rule on the trial court's refusal to permit a last-minute amendment of the grounds of the mother's motion, except to note that the propriety of such amendments is ordinarily discretionary with the trial court. Wesson v. F. M. Heritage Co., 174 Conn. 236, 239, 386 A.2d 217 (1978); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 454, 352 A.2d 291 (1974); Robinson v. Faulkner, 163 Conn. 365, 376, 306 A.2d 857 (1972). There is error, and the case is remanded for proceedings consistent with this opinion. In this opinion the other judges concurred.

The plaintiff's petition for certification for appeal from the Superior Court in the judicial district of Hartford-New Britain at Hartford is granted by the court.

Per Curiam. The defendant was charged with the offenses of kidnapping in the second degree in violation of General Statutes § 53a-94 (a) and sexual assault in the first degree in violation of General Statutes § 53a-70 (a). The jury found him guilty of sexual assault in the first degree, but not guilty of kidnapping in the second degree or a lesser included crime. He has appealed from the judgment rendered on the verdict, claiming error in the charge to the jury. The defendant's claim stems from the manner in which the court described the relationship between the kidnapping and sexual assault offenses, which was to be determined by the jury. State v. Lee, 177 Conn. 335, 343-44, 417 A.2d 354 (1979); State v. Chetcuti, 173 Conn. 165, 168-69, 377 A.2d 263 (1977); State v. Dubina, 164 Conn. 95, 99-100, 318 A.2d 95 (1972). The claim is not directed to any particular part of the charge but to the charge as a whole, which the defendant claims permitted an instruction on the complainant's legal inability to consent to kidnapping, because she was less than sixteen years of age, to "spill over" to the sexual assault charge. The court first instructed the jury on the elements of sexual assault in the first degree and its lesser included offenses. The court did not define consent for the jury until it instructed them on the lesser included offense of sexual assault in the fourth degree where lack of consent to sexual contact is an element. When the court completed its instructions on sexual assault in the first degree and lesser included crimes, the-court discussed some general principles of law and the evidence relating to the sexual assault charge. The court then instructed the jury on kidnapping in the second degree and a lesser included crime. With regard to consent, which may be in issue for these crimes, the court discussed the statutory provision which renders ineffective the consent to restraint of a child under sixteen years old. General Statutes § 53a-91 (1). See State v. Dubina, supra, 99. When the court completed its instructions on second degree kidnapping and second degree unlawful restraint, the court instructed the jury that if they found the defendant guilty of first degree sexual assault or a lesser included crime and of second degree kidnapping or the lesser included crime of second degree unlawful restraint, they must determine whether the kidnapping or unlawful restraint was incidental to the sexual assault. In explaining this relationship, the court did not review its previous instructions on consent. The defendant claims that the court's instruction on the complainant's lack of capacity to consent, which related to the kidnapping charge, could reasonably have been construed by the jury to apply to the sexual assault charge. An examination of the charge clearly shows that the court discussed the complainant's lack of capacity to consent solely in the context of its instructions on kidnapping and unlawful restraint. Furthermore, whatever spillover might have occurred could only have related to sexual assault in the fourth degree where lack of consent is an element of the crime. The court explicitly instructed the jury that the only sexual assault crime at issue in which lack of consent was an element was sexual assault in the fourth degree. But the jury never proceeded to consider the crime of sexual assault in the fourth degree, because it found the defendant guilty of sexual assault in the first degree. The charge gave the jury a clear understanding of the elements of the crimes charged and the lesser included crimes, as well as the relationship of the crimes charged and included in one count to those charged and included in the other count. The court also gave the proper guidance to determine whether the elements of each crime had been proven. State v. Avila, 166 Conn. 569, 574, 353 A.2d 776 (1974). The court's instructions when viewed as a whole had no tendency to mislead the jury. State v. Corvo, 172 Conn. 414, 415, 374 A.2d 1050 (1977). There is no error. The issues raised in the defendant's preliminary statement of issues which were not briefed are considered abandoned. State v. Soffler, 174 Conn. 452, 457, 389 A.2d 1257 (1978).

The plaintiff's motion "Objection to Defendant's Pro Se Appearance" in the appeal from the Superior Court in Hartford County is denied.

Bogdanski, J. This action was brought by Walter E. Heller and Company, Inc., and First National Bank of Boston (both hereinafter referred to as Heller) against George Salerno, a deputy sheriff for New Haven County, and Seth W. Darley, tax collector for the town of Branford. Heller originally sought to restrain the defendants from interfering with its possession of certain personal property at the Branford manufacturing plant of MIF Industries, Inc., a Delaware corporation. The defendants, by cross complaint, sought to restrain Heller from interfering with their attempt to levy an alias tax warrant on the personal property of MIF Industries, Inc. By agreement of the parties, the court authorized Heller to sell the tangible personal property of MIF Industries, Inc., and deposit the proceeds with the clerk of the Superior Court. Heller then filed a substituted complaint seeking an adjudication of the validity and priority of the respective claims to the proceeds of the sale. The trial court found the issues for Heller on its substituted complaint and on the cross complaint, and ordered the proceeds paid over to Heller. From that judgment, the defendants appealed to this court, assigning error in the court's findings, in the court's conclusions, and in the overruling of their claims of law. The finding discloses the following facts: On September 30, 1968, MIF Industries, Inc., a Connecticut corporation (hereinafter MIF-Connecticut) borrowed $3,675,000 from Heller. MIF-Connectient executed and delivered notes to Heller and, to secure the loans, gave Heller security interests in all of its personal property, then owned or thereafter acquired. Those security agreements provided that they would be binding upon the successors and assigns of MIF-Connecticut. On October 1, 1968, Heller filed financing statements (Form UCC-1) with the secretary of the state, describing the personal property subject to the security agreements. On September 16, 1969, MIF-Connecticut and two other corporations merged into and became MIF Industries, Inc., a corporation organized under the laws of Delaware (hereinafter MIF-Delaware). All parties to the merger agreed that the security agreements between Heller and MIF-Connecticut would continue to be effective against the personal property of MIF-Delaware. That understanding was set forth in the parties' "Plan and Agreement of Merger" annexed to the "Certificate of Merger" which was filed with the secretary of the state. Heller consented to the merger by a letter agreement dated September 16, 1969. That letter agreement provided that MIF-Delaware "does hereby assume the performance of and agrees to perform all of the terms, covenants, conditions, obligations, duties, liabilities and warranties on the part of MIF [Connecticut] . to be performed pursuant to the . . . Collateral Installment Note, Security Instruments and other documentation, all dated September 30, 1968." After the merger, MIF-Delaware defaulted in its obligations under the notes and security agreements with Heller. On July 13,1971, with the written consent of MIF-Delaware, Heller took possession of all the personal property of MIF-Delaware at its plant in Branford. That property included $400,000 worth of inventory, some of which had been acquired by MIF-Delaware after the merger, but all of which had emanated from the premerger assets of MIFCopnecticut. On the next day, July 14,1971, Salerno, pursuant to an alias tax warrant issued by Darley, made demand for delinquent personal property taxes which MIF-Delaware owed to the town of Branford. When Salerno was refused payment, he attempted to take possession of the personal property of MIF-Delaware. The trial court concluded that Heller had valid security interests in all the personal property of MIF-Connecticut prior to the merger; that MIF-Delaware assumed all of MIF-Connectieut's obligations under the security agreements after the merger; that by statute and by contract the security interests of Heller in the after-acquired inventory of MIF-Delaware remained unimpaired; that it was not necessary to file a new financing statement after the merger to perfect the security interests of Heller in the property acquired after the merger since those security interests were again perfected on July 13, 1971, when Heller took possession of the personal property of MIF-Delaware; that those security interests were perfected prior to the execution of the alias tax warrant by Salerno on July 14, 1971; and that the entire fund deposited with the clerk of Superior Court should be paid over to Heller. The defendants contend that the security agreements of September 30,1968, could not extend to any assets acquired or produced after the merger in the absence of a new security agreement, and that the court's conclusion that Heller had perfected security interests in the after-acquired inventory of MIF-Delaware is meaningless if no security interest ever existed in that new property. The present dispute concerns $400,000 worth of MIF-Delaware inventory, a portion of which was acquired after the merger. The initial question is whether Heller had an enforceable security interest in that inventory. A "'[sjecurity interest' means an interest in personal property or fixtures which secures payment or performance of an obligation." General Statutes § 42a-l-201 (37). A security interest, however, cannot be enforced against the debtor and third parties unless the collateral is in the possession of the secured party or the debtor has signed a security agreement which contains a description of the collateral. General Statutes § 42a-9-203 (1). A " 'security agreement' means an agreement which creates or provides for a security interest." General Statutes § 42a-9-105 (h). " 'Agreement' means the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance as provided in sections 42a-l-205 and 42a-2-208." General Statutes §42a-l-201 (3). In this case, MIF-Connecticut borrowed $3,675,000 from Heller. The obligation to repay the loan was evidenced by the notes executed by MIF-Connecticut and the performance of that obligation was secured by the security agreements. Thus Heller had security interests in the collateral described in the security agreements with MIF-Connecticut. That collateral included all inventory "owned or thereafter acquired" by MIF-Connecticut. A security interest in after-acquired property, or the so-called "floating lien," is expressly sanctioned by General Statutes § 42a-9-204 (3). Whether the security interest in after-acquired inventory continued after the merger is readily ascertainable. All parties to the merger expressly agreed that the security interests of Heller would continue to be enforceable against the assets of the surviving corporation, MIF-Delaware. The "Plan and Agreement of Merger" provided that MIF-Delaware would be responsible not only for the liabilities of the constituent corporations, but also for their obligations and contracts. Furthermore, by letter agreement with Heller, MIF-Delaware assumed the performance of all duties and obligations of MIF-Connecticut with respect to the security agreement. The requirements of § 42a-9-203 (1) (b) for a "signed" security agreement were met in this ease by the execution of the MIF-Connecticut security agreement, the subsequent "Plan and Agreement of Merger," and the letter agreement wherein MIF-Delaware expressly assumed the security agreement obligations of MIF-Connectient. That a security agreement may be established through several writings signed by the same or different debtors is undisputed. See Nunnemaker Transportation Co. v. United California Bank, 456 F.2d 28, 31 (9th Cir.); In re Wambach, 343 F. Sup. 73, 75 (N.D. Ill.), aff'd, sub nom. Wambach v. Randall, 484 F.2d 572 (7th Cir.). The trial court correctly concluded, that MIF-Delaware gave Heller a security interest in its after-acquired inventory and that that security interest was enforceable against MIF-Delaware and third parties. Whether that security interest in the inventory of MIF-Delaware remained perfected by the premerger filing of the financing statements on October 1, 1968, is not at issue. The trial court found that Heller took possession of the collateral on July 13, 1971. "A security interest in . . . goods . . . may be perfected by the secured party's taking possession of the collateral." General Statutes § 42a-9-305. The definition of "goods" includes "inventory." General Statutes § 42a-9-109. Therefore, when the defendants attempted to levy on the inventory of MIF-Delaware on July 14, 1971, their rights were subordinate to those of Heller, who had perfected its security interest in that inventory on the previous day. See General Statutes § 42a-9-201 and 42a-9-301 (1) (b). There is no error. In this opinion the other judges concurred. The defendants have briefed only two of their assigned errors in the court's finding of facts. Those findings have not been corrected since they will not affect the result. Anderson v. Pension & Retirement Board, 167 Conn. 352, 353 n.1, 355 A.2d 283; Lewis v. Lewis, 162 Conn. 476, 481, 294 A.2d 637. The remaining claimed errors in the finding of facts have not been briefed and are considered abandoned. Gentry v. Warden, 167 Conn. 639, 640, 356 A.2d 902; Pappas v. Pappas, 164 Conn. 242, 243, 320 A.2d 809. The "Han and Agreement of Merger" also provided as follows: "The Surviving Corporation shall be responsible and liable for all of the liabilities and obligations of each of the Constituent Corporations; . . . and neither the rights of creditors nor any liens upon the property of any of the Constituent Corporations shall be impaired by the Merger." Art. III, ¶ 3. "All corporate acts, plans, policies, contracts, approvals and authorizations of the Connecticut Corporations and Canaan, their respective shareholders, board of directors, officers and agents which were valid and effective immediately prior to the effective date of the Merger shall be taken for all purposes as the acts, plans, policies, contracts, approvals and authorizations of the Surviving Corporation and shall be effective and binding thereon as the same were with respeet to the Connecticut Corporations and Canaan." Art. III,¶ 6. See footnote 2. See also General Statutes § 33-369 (d); Del. Code Ann. tit. 8-9, § 8-259 (a) (Sup. 1968). While those statutes require a surviving corporation to be responsible for all "liabilities" and "obligations" or "duties" of the merging corporations, we need not decide, under the facts of this case, whether those statutes alone require the same result.

Bieluch, J. The defendant appeals from his judgment of conviction rendered in accordance with the jury's verdict of guilty on the following charges: possession of narcotics with intent to sell or dispense in violation of General Statutes § 21a-277 (a); possession of narcotics in violation of General Statutes § 21a-279 (a); possession of marihuana in violation of General Statutes § 21a-279 (c); and possession of drug paraphernalia in violation of General Statutes § 21a-267 (a). He claims in this appeal that his convictions on the first and second counts for possession of narcotics with intent to sell and possession of narcotics, respectively, violate the federal and state prohibitions against double jeopardy. He also challenges the sufficiency of the evidence to support the jury's finding in the third count that the defendant possessed the marihuana found in the bedroom dresser. Finally, the defendant claims that the court's use of examples to illustrate the element of possession constituted an illegal expansion of that element. We find error. The jury could reasonably have found the following facts: On June 27,1985, at approximately 12:30 p.m., several members of the New Haven police department executed a search warrant for an apartment at 11 Northwest Drive, New Haven. The apartment was rented to Alexis Laing, who lived there with the defendant and her son. One of the officers executing the warrant, Fredrick Hurley, knocked on the door of the apartment and, after hearing no response, entered through the front door. Upon his entry, he immediately went to the mas ter bedroom on the second floor. There he found the defendant alone, lying naked on the bed, and wearing only a pair of socks. The defendant was seen rising from a reclining position on the bed. The only occupant of the apartment at that time was the defendant. On the bed, approximately at an arm's length from the defendant, was a sandwich bag box from which protruded a plastic bag containing what was determined to be cocaine. A search of the sandwich bag box uncovered a smaller plastic bag containing cocaine, seventeen small tin foil packets or envelopes of cocaine, and two glassine bags. One of the glassine bags contained quinine and procaine. The second glassine bag contained a mixture of heroin, cocaine and quinine. A further search of the bedroom yielded three manila envelopes containing marihuana. These envelopes were found in the top drawer of the dresser. Other items seized from the top of the dresser included razor blades, small manila envelopes, a roll of aluminum foil, a set of measuring spoons, cigarette rolling paper and a small grinder or strainer. In the first floor kitchen, aluminum foil, bottles of inositol, and a cent-o-gram scale were seized by the police. The total amount of narcotics seized was as follows: 79.72 grams (2.81 ounces) of cocaine; 80 milligrams (.10 ounce) of heroin; and 4.97 grams (.17 ounce) of marihuana. The defendant was arrested and subsequently charged in four counts as follows: count one, possession of narcotics, to wit, cocaine, with intent to sell, a violation of General Statutes § 21a-277 (a); count two, possession of narcotics, to wit, heroin, a violation of General Statutes § 21a-279 (a); count three, possession of marihuana, a violation of General Statutes § 21a-279 (c), and count four, possession of drug paraphernalia, a viola tion of General Statutes § 21a-267 (a). He pleaded not guilty to the charges and elected to be tried by a jury. At the close of the state's case, the defendant made an oral motion requiring the state to elect between the first and second counts of the information, arguing that it was a violation of double jeopardy to convict and sentence the defendant for both possession of a narcotic substance with intent to sell, and possession of a narcotic substance. The trial court denied the motion. At that time, the defendant also moved for a judgment of acquittal, arguing that the evidence was insufficient to establish that the defendant had in-hand possession of the narcotics and marihuana or exclusive possession of the apartment in which they were found. This motion was also denied. Thereafter, the defendant presented his evidence and the case was submitted to the jury, which rendered a verdict of guilty on all four counts. The defendant was sentenced accordingly. I Double Jeopardy The defendant's first claim on appeal is that his conviction on count one, possession of narcotics with intent to sell, and on count two, possession of narcotics, violates the federal and state prohibitions against double jeopardy and the right to due process. A claim of double jeopardy which is adequately supported by the record is reviewable under the doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). See, e.g., State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); see also State v. Kitt, 8 Conn. App. 478, 485, 513 A.2d 731, cert. denied, 202 Conn. 801, 518 A.2d 648 (1986) (double jeopardy violation recognized as plain error). We find this claim is proper for an Evans review. "The double jeopardy clause of the fifth amendment to the United States constitution provides: 'nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.' Connecticut common law also secures this right. See State v. Johns, 184 Conn. 369, 373 n.6, 439 A.2d 1049 (1981). . . . Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. See State v. Frazier, 194 Conn. 233, 238, 478 A.2d 1013 (1984)." State v. Devino, supra, 73-74. For the first step of this analysis, we look at the state's information. Counts one and two of the information charge the defendant with violations of General Statutes § 21a-277 (a) and 21a-279 (a), respectively, and allege criminal conduct of the defendant at approximately 12:30 p.m., on June 27,1985. There can be no doubt that the offenses for which the defendant was charged and convicted arose out of the same act of possession of the two narcotic substances simultaneously at the same time and place. See State v. Devino, supra, 74. The state argues that the narcotics violations alleged in counts one and two do not constitute the same act or transaction because count one referred to the possession and sale of cocaine, and count two referred to the possession of heroin. We note, however, that there is no indication that the legislature intended to authorize multiple punishment for the simultaneous possession of more than one narcotic. State v. Rawls, 198 Conn. 111, 121, 502 A.2d 374 (1985). Although the crimes of possession and possession with intent to sell both prohibit illegal transactions involving narcotic sub stances, a prosecutor may not create one offense of each from a single transaction by particularizing various narcotic substances in separate counts. Id., 120. We find, therefore, that this distinction relied upon by the state is insufficient to base a finding that the two offenses were not the same act or transaction. "With respect to the second condition, 'where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.' Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). In making this determination, we look only to the information and the bill of particulars. State v. Troynack, 174 Conn. 89, 96-97, 384 A.2d 326 (1977). 'The test for determining whether one violation is a lesser included offense in another violation is whether it is possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser. If it is possible, then the lesser violation is not an included crime.' State v. Brown, 163 Conn. 52, 61-62, 301 A.2d 547 (1972). Viewed schematically, a lesser included offense is a concentric circle within the greater offense whereas separate but overlapping offenses may be seen as intersecting circles." State v. Amaral, 179 Conn. 239, 242-43, 425 A.2d 1293 (1979). Applying this test to the crimes for which the defendant was convicted, we conclude that a person could not commit the greater offense of possession of a narcotic substance with the intent to sell without, likewise, having committed the lesser offense of simple possession. State v. Amaral, supra, 243; see State v. Goldson, 178 Conn. 422, 423 A.2d 114 (1979) (conviction of possession of heroin and of transportation of heroin violated the constitutional prohibition against double jeopardy); see also State v. Nieves, 186 Conn. 26, 438 A.2d 1183 (1982) (possession of narcotics treated as lesser included offense of possession with intent to sell); cf. State v. Devino, supra, 75 (conviction for possession of narcotics and for illegal sale of narcotics not a violation of double jeopardy; one may either possess narcotics legally yet sell them illegally or sell narcotics without possessing them). "[E]ven if offenses are the same under Blockburger v. United States, [supra], the legislature may nevertheless explicitly authorize multiple punishments for their commission without violating the prohibition of double jeopardy. See Ohio v. Johnson, 467 U.S. 493, 499 n.8, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984); Missouri v. Hunter, 459 U.S. 359, 367-68, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983)." State v. Devino, supra, 76 n.6. We find nothing on the face of these two criminal statutes, nor have the parties indicated the existence of any legislative history that indicates the legislature's intent to provide multiple punishments for simple possession of narcotics and possession with intent to sell. The state's argument to the contrary notwithstanding, "[u]nless a clear intention to fix separate penalties for each [offense] involved is expressed, the issue should be resolved in favor of lenity and against turning a single transaction into multiple offenses." State v. Rawls, supra, 122. Because the crimes of possession of narcotics, and possession with intent to sell constitute parts of a single offense; State v. Amaral, supra, 245; and there is no expression of legislative intent that the crimes warrant separate punishment, the defendant's conviction on both counts violated the constitutional and common law prohibitions against double jeopardy. There remains for our consideration of this issue the proper scope of our remand. Had the trial court prop erly treated the charges of possession with intent to sell and simple possession as greater and lesser included offenses, respectively, it would have made it unnecessary in this case for the jury to consider the lesser offense after finding guilt on the greater. Double jeopardy would have been precluded. We now must circumscribe our order of remand for the trial court to render the proper judgment of conviction and sentence. The Supreme Court in State v. Rawls, supra, after finding duplicitous convictions of possession of cocaine and possession of heroin, set aside the judgment on the latter possession of narcotics count. In State v. Amaral, supra, 245, after holding that the three heroin charges were parts of a single offense, the court found it "necessary for the judgment to be modified so as to reflect only a sentence of not less than five nor more than ten years imprisonment on the greater offense, sale by a non-drug-dependent person." After finding that the crime of possession of heroin was a lesser included offense of the crime of transportation of heroin, the court in State v. Goldson, supra, 427, remanded the case with direction to render judgment for the defendant on the first count of the information charging him with such possession of heroin. This court in State v. Stellato, 10 Conn. App. 447, 457, 523 A.2d 1345 (1987), set aside the judgment of conviction on the lesser of the duplicitous counts and remanded with direction to render judgment of not guilty on that charge. In State v. Kitt, supra, 490, the direction was given to the trial court to exercise its discretion and set aside the conviction on either of the two conspiracy counts of unequal severity and to render judgment that the defendant was not guilty on that count. In Ball v. United States, 470 U.S. 856, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985), the United States Supreme Court held that the vacating of a duplicitous federal criminal conviction by the district court was the only remedy consistent with the congressional intent against multiple punishments. Id., 864. "One of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense. See Missouri v. Hunter, 459 U.S. 359, 368 [103 S. Ct. 673, 74 L. Ed. 2d 535] (1983). The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant's eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant's credibility and certainly carries societal stigma áccompanying any criminal conviction. . . . Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment." (Emphasis in original; citations omitted.) Ball v. United States, supra, 864-65. Following the reasoning of Ball v. United States, supra, we conclude that multiple convictions for the same offense constitute impermissible punishment under the prohibition against double jeopardy. The defendant's conviction on the lesser included offense of possession of narcotics, in violation of General Statutes § 21a-279 (a), which was contained in the second count must therefore be set aside by the trial court and judgment rendered for the defendant on that count. See Ball v. United States, supra; State v. Rawls, supra, 122; State v. Amaral, supra; State v. Goldson, supra; State v. Stellato, supra; State v. Kitt, supra. II Sufficiency of Evidence of Possession The defendant's second claim is that the evidence was insufficient to support the jury's verdict of guilty on count three, possession of marihuana in violation of General Statutes § 21a-279 (c). " 'In reviewing such a claim, we view the evidence, as we have repeatedly stated, with a view toward sustaining the verdict of the jury. State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983). In order to prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are 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." ' " (Citations omitted.) State v. Vilalastra, 9 Conn. App. 667, 673, 521 A.2d 170, cert. granted, 203 Conn. 806, 525 A.2d 521 (1987). It is clear from the evidence that the defendant was not in exclusive possession of the premises where the marihuana was found. There were, however, other incriminating circumstances which support the inference that the defendant constructively possessed the marihuana found in the top dresser drawer. It is undisputed that the room where the marihuana was located was the bedroom of the defendant, which he shared with Laing. Aside from the double bed, the dresser from which the marihuana was seized was the only piece of furniture in the room. The officer who discovered the marihuana testified that the top drawer in which he found the substance also contained men's jewelry. The defendant was found lying on the bed, at an arm's length from a large quantity of cocaine. Furthermore, the police discovered over $1000 in the defendant's wallet, which was on the dresser, and over $300 in the defendant's socks, which he was wearing at the time. On the basis of this evidence, the jury's conclusion that the defendant knew of the presence of the marihuana and exercised control over it was reasonable. Ill Jury Instructions The defendant further claims that the court's use of examples in its instructions to the jury on the element of possession erroneously expanded the scope of this element. The defendant relies upon the following examples of possession given by the court during its charge: "I possess, for example, this book on the desk in front of me, even though it actually belongs to the State of Connecticut, simply because it is before me and subject to my control and dominion. I also possess a briefcase which happens to be in my chambers because it is also under my control. I possess my car, which is out in the parking lot, because it is also under my control. I also possess furniture and other items in my home, even though I am not actually there now, for the same reason; because they are under my control and domin ion. . . . Now, sometimes more than one person may possess the same item. This is known as joint possession. For example, the furniture in my home or in someone's home might be jointly owned by husband and wife." " ' "In considering whether an illustration is fair or prejudicial, it is necessary to consider the instructions as a whole and all the facts and circumstances surrounding the trial and shown by the evidence, such as the complexity or simplicity of the issues and the multiplicity of facts." Luteran v. United States, 93 F.2d 395, 401 (8th Cir. 1937), cert. denied, 303 U.S. 644, 58 S. Ct. 642, 82 L. Ed. 1103 (1938).' " State v. Stepney, 191 Conn. 233, 248, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). The defendant's first contention is that the examples given by the court refer to the proximity of the item possessed and the person deemed to have possession of such item. The defendant claims that such examples were contrary to the limitation upon constructive possession set forth in State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985). In State v. Alfonso, supra, 634-35, the court held that the mere presence of marihuana in the kitchen of an apartment shared by the defendant and two other persons did not support the inference that the defendant knew of its presence or exercised dominion and control over it. The court held that additional evidence, circumstantial or supportive, was required to warrant such an inference. We find nothing in the trial court's charge which is contrary to State v. Alfonso, supra, or which could have reasonably misled the jury on the element of possession. Nowhere in the trial court's instructions was the jury told that it may infer possession merely because the defendant was in close proximity to the narcotics. To the contrary, the jury was instructed that "where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that he knew of the presence of the narcotics and had control over them unless there are other incriminating circumstances tending to buttress such an inference." Considering the instructions as a whole, we find that the jury was charged correctly on the element of possession in accordance with the holding of State v. Alfonso, supra. See State v. Stepney, supra. The defendant further alleges that the trial court erred by not cautioning the jury that the examples given during its instructions are only examples, and that they must determine guilt or innocence by following the jury instructions as a whole. See State v. Stepney, supra, 247-48. At trial, the defendant took no exception to the court's charge on this basis. We shall not, therefore, review this claim further, other than to note that the failure to caution the jury in this case does not constitute plain error. See Practice Book § 4061. There is error in part, the judgment as to count two, possession of narcotics in violation of General Statutes § 21a-279 (a) is set aside and the case is remanded to the trial court with direction to render judgment that the defendant is not guilty on that count. In this opinion the other judges concurred. "[General Statutes] Sec. 21a-277. (Formerly Sec. 19-480). penalty for ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION, DISPENSING, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned." "[General Statutes] Sec. 21a-279. (Formerly Sec. 19-481). penalty for ILLEGAL POSSESSION. SUBSTITUTION OF MEDICAL TREATMENT FOR CRIMINAL sanctions, (a) Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years, or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years, or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned." "[General Statutes] Sec. 21a-279. (Formerly Sec. 19-481). penalty for ILLEGAL POSSESSION. SUBSTITUTION OF MEDICAL TREATMENT FOR CRIMINAL sanctions. . . . (c) Any person who possesses or has under his control any quantity of any controlled substance other than a narcotic substance, or a hallucinogenic substance other than marihuana or 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 not more than one thousand dollars, or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense may be imprisoned not more than five years, or fined not more than three thousand dollars or be both fined and imprisoned." "The definition of 'narcotic substance' in General Statutes . . . § 21a-240 (30), expressly includes both cocaine and heroin." State v. Rawls, 198 Conn. 111, 120 n.6, 502 A.2d 374 (1985). See footnote 3, supra. Our review of the defendant's challenge to the sufficiency of the evidence is still governed by the principles announced in State v. Rutan, 194 Conn. 438, 479 A.2d 1209 (1984). See State v. Smith, 9 Conn. App. 330, 334, 518 A.2d 956 (1986). The defendant does not challenge the sufficiency of the evidence as to his convictions on counts one, two and four. The state's petition to the Supreme Court for certification limited to the issues of (1) whether the Appellate Court erred in imposing on the state the burden of proving harmlessness beyond a reasonable doubt with respect to erroneous rulings on evidence, and (2) whether the trial court erred in admitting opinion testimony of trained and experienced police officers concerning possession of narcotics with intent to sell, was granted. See State v. Vilalastra, 203 Conn. 806, 525 A.2d 521 (1987). The examples of possession given by the trial court are identical to those upheld on appeal in State v. Hill, 201 Conn. 505, 513 n.5, 523 A.2d 1252 (1986), and State v. Williams, 169 Conn. 322, 335 n.2, 363 A.2d 72 (1975). The defendant's further claim that the court erred in instructing the jury, by way of example, that the book on the bench was possessed by the trial judge because it was in front of him and "subject to my control and dominion." (Emphasis added.) The defendant alleges that the use of the phrase "subject to" undercuts the statutory definition of "possession" which requires that a person "have physical possession or otherwise to exercise dominion or control. . . ." General Statutes § 53a-3 (2). Although we recognize that being "subject to" one's control or dominion may, in certain contexts, be legally distinguishable from the actual exercise of control or dominion, the defendant's distinction is drawn with a fine line. Viewing the charge as a whole, we do not find that the jury could reasonably have been misled by the court's statement. See State v. Hill, 201 Conn. 505, 513-17, 523 A.2d 1252 (1986) (defining the term "possess" and upholding the court's use of examples identical to those in the present case).

Dupont, C. J. This case is a sequel to our decision in Bird Electron Beam Corporation v. Gamage, 11 Conn. App. 67, 526 A.2d 1 (1987). In that case, the plaintiff employer brought suit against the defendant, a former employee of the plaintiff, to enforce an anticompetition and nondisclosure agreement by preventing the defend ant from working for and from disclosing confidential information to a second employer. The "Non-Disclosure Agreement" provided that for a period of two years after termination of the defendant's employment with the plaintiff, he would not render services to any "conflicting organization" within a certain geographical area and would not disclose "confidential information." See id., 68 n.l. The trial court concluded that the agreement was effective to preclude the defendant from working for another if he were engaged in disclosing or using confidential information of the plaintiff, and that the defendant had not breached the agreement. On appeal, this court upheld the trial court's finding that the defendant was not disclosing or using confidential information learned from the plaintiff in his new employment. Id., 70. We remanded the case, however, for an articulation by the trial court as to whether the defendant's present employer was a "conflicting organization" and how that fact, if found, impacted on its conclusion as to whether the defendant breached the agreement because of his new employment. Id., 73. On remand, the trial court found that the defendant's new employer was not a "conflicting organization." The trial court further found that if the new employer was a conflicting organization "there could be no breach of the agreement so long as the. defendant did not disclose confidential information to the new employer." The plaintiff claims that the trial court erred (1) in finding that the new employer was not a "conflicting organization," and (2) in concluding that as long as the defendant did not disclose confidential information he could work for a "conflicting organization" without breaching the agreement. The plaintiffs specific argument is that the new employer was a "conflicting organization" within the meaning of the nondisclosure agreement and, therefore, the defend ant's employment was a per se violation of the agreement even if he were not disclosing confidential information. The definition of "conflicting organization" as set forth in the parties' nondisclosure agreement means "any person or organization engaged in or about to become engaged in research on, or development, production, marketing or selling of a conflicting product." The agreement also defines a "conflicting product." Whether the defendant's subsequent employer was a "conflicting organization" under the facts of this case was a factual issue involving the intention of the parties. See id., 73 n.3. The court's determination on such an issue will not be disturbed unless it is clearly erroneous. The trial court specifically found that the plaintiff is a "job shop," a service business which takes in products manufactured by others and then makes electron beam welding applications to these products. The court further found that the defendant's new employer, was not a "job shop" but, rather performed in-house welding on its own equipment, and did not compete with the business of the plaintiff for service work of others. From those facts, the court determined that the defendant was not working for a "conflicting organization." This conclusion is supported by the facts found, which were, in turn, based on the evidence presented; see Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); and it is not clearly erroneous. Accordingly, we hold that the trial court did not err in determining that the defendant's new employer was not a conflicting organization. The trial court further concluded that even if the new employer were a conflicting organization there could be no breach of the agreement so long as the defendant did not disclose confidential information to the new employer. The plaintiff argues that the agreement could be breached if the defendant merely works for a conflicting organiza tion without disclosing confidential information. Since we uphold the trial court's finding that the new employer is not a conflicting organization, we need not decide whether the trial court's interpretation of the agreement in this regard is erroneous. There is no error. In this opinion the other judges concurred.

It appearing that the defendant in the above-entitled case has failed to prosecute his appeal from the Superior Court in Fairfield County at Stamford with proper diligence, it is, under Practice Book § 696, ordered by the Supreme Court, suo motu, that the appeal be and hereby is dismissed.

Pee Curiam. Prom the denial of his application for a change of zone from residence A to garden apartments, the plaintiff appealed to the Court of Common Pleas. The court sustained the plaintiff's appeal on the ground that the commission's action in denying the zone change was arbitrary and an abuse of discretion. Upon the granting of certification the defendants appealed to this court, claiming that the court erred in reversing the action of the commission since the record discloses sufficient evidence to support the commission's action. The present appeal, involving a decision upon an application for a change of zone, required the trial court to review a decision made by the zoning commission in its legislative capacity. In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. O'Donnell v. Police Commission, 174 Conn. 422, 389 A.2d 739; Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 563, 345 A.2d 520. The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached. Conley v. Board of Education, 143 Conn. 488, 492, 123 A.2d 747. The record reveals that there was voluminous evidence before the commission as a result of the hearings on May 30 and August 28, 1975. Substantial evidence was offered by the plaintiff in support of his application, and substantial evidence was also offered by residents of the area and others in oppo sition to the application. In addition, the commission had before it the reports of the regional planning agency, city planning commission and other agencies, as well as photographs and letters. The commission had the task of weighing that evidence and reaching a conclusion on the merits of the plaintiff's application. While there is no requirement that a zoning commission state the reasons for its denial; see § 8-3 of the General Statutes; it would have been preferable, and of assistance to the court, if the commission had formally stated the reason or reasons for its action. Welch v. Zoning Board of Appeals, 158 Conn. 208, 215, 257 A.2d 795. The record in this case does, nonetheless, reveal a number of grounds for the commission's action: (1) the proposed density of 16.74 units per acre, which is four to six times the density rate approved by the Master Plan; (2) the fact that the entire area is a swamp which would require drainage into a nearby stream flowing into Success Lake, adding to pollution downstream; (3) serious traffic problems, which would be aggravated; and (4) inadequacy of the proposed storm sewerage plan. From its review of the record the trial court concluded that the commission's decision had been improperly influenced by the desires of those opposed to the plaintiff's application. Examination of the decision of the trial court, as set forth in its limited finding and in its memorandum of decision, reveals that the court, in reaching this conclusion, itself weighed the evidence in the record and determined the issues of fact involved therein. In so doing, the trial court exceeded the scope of judicial review. O'Donnell v. Police Commission, supra. The court was in effect substituting its judgment for that of the commission, which is impermissible. Wade v. Town Plan & Zoning Commission, 145 Conn. 592, 595, 145 A.2d 597; Suffield Heights Corporation v. Town Planning Commission, 144 Conn. 425, 427, 133 A.2d 612. There is error, the judgment is set aside and the case is remanded with direction to dismiss the appeal.

Peters, J. This is an appeal from the dismissal of an action for the dissolution of the marriage between the plaintiff, Evelyn B. Carabetta, and the defendant, Joseph F. Carabetta. The trial court, Reynolds, J., determined that the parties had never been legally married and thereupon granted the defendant's motion to dismiss for lack of jurisdiction over the subject matter. From the judgment rendered against her, the plaintiff has appealed. Neither the plaintiff nor the defendant presently disputes the facts found in the trial court's memorandum of decision, which establish the following. The plaintiff and the defendant exchanged marital vows before a priest in the rectory of Our Lady of Mt. Carmel Church of Meriden, on August 25, 1955, according to the rite of the Roman Catholic Church, although they had failed to obtain a marriage license. Thereafter they lived together as husband and wife, raising a family of four children, all of whose birth certificates listed the defendant as their father. Until the present action, the defendant had no memory or recollection of ever having denied that the plaintiff and the defendant were married. The issue before us is whether, under Connecticut law, despite solemnization according to an appropriate religious ceremony, a marriage is void where there has been noncompliance with the statutory requirement of a marriage license. This is a ques tion of first impression in this state. The trial court held that failure to obtain a marriage license was a flaw fatal to the creation of a legally valid marriage and that the court therefore lacked subject matter jurisdiction over an action for dissolution. We disagree with the court's premise and hence with its conclusion. The determinants for a legally valid marriage are to be found in the provisions of our statutes. "At least since Maynard v. Hill, 125 U.S. 190, 210-14, 8 S. Ct. 723, 31 L. Ed. 654 (1888), it has been clear that the legislature has plenary power to determine the circumstances under which a marital relationship is created and terminated. Morgan v. Morgan, 103 Conn. 189, 195, 130 A. 254 (1925); Starr v. Pease, 8 Conn. 541, 546-47 (1831)." Joy v. Joy, 178 Conn. 254, 256, 423 A.2d 895 (1979). Although a marital relationship is in its origins contractual, depending as it does upon the consent of the parties, "a contract of marriage is sui generis. It is simply introductory to the creation of a status, and what that status is the law determines." Gould v. Gould, 78 Conn. 242, 245, 61 A. 604 (1905); Hames v. Hames, 163 Conn. 588, 592-93, 316 A.2d 379 (1972); Perlstein v. Perlstein, 152 Conn. 152, 156, 204 A.2d 909 (1964). In determining the status of a contested marriage, we are bound therefore to examine with care the relevant legislative enactments that determine its validity. Such an examination must be guided by the understanding that some legislative commandments, particularly those affecting the validity of a marriage, are directory rather than mandatory. "The policy of the law is strongly opposed to regarding an attempted marriage . . . entered into in good faith, believed by one or both of the parties to be legal, and followed by cohabitation, to be void." Hames v. Hames, supra, 599. The governing statutes at the time of the purported marriage between these parties contained two kinds of regulations concerning the requirements for a legally valid marriage. One kind of regulation concerned substantive requirements determining those eligible to be married. Thus General Statutes (Rev. 1949) § 7301 declared the statutorily defined degrees of consanguinity within which a "marriage shall be void." As this court has indicated in Hames v. Hames, supra, 598, this substantive condition is not necessarily exclusive; lack of consent to a marriage, for example, would also be a substantive defect, derived from the common law, sufficient to avoid a marriage. For present purposes, it is enough to observe that, on this appeal, no such substantive defect has been alleged or proven. The other kind of regulation concerns the formalities prescribed by the state for the effectuation of a legally valid marriage. These required formalities, in turn, are of two sorts: a marriage license and a solemnization. In Hames v. Hames, supra, 599, we interpreted our statutes not to make void a marriage consummated after the issuance of a license but deficient for want of due solemnization. Today we examine the statutes in the reverse case, a marriage duly solemnized but deficient for want of a marriage license. As to licensing, the governing statute in 1955 was a section entitled "Marriage licenses." It provided, in subsection (a): "No persons shall be joined in marriage until both have joined in an application . , . for a license for such marriage." Its only provision for the consequence of noncompliance with the license requirement was contained in subsection (e): ". . . any person who shall join any persons in marriage without having received such [license] shall be fined not more than one hundred dollars." General Statutes (Rev. 1949) § 7302, as amended by § 1280b (1951 Sup.) and by § 2250c (1953 Sup.). Neither this section, nor any other, described as void a marriage celebrated without a license. As to solemnization, the governing section, entitled "Who may join persons in marriage," provided in 1955: "All judges and justices of the peace may join persons in marriage . . . and all ordained or licensed clergymen belonging to this state or any •other state so long as they continue in the work of the ministry may join persons in marriage and all marriages attempted to be celebrated by any other person shall be void; hut all marriages which shall be solemnized according to the forms and usages of any religious denomination in this state shall be valid." General Statutes (Rev. 1949) § 7306, as amended by § 1281b (1951 Sup.) and by § 2251c (1953 Sup.). Although solemnization is not at issue in the case before us, this language is illuminating since it demonstrates that the legislature has on occasion exercised its power to declare expressly that failure to observe some kinds of formalities, e.g., the celebration of a marriage by a person not authorized by this section to do so, renders a marriage void. We have enforced the plain mandate of this injunction. State ex rel. Felson v. Allen, 129 Conn. 427, 431, 29 A.2d 306 (1942). In the absence of express language in the governing statute declaring a marriage void for failure to observe a statutory requirement, this court has held in an unbroken line of cases since Gould v. Gould, 78 Conn. 242, 247, 61 A. 604 (1905), that such a marriage, though imperfect, is dissoluble rather than void. Hames v. Hames, supra, 598; Perlstein v. Perlstein, 152 Conn. 152, 157-58, 204 A.2d 909 (1964); Vendetto v. Vendetto, 115 Conn. 303, 305, 161 A. 392 (1932). We see no reason to import into the language "[n]o persons shall be joined in marriage until [they have applied for] a license," a meaning more drastic than that assigned in Gould v. Gould, supra, to the statute that then provided that "[n]o man and woman, either of whom is epileptic . . . shall intermarry." Although the state may well have a legitimate interest in the health of those who are about to marry, Gould v. Gould held that the legislature would not be deemed to have entirely invalidated a marriage contracted in violation of such health requirements unless the statute itself expressly declared the marriage to be void. Then as now, the legislature had chosen to use the language of voidness selectively, applying it to some but not to all of the statutory requirements for the creation of a legal marriage. Now as then, the legislature has the competence to choose to sanction those who solemnize a marriage without a marriage license rather than those who marry without a marriage license. In sum, we conclude that the legislature's failure expressly to characterize as void a marriage properly celebrated without a license means that such a marriage is not invalid. The plaintiff argues strenuously that our statutes, far from declaring void a marriage solemnized without a license, in fact validate such a marriage when ever it has been solemnized by a religious ceremony. The plaintiff calls our attention to the language of § 7306, as amended, that "all marriages . . . solemnized according to the forms and usages of any religious denomination in this state shall be valid." To the extent that this language suggests greater validity for a marriage solemnized by a religious ceremony than for one solemnized by a civil ceremony, it is inconsistent with other provisions of the statutes with regard to solemnization and licensing. It has long been clear that, under our laws, all authority to join parties in matrimony is basically secular. In Hames v. Hames, supra, 594-95, we recently reaffirmed the holding of Goshen v. Stonington, 4 Conn. 209, 218-19 (1822), that "[a] clergyman in the administration of marriage, is a public civil officer, and in relation to this subjéct, is not at all distinguished from a judge . or a justice of the peace, in the performance of the same duty." Neither counsel nor this court has been able to discover the legislative history attending the enactment of this puzzling language. Whatever may be its antecedents, for present purposes it is sufficient to note that § 7306 at the very least reenforces our conclusion that the marriage in the case before us is not void. The conclusion that a ceremonial marriage contracted without a marriage license is not null and void finds support, furthermore, in the decisions in other jurisdictions. See, e.g., DePotty v. DePotty, 226 Ark. 881, 884, 295 S.W.2d 330 (1956); Haderaski v. Haderaski, 415 Ill. 118, 120, 112 N.E.2d 714 (1953); Feehley v. Feehley, 129 Md. 565, 568, 99 A. 663 (1916); Johnson v. Johnson, 235 S.C. 542, 551-52, 112 S.E.2d 647 (1960); contra, see, e.g., Edwards v. Franke, 364 P.2d 60, 63 (Alaska 1961); Abbott v. Abbott, 282 N.W.2d 561, 566 (Minn. 1979); see also annot., 61 A.L.R.2d 847 (1958). In the majority of states, unless the licensing statute plainly makes an unlicensed marriage invalid, "the cases find the policy favoring valid marriages sufficiently strong to justify upholding the unlicensed ceremony. This seems the correct result. Most such cases arise long after the parties have acted upon the assumption that they are married, and no useful purpose is served by avoiding the long-standing relationship. Compliance with the licensing laws can better be attained by safeguards operating before the license is issued, as by a more careful investigation by the issuing authority or the person marrying the parties." Clark, Domestic Relations, p. 41 (1968). Since the marriage that the trial court was asked to dissolve was not void, the trial court erred in granting the motion to dismiss for lack of jurisdiction over the subject matter. We need not decide whether the plaintiff's cause of action should have been an action for annulment rather than an action for dissolution. That question should have been raised by a motion to strike; see Practice Book, 1978, §152; not by a motion to dismiss for lack of subject matter jurisdiction. Hames v. Hames, supra, 598-99; Perlstein v. Perlstein, supra, 155. In either case the trial court had subject matter jurisdiction. There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion. In this opinion Cotter, C. J., Healey and Parskey, Js., concurred. Now General Statutes § 46b-21. Now General Statutes $ 46b-24. Now General Statutes § 46b-22.

Dupont, C. J. After a trial to a jury, the defendant was convicted of the illegal sale of a controlled substance, a violation of General Statutes (Rev. to 1981) § 19-480 (a), and the fraudulent sale of a noncontrolled substance, a violation of General Statutes (Rev. to 1981) § 19-473, as amended by Public Acts 1981, No. 81-199, and Public Acts 1982, No. 82-472, § 68, now codified in General Statutes § 21a-268. The defendant appeals from the judgment rendered on the jury's verdict, claiming that the trial court erred: (1) in entertaining the state's motion to rehear the defendant's motion to dismiss and, subsequently, in vacating its earlier dismissal of the charges against the defendant; and (2) in denying the defendant's motion in arrest of judgment. The following facts are not in dispute. On June 8, 1983, the defendant was arrested for the alleged sale of narcotics and the alleged fraudulent sale of a non-controlled substance. The defendant later posted bond and was released. On July 7,1983, defense counsel filed a motion for disclosure, production and discovery and a motion for a bill of particulars. The motions were later marked off the court calendar and the case was put on the firm trial list. On May 29, 1984, a motion to compel the state to respond to the defendant's motions was filed. That motion was scheduled to be heard on June 7, 1984. On June 4, 1984, the trial court, Fishman, J., informed the prosecutor in the case that the materials sought by the defendant should be delivered to defense counsel the next day. At 10 a.m. on June 5, 1984, the answers to the defendant's motions had not yet been delivered, although the court and defense counsel were informed that they were being typed. When the answers were not delivered by 11 a.m., the trial court granted the defendant's oral motion to dismiss on the ground that "the delay and the dilatory tactics of the State in this case caused an unreasonable prejudice to the defendant in preparation of his case." The trial court did not indicate whether the dismissal was with or without prejudice as required by Practice Book § 819. After taking an exception to the court's ruling, the state on that date filed answers to the defendant's motions and also filed a motion for a rehearing on the motion to dismiss. On June 14, 1984, the trial court, after hearing argument, vacated its earlier decision and denied the defendant's motion to dismiss. In making its decision, the court stated that it was unaware that the motions for discovery and a bill of particulars had been marked off the calendar and, instead, had acted upon the mistaken representation of defense counsel that those motions had been granted and that the state had failed to comply. Thus, the court concluded, there was, in actuality, no basis in the record for dismissing the case against the defendant. The defendant did not renew his motion to dismiss on these grounds prior to trial. On July 9,1984, the state filed a substitute information against the defendant. After he was tried and convicted, the defendant filed a motion in arrest of judgment, pursuant to Practice Book § 905, claiming that the trial court was without jurisdiction of the offense charged. This motion was denied by the trial court, Falsey, J. The defendant subsequently filed this appeal. The defendant's first claim of error is that the trial court, Fishman, J., erred in taking further action in the case after granting the defendant's motion to dismiss. Specifically, he argues that the trial court erred in entertaining the state's motion to rehear the motion to dismiss and in subsequently vacating its earlier dismissal of the charges against the defendant. The defendant, in effect, claims that the motion to dismiss could not be reheard because the court had lost in personam jurisdiction over him when it granted his motion to dismiss on June 5,1984, and did not, therefore, have any authority over him thereafter. In this case, the trial court dismissed the charges against the defendant based upon an erroneous assumption concerning his motions for discovery and for a bill of particulars. In reviewing its decision, the trial court stated that the dismissal of criminal charges as a sanction against the state was a serious matter, especially where there was no basis in the record for its decision. "[Wjhen a court has acquired jurisdiction, no subsequent error or irregularity will oust the jurisdiction thus acquired. It does not lose jurisdiction because it makes a mistake in determining either the facts or the law, or both, in the case before it." 22 C.J.S. 423-24, Criminal Law § 165. Furthermore, at the time the trial court granted the motion to dismiss, the state promptly noted an exception to the trial court's decision, filed answers to the defendant's motions, and filed a motion to rehear the motion to dismiss. The state was entitled to make such a motion, and the court was authorized to entertain it, under Practice Book § 809. The trial court either recognized the ambiguity in its prior judgment of dismissal or believed that its judgment was without prejudice. Under these circumstances, the trial court retained jurisdiction in order to reconsider a decision based upon an erroneous assumption. It did not err in entertaining and granting the motion to rehear its earlier decision on the motion to dismiss. ' The defendant's related claim is that he was released once the motion to dismiss was granted. Practice Book § 819 requires that when a trial court grants a motion to dismiss, it must specify whether the dismissal is with prejudice or without prejudice. The trial court did not so specify. If further clarification of this ruling were necessary, a motion for articulation could have been filed with the trial court pursuant to Practice Book § 3082. See State v. Vincent, 194 Conn. 198, 203, 479 A.2d 237 (1984). If the trial court's dismissal was with prejudice, the state would have had an opportunity to appeal the decision. Although Practice Book § 819 indicates that the defendant shall be released when the dismissal is with prejudice, the defendant would not have been discharged from the trial court's jurisdiction. See State v. Ross, 189 Conn. 42, 46-47, 454 A.2d 266 (1983); State v. Avcollie, 174 Conn. 100, 107-108, 384 A.2d 315 (1977); State v. Carabetta, 106 Conn. 114, 119, 137 A. 394 (1927); State v. Ross, 39 Conn. Sup. 219, 220-21, 475 A.2d 347 (1984). If the dismissal was without prejudice, it would not have barred further prosecution for the same offenses. See Practice Book § 819. Even if we assume that the defendant was released at the time the motion to dismiss was granted, his subsequent conduct was sufficient to confer in personam jurisdiction on the trial court. After the trial court vacated its decision regarding the motion to dismiss, a substitute information against the defendant was filed by the state. The defendant appeared before the court and was tried and convicted on the charges contained in the substitute information. Any claim by the defendant that the court lacked jurisdiction over him because it granted his motion to dismiss is belied by his later appearance, without objection, on the substitute information. Jurisdiction over a person may be acquired by consent of the accused or by waiver unless an objection to jurisdiction is properly reserved. State v. Vincent, supra, 203 n.7; State v. Jones, 166 Conn. 620, 627-28, 353 A.2d 764 (1974). "Such an objection is also waived by pleading not guilty and going to trial. The accused cannot raise the question for the first time in the appellate court." 21 Am. Jur. 2d 590, Criminal Law § 339; see also 22 C.J.S., Criminal Law § 147 and 161. By not renewing his motion to dismiss prior to trial and going to trial on the charges contained in the substitute information, the defendant waived any objection regarding personal jurisdiction. The defendant's second claim of error is that the trial court, Falsey, J., erred in denying his motion in arrest of judgment, pursuant to Practice Book § 905, filed after the defendant was found guilty and prior to his sentencing. The defendant claims that the motion should have been granted because the trial court was without jurisdiction over the offense charged. The defendant argues that "[t]he moment the matter was dismissed by the Court it lost subject matter jurisdiction thereof." Under Practice Book § 905, the trial court may arrest judgment only "if the indictment or information does not charge an offense or if the judicial authority was without jurisdiction of the offense charged." Here, the substitute information filed by the state properly charged the defendant with an offense. Furthermore, the trial court had jurisdiction over the offenses charged in the substitute information. "There is no question in the present case as to the jurisdiction of the trial court over the subject matter. It is a matter of law and can neither be waived nor conferred by consent of the accused." (Footnote omitted.) State v. Jones, supra, 627. There is no error. In this opinion the other judges concurred. The trial court was authorized to take this action under Practice Book § 747 (3). Practice Book § 819 provides: "If the judicial authority grants a motion to dismiss, he shall specify whether the dismissal is with or without prejudice. If the dismissal is with prejudice, the defendant shall be released, and the prosecuting authority may, where he is entitled by law, appeal the dismissal in the same manner and to the same effect as appeals from final judgments in criminal prosecutions. If the dismissal is without prejudice, the defendant shall be released, but the dismissal shall not be a bar to further prosecution for the same offense or offenses." According to Spinella, Conn. Criminal Procedure c. 7, pp. 509-10, there is no reported decision in this jurisdiction in which a trial court has dismissed charges pending against a defendant based upon the state's failure to comply with a discovery order. Practice Book § 809 authorizes a trial court, for good cause, to entertain pretrial motions such as the motion for a rehearing filed in this case by the state. Practice Book § 905 provides: "On motion of the defendant, the judicial authority shall arrest judgment if the indictment or information does not charge an offense or if the judicial authority was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made prior to the imposition of sentence."

Dupont, C. J. In this appeal, the plaintiff claims that the trial court erred in affirming the decision of the state board of labor relations (board), which determined that the plaintiffs discharge from his employment as assessment investigator II for the town of Greenwich did not constitute a violation of General Statutes § 7-470 (a). The plaintiff's supervisor was A1 Kirk, the tax assessor for the town. Also employed in the office was George Rich as assessment investigator I. The events leading up to the plaintiff's termination involved a one-half page memorandum which he sent to Kirk stating that the field inspections, for which the plaintiff and Rich were responsible, were running behind schedule as compared to prior years. The plaintiff stated that, in his opinion, the inspections were too numerous to be completed on time and, accordingly, he requested that Kirk seek additional help to alleviate the problem. This was during a period of time, however, when, due to recent changes in the local tax laws and internal office procedures, the total workload of the office was decreasing. Kirk responded to the plaintiff by stating that he had surveyed other assessors as to the number of total inspections conducted by their offices under comparable circumstances. On the basis of this information, Kirk concluded that the number of inspections required from Rich and the plaintiff was reasonable and, as a result, that there should not be any difficulty in completing the required inspections on time. Kirk concluded by stating that if the plaintiff were unable to meet those requirements, Kirk would be forced to examine alternative options in order to meet his office's workload. The plaintiff did not respond to this memorandum. After sending the memorandum to the plaintiff, Kirk contacted a private firm to discuss the possibility of the firm's taking over the services which were being performed by the plaintiff and Rich. On the basis of these discussions, Kirk determined that a change to a pri vate firm would result in a considerable savings to the town. Kirk subsequently informed the town's labor contract officer and assistant personnel director that he was considering meeting the office's workload through the use of a private firm. Subsequently, Kirk proposed reorganizing the tax assessor's office by eliminating the positions held by the plaintiff and Rich and substituting a private assessment firm, which would result in a savings of approximately $28,000 to the town. The Greenwich Municipal Employees Association (union) was notified of the proposal on the same day. Kirk thereafter informed the plaintiff and Rich that their positions in the office would be terminated. The reason given by Kirk for this decision was "a significant reduction in the assessing workload of the office which has compelled a reorganization of the office." The town and the union reached a partial agreement regarding the two positions in the tax assessor's office. Under the terms of the settlement, Rich's position would not be eliminated until July 2, 1982, so that Rich could qualify for retirement benefits. As for the position held by the plaintiff, the parties stipulated that they were unable to reach an agreement on the issue. The union's amended complaint filed with the board alleged that the plaintiff's written communication to Kirk resulted in the contracting of assessment work to a private firm and the termination of the plaintiff's employment in violation of General Statutes § 7-740 (a) (1) and (3). After a hearing, the board dismissed the plaintiff's complaint. In its decision, the board found that the union did not meet its burden of proving that the plaintiff's termination was in retaliation for engaging in protected activity. The board con- eluded that the action was prompted by the town's legitimate desire to perform the work of the tax assessor's office in a more efficient manner and at a lower cost. The plaintiff subsequently sought judicial review of the board's decision pursuant to General Statutes § 31-109 (d). The trial court affirmed the decision of the board and judgment was rendered dismissing the appeal. The plaintiff then filed this appeal. The plaintiff argues that, under General Statutes § 7-468, he possessed the right to complain to his employer regarding his workload and that he was improperly discharged for exercising that right. The plaintiff states that, under General Statutes § 7-470 (a), a municipal employer is prohibited from interfering with an employee's exercise of his rights under General Statutes § 7-468. The plaintiff alleges that his memorandum to Kirk constituted a grievance under § 7-468 (d) regarding his workload and that his subsequent termination, which he claims was due to his presentation of the purported grievance, violated § 7-470 (a). "On appeal from the final order of an administrative agency, such as the board, the trial court does not try the case de novo. It is not the function of the court to adjudicate the facts. The court can do no more, on the factual questions presented, than to examine the record to determine whether the ultimate findings were supported, as the statute requires, by substantial evidence. General Statutes § 31-109 (b)." Norwich v. Norwich Fire Fighters, 173 Conn. 210, 214, 377 A.2d 290 (1977). If the findings are supported by substantial evidence, they cannot be disturbed. See L. Suzio Construction Co. v. State Board of Labor Relations, 148 Conn. 135, 138, 168 A.2d 553 (1961). The court, however, is required to review the record of the entire proceedings before the board in order to determine whether the board acted arbitrarily, unreasonably, or contrary to law. See Norwich v. Norwich Fire Fighters, supra. The issue in this case is whether there was substantial evidence for the board to conclude reasonably that the plaintiff did not lose his employment with the town because of his exercise of a right granted by statute or by a collective bargaining agreement. The defendant argues that the plaintiffs memorandum was not a grievance and that the board correctly concluded that the plaintiffs termination resulted from a determination that the efficient running of the tax assessor's office at the most economical cost required the elimination of the position. The trial court, in stating that if the termination were due to the receipt of the writing, an unfair labor practice would have occurred, in effect, concluded that the letter was a grievance. It held, however, that the board had substantial evidence to conclude that the memorandum was not the cause of the termination. For the purposes of this opinion, we assume that the memorandum was a grievance. The reason for termination of employment presents a factual issue and whether the termination resulted from the exercise of a protected right of an employee or because of reasons unrelated to that right depends upon the subsidiary facts of each case. Winchester v. State Board of Labor Relations, 175 Conn. 349, 366, 402 A.2d 332 (1978). The plaintiff relies on National Labor Relations Board v. City Disposal Systems, Inc., 465 U.S. 822, 104 S. Ct. 1505, 79 L. Ed. 2d 839 (1984), to support his position. That case, however, does not deal with whether substantial evidence existed to support the conclusion of a board. It held that an individual employee's assertion of a right granted under a collective bargaining agreement is recognizable as concerted activity, and that the assertion need not refer to the agreement, nor need it be a formal grievance. If we assume, as we do, that the plaintiff's memorandum to Kirk was the assertion of his right to engage in protected activity, the question then becomes whether there was substantial evidence for the board to conclude that the elimination of his job occurred because of the town's legitimate desire for efficiency rather than in retaliation for his exercise of a protected right. A review of the evidence presented in this case indicates that the board's conclusion was supported by substantial evidence and that the plaintiff failed to demonstrate that his discharge was in retaliation for engaging in protected activity. Here, the board was presented with evidence that the reorganization of the tax assessor's office was motivated by the town's legitimate business goal of completing the workload of the office in a timely fashion and at a lower cost. The plaintiff would have this court ignore the evidence concerning the failure by the plaintiff and Rich to perform the decreasing number of inspections in a timely fashion, along with the evidence that a private firm could, and ultimately did, perform the same job on time and at a lower cost. There is no error. In this opinion the other judges concurred. The private firm could do the work for $24,000. The combined salaries of the plaintiff and Rich were $52,000 per year. General Statutes § 7-468 (a) provides: "Employees shall have, and shall be protected in the exercise of, the right of self-organization, to form, join or assist any employee organization, to bargain collectively through representatives of their own choosing on questions of wages, hours and other conditions of employment and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from actual interference, restraint or coercion." General Statutes § 7-470 (a) provides in pertinent part: "Municipal employers or their representatives or agents are prohibited from: (1) Interfering, restraining or coercing employees in the exercise of the rights guaranteed in section 7-468 . . . . " General Statutes § 7-468 (d) provides: "An individual employee at any time may present a grievance to his employer and have the grievance adjusted, without intervention of an employee organization, provided the adjustment shall not be inconsistent with the terms of a collective bargaining agreement then in effect. The employee organization certified or recognized as the exclusive representative shall be given prompt notice of the adjustment."

Cotter, C. J. On December 17,1975, the defendant entered pleas of not guilty to an information charg ing him with the crimes of rape in the first degree, sexual contact in the first degree and injury or risk of injury to a child, alleged to have been committed on or about April 15,1975, and elected a trial by the court. Prior to the commencement of the trial on December 22, 1976, the state requested, and over objection was granted, permission to file a substitute information alleging that the above offenses were committed on May 22,1975. The change in the date was the only significant difference between the original and the substitute informations. Following the withdrawal of the defendant's prior pleas and elections, he again entered pleas of not guilty to the substitute information and elected to be tried by the court, which found him guilty as charged. From the judgment rendered, the defendant has appealed to this court, claiming error in the trial court's decision to allow the filing of the substitute information. The substitute information was, in effect, simply an amendment of the original information as to the date of the alleged offense. The order of the trial court allowing the filing of such an amendment to conform to the evidence is generally within its sound discretion; Practice Book, 1963, §525; see State v. Rafanello, 151 Conn. 453, 457, 199 A.2d 13; and thus subject to review only upon circumstances indicating an abuse of that discretion. Cf. Corcoran v. Jacovino, 161 Conn. 462, 471, 290 A.2d 225; 41 Am. Jur. 2d, Indictments and Informations § 201. It is a well-established rule in this state that "it is not essential in a criminal prosecution that the crime be proved to have been committed on the pre cise date alleged, it being competent ordinarily for the prosecution to prove the commission of the crime charged at any time prior to the date of the complaint and within the period fixed by the Statute of Limitations." State v. Lorusso, 151 Conn. 189, 191, 195 A.2d 429; State v. Bitting, 162 Conn. 1, 8, 291 A.2d 240; see also Stenz v. Sandstrom, 143 Conn. 72, 75, 118 A.2d 900; State v. Horton, 132 Conn. 276, 277, 43 A.2d 744; State v. Ferris, 81 Conn. 97, 99, 70 A. 587. Thus, it is entirely proper for a court to permit an amendment or a substitute information merely to amplify or to correct the time of the commission of the offense when time is not a material ingredient of the crime charged. See State v. Horton, supra; 41 Am. Jur. 2d, Indictments and Informations § 204. In the present case, since the date of the alleged offenses was neither an essential element of the crimes with which the defendant was charged; see State v. Horton, supra; State v. Ferris, supra; nor an otherwise material factor in the defendant's case, the trial court did not abuse its discretion in allowing the state to file the substitute information. The defendant argues that, under the circumstances of this case, the late filing of the substitute information deprived him of the opportunity to prepare his defense and thus constituted a denial of due process. We disagree. If the information apprises the accused of the charges against him with such particularity and certainty to enable him to prepare his defense and avoid prejudicial surprise, and to enable him to plead his conviction or acquittal in bar of any future prosecution for' the same offense, it is constitutionally sufficient. United States v. Debrow, 346 U.S. 374, 377-78, 74 S. Ct. 113, 98 L. Ed. 92; State v. Coleman, 167 Conn. 260, 275, 355 A.2d 11 (Bogdanski, J., concurring); State v. Beaulieu, 164 Conn. 620, 625, 325 A.2d 263; State v. Costello, 62 Conn. 128, 130, 25 A. 477. Both the arrest warrant affidavit and the original information filed on October 27, 1975, in the Court of Common Pleas, from which the case was bound over to the Superior Court, alleged that the offenses committed by the defendant took place in May of 1975. Thereafter, the original information filed in November of 1975 in the Superior Court gave April 15 as the date of the offenses. In April of 1976, the state prepared the substitute information changing the date of the alleged offense to May, 1975, but, through inadvertence, it failed to inform the defendant of this intended modification until December 21, 1976, the day before it was actually filed. In the absence of any request by the defendant for a continuance, the trial began on December 22, 1976. In spite of the previously filed documents in the Court of Common Pleas indicating that the state would seek to prove that the offenses were committed in May, the defendant may have been somewhat surprised by the subsequent change in the date. Nevertheless, under the circumstances, he was not denied due process. See United States ex rel. Gordon v. Reincke, 415 F.2d 1126, 1128 (2d Cir.). Since the defendant informed the court that he had no alibi defense to the April 15 allegations, he was not prejudiced in making his defense on the basis of the amended date. State v. Horton, 132 Conn. 276, 277, 43 A.2d 744. The defendant failed to pursue a "Motion for Bill of Particulars" filed with the court on December 17, 1976, asking for, inter alia, "the date and time of the alleged offense." Moreover, it is important to note that the defendant did not request a continuance for additional investigation regarding the new date. Practice Book, 1963, § 526; see State v. Lorusso, 151 Conn. 189, 191, 195 A.2d 429; State v. Bitting, 162 Conn. 1, 8, 291 A.2d 240. The defendant must provide a specific showing of prejudice in order to establish that he was denied the right of due process of law as a result of the state's delay in modifying the date alleged in the information. State v. L'Heureux, 166 Conn. 312, 321, 348 A.2d 578. "Mere allegations of potential prejudice, of dimmed memory or of unavailable but unspecified witnesses are insufficient." Id., 322; United States v. White, 470 F.2d 170, 175 (7th Cir.). The defendant in this ease has failed to meet his burden of proof. There is no error. In this opinion the other judges concurred. Since the defendant was arrested prior to October 1, 1976, the revised rules of criminal procedure were not applicable to the present ease. Section 2433 of the 1963 Practice Book, as amended. During the hearing on the state's motion for permission to file a substitute information, the following colloquy occurred: "The Court: Is there any alibi defense in the ease? You intend to invoke any alibi defense? Counsel: We have a defense. The Court: Is it an alibi defense? Counsel: To the May 22nd, or the April 15th? The Court: April 15th. Counsel: We had no alibi defense." Our review of the court file in this case; see State v. Lenihan, 151 Conn. 552, 554, 200 A.2d 476; discloses the following: At the time of the commission of the offenses, the victim, the defendant's niece, was fourteen years of age. Since the crime was not reported to the police until October 21, 1975, after the victim found out that she was pregnant, her recollection of the date was initially based upon her belief that her stay in the hospital for an unrelated problem took place in the latter part of the same week in whieh the incident occurred. At oral argument, the state indicated that the information filed in the Superior Court alleged April 15 as the date of the offense since further investigation revealed that the victim's hospital admission occurred in April, 1975. Subsequently, the victim realized that she was in error and that the assault occurred on May 22, two days before her birthday. The victim's initial uncertainties regarding the date were fully probed by defense counsel during cross-examination at trial. Defense counsel has specifically avoided any implication that the state's delay was an intentional, tactical maneuver; rather, it has been coneeded by both parties that the state's delay in filing the substitute information, though unfortunate, was solely due to inadvertence. See footnote 2. Now, § 2034 of the 1963 Practice Book, as amended.

Santaniello, J. After a jury trial, the defendant, Van Harris, was found guilty of forgery in the second degree in violation of General Statutes § 53a-139 (a) (1) and of being an accessory to robbery in the second degree in violation of General Statutes § 53a-135 (a) (1) and 53a-8. In subsequent proceedings, the defendant was also found to be a persistent felony offender under General Statutes (Rev. to 1979) § 53a-40 (b). He was sentenced to an effective term of not less than nine nor more than eighteen years. On appeal he claims that: (1) there was insufficient evidence to support his conviction of robbery in the second degree as an accessory; (2) under § 53a-135 (a) (1) and the facts of this case he could not be convicted as an "accessory"; (3) the jury could not consistently have found him both "guilty as an accessory" and "not guilty as a principal" of robbery in the second degree; and (4) he was erroneously tried as a persistent felony offender under the version of § 53a-40 (b) in effect before July 1, 1981. We find no error. I The defendant first claims that there was insufficient evidence to find him liable as an accessory to robbery in the second degree. Under General Statutes § 53a-8, a person may be prosecuted and punished as if a principal offender when, "acting with the mental state required for the commission of an offense, [he] solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense . . . ." The defendant argues that he did not intentionally aid or otherwise further the commission of robbery in the second degree. In addressing his claim, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560, reh. denied, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979). In finding guilt beyond a reasonable doubt, the jury is free to draw reasonable, logical inferences from the facts proved. State v. Morrill, 193 Conn. 602, 608, 478 A.2d 994 (1984). The jury in this case could reasonably have found the following. The defendant and a male companion pulled into a gas station in South Windsor at approximately 12 p.m. on October 20,1980. One of the station attendants, Lois Hendricks, filled the defendant's gas tank at his request. The defendant asked her if they accepted travelers checks and she said that they did. Hendricks and the defendant then went inside to the station's office. He handed her the supposed travelers check, which was in reality a money order, and she tried to verify its validity by calling a telephone number listed on the back of the instrument. Meanwhile, the other station attendant on duty, Robert McNamara, came into the office and sat down. The defendant's companion also came into the office and stood in the doorway. Hendricks was unable to verify the money order after fifteen to twenty minutes and refused to cash it. The defendant became annoyed and demanded that Hendricks do something about it. She refused and threatened to call the police. The defendant at that point became openly hostile and tried to grab the money order from Hendricks. The defendant's companion moved from the doorway, lunged at Hendricks and ripped a roll of money from one of her shirt pockets. McNamara got up to come to her aid but was attacked by the defendant's friend. The defendant moved toward Hendricks and hemmed her in behind a counter. The defendant then ripped the phone from the wall. The defendant and his companion fled, punching Hendricks and pushing her into the counter as they left. The defendant drove the car out of the station while the other man sat on the back bumper and covered the license plate. On these facts, the jury could reasonably have found that the defendant intentionally aided the robbery. The defendant, after he saw his friend take the money, moved toward Hendricks to prevent her from taking any action in retaliation. He ripped the phone from the wall to prevent her from calling the police. The defendant also hit Hendricks while fleeing and aided in making the getaway. The jury could reasonably have inferred from the defendant's actions that he intended to aid and did in fact aid his companion in robbing Hendricks of the cash. II The defendant next claims that he should not have been charged as an accessory to robbery in the second degree. His argument begins with the premise that in order for anyone to be an "accessory" to robbery in the second degree, the "underlying crime" of robbery in the second degree must first be proved. Under General Statutes § 53a-135 (a) (1), he argues, there must be two "principals" involved before a crime is established. Thus, he claims that only when three or more people are involved can anyone be charged as an "accessory" to robbery in the second degree. Since there were only two people involved in this robbery, the defendant concludes that he could not be considered an "accessory." We do not agree. The defendant has misunderstood the nature of the verdict and judgment against him, misconceived basic concepts of accessorial liability, and misconstrued the applicable statutes. The defendant's argument presupposes that there are two independent crimes involved here: the crime of robbery in the second degree and the crime of being an accessory to robbery in the second degree. But, "[tjhere is no such crime as 'being an accessory'; the defendant was charged with [one] substantive offense . The accessory statute merely provides alternate means by which a substantive crime may be committed." State v. Baker, 195 Conn. 598, 608, 489 A.2d 1041 (1985); see also State v. Raffone, 161 Conn. 117, 128, 285 A.2d 323 (1971). The defendant was charged in a single count with robbery in the second degree under two alternate theories of liability: (1) that he actively used or threatened to use physical force upon another person for the purpose of preventing or overcoming resistance to the taking of property, action in itself a violation of General Statutes § 53a-135 (a) (1); or (2) that he intentionally aided another person in committing robbery in the second degree, also a violation of General Statutes § 53a-135 (a) (1) by means of the liability imposed by § 53a-8. The jury found the second theory persuasive and found the defendant guilty of violating General Statutes § 53a-135 (a) (1) because he intentionally aided in the commission of the robbery. There was no "underlying crime" involved, nor a crime of "being an accessory." The defendant was charged with and later convicted of one single substantive crime, the crime of robbery in the second degree. The defendant also attempts to draw a sharp distinction between principal and accessorial liability. This state, however, long ago adopted the rule that there is no practical significance in being labeled an "accessory" or a "principal" for the purpose of determining criminal responsibility. See General Statutes (1875 Rev.) tit. XX, c. XIII, part X; State v. Gargano, 99 Conn. 103, 109, 121 A. 657 (1923); State v. Hamlin, 47 Conn. 95, 118 (1879). The modern approach "is to abandon completely the old common law terminology and simply provide that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime. Such is the view taken in the Model Penal Code, which provides that a person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of the offense, he solicits the other person to commit it, or aids or agrees or attempts to aid the other person in planning or committing it, or (having a legal duty to prevent the crime) fails to make proper effort to prevent it." LaFave & Scott, Criminal Law (1972) § 63, p. 501; see also Model Penal Code (1985) § 2.06, comment 6. Connecticut has taken the same approach through General Statutes § 53a-8. See State v. Baker, supra; State v. Raffone, supra. The defendant is incorrect, therefore, when he argues that his liability turns on whether he was found to be a "principal" or an "accessory." Those labels are hollow; the only predicate for charging him with violating General Statutes § 53a-135 (a) (1) is direct involvement in the crime. Further, the defendant has misconstrued the plain language of General Statutes § 53a-135 (a). Section 53a-135 (a) provides: "A person is guilty of robbery in the second degree when he commits robbery and (1) he is aided by another person actually present . . . ." The defendant argues that someone must be charged as aiding the robbery in the capacity as a "principal" before anyone else can be charged with aiding the robbery as an "accessory" under General Statutes § 53a-8. This argument is without merit. The legislature would not have used the verb "aided" if it wanted to describe the "other person" in the statute as a "principal" party to the crime. Also, significantly, the commission formed by the legislature to revise the criminal statutes characterized the "other person" as an "accomplice" — the generic term used by the drafters of the Model Penal Code to connote liability without distinguishing between "principal" and "accessory." See Commission to Revise the Criminal Statutes, comment to Gen eral Statutes (Rev. to 1971) § 53a-135; Model Penal Code (1985) § 2.06. The legislature clearly intended that any person aiding in the commission of the crime be punished for that crime regardless of the label or the number of accomplices. III The defendant also claims that the jury could not consistently have "convicted him under the accessory statute" and "acquitted him of the principal charge of robbery." We disagree. Again, the defendant has misunderstood the nature of the charge against him and has misstated the law of accessorial liability. As explained above, the jury did not "acquit" him of the charge of robbery in the second degree. On the contrary, the jury found him guilty of violating General Statutes § 53a-135 (a) (1) by reason of the liability imposed on him through General Statutes § 53a-8. The jury merely selected from alternate theories of liability. He was found to be responsible for the crime because he intentionally aided in its commission. The jury's conclusion was thus not inconsistent. IV The defendant's fourth and final assignment of error is that he was erroneously prosecuted as a persistent felony offender under General Statutes (Rev. to 1979) § 53a-40 (b), the version of the statute in effect at the time of the robbery and forgery. He claims that Public Acts 1980, No. 80-442 (hereinafter the act), effective July 1, 1981, repealed the earlier version of § 53a-40, that his prosecution under the prior statute was void, and that he should have been tried, if at all, under the statute as amended. He also argues that the newer version demands a greater quantum of proof. We conclude that there is no support for the proposition that the legislature through the act intended to affect pending prosecutions. As a result, the defendant's claim must fail. The defendant was charged with being a "persistent felony offender" under General Statutes (Rev. to 1979) § 53a-40 (b). On October 20, 1980, the day the robbery and forgery took place, § 53a-40 (b) read as follows: "A persistent felony offender is a person who (1) stands convicted of a felony; and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime." Public Acts 1980, No. 80-442, reformulated much of § 53a-40. Subsection (d) was amended to read: "A persistent felony offender is a person who (1) stands convicted of a felony other than a class D felony; and (2) has, at separate times prior to the commission of the present felony, been twice convicted of a felony other than a class D felony." Public Acts 1980, No. 80-442, § 12. The act by its own terms became effective July 1,1981. Public Acts 1980, No. 80-442, § 28. The defendant was brought to trial on February 23, 1982, and was found guilty of being a persistent felony offender on March 3, 1982. The act made no mention of its effect on pending prosecutions. The defendant urges us to find implied in the act the legislative intent that all prosecutions under General Statutes § 53a-40 pending as of July 1, 1981, be void and that all defendants then facing charges under § 53a-40 be tried under the amended version of the statute. In order to accept the defendant's argument, however, we would have to ignore the savings clause embodied in General Statutes § 54-194. Section 54-194 provides: "The repeal of any statute defining or prescribing the punishment for any crime shall not affect any pending prosecution or any existing liability to prosecution and punishment therefor, unless expressly provided in the repealing statute that such repeal shall have that effect." We must presume that the legislature was cognizant of the existence and effect of the savings clause when it passed Public Acts 1980, No. 80-442. See State v. West, 192 Conn. 488, 494, 472 A.2d 775 (1984); Doe v. Manson, 183 Conn. 183, 187, 438 A.2d 859 (1981). Therefore, we must also presume that the legislature did not intend the amendments to § 53a-40 to affect pending prosecutions. There is no error. In this opinion the other judges concurred. The defendant has not appealed his conviction of forgery in the second degree. General Statutes § 53a-135 provides: "(a) A person is guilty of robbery in the second degree when he commits robbery and (1) he is aided by another person actually present; or (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument. "(b) Robbery in the second degree is a class C felony." 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 published as if he were the principal offender." General Statutes (Rev. to 1979) § 53a-40 (b) provides in pertinent part: "A persistent felony offender is a person who (1) stands convicted of a felony; and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime. This subsection shall not apply where the present conviction is for a crime enumerated in subdivision (1) of subsection (a) and the prior conviction was for a crime other than those enumerated in subsection (a)." The defendant proffers the argument that he took the actions he did because of his forgery of the money order. The defendant, however, did not even take the forged instrument with him when he left. From this fact, the jury could have reasonably concluded that it was not the forgery which prompted his actions, but the robbery. In its comments, the commission stated: "Robbery in the second degree makes the presence of an accomplice an aggravating factor. The rationale is that the accomplice is equal to a person armed and therefore would generate a higher degree of fear in the victim. Robbery in the second degree is also aimed at circumstances where the actor or accomplice, although not armed with a deadly instrument, purports or represents to be so armed . . . ." (Emphasis added.) Commission to Revise the Criminal Statutes, comment to General Statutes (Rev. to 1971) § 53a-135. The judgment file states the following: "Said cause having been fully heard and committed to the jury, they by their verdict on March 2, 1982 find the said Van Harris guilty of Accessory to Robbery in the Second Degree and Forgery in the Second Degree." We need not decide whether the state, if required to prosecute the defendant under the newer version of the statute, would have been required to make a greater showing. The defendant claims that he should have been tried under General Statutes (Rev. to 1981) § 53a-40 (d) which provides: "A persistent felony offender is a person who (1) stands convicted of a felony other than a class D felony; and (2) has, at separate times prior to the commission of the present felony, been twice convicted of a felony other than a class D felony." The state, however, may have sought to prosecute the defendant under General Statutes (Rev. to 1981) § 53a-40 (b), a provision substantially similar to that under which the defendant was originally charged. Section 53a-40 (b), after July 1,1981, read in part: "A persistent serious felony offender is a person who (1) stands convicted of a felony; and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime . . . ."

Hull, J. On December 23,1982, the defendant was arrested and charged with manslaughter in the first degree, a violation of General Statutes § 53a-55. After a trial to the court, the defendant was convicted of the lesser included offense of manslaughter in the second degree. From this judgment the defendant appeals, claiming that the trial court erred in admitting evidence of prior acts of misconduct and pending charges. We find no error. The trial court could reasonably have found the following facts. On December 21, 1982, from approximately 9:30 p.m., the defendant, his wife Donna Chauvin, her grandfather and the couple's daughter Lisa Chauvin were all at their Bristol home. Sometime after 11 p.m., Lisa was awakened by what she described as furniture moving in her parents' room. Although it was too dark to see details of the activity in the room, Lisa saw a struggle going on between her mother and father. She ran to the telephone in the kitchen and called the police. A short time later the defendant called to Lisa from his bedroom and told her that everything was fine and that Donna was asleep. Lisa then made a second call to the police cancelling the first call. Approximately ten minutes later, the defendant came out of the bedroom and announced that Donna had drugged him and that she was lying on the floor. The defendant said he did not know if she was alive. He then told Lisa that he and Donna got into an argument and that he had strangled her. He repeated the story again to Lisa and later to several police officers. The defendant prevented Lisa from calling an ambulance for a short time, but she eventually was able to make the call. By the time the emergency medical personnel arrived at the house, Donna had no effective brain function. She died from her injuries on January 17, 1983. The defendant did not testify at trial, nor did he assert that he had not been the cause of his wife's death. Rather, he relied on a defense of mental disease or defect. Much of the defendant's case consisted of psychiatric testimony concerning his mental illness. Michael Sheard and Walter Borden, both psychiatrists, testified that, at the time of the murder, the defendant was suffering from mental disease or defect. Sheard opined that the defendant was unable to conform his conduct to the law. Borden expressed the opinion that the defendant lacked substantial capacity either to appreciate the nature and wrongfulness of his conduct or to conform his conduct to the law. Both experts admitted that they had relied primarily on conversations with the defendant to form their opinions. When alerted to factual errors in the defendant's rendition of events, Sheard stated that "it certainly makes me have more doubt about the situation." He acknowledged that if the defendant's assertions were not true, he could not form the opinions already stated. Borden also admitted that his diagnosis required a truthful account of events from the defendant. He stated that it would be important to his diagnosis "if there was a substantial indication of antisocial tendencies." In his conversations with Borden, the defendant had denied any "antisocial behavior" other than one arrest several years earlier. In rebuttal, the state offered one expert who was unable to state conclusively whether or not the defendant was able to appreciate the wrongfulness of his behavior. That expert also testified that the contradictory remarks made by the defendant led him to doubt the defendant's credibility. The defendant claims that the trial court erred in admitting evidence that he had committed prior acts of misconduct and that there were larceny charges pending against him. The defendant, however, did not except to the testimony concerning the prior acts of misconduct but only to that concerning the pending larceny charges. This court generally will not review any rulings on evidence where no exception was taken by counsel. State v. Baker, 182 Conn. 52, 56, 437 A.2d 843 (1980); State v. Jackson, 3 Conn. App. 132, 134-35, 485 A.2d 934 (1985). Only the most exceptional circumstances will save a claim from the fatal consequences of counsel's failure to make a timely exception. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). This case does not present such circumstances. See State v. Smith, 198 Conn. 147, 156, 502 A.2d 874 (1985) (rule concerning admission of evidence of other crimes is a rule of evidence, not of constitutional law). Thus, we decline to consider this claim. The testimony that is the subject of the remaining claim was given by Alan Medvec, former brother-in-law of the defendant. On direct examination, the prosecutor asked Medvec if he was aware that the defendant had larceny charges pending against him. Over objection from defense counsel, Medvec answered affirmatively and was allowed to elaborate as to his knowledge of the circumstances surrounding those allegations. The defendant asserts that Medvec's testimony was improperly admitted for two reasons: it was prejudicial, thereby depriving him of a fair trial and there was no proper foundation laid for its introduction. The defendant has referred to no legal authority for the latter claim, however. Bare assertions of error without citation to legal authority may constitute an abandonment of a claim. State v. Anderson, 6 Conn. App. 15, 23 n.7, 502 A.2d 446 (1986). We therefore decline to address the issue of whether there was a proper foundation for the testimony. The defendant's other reason for his assertion that the trial court erred in admitting Medvec's testimony concerning the larceny charges pending against him is that it was prejudicial. "Evidence of other misconduct, although not ordinarily admissible to prove the bad character or criminal tendencies of the accused, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity." State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). In State v. Carter, 198 Conn. 386, 393, 503 A.2d 576 (1986), our Supreme Court recently acknowledged another exception to the prohibition on the use of evidence of prior crimes: where insanity is raised as a defense. In that case, the court held that "[ojnce the insanity defense is asserted by a defendant the state is entitled to use relevant evidence of prior crimes to rebut it . . . subject to the constraint that the probative value of the evidence must outweigh its prejudicial effect." Id. Here, the probative value of the evidence was very-high. Both of the defendant's experts, Borden and Sheard, testified that they relied on the accuracy of the history the defendant provided to them to reach their conclusions as to his sanity, a central issue in this case. The state introduced evidence of the larceny charges to show that the ground relied on by the psychiatrists, that is the honesty of the defendant, was not firm. Thus, the probative value of the evidence with respect to the psychiatric diagnosis is clear. See id. The possibility of prejudice from admission of the challenged evidence was minimal. The pending charges, larceny, were not so similar to the crime for which the defendant was being tried, murder, as to raise a realistic danger that the trier "may use the information not for the limited purpose of its admission, but to establish the guilt of the perpetrator of the crime by assuming that 'if he did it before, he probably did so this time.' Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029, 88 S. Ct. 1421, 20 L. Ed. 2d 287 (1968)." State v. Carter, supra, 394. Additionally, the analysis used by our Supreme Court in Carter, that because "the focus of the defendant's case was clearly his insanity at the time of the murder, [i]t is difficult to perceive . . . how the evidence of the [larceny] was so prejudicial as to outweigh its probative value on the issue of insanity"; id; is equally applicable here. The probative value of the pending larceny charge in this case is clear and obvious: the credibility of the defendant was the key factor underlying the opinions of the psychiatrists who testified. Those opinions could not have been made with such certainty had there been more evidence of "anti-social behavior." In light of that probative value and the small possibility of prejudice, we conclude that the trial court did not abuse its discretion in admitting the testimony. There is no error. In this opinion the other judges concurred. In his preliminary statement of issues, the defendant makes other claims of error. As he failed to brief or argue them, however, they are deemed to be abandoned. See State v. Samaha, 180 Conn. 565, 565 n.1, 430 A.2d 1290 (1980). General Statutes (Rev. to 1981) § 53a-13 provides in part: "In any prosecution for an offense, a defendant may be found guilty but not criminally responsible if, at the time of the proscribed conduct, he lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law." Donald Grayson, a psychiatrist, the state's expert, testified that "[i]f [the defendant] was, indeed, drugged or delirious, as he indicated, it would be my opinion that he was probably unable to appreciate the wrongfulness of his behavior or to conform his behavior to the expectations of the law. If, however, he were not delirious, I would have to assume that he could conform his behavior to the expectations of the law." We note that the defendant does not claim that the evidence that he committed the larcenies was insufficient to support a jury finding that he had in fact committed the crimes. See State v. Wilson, 199 Conn. 417, 449, 507 A.2d 1367 (1986) (before evidence of prior crimes can have any probative value, there must be a preliminary showing sufficient to support a jury finding that the defendant committed the prior crimes).

Loiselle, J. The defendant in the present case was charged with misconduct with a motor vehicle, in violation of General Statutes § 53a-57 (a), and was convicted, along with his codefendant (see State v. Varricchio, 176 Conn. 445, 408 A.2d 239), by a jury. The defendant has appealed from the judgment. From a review of the evidence, the jury could have found the following: On March 5, 1976, at about 9:52 p.m., there was an accident near Ellington Center in Ellington. Two cars were directly involved, a 1975 Buiek LeSabre operated by James L. Daigle and a 1972 Ford pickup truck operated by the codefendant, Wayne A. Varricchio. The accident was a head-on collision. Daigle subsequently died as a result of injuries sustained in the collision. Prior to the accident, Wilkinson, Varricchio and several other persons were in the parking lot of a shopping center in Ellington. Stephen L. LaVoie, who was at this time driving Varricchio's truck, testified that he asked Wilkinson if he wanted to race. Wilkinson answered "Let's go." At this point Varriechio took over driving the Ford truck. Wilkinson was driving a Dodge van. On or near route 83, both Varricchio and Wilkinson stopped their vehicles and talked, after which both vehicles headed south on route 83. They intended to race. They had agreed that the starting signal for the race would be three beeps of the horn. The first attempt to race was aborted. The second time the race started, Varricchio was in the left lane on route 83, which is a two-lane highway. The two vehicles accelerated rapidly and traveled together for about fifty feet. Wilkinson pulled ahead and Varricchio ducked back into the right lane. Varricchio caught up with Wilkinson very quickly. He then downshifted to slow down. Daigle's ear was traveling eastbound prior to the collision. Varricchio was traveling westbound in the Ford pickup truck. The pickup truck crossed into the eastbound lane after its brakes locked up at the end of 400 feet of skid marks. The point of impact was totally in the eastbound lane. Several witnesses testified that the truck was in the left lane and the van was in the right lane as they approached Ellington Center. There was also testimony to the effect that Wilkinson's van had been in contact with the Varricchio truck just prior to the fatal crash. All of the errors claimed relate to the charge to the jury. The rule is well settled in this state that a charge does not rise or fall on individual, isolated sentences, but must be looked at as a whole. This court laid down the test in State v. Rose, 169 Conn. 683, 687-88, 363 A.2d 1077: "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; State v. Ralls, 167 Conn. 408, 422, 356 A.2d 147; State v. Tropiano, 158 Conn. 412, 427, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288; Penna v. Esposito, 154 Conn. 212, 215, 224 A.2d 536; Allard v. Hartford, 151 Conn. 284, 292, 197 A.2d 69." The first assignment of error pressed by the defendant is that the trial judge misled the jury by explaining the elements of simple negligence before giving the statutory definition of criminal negligence. He claims that this order of instructions left the jury with the impression that criminal negligence is merely a degree of simple negligence and is in all material respects equivalent to gross negligence. Criminal negligence is an element of misconduct with a motor vehicle, the offense with which both Wilkinson and his codefendant, Yarricchio, were charged. In § 53a-3 (14) of the General Statutes, criminal negligence is defined as follows: "[A] person acts with 'criminal negligence' with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." After giving a general explanation of the respective duties of the court and jury, the trial judge read § 53a-57 and then went on to say that he would explain what "negligence" was before he attempted to delineate what criminal negligence was. He defined simple negligence, breaking it down into a breach of a common-law duty or a breach of a statutory duty. He then instructed the jury to measure the defendants' conduct against the standard of care "that a reasonably prudent person under the same circumstances would have used." The court explained that it had been concentrating on simple negligence because it was a component of criminal negligence and if the jury could not find that the defendants had been negligent, they could stop there in their deliberations: "If you find that the state has not proven that the accused was negligent, either one of them, you may need consider the particular charge no further, and you will find both the accused not guilty or either one of them not guilty, whichever you find." The court then went on to say: "However, if — even if you do find the accused was negligent, either one was negligent, that in and of itself is not a basis for a verdict of guilty of the crime as charged here. It is only a particular degree of negligence that makes one guilty of that crime, a degree which is characterized by the word, 'criminal negligence.' " Thus, the court did point out explicitly that a finding of simple negligence alone was not sufficient to support a conviction. The defendant further argues that the court misled the jury by implying that criminal negligence was equivalent to simple negligence somehow elevated in degree by unspecified aggravating circumstances. In so arguing, the defendant is taking bits and pieces of the charge out of context. The law is clearly established that the charge must be read as a whole, and error cannot be predicated on detached sentences or portions. The court made the difference very clear by first reading the definition of criminal negligence contained in § 53a-3 (14) and then adding: "[Cjriminal negligence is not mere ordinary negligence. It differs in that a certain state of mind is required, and I have told you about that certain state of mind by reading you those definitions." The defendant urges that a juror might readily have seized upon the less complex standard, that of simple negligence elevated in degree, instead of the statutory standard because of the court's detailed explanation of simple negligence. As the above quoted passages indicate, the charge gave the jury a clear understanding of the difference involved between simple negligence and criminal negligence and gave proper guidance in distinguishing one from the other. State v. Williams, 169 Conn. 322, 335, 363 A.2d 72; State v. Vars, 154 Conn. 255, 269, 224 A.2d 744. The defendant also objected to the court's mention of gross negligence as the factor distinguishing negligent homicide with a motor vehicle from misconduct with a motor vehicle. The defendant argues that gross negligence is an obsolete standard in Connecticut and that a reasonable jury could have confused gross negligence with criminal negligence. After discussing the two statutes, the court pointed out: "You will immediately note a great distinction between this . . . statute [General Statutes § 53a-58a] and the one under which the accused are charged. Under the statute under which the accused are charged, which is entitled 'Misconduct with a Motor Vehicle,' an accused is not guilty, so far as negligence is concerned, unless you find that that negligence was criminal negligence." In light of this qualifying remark, made immediately after the court's reference to the negligent homicide statute, it is not likely that a reasonable jury would have been misled. State v. Tropiano, 158 Conn. 412, 433, 262 A.2d 147. The defendant claims that the court erred in instructing the jury that a violation of §14-219 (a) (l) of the General Statutes is negligence. He bases his argument on the fact that the decedent was not an occupant of either of the defendants' vehicles, but was driving his own car at the time of the accident. The court never equated a violation of the statute with criminal negligence. In citing § 14-219 (a) (1) it was giving an example based on the facts of the ease from which the jury could find negligence. The court made it very clear that negligence must be established first and that one way of finding it was a statutory violation. Only then could the jury go on to the further test of criminal negligence. The defendant argues that the jury could not find negligence per se even if there was a violation of § 14-219 (a) (1) because the decedent was not an occupant of either of the defendants' vehicles and that the duty specifically imposed by the statute is owed only to that class of persons intended to be protected by it. This is a misreading of the court's intention and the law. As noted above, the court was using the statutory violation as an example of conduct that constituted negligence. What the defendant is arguing is tort liability, not negligence. It is only in that context that the doctrine of a duty being owed only to that class of persons intended to be protected by the statute is relevant. As the wording of the charge itself indicates, the trial court made it clear that criminal negligence, not just simple negligence, had to be found before a guilty verdict could be returned. The court therefore did not deprive the defendant of due process by relieving the state of its burden of proving all the essential elements of criminal negligence beyond a reasonable doubt. It did comply in all respects in its duty fully to guide the jury to a correct verdict. Siladi v. McNamara, 164 Conn. 510, 515, 325 A.2d 277. The defendant's third claim of error is that the trial court incorrectly instructed the jury on the issue of concurrent liability. The heart of the defendant's argument is that the charge taken in its entirety left the jury with the impression that both defendants could be convicted if the jury found that only one of them was criminally negligent. The defendant claims that the court's instructions requiring the jury to impose criminal liability vicariously under § 53a-57 of the General Statutes was a misstatement of the law. State v. Alterio, 154 Conn. 23, 220 A.2d 451, states the controlling law in this area. In Alterio, this court held that contact between motor vehicles was not necessary in order to violate the statute and that all the statute required was that the gross or wilful misconduct or gross negligence of the operator caused the death. In Alterio (pp. 29-30) this court set the standard for proximate cause in the racing situation: "It was the state's burden to prove that a proximate cause of the death was the unlawful acts of the defendants or of either of them. State v. Leopold, 110 Conn. 55, 62, 147 A. 118; State v. Campbell [82 Conn. 671, 675, 74 A. 927]. Consequently, under the circumstances of this accident, only if the conduct of the driver of the DeSanty car was shown to be the independent and efficient cause of his father's death would the state fail to meet its burden. If, however, the requisite causal connection was established between an unlawful act of either of the defendants and the death, then both defendants, who joined in the common design to commit the unlawful act, would be responsible. State v. McCarthy, 133 Conn. 171, 173, 49 A.2d 594; State v. Leopold, supra, 63. 'Every person is held to be responsible for the natural consequences of his acts, and if he commits a felonious act and death follows, it does not alter its nature or diminish its criminality to prove that other causes co-operated to produce that result.' State v. Leopold, supra, 61. It was incumbent upon the court, therefore, to point out to the jury that in order to establish the guilt of the defendants the state was required to prove the essential element of causation and the effect of participation by Alterio in the common undertaking which ended fatally." The charge given by the trial court was taken from Alterio, which outlines the law in this state on proximate cause and concurrent liability. As counsel for the codefendant acknowledged in oral argument, in order for this court to find error as claimed, Alterio would have to be overruled. There is no cogent reason why this should be done. In the same context, the defendant argues that the wording of the charge on concurrent liability misled the jury. His claim is that this charge left the jury with the clear impression that conviction on the charged offense could properly be predicated upon a finding as to only one of the defendants of criminal negligence causing death. There was evidence presented which was not controverted that both defendants had agreed to race. On the basis of this evidence the charge taken in its entirety was correct in law, adapted to the issues and sufficient to guide the jury. State v. Williams, 169 Conn. 322, 336, 363 A.2d 72. The defendant further argues that the trial court in its charge on the issue of causation failed to instruct the jury as to the proper application of the law to the particular facts of the case. His claim is that the court's charge to the jury on the issue of the causation of the decedent's death was in broad general terms and that it made only a single reference to the particular faets of the case. The parties stipulated that the decedent died as a result of the accident. And the court carefully defined the causal connection necessary between the particular conduct and the death of the individual involved. The extent to which the court comments on the evidence is largely a matter within its sound discretion. State v. Guthridge, 164 Conn. 145, 153, 318 A.2d 87, cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186; Gorham v. Farmington Motor Inn, Inc., 159 Conn. 576, 583, 271 A.2d 94. The charge was carefully worded to cover each and every element that the state had to prove. The defendant's final objection is that the trial court erred in its charge on abandonment. The defendant did not dispute his participation in the race, but rested his defense, in large part, on the claim that he abandoned the common enterprise. To prove abandonment, it is not enough to prove a secret change of purpose in one's own mind. It is necessary to establish the further fact that the one abandoning the common enterprise has informed his eoparticipant of that ehange of purpose. State v. Alterio, 154 Conn. 23, 31, 220 A.2d 451; State v. Allen, 47 Conn. 121, 139; see State v. Manganella, 113 Conn. 209, 220, 155 A. 74; State v. Feltovic, 110 Conn. 303, 310, 147 A. 801. Although the defendant did not take the stand, he offered evidence that he had stopped and was waiting to make a turn at the time the collision occurred. Abandonment is a question of fact for the jury. State v. Alterio, supra, 31; State v. McCarthy, supra, 174. The defendant argues that the court's charge on abandonment violated the dictates of Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508, in that it shifted the burden of proof to the defendant. Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281, not Mullamey v. Wilbur, supra, is controlling here because the affirmative defense of abandonment does not serve to negate any element of the crime which the state must prove in order to convict, but constitutes a separate issue or circumstance on which the defendant is required to carry the burden of persuasion. Under Patterson (p. 209), a state can place the burden of proving an affirmative defense on the defendant as long as that burden does not include negating an element of the crime: "If the State . . . chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may assure itself that the fact has been established with reasonable certainty. To reeognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, too expensive, and too inaccurate." Cf. Poliafico v. United States, 237 F.2d 97, 106 (6th Cir.), where affirmative action is required to show withdrawal from a joint enterprise. See also Hyde v. United States, 225 U.S. 347, 32 S. Ct. 793, 56 L. Ed. 1114; Wharton, Criminal Evidence (13th Ed.) § 124. The crime of criminal negligence with a motor vehicle has two elements: criminal negligence and the causing of a death. The state offered evidence on both elements from which a reasonable jury could have convicted -the defendant. The court's charge did not shift the burden of proving an element of the crime to the defendant; it merely put on the defendant the responsibility of showing that he changed his purpose. In McCormick, Evidence (2d Ed.) § 346, it is stated that where the legislature defines a crime as including certain elements, A and B, and gives notice that proof beyond a reasonable doubt of those elements will subject the violator to punishment, the existence of an affirmative defense, C, does not detract from the given nature of the crime, but rather adds another factor to the case which, if proved, may exonerate the accused, so there is no point in requiring a rational connection between the existence of A and B and the nonexistence of C. In Leland v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302, the United States Supreme Court upheld the state rule that the affirmative defense of insanity must be proven by the defendant. After both In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368, and Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508, the Supreme Court refused to review Rivera v. Delaware, 429 U.S. 877, 97 S. Ct. 226, 50 L. Ed. 2d 160, where the state statute imposed an affirmative defense of insanity on a defendant, stating that the claim did not present a substantial federal question. Finally, in Pat terson v. New York, supra, 207, the court refused to reconsider Leland and Rivera. This shifting of the burden does not violate the due process clause of the fourteenth amendment of the United States constitution. "Proof of the nonexistence of all affirmative defenses has never been constitutionally required." Patterson v. New York, supra, 210. It may be argued that abandonment as an affirmative defense is inconsistent with analogous criminal code legislation enacted since State v. Alterio, supra, was decided, such as General Statutes § 58a-10, under which abandonment by an accessory is no longer an affirmative defense. We note, however, that the defendant here was informed against as a coprincipal and not as an accessory. We are not persuaded that the scope of a coprincipal and that of an accessory are sufficiently similar so as to compel us to read the provisions of one statute into another. There is no error. In this opinion the other judges concurred. "[General Statutes] See. 53a-57. misconduct with a motor vehicle: class d felony, (a) A person is guilty of iaisconduet with a motor vehicle when, with criminal negligence in the operation of a motor vehicle or in consequence of his intoxication while operating a motor vehicle, he causes the death of another person. . . ." General Statutes § 53a-58a. General Statutes §14-219 (a) (1) prohibits the operation of a motor vehicle upon any highway at such a rate of speed as to endanger the life of any occupant of that vehicle. The court gave the following instruction: "[A] defendant is criminally negligent in the operation of his vehicle if the state has proven beyond a reasonable doubt that the defendant's .criminal negligence was the cause of the death of a person. To determine whether the defendant was criminally negligent in operating his motor vehicle, you must find that the state has proven each of the following elements beyond a reasonable doubt: That the defendant's actions at or before the accident scene created a substantial, unjustified risk that a death would occur; that the defendant failed to perceive that risk; that a reasonable man in the same circumstances as the defendant would have known that he was creating a substan tial, unjustified risk that a death would occur; that the defendant's failure to perceive that risk was a gross deviation from the standard of care of a reasonable person under the same circumstances. "You will recall that I said to you that the state has the burden of proving every element of the crime beyond a reasonable doubt, and this is why I have just outlined to you what those elements are. "If you decide that a substantial and unjustifiable risk of death existed, then you must determine that the defendant failed to perceive that risk. You may consider the defendant's actions and manner of driving at or near the seene of the accident in deciding whether or not the defendant perceived that risk." State v. Alterio, 154 Conn. 23, 220 A.2d 451, involved a death resulting from an automobile race on a city street. The eodefendants, Alterio and DeLoma, who were tried together, agreed to engage in an automobile race at night on a public street in violation of § 14-224 (b) of the General Statutes. As they approached an intersecting street at high speeds, Alterio applied his brakes, swerved off the road and stopped. DeLoma did not stop and collided with a ear proceeding through the intersecting street, as a result of which a passenger in that car was killed. Both defendants were held guilty of misconduct with a motor vehicle, in violation of General Statutes § 53-17 (the precursor of General Statutes § 53a-57). "'Proximate cause' is that cause or aet which, in the natural sequence, unbroken by any other intervening act, produced the death and without which the death would not have resulted. In other words, the act to be the proximate cause must be a substantial factor in producing the death, and to be a substantial factor in producing the death the aet must have continued down to the moment of the injury or the death, or at least down to the setting in motion of the final active, injurious force which materially produced or preceded the death. "This does not mean the law recognizes only one proximate cause of the death, consisting of one — only one aet or the conduct of only one person. The acts ox omissions of two or more persons may work concurrently as the efficient causes of a death, and in such case each of the participating acts or omissions is regarded in law as a proximate cause. "When the negligent acts or omissions of two or more persons, whether committed independently or whether in the course of jointly directed conduct, contribute concurrently and as proximate causes to the death of another, each of such persons may be held to be liable. This is true regardless of the relative degree of contribution. "When the wrongdoing of two persons is the proximate cause of the death, they are both liable without regard to whether or not one may be more at fault than the other. If the illegal conduct of such persons — of such defendants here was the proximate cause of the collision, they would be liable jointly and severally. If you find that the aet of either one of them or both of them was a proximate cause of the death, it is not necessary to the establishment of liability that there be any contact between the particular vehicles involved. "As I have indicated, if two or more persons participate in a erime, they are equally responsible, though it was the immediate act of one who actually brought about the crime. Participation means not only actively sharing in the final commission but in doing anything to aid and assist and to inspire or to encourage the conduct whieh caused it. "So that, in dealing with the entire matter, it is up to the state to prove to you that the defendants, either or both, operated the car in eonsequenee Of which either by criminal negligence caused the death of this particular party. "If you find the state has proven beyond a reasonable doubt all of the particular elements of the crime, then you will find the accused guilty as charged. If you find that they have not proven all the elements of the crime charged beyond a reasonable doubt, then you will find them not guilty as charged." "As I have indicated, if two or more persons participate in a crime, they are equally responsible, though it was the immediate act of one who actually brought about the crime. Participation means not only actively sharing in the final commission but in doing anything to aid and assist and to inspire or to encourage the conduct which caused it. "So that, in dealing with the entire matter, it is up to the state to prove to you that the defendants, either or both, operated the car in consequence of which either by criminal negligence caused the death of this particular party. "If you find the state has proven beyond a reasonable doubt all of the particular elements of the crime, then you will find the accused guilty as charged. If you find that they have not proven all the elements of the crime charged beyond a reasonable doubt, then you will find them not guilty as charged." The court stated: "That brings us to another element of the law. There must be a causal connection between the particular conduct and the death of the individual involved. When an injury follows or a death follows from an act of criminal negligence and the death is traceable in causal relationship to such an act, the act is said to be the proximate cause of the death." "You have heard something about abandonment. Abandonment is a question of fact for the jury. To prove an abandonment of an illegal activity in which the parties are engaged, it is not sufficient for a party to prove a secret change of purpose in his own mind. It was necessary for him to establish the further fact that he had, by word or deed, informed the other party of that change of purpose. You will consider the evidence before you and conclude whether or not you find such fact."

S. Freedman, J. After a trial to a jury on charges of burglary in the third degree in violation of General Statutes § 53a-103 and larceny in the third degree in violation of General Statutes § 53a-124, the defendant was acquitted of larceny in the third degree but convicted of burglary in the third degree. He appeals from that conviction. This appeal generates five issues. It asks whether the court erred (1) in refusing to strike testimony of the complainant because the police erased a recording of his emergency call reporting the crime, (2) in denying the defendant's motions for mistrial, (3) in denying the defendant's motion for judgment of acquittal, (4) in admitting evidence of an act of prior misconduct for the purpose of impeaching the defendant, and (5) in its jury instructions on the crime of burglary and the use of fingerprint evidence. We find no error. The jury could reasonably have found the following facts. On December 17,1984, the victim, Dean Andrews, following his usual routine, left his home between 7 and 8 a.m. His house was fronted by a porch and had double-hung windows on either side of the front door, both covered by storm windows. Because of debris left in front of the lefthand window, it had been inaccessible from the outside since Labor Day of 1984. Returning home that evening, Andrews saw that someone had made a path through the debris to the window. There were markings on the storm window, and its glass and the glass of the inner window were both broken. Some large pieces of broken glass were lying around. The telephone inside the house was ripped from the wall. Andrews' revolver and rifle were missing. Andrews, using a neighbor's phone, then called the police to report a burglary. Officer Herman Badger responded to the call approximately forty-five minutes later. Badger put six pieces of broken glass into a plastic bag and took them to police headquarters where they were checked for fingerprints. One piece of glass had three fingerprints on it, two on one side and one on the other. At a later date, Andrews informed the police that the defendant, a former employee, could have been responsible for the incident. He had been at Andrews' house the Friday after Thanksgiving, 1984, and also lived with a woman who sometimes worked for Andrews as a house cleaner. Andrews had fired the defendant from his employment on December 8,1984. The defendant had previously filed a workers' compensation claim against Andrews based on a back injury suffered at his place of employment. Andrews also told the police that other items had been taken besides those already reported, but that his insurance company had paid him for them. Comparing the defendant's prints with those from the broken glass, the police determined that two prints on one side of the glass matched the defendant's index and middle .fingers and the print on the other side matched the defendant's thumb. A police expert was able to conclude, on the basis of all the evidence, that the prints were placed there at the same time the glass was removed. The defendant testified and presented a defense of alibi. He stated that while doing yard work the day after Thanksgiving he was bothered by back pain and leaned against the window in question, touching it. He said that later that day he was inside the house and leaned on the inside of the window while looking out, again touching it. He stated he never opened the inside window or the storm window. He further stated he was home in bed the entire day on December 17, 1984, at the suggestion of a doctor, because of back pain. Sonia Figueroa, with whom he lived, testified in corroboration of his alibi. During the trial, the defendant's veracity was impeached by the state by evidence that he had lied under oath in a prior legal proceeding. The defendant responded that he was without an interpreter and had not understood the judge's questions at that proceeding or the proceeding itself. The defendant also attempted unsuccessfully to impeach the character of Andrews for truthfulness. Testimony at trial further revealed that the New Haven police had erased a tape recording of the victim's emergency call reporting the burglary. I Relying on State v. Myers, 193 Conn. 457, 467-68, 479 A.2d 199 (1984), and Practice Book § 748 et seq., the defendant claims that destruction of the victim's recorded telephone call, which he maintains was a "Jencks statement," deprived him of his constitutional right of confrontation. He argues that the recording could have contained inconsistent impeachment material. We cannot agree. The right under the rules of practice to statements of witnesses after direct examination is not a right of constitutional magnitude. United States v. Augenblick, 393 U.S. 348, 356, 89 S. Ct. 528, 21 L. Ed. 2d 537 (1969), on remand, 509 F.2d 1157, (Ct. Cl.) cert. denied, 422 U.S. 1007, 95 S. Ct. 2628, 45 L. Ed. 2d 669 (1975); State v. Vessichio, 197 Conn. 644, 661-62, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). The defendant therefore bears the burden of showing prejudice. State v. Myers, supra, 469 n.7. Under State v. Myers, supra, we do not condone the erasure of the recording. We are, however, required to determine whether it was sufficiently prejudicial to warrant reversal. Under the facts of this case, we conclude it was not. Unlike the anonymous call in State v. Myers, supra, which included a detailed description of the crime, Andrews' call in this case merely reported a burglary to the police and requested assistance. The defendant's counsel had full opportunity to cross-examine at length both the victim and the investigating officer to whom he spoke. Yet, nothing in the record even hints at the existence of impeachment material. The defendant's argument rests on speculation, failing to establish the weakest showing of prejudice. The state, in a cogent public policy argument, urges us to carve out an exception to State v. Myers, supra, for emergency 911 calls. Despite the appeal of this argument, we decline to accept the invitation. Because the defendant failed to make any threshold showing of prejudice, we need not reach that question and leave it for another day. II The defendant next argues that the trial court erred in refusing to grant a mistrial (1) for refusing a continuance to investigate newly discovered fingerprint evidence and for limiting his cross-examination of the complainant for bias, and (2) for the destruction of the recording of the complainant's telephone call. See State v. Hill, 201 Conn. 505, 510, 518 A.2d 388 (1986); State v. Moye, 199 Conn. 389, 395, 507 A.2d 1001 (1986). Responding to the defendant's motion for discovery, the state agreed to allow inspection of all evidence, including fingerprints. At that time, the state's expert had located three prints on the broken glass, two of which he identified as belonging to the defendant. The defendant's expert had the opportunity to inspect these prints. Just before trial, the state's expert was able to identify the third print as that of the defendant's thumb. The defendant requested preclusion of the additional fingerprint evidence due to late disclosure; see Practice Book § 747; and alternatively requested a continuance for his expert to review the new conclusion. The court denied these motions. After the state's expert testimony was presented, the defendant asked for a mistrial, citing the failure to grant the continuance and the defendant's inability to cross-examine Andrews on bias, interest and motive. The fingerprint evidence complained of by the defendant was seasonably made available to him after the original disclosure. The defendant's expert was thus able to inspect those prints and draw any conclusion from them he found reasonable. Since he already had the opportunity to view what the defendant later requested, the court's denial of a continuance was not an abuse of discretion. Moreover, nothing prevented the defendant from bringing his expert into the courthouse to look at the prints. The record also indicates that the defendant's claim of bias by the victim was, in fact, explored on cross-examination by his counsel, and denied by the victim. Accordingly, the first motion for mistrial was properly denied. We have already concluded that no error resulted from the police erasure of the telephone tape recording., Our review of the record confirms that the trial court did not abuse its discretion in failing to grant the defendant's second motion for mistrial. Ill The defendant alleges that the court erred in denying his motion for judgment of acquittal after the verdict. Essentially, the claim has three prongs: (1) the verdict rested upon fingerprint testimony which cannot stand alone in the absence of evidence indicating that the prints were made at the time of the crime; (2) there was a reasonable hypothesis consistent with innocence concerning the fingerprints; and (3) the defendant's alibi defense, coupled with his explanation of when the fingerprints could have been impressed, created a reasonable doubt as a matter of law. The defendant's first argument fails because the fingerprint evidence did not stand alone. See State v. Thorpe, 188 Conn. 645, 648-50, 453 A.2d 88 (1982). The defendant knew the victim's work habits; his friend worked in the house; the point of entry was inaccessible from the outside for a long period preceding the date of the crime; the window was protected by a storm window; the three prints were on the same piece of window glass; and the location of the three prints, namely, index finger and middle finger opposing the thumb near the end of the broken glass, allowed the state's expert to opine that they were all impressed at the same time. Further, the defendant's testimony regarding the opportunities he had to impress his prints on the window was self-limiting. It was clearly in his best interest to relate as many such incidents as possible, and reasonable for the jury to believe he did so. Thus, the defendant's own testimony limited the possible times he could have touched the window. Yet the jury, as the trier of fact, was at liberty to disbelieve the defendant's testimony, which it apparently did. Once that testimony was disbelieved, the jury could reasonably believe that the prints were made at the time of the crime. The defendant's other arguments concerning the motion for acquittal incorrectly assume that the defendant's evidence was necessarily accepted by the jury. It is obvious that the thrust of this attack is an attempt to have us retry this case. It was for the trier of fact to weigh the evidence and determine the credibility of witnesses. "This court cannot and will not weigh the evidence contained in the record before us." Pantlin & Chananie Development Corporation v. Hartford Cement & Building Supply Co., 196 Conn. 233, 237, 492 A.2d 159 (1985); Sansone v. Lettieri, 4 Conn. App. 466, 467-68, 495 A.2d 720 (1985). Nothing in this record indicates that the trial court abused its discretion in denying the defendant's motion for judgment of acquittal. IV Next, the defendant claims the trial court erred by allowing the state's impeachment of the defendant through use of a prior act of misconduct. The act in question was the defendant's false assertion made while under oath in an accelerated rehabilitation proceeding that he had no cases pending against him. Although conceding the normal admissibility of this evidence as it relates to veracity, the defendant argues that the court was obligated to exclude it because of the surrounding circumstances. He cites the lack of an interpreter at the prior proceeding which led him to misunderstand the question he answered, and his public defender's perfunctory explanation of the proceeding in English which confused him as to its meaning. The resulting prejudice, he urges, should have led the court to reject the offered evidence, particularly in view of the defendant's reliance upon his own testimony. Prior acts reflecting adversely upon a person's honesty bear sharply on the issue of veracity at trial and, subject to the court's discretion, may be admitted for purposes of impeachment. State v. Martin, 201 Conn. 74, 87, 513 A.2d 116 (1986). This was such a case. The fact that the defendant's credibility was critical to his defense cannot insulate him from attack on this ground, nor should it. The question raised regarding the defendant's language problems and resultant confusion is highly relevant to the weight of the evidence, but not necessarily to its admissibility. In this context, the trial court has considerable discretion to determine the extent of cross-examination and whether its probative value outweighs its prejudicial effect. State v. Martin, supra, 88-89; Vogel v. Sylvester, 148 Conn. 666, 676, 174 A.2d 122 (1961). The entire panoply of facts was properly set before the jury. Under the circumstances of this case, we cannot conclude that the court abused its discretion. The defendant points out that the court's ruling was in stark contrast to its refusal to allow impeachment evidence against the complainant by a character witness. A review of the record, however, reveals that the defendant failed to produce the required predicate for his character witness' testimony. In the absence of a satisfactory foundation for such evidence, the court properly excluded it. State v. George, 194 Conn. 361, 368-69, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985); State v. Rodriguez, 180 Conn. 382, 389, 429 A.2d 919 (1980). V Finally, the defendant asks us to find that the court erred in its charge to the jury (1) in failing to explain fully and define each of the elements of burglary, (2) in diluting the state's burden of proof by commenting that the jury need not spend too much time on some of the questions, and (3) in misstating the law of fingerprint evidence. The defendant failed to take exception to the first proposition but presses for review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), since a charge omitting an essential element of a crime raises an issue of fundamental constitutional dimension. State v. Grant, 6 Conn. App. 24, 28, 502 A.2d 945 (1986). This case is distinguishable from State v. Grant, supra. The record reveals that the court did inform the jury of all the elements of the crime of burglary. The defendant's real claim, therefore, is that the court did not define the elements of burglary in greater detail. The charge, of course, must be viewed in its entirety. Unlike State v. Grant, supra, where illegal entry was in contention, the term "unlawfully" was defined in a supplemental charge in this case, and the other undefined terms bear commonly understood meanings. State v. Maresca, 173 Conn. 450, 460-61, 377 A.2d 1330 (1977); see also General Statutes § l-l(a). We have often repeated that claims raised for the first time on appeal will not ordinarily be reviewed. Our rules of practice are not simply formalities, but serve to alert the trial court to potential problems while there is still time to act. Assigning error on the basis of objections not raised at trial "unfairly subjects the judges and the opposing party to trial by ambush." State v. Rogers, 199 Conn. 453, 460-61, 508 A.2d 11 (1986). "Only in the most exceptional circumstances can and will this court consider a claim, constitutional or other wise, that has not been raised and decided in the trial court." State v. Evans, supra, 69. To the extent that the defendant's first disagreement with the trial court's charge is reviewable, we find no error. We also hold that the claim made at oral argument based upon State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985), was never properly raised and is not before this court. The claim that the court's comments diluted the state's burden of proof are without merit. The court did comment that the jury need not take much time in determining that a burglary was committed in a building. It would, of course, be fatuous to suggest that the victim's home was not a building. This case is controlled by State v. Collette, 199 Conn. 308, 507 A.2d 99 (1986), in which our Supreme Court, referring to the trial court's comment that "I don't think there is really any dispute, a burglary occurred" stated that "[t]he court was at this point diverting the jury's attention away from the burglary issue, which was virtually uncontested at trial, and toward the identification question, the key to the whole case. This type of emphasis and direction by the trial court was, under the circumstances, appropriate." Id., 318. As in State v. Collette, supra, the court here did not withdraw from the jury the issue of whether a burglary occurred since it told the jury it was the state's responsibility to prove the elements of the crime beyond a reasonable doubt. See State v. Taylor, 196 Conn. 225, 232, 492 A.2d 155 (1985). It is also clear that the court's comment that "the burglary and larceny occurred at the same time" did not adversely influence the jury. The defendant's acquittal of the larceny charge and conviction of burglary reflect that no prejudice resulted from the comment. The defendant's final claim is that the court misstated the law of fingerprint evidence. To the extent that the defendant took exception to the court's charge, in view of our previous discussion and our review of the record, we conclude there was no error. See State v. Thorpe, supra. "The ultimate test of the charge is whether, read in its entirety, it fairly presents the case to the jury so that no injustice is done." State v. Storlazzi, 191 Conn. 453, 466, 464 A.2d 829 (1983); State v. Widget, 11 Conn. App. 47, 52, 525 A.2d 548 (1987). We conclude the charge satisfied this test. There is no error. In this opinion the other judges concurred. "Practice Book § 749, which defines the term 'statement,' tracks substantially the Jencks Act definition of that term. See 18 U.S.C.A. § 3500 (e)." State v. Hinton, 196 Conn. 289, 300, 493 A.2d 837 (1985).

Peters, J. This case involves a dispute over the ownership of church property arising out of a disagreement about the withdrawal of a local church from its prior affiliation with a hierarchical church organization. New York Annual Conference of the United Methodist Church and its resident bishop, W. Ralph Ward, Jr., brought this action against the Round Hill Community Church, Inc., of Greenwich and six individual defendants for a declaratory judgment and other legal and equitable relief to determine their interest in the church property, and to enjoin the defendants from interference with the conduct of church services by a duly appointed Methodist minister and from use of church property for purposes not authorized by the church hierarchy. The defendants counterclaimed seeking, inter alia, a declaratory judgment that Round Hill Community Church, Inc., owns the disputed property and an ancillary injunction to enjoin the plaintiffs from interfering with the defendants' installation of a locally appointed non-Methodist minister. Following a lengthy trial, the trial court, Berdon, J., rendered judgment for the defendants without ruling on the defendants' claims of waiver, estoppel, unjust enrichment and unclean hands. From that judgment the plaintiffs have appealed and the named defendant et al. have cross appealed. The underlying facts, found in the memorandum of decision and other material uncontested parts of the proceedings at trial; Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); establish the following: A local chnrch having a hierarchical relationship with the United Methodist Church was begun in the Round Hill area of Greenwich in the early part of the nineteenth century. Known as the Round Hill Methodist Episcopal Church, it was first located, in 1828, on property deeded in trust to the Methodist Episcopal Church in 1827. Subsequently, in 1871, the church acquired other property from William S. Brown, again in trust for the Methodist Episcopal Church, to which the church sanctuary was then moved, the original parcel becoming a cemetery for the congregation. In the early part of this century, the Round Hill Methodist Episcopal Church was a struggling country church with a declining membership. From 1907 to 1913, the church may have been temporarily closed and was at least inactive. The Reverend Harold E. Wilson, a Methodist minister and a member of the New York East Annual Conference was appointed in 1919 by the Methodist bishop to serve as a part-time "supply" pastor to the church at Round Hill. At the request of the congregation, the Reverend Wilson was, after two years of service, appointed as its full-time pastor. On February 14,1921, eleven individuals who constituted the official board of the Round Hill Method ist Episcopal Church met at the church in order to organize a community church. The minutes of that meeting provided in part: "A Motion was made and seconded that the Round Hill Methodist Church be made a Community church. A committee to look after the By Laws of the Community church discussed, the move (sic) was made and seconded that Rev. H. Wilson, Mr. Huyler and Mr. Marshall be the committee. . It was voted that Rev. Wilson see Rev. Rogers, pastor of the North Greenwich Congregational church, and have a talk with him about joining their church with ours." The North Greenwich Congregational Church did eventually merge with the Round Hill Church. From 1921 onwards, the church formerly known as the Round Hill Methodist Episcopal Church became known as the Round Hill Community Church (hereinafter Round Hill). The significance of this change is the central issue in the case before us. On the one hand, Round Hill never voted to abandon the Methodist Church, and continued, until 1978, to occupy Methodist Church property, to be led by Methodist ministers and to pay Methodist assessments. Neither Reverend Wilson nor the members of the official board of the church took any steps to withdraw their individual memberships in the Methodist Annual Conference. On the other hand, Round Hill, after 1921, held itself out as a community church in its corporate affairs and in its relationship to the community. The ambiguity of the action taken in 1921 is reflected in the later official documents of the Round Hill Church, which note that the church became a community church "[wjhile not actually severing its connection with the Methodist Episcopal denomination." As a community church, Round Hill prospered. It acquired substantial amounts of real property, title to which was taken either in the name of Round Hill Community Association, Inc., or in the name of trustees for the Round Hill Community Church or Round Hill Community Church, Inc. Round Hill has also since 1921 accumulated substantial endowment, retirement and miscellaneous funds. In the years between 1921 and 1978, the ministers at Round Hill were all Methodists. Reverend Wilson's successors were selected by Round Hill and appointed by the bishops of the Methodist Church. The present controversy arose when, in 1978, the Round Hill congregation voted to appoint, as pastor of Round Hill, the Reverend Alvin Brewer, a Congregational minister. The Methodist Church, acting through Bishop Ward, attempted unsuccessfully to designate and install a Methodist minister, Reverend Hansen, in place of Reverend Brewer. The plaintiffs claim that the defendants' insistence upon a minister who is not a Methodist means that the defendants have now in effect withdrawn from the Methodist Church and have forfeited their right to use or take church property which is subject to a Methodist trust. The defendants deny the continued existence of a Methodist trust, claiming that Round Hill is and has been since 1921 a nondenominational community church, independent of the Methodist Church. The trial court, after satisfying itself that the procedural requirements for an action for a declaratory judgment had been met, addressed and resolved a number of issues. First, the court concluded that its exercise of authority to determine the present controversy would not contravene constitutional prohibitions against civil entanglement in ecclesiastical disputes. Second, the court concluded that Round Hill was independent in polity, name and finances from the Methodist Church, despite the relationship.with the Methodist Church that continued to exist because Round Hill ministers were Methodists. In conjunction with this conclusion, the court rejected the plaintiffs' argument that they had no knowledge of the actions of the Round Hill congregation, finding both imputed knowledge because of the knowledge of Methodist ministers as agents of the Methodist Church and actual knowledge on the part of others in the Methodist hierarchy. Third, the court concluded that Round Hill had full rights to all of the property used by the church, a direct right to property deeded to it after 1921, and a right arising out of adverse possession and laches to property whose record title ran to trustees for the Methodist Church. On these bases, the court granted declaratory and injunctive relief to the defendants. The court declined to consider the defendants' claims that the plaintiffs were also barred from recovery by waiver, estoppel, unclean hands and unjust enrichment. On this appeal, the plaintiffs challenge as error the trial court's second conclusion, that Round Hill is a church independent of the Methodist Church, and the trial court's third conclusion, that Round Hill has title to and the right to control all of the real and personal property that is the subject mat ter of this litigation. The defendants, in their cross appeal, claim that the trial court erred when it concluded that it was unnecessary to consider the defenses of waiver, of estoppel, of unclean hands, and of unjust enrichment. We will consider each of these contentions seriatim. I Before we proceed to the merits of these issues, we must review, as did the trial court, what authority we may constitutionally exercise, as a civil court, to adjudicate property disputes involving autonomous ecclesiastical organizations. The first and fourteenth amendments to the United States constitution protect freedom of religion by forbidding governmental establishment of religion and by prohibiting governmental interference with the free exercise of religion. It is now well established that "the First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes." Presbyterian Church v. Mary E. B. Hull Memorial Presbyterian Church, 393 U.S. 440, 449, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969); Jones v. Wolf, 443 U.S. 595, 602, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-25, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976); Maryland & Virginia Churches v. Sharpsburg Church, 396 U.S. 367, 368, 90 S. Ct. 499, 24 L. Ed. 2d 582 (1970) (Brennan, J., concurring). In language often quoted, it was held, in Watson v. Jones, 80 U.S. (13 Wall.) 679, 728-29, 20 L. Ed. 666 (1871): "In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding on all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for." The principle of deference to ecclesiastical adjudication of disputes concerning ecclesiastical doctrines and practices does not rest on the mandates of the constitution alone. Secular courts should view with skepticism their competence to decide ecclesiastical questions, which are often as markedly arcane and complex as they are heatedly controverted. Watson v. Jones, supra, 733; Bonacum v. Harrington, 65 Neb. 831, 835, 91 N.W. 886 (1902); Chafee, "The Internal Affairs of Associations Not for Profit," 43 Harv. L. Rev. 993, 1023-26 (1930); comment, "Judicial Intervention in Disputes Over the Use of Church Property," 75 Harv. L. Rev. 1142, 1172-73 (1962). Furthermore, courts should be alert to the value, in a pluralistic democratic society, of affording latitude to autonomous associations to conduct their own affairs without unnecessarily intrusive judicial supervision. Chafee, supra, 1027-1029; Weisbrod, The Boundaries of Utopia, 183-85 (1980). Nonetheless, the principle of deference must be applied in accommodation with the competing principle that "[t]he State has an obvious and legitimate interest in the peaceful resolution of property disputes, and in providing a civil forum where the ownership of church property can be determined conclusively." Jones v. Wolf, supra, 602; Presbyterian Church v. Mary E. B. Hull Memorial Presbyterian Church, supra, 445. It is now well established that state judicial intervention is justified when it can be accomplished by resort to neutral principles of law arising out of the law of property and of trusts that eschew consideration of doctrinal matters such as the ritual and liturgy of worship or the tenets of faith. Jones v. Wolf, supra, 602; Presbyterian Church v. Mary E. B. Hull Memorial Presbyterian Church, supra, 449; see Maryland & Virginia Churches v. Sharpsburg Church, 396 U.S. 367, 370, 90 S. Ct. 499, 24 L. Ed. 2d 582 (1970) (Brennan, J., concurring); Clough v. Wilson, 170 Conn. 548, 552-54, 368 A.2d 231 (1976). Because disputes involving church property have arisen with unfortunate regularity, there are well-developed guidelines for us to follow in the application of neutral principles of law. The basic rules, laid down in Watson v. Jones, supra, establish a two-stage test. If property is dedicated by way of an express trust either to the general or to the local church, the terms of the trust will be enforced. In the absence of an express trust, the court must determine ownership of the property on the basis of the polity of the general and the local church: if the property is held by a local church which is independent of the general church, the property is subject to control by the decision of the majority of the local church; if, however, the property is held by a local church which is connected as a subordinate member to a hierarchical general church, then rights to the property are to be decided by the hierarchical church's superior ecclesiastical tribunal. Watson has been followed in this state in Independent Methodist Episcopal Church v. Davis, 137 Conn. 1, 13, 74 A.2d 203 (1950), and in Trustees of Trinity Methodist Episcopal Church v. Harris, 73 Conn. 216, 224, 47 A. 116 (1900). Jones v. Wolf, decided by the United States Supreme Court only last year, added to the rules of Watson v. Jones by enlarging the scope of inquiry that a court may pursue, still following neutral principles, to determine the existence of a trust, and, presumably, the polity of a church and a local church's affiliation therewith. Under Jones v. Wolf, in deciding secular questions arising out of con cepts of property and trust law, civil courts may not only examine the deeds of conveyance or of trust but may also scrutinize certain religious documents, such as a church constitution, for language of trust in favor of the general church. See Maryland & Virginia Churches v. Sharpsburg Church, supra, 367-68. The first amendment thus requires that civil courts defer to the highest court of the hierarchical church organization to resolve issues of religious doctrine or practice; Jones v. Wolf, supra; Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-25, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976); Watson v. Jones, 80 U.S. (13 Wall.) 679, 733-34, 20 L. Ed. 666 (1871); but does not prevent the civil courts from exercising general authority to resolve church property disputes. In the context of the case before us, we have both the authority and the duty to decide whether the property claimed by the Methodist Church and by Round Hill was expressly given in trust to either church. Where the property is not subject to an express trust, we must decide, without becoming entangled in religious controversy, what is the nature of the relationship between the Methodist Church and the local church, and the nature of the affiliation of Round Hill to the Methodist Church. Not all of these questions are still at issue. The trial court found that the property of the Round Hill church that was acquired before 1921 was given subject to an express trust in favor of the Methodist Church, but that the property subsequently acquired was not subject to such an express trust. The trial court also found that the Methodist Church stands generally in a hierarchical relationship to its local churches. None of these findings is contested on this appeal. H The central issue on this appeal is the plaintiffs' claim that the trial court erred in holding that a new and independent church was organized at Round Hill in 1921. The trial court held that passage of the motion by the local church board that Round Hill be made a community church meant that the Round Hill Methodist Episcopal Church as of that moment ceased to exist. The court held that there was no need for the local church to make application to withdraw from the Methodist Church because there was nothing from which to withdraw. The court therefore did not inquire into the procedures for withdrawal specified in the Methodist Church's Book of Discipline, despite its recognition that, before 1921, the church at Round Hill had been affiliated in a hierarchical manner with a church whose polity was itself hierarchical. The plaintiffs attack the conclusion of the trial court both doctrinally and factually. On a doctrinal level, they come close to arguing that a local church, once connected with a hierarchical general church, cannot disaffiliate therefrom without compliance with the explicit ecclesiastical law of that church. On a factual level, they dispute the infer ence that Bound Hill's new status as a community church necessarily implied a severance of its prior relationship with the Methodist Church. Although it seems unlikely that even a hierarchical general church could bind its local churches in perpetuity to observe any and all of its ecclesiastical commandments, including its constraints on disaffiliation; but cf. Serbian Eastern Orthodox Diocese v. Milivojevich, supra, 712-15; we need not reach that issue. On the underlying facts found by the trial court, there is no factual basis for its conclusion that Bound Hill had established its independence from the Methodist Church. The facts that have a bearing on the continuance of a relationship between Bound Hill and the Methodist Church are not limited to the passage of a motion on February 14, 1921, although the circumstances attending its passage are illuminating. At an official meeting of an official board of a church then coneededly Methodist, a motion to become a community church was passed. The motion did not speak to the Methodist past of this church, nor did it say that an independent church was being founded. The motion appointed an implementing committee including the local church's minister, a pastor who had been and continued to be an active member of the Methodist Church. The motion did not contemplate relocation of the church, then and now on property known to be held in trust for the Methodist Church. It is true that the motion also suggested inquiry into ecumenical liaison with a congregation of another denomination, but the significance of that inquiry depends upon whether such a liaison is necessarily a definitive repudiation of the Methodist faith. That question, in turn, treads on the forbidden ground of deviation from doctrine, upon which civil courts may not venture. Jones v. Wolf, 443 U.S. 595, 602, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979); Maryland & Virginia Churches v. Sharpsburg Church, 396 U.S. 367, 368, 90 S. Ct. 499, 24 L. Ed. 2d 582 (1970) (Brennan, J., concurring); Presbyterian Church v. Mary E. B. Hull Memorial Presbyterian Church, 393 U.S. 440, 449, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969). These facts establish that the church at Round Hill was preparing to move forward in a new direction but not that it had ceased to have a relationship with the Methodist Church. A fact of particular importance is that Round Hill continued to occupy and to use, to exercise complete dominion over, property expressly entrusted to the Methodist Church. Courts in this and other jurisdictions have consistently held that, although the members of a local church may secede from a hierarchical system, they cannot secede and take the church property with them. Independent Methodist Episcopal Church v. Davis, 137 Conn. 1, 13, 74 A.2d 203 (1950); McAuliffe v. Russian Greek Catholic Church, 130 Conn. 521, 536, 36 A.2d 53, cert. denied, 323 U.S. 726, 65 S. Ct. 60, 89 L. Ed. 583 (1944); see, e.g., Holiman v. Dovers, 236 Ark. 211, 366 S.W.2d 197, 200, (1963); Baker v. Ducker, 79 Cal. 365, 374, 21 P. 764 (1889); Trustees of Pencader Presbyterian Church v. Gibson, 26 Del. Ch. 375, 383, 22 A.2d 782 (1941); St. John's Presbytery v. Central Presbyterian Church of St. Petersburg, 102 S.2d 714, 718 (Fla. 1958); Apostolic Holiness Union of Post Falls v. Knudson, 21 Idaho 589, 594, 123 P. 473 (1912); Stallings v. Finney, 287 Ill. 145, 149, 122 N.E. 369 (1919) (congregational church polity); Stansberry v. McCarty, 238 Ind. 338, 149 N.E.2d 683 (1958) (congregational church polity); Black v. Tackett, 237 S.W.2d 855, 855-56 (Ky. 1951); Hanna v. Malick, 223 Mich. 100, 119, 193 N.W. 798 (1923); Mt. Helm Baptist Church v. Jones, 79 Miss. 488, 502, 30 S. 714 (1901); Erie Conference Central Office v. Burdick, 440 Pa. 136, 139-40, 269 A.2d 735 (1970); Bogert, Trusts and Trustees § 398 (2d Ed. 1965). As did the trial court, we find it useful to test our conclusion by examining the events that occurred between 1921 and 1978, when the present controversy erupted. Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 409, 365 A.2d 1086 (1976); Taft Realty Corporation v. Yorkhaven Enterprises, Inc., 146 Conn. 338, 343, 150 A.2d 597 (1959). In these intervening years, the church at Bound Hill continued to pay Methodist assessments and to accept the appointment of Methodist ministers. Indeed, the trial court expressly found that Bound Hill had a continuing relationship with the Methodist Church because it continued to be led by Methodist ministers. The church at Bound Hill described itself, in its literature, as having been founded in 1810 rather than in 1921. In its official history, Bound Hill characterized its church as a community church that had not actually severed its connection with the Methodist Church. In its 1977 Complete Statement of Principles, published on the eve of the present controversy, Bound Hill reiter ated the absence of actual severance and noted the continued existence of a special relationship between the local church and the Methodist Church. "The disciplines of the United Methodist Church on the one hand and the independence of our Church on the other coexisted because of a dive and let live' policy on their part and open-mindedness on ours." We consider these facts as more relevant than the form of Round Hill's incorporation or its various public listings. To the extent that Round Hill's conduct deviated from the normal practices of more orthodox Methodist churches, that deviance was, again, an ecclesiastical matter to be adjudicated not by us but by the proper authorities within the hierarchical church. Jones v. Wolf, supra, 602; Serbian Eastern Orthodox Diocese v. Milivojevich, supra, 709. Viewed in their totality, the events that occurred at Round Hill in 1921, and thereafter until the present dispute arose in 1978, establish a relationship of ambiguous dimensions but not a severance, in 1921, of the connectional ties between the church at Round Hill and the Methodist Church. The trial court's conclusion to the contrary, because it is contrary to the underlying facts, is therefore in error and cannot stand. Botticello v. Stefanovicz, 177 Conn. 22, 27, 411 A.2d 16 (1979); White Oak Excavators, Inc. v. Board of Tax Review, 169 Conn. 253, 256, 363 A.2d 134 (1975); Barrett-NonPareil, Inc. v. Stoll, 168 Conn. 79, 82, 357 A.2d 481 (1975). in The second issue on the plaintiffs' appeal is a challenge to the conclusions of the trial court with respect to rights in the property of the church at Round Hill. The trial court determined that all of the real and personal property belonged to the local church, and that the Methodist Church had forfeited whatever rights it might once have had, even in property originally expressly given in trust to the Methodist Church. These conclusions are inescapably linked with the trial court's earlier determination that Round Hill had severed its relationship with the Methodist Church in 1921. In view of our holding to the contrary in part II of this opinion, these conclusions cannot stand. The property which is in dispute can usefully be divided into two segments, the property acquired by the Round Hill church before 1921, and the property acquired thereafter. With respect to the pre1921 property, the trial court found that this property had been lost to the Methodist Church by operation of the law of adverse possession and the doctrine of laches. For the property acquired after 1921, the court found that the absence of an express trust and the creation of an independent church defeated the interest that the Methodist Church claimed to flow from the Methodist Church's Book of Discipline. We will address separately the issues raised by the pre-1921 and the post-1921 transactions. The pre-1921 property consists of the so-called cemetery and Brown parcels, both of which were acquired in the nineteenth century by the Round Hill Methodist Episcopal Church. It is undisputed that the deeds for these parcels created express trusts in favor of the Methodist Church, and that the Methodist Church would have had the right to enforce the express trust clauses, and to oust the defendants, had the present rupture occurred in 1921. See Watson v. Jones, 80 U.S. (13 Wall.) 679, 722, 723-24, 20 L. Ed. 666 (1871); see generally Jones v. Wolf, 443 U.S. 595, 600-603, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979). It is equally clear that the Methodist Church is not immune, simply because of its religious character, from the operation of adverse possession or of laches if it takes no action in the face of open and uninterrupted appropriation of its property for a different religious community. Burrows v. Holt, 20 Conn. 459, 465 (1850); Camp v. Camp, 5 Conn. 291, 303 (1824). There is, finally, agreement about the elements essential to the law of adverse possession; General Statutes § 52-575; Ruick v. Twarkins, 171 Conn. 149, 155, 367 A.2d 1380 (1976); Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 462, 338 A.2d 470 (1973); Robinson v. Myers, 156 Conn. 510, 517, 244 A.2d 385 (1968); and to the doctrine of laches. Bozzi v. Bozzi, 177 Conn. 232, 239, 413 A.2d 834 (1979); Leary v. Stylarama of New Haven, Inc., 174 Conn. 217, 218-19, 384 A.2d 377 (1978); Robinson v. Myers, 156 Conn. 510, 519, 244 A.2d 385 (1968); Owens v. Doyle, 152 Conn. 199, 207, 205 A.2d 495 (1964); Pascale v. Board of Zoning Appeals, 150 Conn. 113, 119, 186 A.2d 377 (1962). What is at issue is the application of these principles to the facts found by the trial court. The question raised with regard to the applicability of the law of adverse possession is straightforward. Adverse possession requires "that the owner shall be ousted of his possession and kept out uninterruptedly for a period of fifteen years, by an open, visible and exclusive possession by the claimant without the license or consent of the owner and under a claim of right." (Emphasis added.) Wadsworth Realty Co. v. Sundberg, supra, 462. The trial court concluded that Round Hill, upon its orga nization as a community church, in 1921, took possession of the pre-1921 property, ousted the Methodist Church, and thereafter maintained possession openly, visibly and exclusively for more than fifty years. The plaintiffs deny that the defendants' possession was adverse. We agree with the plaintiffs. The plaintiffs correctly observe that the relationship between Round Hill and the Methodist Church was at best marked by ambiguity, by an agreement to "live and let live." The defendants concede that the two churches did live in harmony. The same facts that point to the absence of a severance in 1921 rebut the conclusion of an ouster before 1978. As long as Round Hill maintained a harmonious, albeit attenuated, relationship with the Methodist Church, it failed to occupy the pre-1921 property by an open, visible and exclusive possession. Possession is not adverse when it is pursuant to and consistent with the owner's legal or equitable title. See Burrows v. Holt, 20 Conn. 459, 464 (1850). The trial court's reasoning with regard to laches is, like its holding with regard to adverse possession, derived from its erroneous conclusion that Round Hill had established itself as an independent church in 1921. Laches consists of two elements: (1) an inexcusable delay by a party seeking enforcement of a claim and (2) resulting prejudice to the party defending against enforcement of the claim. Bozzi v. Bozzi, 177 Conn. 232, 239, 413 A.2d 834 (1979); Leary v. Stylarama of New Haven, Inc., 174 Conn. 217, 218-19, 384 A.2d 377 (1978); Robinson v. Myers, 156 Conn. 510, 519, 244 A.2d 385 (1968); Owens v. Doyle, 152 Conn. 199, 207, 205 A.2d 495 (1964); Pascale v. Board of Zoning Appeals, 150 Conn. 113, 119, 186 A.2d 377 (1962). The Methodist Church can only be faulted for inexcusable delay in its assertion of its claim to the pre-1921 property if it had a claim that it should have pressed in 1921. As long as no event had occurred which required vindication, as long as Round Hill had not actually severed its relationship with the Methodist Church, there was no occasion that required action and a fortiori no inexcusable delay. The facts of the present controversy serve to distinguish this case from the cases in other jurisdictions where the doctrine of laches has been found applicable. In Gabster v. Mesaros, 422 Pa. 116, 220 A.2d 639 (1966), on which the trial court relied, a local church abandoned its prior connection with the Church of Rome to associate itself with an eastern sect known as the Carpatho-Russian Greek Catholic Orthodox Church. For thirty years, the local parish was served and its property administered by priests assigned and removed by a bishop of the eastern sect. In Russian Orthodox Greek Catholic Church v. Burdikoff, 117 Ohio App. 1, 189 N.E.2d 451, appeal dismissed, 174 Ohio 140, 186 N.E.2d 847 (1962), cert. denied, 374 U.S. 808, 83 S. Ct. 1694, 10 L. Ed. 2d 1033 (1963), a local Russian Orthodox Greek Catholic church declared itself to be an autonomous church affiliated with the Metropolia, and, for thirty-five years, received financial and spiritual leadership from the Metropolia rather than from its prior leader, the Patriarch of Moscow. See also Greek Catholic Church of St. Michaels v. Roizdestvensky, 67 Colo. 217, 184 P. 295 (1919); Puckett v. Jessee, 195 Va. 919, 81 S.E.2d 425 (1954). In these cases, a court might well conclude that the severance of the local church from its previous affiliation was so uncategorical and so unequivocally manifested by its new and different ecclesiastical leadership that the spiritual jurisdiction of the former ecclesiastical hierarchy had become subject to waiver, estoppel and laches. A former hierarchy's knowing acquiescence, for an extended period of time, in the existence of conditions belatedly made the subject of complaint, is the kind of inexcusable delay which allows equity to withhold the relief belatedly sought. The facts here, however, unlike those in Gabster and in Burdikoff, show neither the appointment of different ministers nor the financial support of a competing ecclesiastical association. Under these circumstances, the events before 1978 fail to establish an inexcusable delay on the part of the plaintiffs and hence defeat the claim of laches on the part of the defendants. We turn, finally, to resolution of the issues that concern ownership of property acquired by the church at Round Hill after 1921. This property consists of (1) five parcels of land, (2) endowment and retirement funds and (3) other miscellaneous funds. The trial court held, in a conclusion not challenged on this appeal, that none of this property was expressly given in trust to the Methodist Church. Applying the rules of Watson v. Jones, 80 U.S. (13 Wall.) 679, 722-23, 20 L. Ed. 666 (1871), that determine church property rights in the absence of an express trust, the trial court went on to conclude that, because Round Hill had become an independent church in 1921, the property belonged to Round TTill rather than to the Methodist Church. Consistently with the logic of its position, the trial court did not pursue what rights the parties might have to this property if it were to be determined, as we have, that Round Hill continued to have some kind of relationship with the Methodist Church after 1921. The plaintiffs argue that the continued connection of the church at Round Hill to the Methodist Church requires application of the connectional rules of Watson v. Jones, supra. Under these rules, if they apply, courts are instructed to look with a secular eye upon church documents construed according to neutral legal principles in order to decide whether property donated to a local church becomes the property of the hierarchical church in the event of a schism or withdrawal. Jones v. Wolf, 443 U.S. 595, 602-604, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979); see also Maryland & Virginia Churches v. Sharpsburg Church, 396 U.S. 367, 370, 90 S. Ct. 499, 24 L. Ed. 2d 582 (1970) (Brennan, J., concurring) ; Presbyterian Church v. Mary E. B. Hull Memorial Presbyterian Church, 393 U.S. 440, 449, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969). The plaintiffs maintain that governing provisions of the Book of Discipline of the Methodist Church, as well as other church documents, locate title in the plaintiffs. The defendants' argument to the contrary relies not only on the claimed absence of a continued connection between Round Hill and the Methodist Church but also on their special defenses of waiver, estoppel, unclean hands and unjust enrichment that the trial court failed to reach. The latter questions have been preserved by the defendants' cross appeal. It is readily apparent that the record before us does not permit us to adjudicate these competing claims to the post-192'1 property. The case must be remanded for further proceedings in the trial court for. further findings of fact and law. Our conclusion that there continued to be, until 1978, a relationship, a connection, between Round Hill and the Methodist Church raises a number of questions that the trial court did not address. Even if Round Hill was then connected to the Methodist Church in a hierarchical fashion, property deeded by express trust to Round Hill would remain subject to the express terms of its trust. Watson v. Jones, supra. The right of a donor to dedicate property to a local church is a right which a donor may exercise whether the property is confided to a local church with a congregational form of government or to a local church associated, as is Round Hill, with a hierarchical polity. Watson v. Jones, supra, 723. Although the trial court determined that title to the property acquired after 1921 was taken in the name of Round Hill, the court made no finding about whether the property was dedicated by way of an express trust to Round Hill. It considered whether the property was subject to an express trust in favor of the general church, the Methodist Church, and determined that it was not, but failed to consider the possibility of an express trust in favor of the local church. Upon remand, this question must be resolved by examination of the documents by which the various parcels of property and the various funds were conveyed to Round Hill. Jones v. Wolf, supra, 604. To the extent that the conveyances are found to have created express trusts, the rights of the church at Bound Hill will have been definitively established. Watson v. Jones, supra, 722-23. It is not unlikely that some or all of the property to which Bound Hill holds title came to it without the benefit of an express trust. As to this property, the trial court on remand must consider relevant ecclesiastical documents as well as the possible role of waiver, estoppel, unclean hands and unjust enrichment. Whatever may have been the precise relationship between the local church and the general church in the years after 1921, the local church's property rights might well, in the absence of express trusts, have been subordinated to the rights of the general church. We state this conclusion in tentative fashion, because there has been as yet no factual determination about what the provisions of the Book of Discipline were at the various times at which the various pieces of property were acquired. It is the role of the trial court, in the first instance, to ascertain and to interpret, in secular fashion, the property rules of the Methodist Church that govern the rights of the general church in property deeded to the local church. It may well be that the priority of interest of the general church so clearly articulated in the recent revisions of the Book of Discipline was not yet spelled out in earlier versions. The trial court will have to inquire into the appropriate ecclesiastical rules and regulations, including the Book of Discipline and other applicable Methodist documents to see whether they encompass the transactions under scrutiny. See Jones v. Wolf, supra, 604; Presbyterian Church v. Mary E. B. Hull Memorial Presbyterian Church, supra, 449; Carnes v. Smith, 236 Ga. 30, 38-39, 222 S.E.2d 322, cert. denied, 429 U.S. 868, 97 S. Ct. 180, 50 L. Ed. 2d 148 (1976); cf. Presbyterian Church v. Eastern Heights Church, 225 Ga. 259, 260, 167 S.E.2d 658 (1969). It may well be that the applicable rules of the hierarchical church to which Eound Hill was connected did not at all relevant times create a preference for the general church. If not, such property would remain with Eound Hill despite its connection with the Methodist Church. Finally, we must recognize that, whatever the terms of the rules and regulations and Book of Discipline of the Methodist Church, the trial court, on remand, may find that there was considerable ambiguity in the relationship between Eound Hill and the Methodist Church in the years after 1921. This ambiguity was known to the Methodist Church through the knowledge of its ministers. It is reflected in the annual journals and other communications of the Methodist Church. The defendants contend that this known ambiguity, coupled with consistent representations by the local Methodist ministers that the church at Round Hill was a nondenominational community church, disable the plaintiffs from now laying claim to property acquired after 1921. This is the issue which is at the heart of the special defenses of estoppel, waiver, unjust enrichment and unclean hands. See, e.g., Bozzi v. Bozzi, 177 Conn. 232, 241-42, 413 A.2d 834 (1979); DeCecco v. Beach, 174 Conn. 29, 34-35, 381 A.2d 543 (1977); Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 561-65, 316 A.2d 394 (1972); Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 246, 287 A.2d 379 (1971); Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 261-62, 259 A.2d 598 (1969); Collens v. New Canaan Water Co., 155 Conn. 477, 491-92, 234 A.2d 825 (1967); Connecticut National Bank v. Chapman, 153 Conn. 393, 399, 216 A.2d 814 (1966); Jenkins v. Indemnity Ins. Co. of North America, 152 Conn. 249, 257, 205 A.2d 780 (1964); Spear-Newman, Inc. v. Modern Floor Corporation, 149 Conn. 88, 91-92, 175 A.2d 565 (1961). If in fact property was given to the church at Round Hill in reasonable reliance on misleading representations or intentional nondisclosure concerning Round Hill's Methodist affiliation, then, as in cases of fraud or collusion; Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 721, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976); Gonzalez v. Archbishop, 280 U.S. 1, 16, 50 S. Ct. 5, 74 L. Ed. 131 (1929); the claim of the general church to the property in dispute may be defeated by its own failure to act according to secular standards of good faith. We cannot adjudicate these claims on the present record. Estoppel, waiver, nnjnst enrichment and unclean hands are all defenses which depend upon questions of fact that must be determined, in the first instance, by the trial court. Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 566, 316 A.2d 394 (1972); cf. Morris v. Costa, 174 Conn. 592, 600, 392 A.2d 468 (1978); Multiplastics, Inc. v. Arch Industries, Inc., 166 Conn. 280, 286, 348 A.2d 618 (1974); Brauer v. Freccia, 159 Conn. 289, 295, 268 A.2d 645 (1970). These issues, as well as the unresolved questions of trust and property law, require a remand. There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion. In this opinion Cotter, C. J., and Parskey, J., concurred. Eight defendants were originally named in the complaint. One of them, the attorney general of the state of Connecticut, declined to take part in the ease on the ground that he did not believe that it was in the public interest for him to participate in the litigation. Six of the remaining seven defendants are individuals who, at the time of trial, held positions of office in the seventh defendant, Bound Hill Community Church, Inc., five of them as trustees and one of them, Banks T. Adams, Jr., as chairman of the Official Board and Pastoral Belations Committee. Two of the trustees, Gordon Beed and J. Stanford Smith, did not participate in the appeal. The remaining three trustees are Everett Fisher, John Mayer and Jeremiah Milbank, Jr. Fifteen individual members of the Bound Hill Community Church subsequently intervened as codefendants in the action. The defendants on whose behalf the cross appeal was filed are Banks T. Adams, Jr., Everett Fisher, John Mayer, Jeremiah Mil-bank, Jr., and Bound Hill Community Church, Inc. The roots of the United Methodist Church are in the Methodist societies organized by John Wesley in 1729 in England. The church was formally organized in this country in 1784 as the Methodist Episcopal Church. The present United Methodist Church evolved in 1968 from a background of merger and splits. The United Methodist Church and its predecessor organization are sometimes hereafter referred to as the Methodist Church. The New York East Annual Conference- was the predecessor of the plaintiff New York Annual Conference. In 1923, when Bound Hill Community Association, Inc., was organized to take title to real property held for Bound Hill, this nonstock corporation was not organized as an ecclesiastical corporation and its articles of association made no reference to the Methodist Church. In 1952, when Bound Hill itself was incorporated as an ecclesiastical corporation, its incorporation made no reference to the Methodist Church. Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L. Ed. 666 (1871), which was decided before the first amendment was incorporated within the protection of the fourteenth amendment; Everson v. Board of Education, 330 U.S. 1, 15, 67 S. Ct. 504, 91 L. Ed. 711 (1947) (establishment clause); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 (1940) (free exercise clause) ; has been accorded constitutional status. See Presbyterian Church v. Mary E. B. Hull Memorial Presbyterian Church, 393 U.S. 440, 446-49, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S. Ct. 143, 97 L. Ed. 120 (1952). The 1976 Book of Discipline provides the following explanation of the conneetional principle: "The principle that all United Methodists and United Methodist congregations are connected in a network of conciliar and legal relationships. This and the appointive system, in which the bishop has final authority, constitute two of the most distinctive features of United Methodist polity." The publication, A History of the Bound Hill Church: 1810 to 1967, refers to the events of 1921 in the following manner: "In the spring of 1919 Harold E. Wilson, a Wesleyan graduate, was appointed as pulpit supply at Bound Hill. At that time Mr. Wilson was in detached service engaged in work connected with the Board of Home Missions. According to Mr. Wilson's notes, 'After two years of this supply pastorate, plans for more intensive community and church work culminated in Mr. and Mrs. Wilson being called to full-time work at Bound Hill. This was quite a venture for a church which for nearly a hundred years had been cared for largely by short-term supply pastors.' "However, under the leadership of the Wilsons, the church enjoyed a complete rebirth. Mr. Wilson, in a brief history of the church given on his tenth anniversary here wrote that, 'While not actually severing its connection with the Methodist Episcopal denomination, the church became a Community Church in name and fact, both in the inclusiveness of its spirit and membership and the program it attempted to carry on in the community.' This program has ever since been enjoyed by those of all faiths living in the Bound Hill area." The deed to the cemetery tract, the original church property, acquired in 1827 from Benjamin and Jonathan Husted, specified that the property was transferred to the named trustees: "in trust that they shall erect and build or cause to be erected and built thereon a house or place of worship for the use of the members of the Methodist Episcopal Church in the United States of America according to the rules and discipline which from time to time may be agreed upon and adopted by the ministers and preachers of the said church at their general conference in the said United States and in further trust and confidence that they shall at all times forever hereafter permit such ministers and preachers belonging to said church as shall from time to time be duly authorised [sic] by the General Conference of the ministers & preachers of the said church or by the Annual conferences authorised [sic] by the said general Conference to preach and expound God's holy word therein and in further trust & confidence that as often as any one or more of the places in office of the said trustees or their successors become vacant through any means whatever it shall be the duty of the stationed minister or preacher authorised [sic] as aforesaid who shall have the pastoral charge of the members of the said Church to cause such vacancy or vacancies to be filled as soon as conveniently may be according to the rules or plan which is or may be from time to time laid down or prescribed in the discipline of the said church." Likewise the deed for the Brown tract, acquired in 1871, specified that the property was conveyed to the named trustees: "in trust that said premises shall be used and kept maintained and disposed of as a place of Divine Worship for the use of the ministry and membership of the Methodist Episcopal Church in the United States of America Subject to the disipline [sic] useage & ministerial appointments of said church as from time to time authorized and declared by the general conference of said church & the annual conference in whose bounds the said premises are situate & for no other purpose whatsoever in case said premises be used for any other purposes than as above described they shall revert to said W. S. Brown on return of the above mentioned sum of money. . . ." These properties are known as the Association property, an eleven-acre tract purchased in 1926 on which stand the community house, parsonage and sexton's house; the Richardson property, a one-half acre site adjacent to the Brown property and on which stands a part of the religious school building; the Evans property, a one-half acre parcel adjacent to the Richardson property; the Mead property, originally eleven, now four, acres; and the Kenworthy property, which is subject to a life estate. The Richardson, Evans, Mead and Kenworthy properties were acquired in 1949-50, 1956, 1963 and 1975, respectively. The neutral principles method . . . requires a civil court to examine certain religious documents, such as a church constitution, for language of trust in favor of the general church. In undertaking such an examination, a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining whether the document indicates that the parties have intended to create a trust. In addition, there may be cases where the deed, the corporate charter, or the constitution of the general church incorporates religious concepts in the provisions relating to the ownership of property. If in such a case the interpretation of the instruments of ownership would require the civil court to resolve a religious controversy, then the court must defer to the resolution of the doctrinal issue by the authoritative ecclesiastical body. Serbian [Eastern] Orthodox Diocese [v. Milivojevich], 426 U.S. [696,] 709, 96 S. Ct. [2372, 49 L. Ed. 2d 151 (1976)]." Jones v. Wolf, 443 U.S. 595, 604, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979). On this appeal, the plaintiffs do not dispute that the trial court correctly concluded that the ministers at Bound Hill were agents of the Methodist Church.

Spallone, J. The plaintiff is appealing from the trial court's modification of the judgment of dissolution regarding an order of unallocated alimony and support. She claims that the court erred (1) in modifying the award on the basis of the defendant's increased expenses where the increases were attributed to the support of the defendant's adult children, (2) in modifying the award on the basis that the minor child was no longer in need of support where that circumstance was foreseeable, and (3) in finding that the change in the plaintiff's assets and liabilities warranted modification in the absence of evidence that such a change was unforeseeable. The marriage of the parties was dissolved in 1972. At that time, the court awarded custody of the parties' two minor children to the plaintiff and ordered the defendant to pay periodic alimony in the amount of $90 per week, reduced to $77.50 per week when the youngest child reached first grade, and $38.75 per week per child as child support. Thereafter, on two occasions, the court modified the orders of alimony and support. The first modification occurred on May 27, 1981. The court ordered the defendant to pay $135 per week as alimony and $60 per week as child support. Later, on November 19, 1982, the court, heeding the request of both parties and in accordance with their agreement, ordered the defendant to pay $195 per week as unallocated alimony and support. On May 17,1985, the youngest child, David, turned eighteen. The defendant unilaterally ceased making payments, contending that he was not required to do so because his son had reached the age of majority. On June 4,1985, the plaintiff filed a motion for contempt which was followed, on June 13, 1985, by the defendant's motion for modification of the unallocated alimony and support orders. Both motions addressed the effect, if any, the child's attainment of his majority had on the defendant's obligation to pay. The trial court held a hearing on the plaintiff's motion for contempt and found that although the defendant should not have made a unilateral decision to discontinue the support payments, he did not do so wilfully and was therefore not in contempt. The court, however, ruled that because the defendant did not seek authority from the court to cease or reduce payments, the defendant was liable for arrearages and counsel fees. The court continued the matter for a further hearing with regard to counsel fees, costs and arrearages. Subsequently, on September 23, 1985, the defendant's motion for modification was heard. After hear ing testimony and reviewing financial affidavits and other evidence, the court concluded that a modification of the order was justified. As a result, the court held that the defendant was no longer responsible for child support and modified the order of unallocated alimony and support of $195 per week to periodic alimony of $100 per week which was to be paid for a period of two years, after which all payments were to terminate. The court also ordered the defendant to pay arrearages and counsel fees to the plaintiff. The plaintiff has appealed from the court's order. Although the plaintiff sets forth her claim of error in three areas, the fundamental question that we must answer involves the proper procedure to be followed by the parties and the court when there is extant an order of unallocated alimony and support and the youngest child attains his majority. There is no question that, absent a written agreement signed by the parties, the court has no jurisdiction to make any orders for the support of a child who has reached the age of eighteen. Venuti v. Venuti, 185 Conn. 156, 160 n.3, 440 A.2d 878 (1981), citing General Statutes § 1-1d, 46b-66; Gallo v. Gallo, 184 Conn. 36, 46-47, 440 A.2d 782 (1981); Broaca v. Broaca, 181 Conn. 463, 465-66, 435 A.2d 1016 (1980). In this case, the trial court was confronted with the resolution of an existing court order for unallocated alimony and support, and the fact that the defendant was no longer required to support the child who had reached his majority. There is no automatic resolution of this problem. Inherent in an order of unallocated alimony and support is that some portion of the order is attributable to the payor's obligation to support the child. When the obligation to support the child no longer exists, it becomes appropriate for the trial court to reexamine the facts and circumstances of the parties as they exist at the time of such occurrence and to modify any such orders to reflect the changed circumstances. Although we have no cases exactly on point to guide us with respect to the facts in this case, our Supreme Court, in a per curiam opinion, has recognized the principle of the severability of child support from alimony where the order was for unallocated alimony and support. Miller v. Miller, 181 Conn. 610, 613-14, 436 A.2d 279 (1980). In Miller, the Supreme Court was confronted with a situation where the trial court found that the defendant husband had failed to make unallocated alimony and support payments pursuant to the trial court's pendente lite orders. Although the order in that case differed from the order in this case inasmuch as it was a pendente lite order, the principle involved is exactly the same. While the pendente order was in effect in Miller, the youngest child, the subject of the order, attained his majority, whereupon, the defendant husband ceased to make the payments as mandated by the order. Incorporated in its judgment, as rendered in its decree dissolving the parties' marriage, was the trial court's finding that the defendant failed to make payments for unallocated alimony and support in the amount of $3048.44, which amount was the total sum due, unallocated between alimony or child support. The Supreme Court, in finding error, reiterated the proposition that an order requiring the payment of child support beyond the age of majority "is of no force and effect as a court order." Id., 614, citing Kennedy v. Kennedy, 177 Conn. 47, 52, 411 A.2d 25 (1979). The court concluded that to the extent that the judgment required the payment of support for the child after the date of the child's attainment of majority, it was in excess of the court's jurisdiction. Miller v. Miller, supra, 614. The court remanded the case to the trial court for a hearing to determine what portion, if any, of the pendente lite order of unallocated alimony and support required to be paid after the child reached majority constituted child support, and "to deduct that amount from the arrearage due the plaintiff." Id. We conclude that the Supreme Court's ruling in Miller is applicable in this case. Although the plaintiff argues correctly that ordinarily a modification of any order issued by a trial court in a dissolution proceeding is not allowed unless there is a change in circumstances not contemplated by the parties; General Statutes § 46b-86 (a); McCann v. McCann, 191 Conn. 447, 450-51, 464 A.2d 825 (1983); the circumstance in this case differs from the usual case where a modification is requested. Here, we are faced with a situation where an event certain, the attainment of majority by the child, inevitably is bound to occur. Under such circumstances, logic and reason leads us to conclude that when an order for unallocated alimony and support is entered and when that order does not contain a provision for specific reduction or reallocation upon the child's majority, there is implicit in such order the contemplation that when the child attains majority the trial court, upon motion of either party, must conduct a hearing to ascertain what part, if any, of the order is then attributable to child support and it must modify the order to reflect the same. See Miller v. Miller, supra, 614. After grounds for modification have been shown, as in this case, the trial court is entitled to consider all the factors, as mandated by General Statutes 46b-82, available in determining the initial award. Cummock v. Cummock, 180 Conn. 218, 221-22, 429 A.2d 474 (1980). Stated otherwise, where a court order by its very nature requires a modification to conform it to the jurisdiction of the court, that court, in making such modification, must be guided by the standard set forth in General Statutes 46b-82, which states in pertinent part: "In determining whether alimony shall be awarded, and the duration and amount of the award, the court . . . shall consider the length of the marriage, the causes of the annulment, dissolution of the marriage or legal separation, the age, health, station, amount and sources of income, vocational skills, employability, estate and needs of each of the parties. ." It is well established that a trial court is afforded broad discretion, where a modification is warranted, in fashioning its new award. The action of the trial court will not be disturbed unless it is apparent that the court abused its legal discretion. In determining whether it did so, great weight is due the court's action and every reasonable presumption will be made in favor of its correctness. Noce v. Noce, 181 Conn. 145, 149, 434 A.2d 345 (1980); Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979); Ayers v. Ayers, 172 Conn. 316, 322, 374 A.2d 233 (1977). This standard of review requires more than a mere disagreement with the trial court's decision. " 'A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.' " Gallo v. Gallo, supra, 44-45. Our review of the record, transcript and briefs indicates that the trial court did not abuse its discretion when it concluded that the order of unallocated alimony and support entered in this case was subject to modification. Further, the trial court's fashioning of the modification was appropriate and in accordance with the law. The arguments pressed by the plaintiff in support of her position that the court erred in modifying the award are unpersuasive. There is no error. In this opinion the other judges concurred.

Loiselle, J. The plaintiff Eighth Utilities District (hereinafter "Eighth District" or "District") brought a declaratory judgment action against the town of Manchester and others to determine whether it has the right to extend its boundary lines and to furnish fire protection to a section of the town of Manchester known as the Buekland Area. Further relief was sought by way of a permanent injunction enjoining the town of Manchester from interfering with the extension of the Eighth District boundary and the furnishing of fire protection to the Buekland Area. The trial court rendered judgment for the plaintiffs and issued the injunctive relief sought. The defendant town of Manchester has appealed. Although the defendant town sought to add sixty-one paragraphs of its draft finding to the court's finding, it has waived all but seven. These seven paragraphs are added to the finding as they are admitted or undisputed. The claim that two paragraphs of the finding were found without evidence is well taken and they are stricken. The remaining claim that a paragraph of the finding should be stricken because it is of doubtful meaning is denied as the paragraph is supported by evidence presented in the appendices. An overview of the pertinent legislation relating to the fire protection services in the town of Manchester will facilitate a determination of the issues in this case. In 1915, by a special act of the General Assembly; 17 Special Acts 316, No. 299; the Eighth District was incorporated within the town of Manchester to establish and maintain, inter alia, a fire department within certain authorized limits. Another special act of the legislature; 23 Special Acts 168, No. 230; enacted in 1939, extended the area in which the District was authorized to furnish fire protection "upon application of a majority of the property owners in any particular locality in said additional territory." The Buckland Area lies within the extended authorized area designated by this act. In 1947, again by special act; 25 Special Acts 217, No. 193; the charter of the town of Manchester was adopted. The charter provided that the fire districts existing in the town as of the date of the charter's adoption "shall continue in all respects as now provided by law." Manchester Charter § 10-8. The charter further allowed (v 10-9) the town's general manager to make rules and regulations pertaining to fire protection in all those portions of the town not included within the limits of any fire districts and to enter into agreements with any fire district for aid in extinguishing fires within the town. Section 10-10 of the charter empowered the town to establish by ordinance a town fire department "provided the provisions of any such ordinance concerning the territory, jurisdiction or property . . . [of the districts] shall not become effective until such District, in a meeting duly called for that purpose, shall have voted to accept its provisions." This provision was acted upon in 1956 when such an ordinance was adopted, and the resulting town fire department has been in operation since 1957. The Eighth District has never voted to accept any town ordinance affecting its authorized territory. Until November 17, 1975, the town took responsibility for fire protection to the Bucldand Area, hiring, pursuant to contract, the Eighth District to actually furnish such protection pursuant to § 10-9 of the charter. In 1963 the General Assembly amended the act which originally incorporated the Eighth District within the town, by enacting Special Act No. 200; 31 Special Acts 184, No. 200. That act extended the area in which the District was authorized to offer fire protection. Section 6 of the act specifically provided that "[t]he present district boundary lines may be extended, within the territory authorized to be serviced by this act, upon the application of a majority of owners of real property in the additional area to be served, and such district boundary lines may be extended by vote of the legislative body of the district when . . . fire protection shall be furnished to such additional territory." Section 4 of the act provided that "[t]he town of Manchester may continue to furnish . . . fire protection in those areas north of Middle Turnpike West and north of Middle Turnpike East where the town of Manchester is now furnishing such . . . services." The Bucldand Area is within that territory. It should be noted that this act was passed subsequent to the time the town established its fire department and assumed responsibility for fire protection in the Bucldand Area. In April of 1974, having been requested to study the town's fire protection needs, the chief of the Manchester fire department recommended that the town take over the fire protection needs of the Buckland Area, thereby concluding the town's con traetual relationship with the Eighth District. In April of 1975, the town notified the District that it planned to terminate the contract by which the District actually served the Buckland Area. During this time, the town made plans to construct a firehouse in the disputed territory. At public hearings held to discuss a possible site, several townspeople in the Buckland Area spoke in opposition to the proposed firehouse. On or about September 25, 1975, a majority of the owners of real property in the Buckland Area filed applications with the District to be included in its service area. On November 17, 1975, the District voters acted favorably upon the applications, voting by a majority to extend their boundary lines to furnish fire protection to the Buckland Area. Realizing that certain jurisdictional difficulties were involved in their plan to take over the actual fire protection for Buckland, the town board of directors delayed construction of the firehouse pending legal advice. At a special meeting held September 29, 1975, counsel retained to study the problem stated that in his opinion the town had a clear legal authority to proceed with construction of the Buckland firehouse. Thereafter, the town board of directors voted to authorize the town's general manager to enter into a contract for the construction of the firehouse. At the time this vote was taken, the directors were aware that an application had been submitted by the Buckland Area real property owners seeking to have the Eighth District extend its fire protection boundaries to include their area. By letter dated January 2,1976, the Eighth District notified the town that as a result of its vote, taken on November 17, 1975, to approve the application of the Buekland property owners, the District lines were expanded to include the Buekland Area and the Buekland Area would receive fire protection directly from the District. Construing the relevant legislation, the court concluded that, since 1939, the Buekland Area property owners had the right to apply to the District for fire protection and, since 1963, the District had been empowered to accept, by vote, any such application. Consequently, a declaratory judgment was entered to the effect that "since a majority of the owners of real property in the 'Buekland Area' have so applied and since the legislative body of the Eighth Utilities District has so voted, the said District has the right to extend its District boundary lines and furnish fire protection to the so-called 'Buekland Area' within its authorized territory." Trial court's memorandum of decision (September 29, 1976). The central issue raised on this appeal is whether the 1957 assumption by the town of the responsibility for fire protection services to the Buekland Area preempted the previously established rights of the Buekland property owners to seek protection by the Eighth District and the District's corollary right to extend its boundary into the Buekland Area. In large part, a determination of this question revolves around the significance to be accorded the relevant provisions of Special Act No. 200; 31 Special Acts 184, No. 200; as those provisions relate to the prior related special acts. The defendant agrees that in 1939, by virtue of Special Act No. 230; 23 Special Acts 168, No. 230; the Eighth District was given authorization to extend its boundaries into the Buekland Area "upon application of a majority of the property owners" in that locality. It is the town's argument, however, that the 1947 charter similarly gave the town the right to provide fire protection to the Buekland Area and that since the town was the first to furnish this protection, the Eighth District's equivalent right had terminated. Within this context, the defendant claims that § 4 of Special Act 200 clearly recognizes that the town, having provided the Buekland Area with fire protection continuously since 1957 — albeit through contract with the Eighth District — is authorized to continue this service exclusively for so long as it so desires. This argument is grounded upon the principle that the legislature is presumed to act with knowledge of the circumstances prevailing at the time of an enactment. Consequently, the town reasons, the legislature must have intended that §4 secure the status quo. In contravention of the established principle that a legislative act must be construed to give effect and to harmonize all of its parts; Sillman v. Sillman, 168 Conn. 144, 148, 358 A.2d 150; the defendant's argument fails to encompass the other relevant provisions of the 1963 act. Section 2 of the act defines the area in which the Eighth District is authorized to provide its services and § 6 provides the mode by which this may occur. At the time Special Act No. 200 was enacted, the town was already furnishing fire protection and taxing all of those localities within the District's authorized area not actually being serviced by the District. To accept the town's argument would in essence mean that the rights of property owners within the District's authorized area to apply for inclusion within its service area would be subject to the whim of the town: if the town chose to continue its service, then the property owners would have to accept the town's taxation and service; if, however, the town chose not to offer fire protection, the property owners would be permitted to apply to the Eighth District for its service, hoping that the District would act favorably upon their application. We cannot say that this is what the legislature intended in 1963 when it reiterated the rights granted in 1939 establishing that the Buekland Area owners had the right to apply for fire protection to the Eighth District. Rather, we agree with the court that this right has remained with the Buekland property owners since 1939 and that by virtue of their application and the District's acceptance of the application, the Eighth District is entitled to extend its boundaries to include the Buekland Area. The town argues that its right to provide continued fire protection to the Buekland Area is in conflict with the District's claimed right to provide such service and that, consequently, the town's right should prevail in accordance with chapter 21 of the 1947 charter; see 25 Special Acts 217, No. 193; which provides (§ 21-9) that "[i]n case of any conflict of authority between the town of Manchester and any district incorporated within the limits of said town, the authority of said town shall prevail." The weakness of this claim lies in the fact that no conflict exists. Section 4 of the 1963 act permits the town to continue furnishing fire protection to those areas in which such service is already being ren dered. This right, when read in conjunction with § 2 and 6, however, is tempered by the authority of the Eighth District to move into localities within its authorized area, upon the acceptance of an application from a majority of the property owners in the specified area. Because there is no conflict, the tenet encompassed in the 1947 act is inapplicable. The town further claims that even if the Eighth District is entitled to extend its boundaries to include the Buekland Area, it is estopped from acting on the petition submitted by the property owners of that area. This claim is premised upon the facts surrounding the petition: Prior to the submission of the petition, some officials of the Eighth District knew of and encouraged the building of a firehouse in the Buekland Area. By the time this case came to trial, the firehouse was 85 percent completed and the town was committed for the full cost of its completion, amounting to $295,000 for the firehouse, $32,400 for the land, and $10,000 for the cost of extending the alarm lines into the area. As previously stated, however, the town began construction of the firehouse knowing of the activities of the Buekland Area property owners. In fact, the town was aware of a prior petition submitted by the Buekland owners to the Eighth District, which was held to be invalid. Prior to the town's initial vote authorizing the town manager to enter into a construction contract, a subsequent petition was submitted by the Buekland property owners to the District, a fact of which the town was aware. "Estoppel involves the two elements of misleading conduct by one party and prejudicial harm resulting to the other party." Mercier v. American Refractories & Crucible Corporation, 151 Conn. 559, 565, 200 A.2d 716. The party asserting estoppel "must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." Spear-Newman, Inc. v. Modern Floors Corporation, 149 Conn. 88, 91, 175 A.2d 565. It cannot reasonably be claimed that the town was without full knowledge of the problems surrounding the erection of the firehouse. Cf. Armstrong v. Leverone, 105 Conn. 464, 136 A. 71. The claim that the trial court's interpretation of the Special Act of 1963 is unconstitutional does not appear to have been raised in the trial court and therefore need not be considered in this appeal. Practice Book, 1963, §652; State v. Williams, 169 Conn. 322, 333, 363 A.2d 72. At any rate, the claim is without merit. The final claim made by the town is that the injunction issued by the trial court is too indefinite. The action sought a declaratory judgment determining whether the Eighth District had a right to extend its boundary lines and to furnish full protection to the Buckland Area. The court declared that the District had that right. The injunctive relief simply enjoined the defendant town from interfering with that right. The other matters which the town claims should have been clarified in the injunction were not matters before the court in the declaratory judgment action and, consequently, they could not have been made a part of the injunctive relief. There is no error. In this opinion Cotter, C. J., and Longo, J., concurred. In July of 1975, the Buckland property owners had submitted a prior application to the Eighth District, whieh had acted favorably upon the application, but this petition was subsequently found to be invalid. "[31 Special Acts 184, No. 200 (1963)] an act changing the NAME OF THE EIGHTH SCHOOL AND UTILITIES DISTRICT OF MANCHESTER TO THE EIGHTH UTILITIES DISTRICT AND EXTENDING ITS TERRITORY. Section 1. The name of the Eighth School and Utilities District of Manchester, incorporated by number 299 of the special acts of 1915, is changed to 'The Eighth Utilities District.' See. 2. The territory in whieh the district is authorized to furnish sanitary sewer facilities and services and fire protection shall be as follows: In the town of Manchester in all of the territory north of Middle Turnpike West and north of Middle Turnpike East, from the East Hartford town line on the west to the Bolton-Vernon town line on the east. See. 3. The Eighth Utilities District may furnish sanitary sewer facilities and services and fire protection south of Middle Turnpike West and south of Middle Turnpike East, and the town of Manchester may furnish sewer facilities and services and fire protection within or without the district boundaries north of Middle Turnpike West and north of Middle Turnpike East, with the approval of the respective legislative bodies of the town of Manchester and of The Eighth Utilities District. Sec. 4. The town of Manchester may continue to furnish sewer facilities and services and fire protection in those areas north of Middle Turnpike West and north of Middle Turnpike East where the town of Manchester is now furnishing such facilities and services. See. 5. The Eighth Utilities District may continue to furnish sewer facilities and services and fire protection in those areas south of Middle Turnpike West and south of Middle Turnpike East where the district is now furnishing sueh facilities and services. See. 6. The present district boundary lines may be extended, within the territory authorized to be serviced by this act upon the application of a majority of owners of real property in the additional area to be served, and such district boundary lines may be extended by vote of the legislative body of the district when either sewer facilities and services or lire protection shall be furnished to such additional territory. If only sewer facilities and services are furnished and no lire protection is furnished any area in the district, one-half only of the mill rate for tax assessment shall be levied on the property owners in sueh area. If only fire protection is furnished and no sewer facilities and services are furnished in any area in the district, one-half only of the mill rate for tax assessment shall be levied on the property owners in sueh area. Sec. 7. Persons eligible to vote at any meeting of The Eighth Utilities District shall be electors of the town of Manchester, and shall reside within the boundaries of the district, and shall so reside for a period of three months prior to the date of the meeting at which they vote."

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

Borden, J. The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70. The sole issue is whether the trial court erred in excluding the defendant's offer of evidence of the victim's reputation pursuant to General Statutes § 54-86f (4), which is the "constitutional rights" portion of the rape shield statute. We find no error. From the state's evidence, the jury could reasonably have found the following facts: The victim and the defendant met in a bar on a winter evening where the defendant initiated a conversation with her. The victim declined the defendant's offer to smoke marihuana and went outside to get some air. The defendant followed her, forced her into his car and drove her to a park where he sexually assaulted her. When the defendant's car became stuck in deep snow, he left the car to shovel it out. The victim escaped and ran through the park to a police cruiser. The police officer returned with the victim to the defendant's car and arrested the defendant. The defendant testified essentially as follows: The victim approached him in the bar and initiated a conversation with him. She accompanied him to his car and they drove to the park at her request. On the way, she hugged and kissed him, and when they arrived at the park they engaged in consensual sexual intercourse and smoked marihuana. The victim asked to borrow twenty dollars from the defendant to buy food for her child, but he said that he did not have any money. She then asked to go home to her child. When the defendant's car got stuck in the snow, the victim helped him try to shovel the car out. The defendant told the victim that he would not leave his car but that she could walk home if she wished. She left. In the absence of the jury, the defendant made an offer of proof of the testimony of a defense witness, Alvin Albert. On appeal, the defendant challenges the court's exclusion of the following portion of his offer of proof: Albert testified that he had known the victim for about four years and had had contact with her on about four occasions in that time period. He testified that "[h]er reputation in the community is that she dates black guys, Spanish men. In a bar or club, she'll approach you, you buy her a drink and then you have full liberty to do whatever you want when she comes out and says, 'Let's go and party.' " When asked "whether or not money is involved in these incidents occasionally?" he answered, "Off and on, on some occasions, yes." He also testified that her reputation for veracity about sexual conduct was that "[w]hen one guy tells another guy, then she denies it and when she feels herself getting boxed up in the corner, she makes the threat of T am calling the police.' The only reason why she didn't call the police on me is because she knew about the picture that I had of her when me and her were together, because she asked me for money that time and I told her no . . . ." The trial court sustained the state's objection to Albert's testimony, but did permit him to give the jury his negative opinion of her reputation for truth and veracity generally. The defendant claims that the court erred because the proffered testimony was admissible pursuant to General Statutes § 54-86f (4). That statute provides that, in certain sexual assault prosecutions, "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." More particularly, he argues that the excluded evidence shows a pattern of behavior of the victim which corroborated the defendant's testimony that the sexual intercourse between them was consensual. Thus, he argues, exclusion of the evidence violated his constitutional right of confrontation and his due process right to call witnesses in his defense. See State v. Cassidy, 3 Conn. App. 374, 380, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985). He also argues that the proffered evidence regarding the vic tim's moral character was so critical to her credibility that excluding it violated the same constitutional rights. We disagree. First, the offer of proof consisted mainly of testimony about the victim's reputation for engaging in a pattern of meeting black or hispanic men in bars and consensually engaging in sex with them, sometimes involving money. General Statutes § 54-86f "limits proof to evidence of 'sexual conduct,' which phraseology . . . permit[s] only specific instances of conduct and prohibits] all proof of reputation or personal opinion of the victim's sexual conduct." Tait & LaPlante, Connecticut Evidence (1985 Sup.) § 8.3g, pp. 108-109. This reading of the statute, which was enacted "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; is consistent with the long standing judicial skeptical view about the reliability of reputation evidence. That view is that such evidence is usually based on hearsay, rumor and gossip. State v. Gelinas, 160 Conn. 366, 369, 279 A.2d 552 (1971); Richmond v. Norwich, 96 Conn. 582, 594, 115 A. 11 (1921). Requiring, as the statute does, that the strong policies of the statute be overcome only by evidence which does not have the inherent infirmity of reputation or lay opinion evidence, as in this case, can hardly be viewed as violating the defendant's constitutional rights to confront the victim or to present a defense. Second, the gist of Albert's testimony about the victim's reputation for veracity concerning sexual conduct was that when one of her sexual partners would tell another man, she would become angry, deny the conduct and threaten to call the police. This testimony was so tangentially related, if at all, to the version offered by the defendant that it did not violate the defendant's constitutional rights to exclude it. The defendant's testimony did not tend to establish the essential facts which Albert's testimony purported to establish, namely, that the victim caused the defendant to be arrested because he tarnished her reputation by kissing and telling. Similarly, the vague mention of money in Albert's testimony hardly qualifies for a constitutionally required fit with the defendant's testimony that the victim, after sexual intercourse, asked to borrow twenty dollars from him to buy food for her child. Neither the defendant's testimony nor the offer of proof of Albert's testimony tended to establish, as the defendant appears to argue, that the sexual intercourse was consensual because it was in exchange for money. The defendant's final argument, namely, that the offer of proof established the victim's immoral character and thus critically affected her credibility, is without merit. The defendant was allowed the opportunity to impeach the victim's credibility with Albert's testimony regarding her reputation for veracity. We simply do not see, nor has the defendant explained, how Albert's opinion of her reputation regarding sexual conduct with others was "so relevant and material to" the victim's credibility on the issue of consent "that excluding it . . . violate[d] the defendant's constitutional rights." General Statutes § 54-86f (4). The cases from other jurisdictions on which the defendant relies either did not involve a rape shield statute like ours or are factually distinguishable. There is no error. In this opinion the other judges concurred. Albert had previously testified that he had a nude photograph of the victim taken after they had engaged in sexual relations. The photograph was marked for identification but was not offered into evidence. The defendant also raises a claim regarding testimony of Albert that, about three weeks before the trial, the victim had made a false complaint to the police about a man who had been at her apartment. Examination of the transcript, however, indicates that the defendant withdrew that offer because "[ojbviously, that [other case] hasn't been tried yet."

Arthur H. Healey, J. The plaintiff, Shirley Cohen, brought this action seeking a reconveyance of an interest in a condominium located in Bridgeport that she conveyed to her son, the defendant Donald Cohen, under an alleged oral agreement pursuant to which he was to reconvey to his mother the interest he acquired at her request. She claimed that the defendant obtained title from her by fraud, misrepresentation, and an abuse of the confidential relationship that existed between them, and sought to have the court impose a trust upon the interest conveyed and order a reconveyance to her. The defendant denied the material allegations of the plaintiff's complaint and filed a counterclaim in which he alleged that he had an undivided one-half interest in the condominium and sought money damages from the plaintiff for her use and occupancy of the condominium after she allegedly excluded him from it. The case was referred to a state referee, Hon. Michael J. Sicilian, who exercised the power of the Superior Court. See General Statutes § 52-434a. Upon application of one of the parties, the court ordered the issues of fact in the case to be tried to a jury of six persons. See General Statutes § 52-218 and Practice Book, 1978, § 307; Burns v. Gould, 172 Conn. 210, 211n, 374 A.2d 193 (1977). The jury returned a verdict for the plaintiff on the complaint and on the counterclaim. The court denied the defendant's motion to set aside the verdict and granted the equitable relief sought by the plaintiff. On appeal the defendant directs three claims of error to the court's charge to the jury; the defendant also claims, essentially, that the trial court erred in concluding that the equitable doctrine of clean hands did not bar the plaintiff from obtaining the equitable relief sought. At the outset, we note certain irregularities in the procedure employed by the trial court. We do so only because it is both necessary to our resolution of the issues presented and because our failure to do so might be interpreted as an implicit approval of the procedure employed. Although the defendant sought to have the court address interrogatories to the jury, the court declined to do so. By the defendant's failure to raise the court's refusal to direct interrogatories to the jury as an issue on appeal, the matter is not before us. We do point out, however, that in matters tried to a jury under General Statutes § 52-218 the specificity of the jury's factual conclusions afforded by the use of interrogatories is most helpful to the trial court and to this court. "Where, in an equitable proceeding, a trial by jury is had, a general verdict usually will not serve the purpose intended, which is to inform the court as to facts upon which relief, if any, is to be granted. The proper course in most instances is to submit interrogatories covering only those issues upon which the court determines in its discretion the decision of the jury is appropriate and useful. If the answers of the jury are returned and accepted, the court determines any other issues necessary to a decision of the case and gives judgment accordingly." Dzubin v. Dzubin, 121 Conn. 646, 649, 186 A. 652 (1936); see Finnegan v. LaFontaine, 122 Conn. 561, 566-67, 191 A. 337 (1937). The failure of the court to address appropriate interrogatories to the jury does not prevent us from reaching the issues raised on this appeal, however. We presume that the jury resolved all issues of fact in a manner favorable to the plaintiff. See Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 410-11, 363 A.2d 86 (1975). It is also apparent from the record before us that the court instructed the jury not only on the factual issues in the case, but upon the equitable maxim of "clean hands" as well. It is clear that this equitable maxim is to be applied not by the jury but by the court in the exercise of its sound discretion. See DeCecco v. Beach, 174 Conn. 29, 35, 381 A.2d 543 (1977). Inasmuch as the maxim does require the resolution of certain factual issues, however, and the defendant has raised no claim of error with respect to the procedure employed by the court, we decide the appeal in the manner that it was presented to us. See, e.g., Machiz v. Homer Harmon, Inc., 146 Conn. 523, 524, 152 A.2d 629 (1959); Jenkins v. Bishop Apartments, Inc., 144 Conn. 389, 391, 132 A.2d 573 (1957); Maltbie, Conn. App. Proc. § 42. On the evidence presented, the jury could reasonably have found the following facts: The plaintiff and Burton Cohen are the parents of the defendant, who was born in 1959. The plaintiff and her husband separated in 1972 and a dissolution action was instituted by the plaintiff in that year and was later withdrawn by her in January, 1974. The plaintiff and her husband remained separated until 1975, when the plaintiff's husband instituted a dissolution action in which a decree dissolving the marriage was rendered in August, 1975. In July, 1972, the plaintiff inherited approximately $40,000 from her father's estate. In 1973, she used $24,000 of these funds to purchase the condominium that is the subject of this action. Title to the condominium was taken in the name of the plaintiff and defendant as joint tenants with the right of survivorship. The defendant, who was nineteen years of age and unemployed at the time his mother purchased the condominium, admitted that he did not contribute any funds to this purchase. The plaintiff arranged for title in the property to be taken by herself and her son in joint tenancy for two reasons: her husband had made threats against her life and she feared that he would acquire some interest in the condominium if she died; and the defendant warned her that property held in her name could be reached by his father's creditors and that it was likely that his father would try to use such property to secure or to satisfy his debts. Title was held jointly by the parties with the understanding that the defendant would deed his interest back to Ms mother upon her request. After his mother purchased the condominium, the defendant told his sister and brother-in-law that it belonged to the plaintiff and that he would turn his interest over to her any time that she wanted it. The defendant also told the secretary in his father's office, where he was employed, that the condominium was not his and that he was going to sign it over to his mother. The plaintiff has paid all of the carrying expenses of the condominium, including taxes and maintenance costs, and the defendant never paid any part of these expenses. After the defendant moved out of the condominium in December of 1974, he agreed to execute a quitclaim deed conveying any interest he had in the condominium to his mother. The defendant later refused to execute the deed that was prepared by the plaintiff's attorney, however. He has refused to execute such a deed, although he was asked to do so both before and after his parent's divorce was finalized. The defendant claimed that he never agreed to reconvey his interest in the property to his mother and, alternatively, that if he did, the plaintiff had placed the condominium temporarily in the joint estate to defraud her husband and the court in the dissolution proceeding that resulted in his parents' divorce. The defendant introduced into evidence two sworn financial affidavits that were submitted by the plaintiff to the court in the dissolution proceeding and in each the plaintiff had indicated that she owned a one-half interest in the condominium involved. Both at the trial and in her deposition, the plaintiff explained why she was led to assume title to the condominium in this manner and what her understanding of the consequences of doing so were. The defendant claims that the court erred in several respects in its charge to the jury. In addressing such claims, we have said that a charge must be read in its entirety and should be upheld if it is accurate in law, adapted to the issues, and sufficient as a guide to the jury in reaching a correct verdict. Murphy v. Soracco, 174 Conn. 165, 169, 383 A.2d 1350 (1978); McKirdy v. Cascio, 142 Conn. 80, 87, 111 A.2d 555 (1955). Therefore, individual instructions are not to be judged in artificial isolation from the overall charge. State v. Holmquist, 173 Conn. 140, 151, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977); Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 357, 374 A.2d 1047 (1977); see Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973). The defendant first claims that the court erred by "placing an improper emphasis on the masculine gender" in its charge on credibility. In his brief, he states that at no time in its charge on credibility did the court make any reference to anything but the masculine gender. This simply is not so as the court referred to "he or she" a number of times in guiding the jury on the matter of the credibility of witnesses. It is true that there were some references in the charge to "he" or "his"; they clearly referred to "a party" or to "any witness," however, and, reasonably viewed, were not misleading or negative and certainly were not prejudicial when viewed from the standpoint of their probable effect on the jury. See Maciejewska v. Lombard Bros., Inc., 171 Conn. 35, 41, 368 A.2d 206 (1976). The defendant goes on to claim that the court committed error by giving instructions that "appeared" to place the burden of proof on certain issues improperly on the defendant. This claim is without merit. The defendant directs our attention to two sentences of the charge. While charging the jury on the standard of proof, i.e., a fair preponderance of the evidence, the court stated that where evidence was conflicting, the jury would have to decide what the truth was. It then said: "Where these facts are necessary to establish a right of recovery as a defense, the party upon whom rests the burden of proof must prove them by a fair preponderance of the evidence." It is clear that the court meant to say "or" and not "as." The occurrence of this inadvertence in the body of an otherwise unexceptionable portion of the charge could not reasonably have misled the jury and certainly did not, viewing the charge as a whole. See State v. Harris, 172 Conn. 223, 226, 374 A.2d 203 (1977); State v. Malley, 167 Conn. 379, 382, 355 A.2d 292 (1974). The court had earlier clearly and correctly instructed the jury on the parties' respective burdens of proof. Later, in charging on the credibility of witnesses, the court said: "He [referring to a party] is not bound to demonstrate conclusively his right to recover or defend." (Emphasis added.) This statement was made immediately after the court told the jury that the law does not require a party who has the burden of proving certain facts to do so "with absolute certainty." This charge was correct. The defendant also claims that the court erred in instructing the jury on the theory of a resulting trust. The defendant argues that because the plaintiff did not include a request for a resulting trust in her complaint the court's instruction on the theory was in error. We do not agree. We have said of the principles governing the imposition of a resulting trust: "When the purchase money for property is paid by one and the legal title is taken in the name of another, a resulting trust ordinarily arises at once, by operation of law, in favor of the one paying the money. . If it can be proved that the intention of the parties was otherwise, there is no resulting trust." Walter v. Home National Bank & Trust Co., 148 Conn. 635, 638, 173 A.2d 503 (1961), quoted in Zack v. Guzauskas, 171 Conn. 98, 101, 368 A.2d 193 (1976). The facts alleged in the plaintiff's complaint amply support application of the principle of a resulting trust in this case. The plaintiff merely sought in her complaint the imposition of a trust in her favor, together with other equitable relief to which she may have been entitled. It was not necessary for the plaintiff to request specifically the remedy of a resulting trust, just as it was not necessary for her to request by name a constructive trust. Finally, the defendant claims that the court was barred from imposing a constructive trust upon the property involved because of the equitable maxim that one who seeks to show that he is entitled to the benefit of equity must demonstrate that he comes to court with "clean hands." See Murphy v. Dantowitz, 142 Conn. 320, 326, 114 A.2d 194 (1955). The defendant claims that his mother placed the property in the joint estate to defeat the claims of his father and his father's creditors. He also claimed that her failure to include the entire value of the condominium in the affidavit she filed in the divorce proceeding constituted a fraud upon the court. The question presented is whether the trial court's decision to impose a constructive trust upon the defendant's record interest in the property was clearly erroneous. Practice Book, 1978, § 3060D. We conclude that the facts presented to the jury, viewed in the light most favorable to the plaintiff, would support the court's imposition of a constructive trust and that the doctrine of "clean hands" did not require the court to leave the plaintiff with no remedy for the wrong done to her. Although it is well settled that, in general, real property absolutely conveyed cannot be shown to be subject to an express trust created by parol agreement; General Statutes §52-550; Hieble v. Hieble, 164 Conn. 56, 59, 316 A.2d 777 (1972); Worobey v. Sibieth, 136 Conn. 352, 355, 71 A.2d 80 (1949); exceptions to this rule have been recognized where an injustice, sufficient to raise an equitable trust, would otherwise result. Ibid. In such cases, a trust does not arise so much by reason of the parol agreement of the parties but by operation of law. Hieble v. Hieble, supra, 59; Restatement (Second), Trusts § 44 (comment a). In Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378 (1919), Judge Cardozo wrote: "A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee." See 5 Scott, Trusts (3d Ed.) § 462, p. 3413. The imposition of a constructive trust by equity is a remedial device designed to prevent unjust enrichment. 5 Scott, op. cit. § 462. Thus, a constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. See, e.g., Cherno v. Dutch American Mercantile Corporation, 353 F.2d 147, 153 (2d Cir. 1965); Mellon National Bank & Trust Co. v. Esler, 357 Pa. 525, 528-29, 55 A.2d 327 (1947); Restatement, Restitution (1937) § 160; 5 Scott, op. cit. § 462, 462.2 ; 30 C.J.S., Equity § 95, p. 1028. One holding title to property upon which a constructive trust is imposed is not compelled to reconvey the property because he is a constructive trustee; it is because he can be compelled to convey title to the property that he is a constructive trustee. 5 Scott, op. cit. § 462, p. 3413. In this case, the plaintiff's evidence disclosed not only that the defendant agreed to reeonvey his interest in the property to the plaintiff, but that a confidential relationship existed between the plaintiff and the defendant. While the relationship between parent and child is not per se a fiduciary one, it does generate a "natural inclination to repose great confidence and trust." Hieble v. Hieble, supra, 61. The surrounding circumstances support the conclusion that the transfer of a portion of the mother's interest to her son was on the basis of trust and confidence. Where that confidence and trust are abused, equity will intervene to remedy the wrong done, although the law would otherwise leave the parties where it finds them. See id.; Worobey v. Sibieth, supra, 356; annot., 35 A.L.R. 280, 308. We do not agree with the defendant's claim that the doctrine of "clean hands" created an absolute bar to the court's decision to grant equitable relief to the plaintiff. The doctrine is not one of absolutes; DeCecco v. Beach, 174 Conn. 29, 35, 381 A.2d 543 (1977); it has its limitations and is not a judicial straightjacket. See West Los Angeles Institute for Cancer Research v. Mayer, 366 F.2d 220, 227 (9th Cir. 1966), cert. denied, 385 U.S. 1010, 87 S. Ct. 718, 17 L. Ed. 2d 548 (1967); Indiana High School Athletic Assn. v. Raike, 164 Ind. App. 169, 197-98, 329 N.E.2d 66 (1975); 2 Pomeroy, Equity Jurisprudence (5th Ed.) § 399; 27 Am. Jur. 2d, Equity § 136; 30 C.J.S., Equity § 98. The maxim, being founded on public policy, may be relaxed on that ground; this resiliency can be seen not only where parties are not in pari delicto, but in some instances where they have been. See 30 C.J.S., Equity § 98. The application of the equitable maxim rests in the sound discretion of the trial court and generally should not be employed to insulate the party who asserts it from the consequences of his own wrongdoing. See DeCecco v. Beach, supra, 35; 30 C.J.S., Equity § 99. This is especially so where the consequence of denying equitable relief would be to visit upon the party seeking it a forfeiture of extreme proportion. See West Los Angeles Institute for Cancer Research v. Mayer, supra, 227. The defendant in this case successfully persuaded his mother to place the property involved in the joint estate ostensibly to defeat the potential claims of his father's creditors. Although he promised to reconvey to his mother his record interest in the property at a future date, he never, in fact intended to do so. These facts support a conclusion that the defendant took personal advantage of his confidential relationship with his mother by fraud and artifice. See 3 Pomeroy, op. cit. § 877d. For the proposition that the court was barred from granting any relief to the plaintiff, the defendant relies upon Pappas v. Pappas, 164 Conn. 242, 320 A.2d 809 (1973). This case is distinguishable from Pappas, however. There is no indication here that the plaintiff intended to perpetrate a fraud upon the court, as did the plaintiff in Pappas. The plaintiff in this case feared the claims of her husband's creditors, and justifiably so, as well as any claim her husband might have on the property in the event of her death. The plaintiff here never falsely represented to the court that the property was transferred to the defendant for valuable consideration, as did the plaintiff in Pappas. The property involved in this case, unlike that involved in Pappas, was not property of the marriage but belonged exclusively to the plaintiff as an inheritance from her father. Moreover, there was no indication in Pappas that the transferee of the property abused a confidential relationship by inducing his parent to transfer property to him by a false promise to reconvey the property at a future time, as did the defendant here. The defendant here should not be entitled to profit from his own wrongdoing. See 4 Pomeroy, op. cit. § 1054d. Finally, it is a well-established rule of equity jurisprudence that "[t]he party to a suit, complaining that his opponent is in court with 'unclean hands' because of the latter's conduct . . . must show that he himself has been injured by such conduct, to justify the application of the principle to the case. The wrong must have been done to the defendant himself and not to some third party." (Emphasis added.) 2 Pomeroy, op. cit. § 399, p. 99; see Cornwell v. Cornwell, 116 N.H. 205, 210, 356 A.2d 683 (1976). We recognized and applied this rule in Collens v. New Canaan Water Co., 155 Conn. 477, 234 A.2d 825 (1967), where we refused to apply the clean hands maxim because the party asserting it had not been prejudiced or harmed in any manner whatsoever by the alleged misconduct of his opponents. Id., 492; see Bouton v. Beers, 78 Conn. 414, 416, 62 A. 619 (1905). Therefore, even if we assume that the plaintiff engaged in misconduct in the dissolution proceeding, the defendant was in no way harmed by it. See Gallo v. DeMichael, 118 Conn. 487, 489, 172 A. 922 (1934). There is no error. In this opinion the other judges concurred. We treat the defendant's claim of error with respect to the court's charge on the maxim of "clean hands" as a claim that the court erroneously applied this equitable maxim and, thus, abused its discretion in awarding the relief sought. Once again, it is clear that it was for the court, and not the jury, to decide whether equity ought to intervene and impose a trust upon the defendant's record interest in the condominium. We assume that the jury served the function only of finding the facts essential to the imposition of a resulting trust. Because we assume that the court, and not the jury, applied the "clean hands" maxim, our discussion of this issue encompasses the claim described by the defendant as the court's error in denying his motion to set aside the verdiet. The plaintiff, as noted above, sought only the imposition of a trust. Since the court granted the relief sought without specifying whether a constructive trust or a resulting trust was imposed, it is not apparent which theory the court adopted. Under the facts of this case, it is more likely a constructive trust and not a simple resulting trust was imposed. For purposes of our analysis, the plaintiff's taking title to the property in the joint estate with the defendant is the equivalent of an absolute conveyance of real property. It should also be noted that if in fact the plaintiff intended to deceive the court concerning the extent of her individual estate in the dissolution proceeding, as the defendant asserts, it is the plaintiff's husband who may have been injured thereby. He may seek his own remedy by a motion to open the dissolution judgment. See Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980).

Peters, C. J. The principal issue on this appeal is whether the alleged illegality of the defendant's arrest compels dismissal of the charges against him. After a trial to a jury, the defendant, Luther Fleming, was convicted of felony murder, in violation of General Statutes § BSa-óác, and sentenced to a term of imprisonment of twenty-five years to life. He appeals from the judgment of this conviction. The jury could reasonably have found the following facts. On the evening of June 10, 1980, the defendant and an associate, Alphonzie Perry, drove to the Star Package Store in Bridgeport with the intention of robbing it. Arriving shortly before the 8 p.m. closing time, the two men parked the car on the street near the liquor store. While Perry remained in the car, the defendant entered the store with a loaded gun. He robbed the proprietor at gunpoint and, during a strug gle for the gun, shot him in the abdomen. The victim died a short time later. Both the defendant and Perry were later arrested for this crime and were tried separately. On appeal from his conviction, the defendant raises three claims of error. He claims that: (1) his motion to dismiss the indictment should have been granted because the indictment stemmed from an illegal arrest; (2) his motions for mistrial should have been granted because information which came before the jury was so prejudicial that it deprived him of a fair trial; and (3) the trial court erred in instructing the jury both on the elements of felony murder and on accessorial liability. We find no error. I In his initial claim of error, the defendant claims that the trial court should have dismissed the indictment charging him with felony murder. This claim has two components: first, that his arrest was illegal because the probable cause which supported it was the product of a series of intertwining illegalities; and second, that, because this arrest was illegal, the subsequent prosecution which stemmed from it should have been barred. At a pretrial hearing on the defendant's motion to dismiss, the testimony revealed the following facts. A day or two after the incident at the Star Package Store, the defendant voluntarily went to police headquarters to discuss another unrelated incident which he had witnessed. At that time, he initiated conversation with the police about the package store incident. Subsequently, on June 20,1980, during the course of their investigation into the robbery and murder at the package store, the police brought the defendant to police headquarters and questioned him there. He was not then placed under arrest or informed of his Miranda? rights. In response to police questions, the defendant gave a statement exculpating himself but implicating Alphonzie Perry in the crime. Later that day, the police arrested Perry and confronted him with the defendant's accusatory statement. Perry responded by implicating the defendant. As a result of this statement, the police arrested the defendant. The defendant argues that his initial statement to police, made in the absence oí Miranda warnings, was a violation of his fifth amendment rights and that his subsequent arrest was a direct product of that illegality. Thus, the defendant claims, the arrest itself was illegal and the charges against him should have been dismissed. Although the trial court granted a defense motion to suppress the defendant's statements, it denied the motion to dismiss, finding that the arrest was legal and based on probable cause. The defendant now asks us to reverse the trial court's ruling and to order the charges against him dismissed. The legality of the defendant's conviction could be sustained either by upholding the trial court's findings about the legality of the defendant's arrest or by determining that illegality of an arrest does not per se invalidate a subsequent conviction. In order to put to rest the controversy that has long surrounded the rule of State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965), we have decided to take the latter route in finding no error on this claim. The relationship between an illegal arrest and a subsequent prosecution under federal constitutional law is well settled. In an unbroken line of cases dating back to 1886, the federal rule has been that an illegal arrest will not bar a subsequent prosecution or void a resulting conviction. United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); United States v. Blue, 384 U.S. 251, 255, 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966); Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 96 L. Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 440, 7 S. Ct. 225, 30 L. Ed. 421 (1886). If the defendant's claim of necessary linkage between the legality of arrest and legality of prosecution is to be sustained, therefore, that claim must find its predicate in state law. Such a state-based claim arguably arises from State v. Licari, supra, where this court ordered dismissal of criminal charges because the defendant had been arrested under a bench warrant insufficient to satisfy the requirements of the fourth amendment to the United States constitution. Our holding, in Licari, that an illegal arrest deprives the court of jurisdiction over the defendant's person, was, however, expressly derived from a misunderstanding of the federal cases, and this fragility in the Licari jurisdictional underpinnings has repeatedly been noted. See State v. Heinz, 193 Conn. 612, 629, 480 A.2d 452 (1984); State v. Gallagher, 191 Conn. 433, 438, 465 A.2d 323 (1983); Borden & Jaffe, "The Trouble with Licari; Irony and Anomaly," 55 Conn. B.J. 463, 465-69 (1981). As an interpretation of federal law, Licari can no longer stand. Acknowledging this weakness in the relevant precedents, the defendant does not base his appeal on the federal constitution. Instead, he argues that provisions of article first, § 7 and 8, of the Connecticut constitution affording protection from unreasonable searches and seizures and defining the rights of the accused in criminal prosecutions create a broad rule invalidating any prosecution which arises from an illegal arrest. There is no question, of course, that this court has the authority to determine what meaning to attribute to provisions contained in the constitution of this state. In this process of interpretation, we will often look to federal precedents when they are analytically persuasive. We are, however, free, in appropriate circumstances, to follow a different route and thus to recognize that the Connecticut constitution may provide for the people of this state greater rights and liberties than they are afforded under the federal constitution. Michigan v. Long, 463 U.S. 1032, 1038-39, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983); State v. Kimbro, 197 Conn. 219, 234-35, 496 A.2d 498 (1985); Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984); see Howard, "Introduction: A Frequent Recurrence to Fundamental Principles," in Developments in State Constitutional Law (1985) pp. xi, xvii-xxiii; Mosk, "State Constitutionalism after Warren: Avoiding the Potomac's Ebb and Flow," in Developments in State Constitutional Law (1985) p. 201. In support of the position that we should relocate and revalidate State v. Licari in the law of our state constitution, the defendant relies principally on our holding in State v. Federici, 179 Conn. 46, 425 A.2d 916 (1979). In that case, the defendant was illegally arrested without probable cause, and evidence obtained as a result of that arrest was admitted against him in his subsequent trial. We held that the use of the illegally obtained evidence had tainted his subsequent prosecution, compromising his right to a fair trial. Consequently, citing the same Connecticut constitutional provisions herein invoked, as well as article first, § 9, we ordered dismissal of the charges against him. The defendant suggests that this holding militates toward a similar result in his case. We disagree. The issue presented by the rule of Licari and the facts of this case are entirely distinguishable from the holding of Federici. Here, the defendant has failed to allege, much less to show, how his allegedly illegal arrest tainted his trial. No evidence obtained as a result of the defendant's arrest was used to obtain his conviction. Further, the defendant has never challenged, either at trial or on this appeal, the admissibility of Alphonzie Perry's testimony at trial. In short, unlike the trial in Federici, the fairness of the defendant's trial was in no way compromised by the circumstances of his arrest. Federici, therefore, fails to supply state constitutional support for the continued viability of the rule of Licari. See State v. Heinz, supra. The defendant has provided no other state constitutional basis for continuation of the rule of State v. Licari. Nothing in the language of the constitutional provisions themselves sheds any light on the proper relationship between an illegal arrest and a subsequent conviction. Nothing in the constitutional history of this state, so far as we know, illuminates the issue. Courts in other jurisdictions, in decisions that are persuasive even though they are not binding, have followed the federal rule. We therefore conclude that an illegal arrest imposes no jurisdictional barrier to a defendant's subsequent prosecution and overrule State v. Licari to the extent that it holds to the contrary. Where the fairness of a subsequent prosecution has not been impaired by an illegal arrest, neither the federal nor the Connecticut constitution requires dismissal of the charges or a voiding of the resulting conviction. "[D]ue process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards." Frisbie v. Collins, supra, 522; State v. Watson, 99 Idaho 694, 697, 587 P.2d 835 (1978); see 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 1.7 (b), p. 152. We are satisfied that the defendant was given a fair trial untainted by any prior illegalities. II The defendant next claims that the trial court's refusal to grant a mistrial on two separate occasions during the trial so prejudiced him that he was deprived of a fair trial and due process of law under the fifth, sixth and fourteenth amendments to the United States constitution and under article first, § 8, of the Connecticut constitution. We are unpersuaded. Established principles of law govern the granting of a motion for a mistrial. The general rule in this state is that a mistrial should be granted only when it is apparent to the court that some occurrence during the trial has so prejudiced a party that he can no longer receive a fair trial. State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982); State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980). The trial court enjoys wide discretion in deciding whether a mistrial is warranted; State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982); State v. Gooch, supra; and its decision will be reversed on appeal only if it is established that this discretion has been abused. The defendant's first motion for a mistrial occurred during the prosecution's direct examination of its principal witness, Alphonzie Perry. In response to a question relating to the evening of the murder, Perry testified that the defendant had "talked about getting down in robbery again." The jury was immediately excused, and the defendant moved for "a mistrial or in the alternative that Mr. Perry's answer be stricken." The court denied the motion for a mistrial but granted the alternative motion to strike the answer. The defendant did not take exception to the denial of his motion for mistrial, as required by Practice Book § 288. Ordinarily the failure to take exception to a ruling of the trial court would render that ruling unreviewable on appeal. Practice Book § 3063, 288; State v. Sinclair, 197 Conn. 574, 580, 500 A.2d 539 (1985). However, because the defendant asserts that the failure to declare a mistrial has deprived him of a fundamental constitutional right implicating the fairness of his trial, we will review it. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). In the circumstances of this case, we conclude that the trial court did not abuse its discretion in denying the defendant's motion. As soon as the challenged statement was made, the trial court excused the jury and granted the alternative defense motion to strike. In fact, not only did the court strike the challenged portion of the witness's statement, it struck the entire answer "to avoid the necessity of going over that particular portion and reinforcing that particular portion that is objectionable." The court then extensively admonished the witness, and carefully cautioned the jury to disregard the entire previous answer. Later, during its final charge to the jury, the court again instructed the jury not to consider any evidence which had been stricken during the trial. We are convinced that any prejudice the defendant may initially have suffered was eliminated by the trial court's prompt and thorough action. The trial court did not err in denying the defendant's motion for a mistrial. The defendant's second motion for a mistrial was made during the state's cross-examination of the defendant's girlfriend, whose car the defendant had borrowed on the night of the crime. The witness had previously testified that she had never lent the defendant her car overnight. In attempting to impeach her, the prosecutor asked: "Would those occasions [when you lent the defendant your car] have included his driving your car on April 8th of that year at or about 4:00 in the morning?" The defendant immediately objected and moved for a mistrial. He argued that the state's question implied that "something specific had occurred" at that time, which, coupled with Perry's earlier references to robberies, might have led the jury to draw prejudicial inferences. The trial court sustained the objection on relevancy grounds, but denied the defendant's motion for a mistrial. The defendant excepted to this latter ruling but did not request a cautionary instruction to the jury, and none was given. The defendant suggests on appeal that this question was an attempt by the prosecutor to place inadmissible prior misconduct evidence before the jury and was so prejudicial to the defendant that a mistrial was the only appropriate remedy. We disagree. Where a motion for mistrial is made in response to a prosecutor's allegedly improper question, the burden is on the defendant to establish that, in the context of the proceedings as a whole, the question was so prejudicial that it deprived him of a fair trial. State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984); State v. Ubaldi, supra. "Merely asking an improper question . . . does not necessarily mandate a mistrial." State v. Dolphin, 195 Conn. 444, 452, 488 A.2d 812, cert. denied, 474 U.S. , 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). Our review of the entire proceeding convinces us that the judge did not err in denying the defendant's motion. The question posed, although arguably improper, did not of itself imply misconduct by the defendant. The cross-examination which preceded the disputed question had focused on the time periods in which the witness had lent the defendant her car. In this context, the state's reference to a particular date did not necessarily imply misconduct by the defendant. The defendant's swift objection coupled with the trial court's ruling prevented any further reference to the subject. In fact, after the objection was sustained, the state ended its cross-examination altogether. Because the defendant has not sustained his burden of establishing that he was deprived of a fair trial, the trial court has not been shown to have abused its discretion in denying the defendant's motion. Ill In his final claim, the defendant maintains that he is entitled to a new trial because errors in the trial court's instructions to the jury created an "unacceptable risk" that he was convicted on less than proof beyond a reasonable doubt of each essential element of the crimes with which he was charged. Specifically, the defendant claims that the trial court misinstructed the jury on the elements of felony murder and on the intent necessary to establish accessorial liability. We agree that portions of the charge were erroneous but conclude that, taken as a whole, the charge adequately instructed the jury. Our review of challenged jury instructions takes place within carefully defined parameters. In the absence of a specific request to charge, we neither dissect a charge nor do we consider the challenged portion in isolation. State v. Dolphin, supra, 451; State v. Hines, 187 Conn. 199, 206, 445 A.2d 314 (1982). Rather, we review the entire charge to determine if, taken as a whole, the charge adequately guided the jury to a correct verdict. State v. Hines, supra. An error in the charge requires reversal only if, in the context of the whole, there is a reasonable possibility that the jury was misled in reaching its verdict. State v. Sinclair, supra, 581; State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982). The defendant first challenges the court's misuse of the disjunctive in instructing the jury on the elements of felony murder. General Statutes § 53a-54c, the statute under which the defendant was charged, provides in relevant part: "A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . .''(Emphasis added.) In discussing this element, the trial court twice incorrectly stated that the defendant could be convicted of felony murder if the underlying robbery was committed "by this accused or by another participant." (Emphasis added.) The defendant argues in this appeal that this misstatement improperly permitted the jury to find him guilty of felony murder without first finding that he had committed the underlying felony, an essential element of the crime. At trial, the defendant neither requested a particular charge on the elements of felony murder nor took exception to the portions of the charge he now challenges. We will review his claim, however, because the failure adequately to instruct the jury on each essential element of the crime charged might result in a violation of the defendant's due process rights implicating the fairness of his trial. State v. Sinclair, supra, 580; State v. Kurvin, supra. After reviewing the entire charge, we are convinced that the jury was adequately instructed on the elements of felony murder. There is no question that the trial court's use of the disjunctive in its discussion of the first element of the crime was erroneous. However, in the course of the entire charge, the trial court correctly explained that element on four separate occasions. At the start of the instruction on felony murder, the court twice correctly read the statute itself. Then, in discussing each element separately, the court twice correctly informed the jury that, to be convicted under this statute, the defendant himself must have committed the underlying robbery. The court also carefully instructed that the state had to prove beyond a reasonable doubt that the defendant was guilty of every element of the crime with which he was charged. In addition, in its discussion of robbery in the first degree as a lesser included offense of felony murder, the court clearly stated that "[i]f, of course, you are not convinced beyond a reasonable doubt that the accused committed robbery in the first degree then you will find the accused not guilty." In the context of this extensive charge, we conclude that there is no reasonable possibility that the court's two isolated misstatements, although clearly incorrect, misled the jury. "Jury instructions are calculated to give the jurors a clear understanding of the elements of the crime charged, and to afford them proper guidance for their determination of whether those elements were present." State v. Sinclair, supra, 581; State v. Smith, 194 Conn. 213, 219, 479 A.2d 814 (1984). We are satisfied that the charge as given adequately fulfilled this purpose. The defendant's next challenge to the jury instructions concerns that portion of the charge that dealt with accessorial liability under General Statutes § 53a-8. General Statutes § 53a-8 provides in relevant part: "A person, acting with the mental state required for commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct . . . as if he were the principal offender." Conviction under this statute requires proof of a dual intent: "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." (Emphasis in original.) State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979); State v. Nardini, 187 Conn. 513, 531, 447 A.2d 396 (1982). To convict this defendant on an accessorial theory, the jury had to find that the defendant was an accessory to the underlying crime of robbery. Accordingly, the jury had to find that he intended both to aid the principal and to commit the underlying felony of robbery. The defendant concedes that in instructing the jury, the trial court tracked the language of § 53a-8. However, the defendant points out that the trial court failed to explain clearly in this portion of the charge that the underlying crime which the defendant must have intended to commit was robbery. Consequently, the defendant argues, there is a reasonable possibility that the jury convicted him without finding beyond a reasonable doubt that he specifically intended to commit robbery. Since proof of such intent was essential to his conviction as an accessory to robbery under § 53a-8, the defendant contends that his conviction is constitutionally infirm. We conclude that, taken as a whole, the court's charge correctly instructed the jury on the degree of intent necessary to justify conviction under § 53a-8. The court began this portion of the charge by reading the statute verbatim. It carefully instructed that "[ujnless there is a quantum of intent or unlawful circumstances in common with the actual perpetrator [the defendant] is not guilty under the statute." The court then explained that merely aiding the principal in the com mission of the crime was insufficient to justify conviction, unless the defendant did so "with the criminal intent and common intent" of the principal. Earlier in the charge, the court had emphasized that robbery, as the underlying felony, was an essential element of felony murder, and had explained, carefully and at length, the mental element required to commit it. Although it would have been better for the court to have mentioned robbery specifically during the accessory portion of its charge, we are convinced that its failure to do so did not mislead the jury. Taken as a whole, then, the instruction adequately informed the jury of the necessary mental element for accessorial liability. See State v. Gasparro, 194 Conn. 96, 112, 480 A.2d 509 (1984); State v. Cannon, 185 Conn. 260, 274, 440 A.2d 927 (1981). There is no error. In this opinion the other judges concurred. General Statutes § 53a-54c provides in relevant part: "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 . . . ." Perry's felony murder conviction was affirmed by this court in State v. Perry, 195 Conn. 505, 488 A.2d 1256 (1985). Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), holds that "when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him." During the proceedings below, the defendant premised his motion to dismiss on the claimed illegality of his arrest. Although he did not articulate his claim as fully or as clearly as he has done on appeal, the contested issues were raised sufficiently to warrant review on appeal. Article first, § 7, of the Connecticut constitution provides: "(security FROM SEARCHES AND SEIZURES.) "Sec. 7. 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." Article first, § 8, of the Connecticut constitution provides: "(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 evidence 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." Article first, § 9, of the Connecticut constitution provides: "(right of PERSONAL LIBERTY.) "Sec. 9. No person shall be arrested, detained or punished, except in cases clearly warranted by law." In interpreting the federal constitution to deny the very remedy the defendant seeks, the United State Supreme Court has also focused on the effect of the illegal arrest on the fairness of the subsequent trial. Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 96 L. Ed. 541 (1952); Ker v. Illionois, 119 U.S. 436, 440, 7 S. Ct. 225, 30 L. Ed. 421 (1886). It has concluded that the exclusion from a subsequent trial of evidence obtained pursuant to an illegal arrest is sufficient protection of the arrestee's due process rights. United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980); United States v. Blue, 384 U.S. 251, 255, 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966). Barring a subsequent prosecution would not significantly further this end. Frisbie v. Collins, supra. State courts considering this issue are overwhelmingly in agreement. State v. Block, 270 Ark. 671, 672, 606 S.W.2d 362 (1980); Lackey v. State, 246 Ga. 331, 333-34, 271 S.E.2d 478 (1980); State v. Watson, 99 Idaho 694, 697, 587 P.2d 835 (1978); State v. Greene, 120 N.H. 663, 664, 421 A.2d 132 (1980); State v. Beck, 584 P.2d 870, 872 (Utah 1978); see Borden & Jaffe, "The Trouble with Licari; Irony and Anomaly," 55 Conn. B.J. 463, 478-79 (1981). To the extent that State v. Saidel, 159 Conn. 96, 267 A.2d 449 (1970), rested on the holding of State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965), it too is overruled. The fifth amendment to the United States constitution provides in relevant part: "No person shall . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The sixth amendment to the United States constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." The fourteenth amendment to the United States constitution provides: "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The testimony at issue was: "Perry: [Luther] had a $900 gas bill and he needed the money to pay the gas bill and he said, 'You didn't finish paying me,' and he talked about getting down in robbery again. I said, 'I'm not getting down in a robbery with you.' " The defendant actually phrased his motion in the conditional: "Your Honor, at this point I may ask for a mistrial or in the alternative that Mr. Perry's answer be stricken." The trial court, however, clearly considered it an affirmative motion for a mistrial and ruled on it accordingly. "[Practice Book] Sec. 3063. errors considered "The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interest of justice notice plain error not brought to the attention of the trial court." "[Practice Book] Sec. 288. objections to evidence "Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. Argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point. An exception to the ruling must be taken in order to make it a ground of appeal." After the court had admonished the witness to refrain from making any prejudicial statements, the defendant objected to the trial court's "coaching" of the witness. At no time, however, did he object to the court's disposition of his motion. At another point in the trial, Perry made another reference to the defendant's involvement in a robbery. It is unclear from the transcript whether this reference was to the Star Package Store robbery, for which the defendant was on trial, or for a separate one. Outside the presence of the jury, the defendant asked that Perry's remarks be stricken, and added "I renew my motion on that basis." In his brief, the defendant claims that this was a renewal of his motion for a mistrial. However, the defendant concedes that the court never ruled on this motion. Since the defendant failed to pursue the matter further either at trial or on appeal, there is no need for us to address it. The jury was instructed that the defendant could be convicted of felony murder if he was found to have committed the underlying robbery under either of two alternative theories of liability: that of a principal or that of an accessory. The defendant had been charged by indictment as a principal perpetrator. The state later requested, and the court gave, an instruction allowing the jury to convict the defendant in the alternative as an accessory under General Statutes § 53a-8. The defendant took exception to this charge on the ground that he had had no notice of that theory of liability. Under Connecticut law, a defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial conduct. State v. Harris, 198 Conn. 158, 502 A.2d 880 (1985); State v. Ferrara, 176 Conn. 508, 513 n.2, 408 A.2d 265 (1979); State v. Parham, 174 Conn. 500, 508, 391 A.2d 148 (1978). Acknowledging this, the defendant expressly declines to pursue this claim of lack of notice on appeal. Consequently, we do not consider it. The court's first misstatement was: "[I]f you find on the evidence beyond a reasonable doubt that the death of Edmund Kish occurred as a result of the commission of a robbery by this accused or by another participant then the death of Edmund Kish becomes murder under our law." (Emphasis added.) The court's second misstatement was: "So, to recapitulate, in order to find the accused guilty of the charge of murder as set forth in the indictment you must find that the state has proven beyond a reasonable doubt that the accused and others committed—or anothei—committed the crime of robbery." (Emphasis added.) General Statutes § 53a-8 provides: criminal liability for acts of another. 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." The instruction on accessorial liability was given at the request of the state. We do not decide whether such an instruction was necessary. The text of the court's accessorial liability charge is: "Now, as I have at times used the word other participants we have a statute in this case called an accessory statute. A person acting with the mental state required for the commission of an offense, solicits, requests, commands, importunes or intentionally aids another 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. If the accused did any of these things specified in the statute he's in the eyes of the law just as guilty of the crime charged as though he directly committed it or deliberately participated in its commission. "Now, I want to particularly emphasize to you the statute does not connect the various things it specifies by the word and but instead separates them by the word or, therefore, the accused is guilty of the crime charged if he solicited, if he requested, if he commanded, if he importuned or if he intentionally aided another person in the commission of the crime. To find him guilty under this statute you must however decide that he was more than inactively present at the commission of the crime, that he did something more than passively acquiesce in the crime or he did something more [than] innocently performing certain acts which in fact did aid in the commission of the offense. Unless there is a quantum of intent or unlawful circumstances in common with the actual perpetrator he is not guilty under the statute but if you find beyond a reasonable doubt that he did any of these things specified in the statute with the criminal intent and common intent he is just as guilty of the crime as though he had committed it himself." After the court had finished instructing the jury, the defendant took exception to numerous portions of the charge. It is unclear from the transcript whether, in his exception to the accessory instruction, he raised the same ground he now argues. However, "[bjecause it appears that a question of constitutional dimension is raised by the court's alleged failure properly to explain the 'intent' element required by § 53a-8 we will accord this claim appellate review." State v. McCalpine, 190 Conn. 822, 831, 463 A.2d 545 (1983).

Peters, C. J. The principal issue in this case is the propriety of an instruction to the jury that cohabitation was not a defense to the crime of sexual assault. The defendant, William Preyer, appeals from a judgment sentencing him to a term of eight years imprisonment upon his conviction, after a trial to a jury, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), of kidnapping in the second degree in violation of General Statutes § 53a-94 and of assault in the third degree in violation of General Statutes § 53a-61. We find error only in the conviction for sexual assault in the first degree. The jury could reasonably have found the following facts. The defendant had been living with the victim in her Stamford apartment for several months when, on December 28, 1981, they had a heated argument resulting in a call to the police and, upon their intervention, a request for the defendant to leave. Although the defendant then left peaceably, the victim, afraid that he might return, spent the night and the next day at a neighbor's apartment. That afternoon, on December 29, the victim was awaiting the visit of a friend with whom she was planning to attend a class at the YWCA. The friend arrived, unexpectedly accompanied by the defendant and his cousin. The defendant forcibly prevented the victim from telephoning the police as she had been instructed by them the previous day. After repeatedly hitting the victim, the defendant forced her to leave the apartment and to go with him to the street and there to enter a parked Toyota owned by the victim for which the defendant had a set of keys. The defendant drove the car to a secluded area of Dyke Park. At the park, the defendant dragged the victim out of the car, threw her on the ground, punched her, pushed her into the car and threw a rock at her which hit her in the head. The defendant then pulled the victim back into the car, tore her clothes and ordered her to undress. Once the victim was completely nude, the defendant forced her to spread her legs and squeezed her vagina with a pair of pliers with resulting trauma to the victim's genitalia. The victim was able to escape by running nude out of the park to a nearby apartment house on Elm Cross Road, where the police were called. The victim was then taken to Stamford Hospital, where she was observed to have cuts, scrapes, contusions and injuries to her genitalia. The defendant was arrested that same evening in Dyke Park. He had himself directed the police to the Toyota, which was subsequently found to contain a bundle of female clothing, a bracelet, a pair of pliers and a rock containing a blood stain. At the trial before the jury, the defendant expressly offered two alternate defenses, a lack of the requisite intent on his part, and consent on the part of the victim. On appeal from the judgment against him, the defendant raises three issues concerning his convictions for the crimes of sexual assault, kidnapping and assault. He claims that the trial court erred: (1) in instructing the jury that the affirmative defense of cohabitation had no bearing as a defense to the charge of sexual assault in the first degree; (2) in instructing on sexual assault under a different section of the general statutes from that with which he had been charged in the information; and (3) in restricting the defendant's cross-examination of the victim regarding her prior sexual activities with the defendant. Because we find error on the first claim, we need not consider the second, although we will address the third. The defendant's first claim of error is that the trial court erred in its instruction about a defense applicable to the crime of sexual assault, under General Statutes § 53a-70, with which he was charged. By virtue of General Statutes § 53a-67 (b), cohabitation is an affirmative defense to this charge of sexual assault. Cohabitation is not a defense to a charge of sexual assault under § 53a-70b, but § 53a-70 and 53a-70b describe crimes that are statutorily separate and distinct. At the trial, the defendant introduced evidence relevant to a defense of cohabitation. The victim testified that she and the defendant had begun dating in August of 1981 and that he had moved into her apartment, by mutual consent, in October of that year. The couple had lived together in that apartment from October to late December. The defendant had kept his clothes there, had been given a set of keys to the victim's Toyota, had driven the victim to and from work on a regular basis, and had shared in the care of the victim's son. The victim and the defendant had frequently socialized with members of the defendant's family and with the victim's girl friend. This evidence, as the state concedes in its brief to this court, would have been sufficient to present the cohabitation question to the jury if the defendant had requested a proper charge. The defendant failed to request a charge on cohabitation. The trial court, after explaining the statutory requirement of proof of sexual intercourse, charged the defense of cohabitation out of the case. The court told the jury: "[Formerly if] there was a defense that was raised concerning cohabitation . . . this statute would not be applicable. [Formerly if] two persons who . . . though not married to one another were living together by mutual consent, and holding themselves out as man and wife, and they were living together as man and wife, and the relationship of this living together as man and wife included the many facets of married life, in addition to sexual relations . . . [there was an assumption] of marital rights and duties, and obligations which are usually manifested by married people including, but not necessarily dependent on, sexual relations. The legislature has, however, changed this statute. This statute is applicable to married persons or to persons who cohabitate together. Now, there is evidence of a previous relationship between the defendant and the victim in this case, and that evidence and that testimony you will give such weight, and such credibility as you believe appropriate. There was also evidence that the parties broke up on the night before this particular incident, or at least separated, and [the victim] did not return to her apartment. At any rate, the relationship between the parties beforehand, whether in your mind is equivalent of cohabitation or not, has no bearing as a defense to this particular charge. It might have a bearing with regard to questions of consent, questions of veracity, how much weight, or truth or belief you will give to it." (Emphasis added.) The defendant took no exception to this instruction when it was given. It is clear that the trial court's instruction on cohabitation was incorrect. While it might have been logical for the legislature, upon enacting § 53a-70b, to amend § 53a-67 (b) to exclude cohabitation as an affirmative defense whenever there is an accusation of sexual assault in the first degree, the legislature chose not to do so. Instead, the legislature expressly limited its repeal of the cohabitation defense to those defendants who were accused of having violated § 53a-70b itself. The state concedes that the trial court's charge was incorrect. The issue before us is the proper resolution of the defendant's claim that, even in the absence of a request to charge or an exception to the charge as given, the trial court's incorrect instruction requires us to set aside the judgment against him. This claim is presented in alternate versions. The more sweeping claim urges us to hold that a trial court always has an independent obligation, as a matter of law, to charge on any theory of defense for which there is a foundation in the evidence. The narrower claim urges us to hold that a trial court, even absent such an independent obligation, having once embarked on an instruction on a theory of defense, has a duty not to misstate the statutes that govern the defense. There is no basis, in the law of this state, for the defendant's broad claim that a trial court has an independent obligation to instruct the jury on the affirmative defense of cohabitation if the evidence at trial would suffice to support such a charge. In the absence of a timely request or exception, failure to charge on an affirmative defense is reviewable as an exceptional circumstance within the doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), only when the defendant can demonstrate that he "has clearly been deprived of a fundamental constitutional right and a fair trial," or under Practice Book § 3063 as plain error. While the constitutional law of due process is implicated by a trial court's failure to instruct the jury on the essential elements of the offense on which the conviction rests; Screws v. United States, 325 U.S. 91, 107, 65 S. Ct. 1031, 89 L. Ed. 2d 1495 (1945); State v. Gabriel, 192 Conn. 405, 413-14, 473 A.2d 300 (1984); State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982); we have in the past found no constitutional infirmity in failure to charge on such defenses as entrapment; State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); extreme emotional disturbance; State v. Jacobowitz, 194 Conn. 408, 411-12, 480 A.2d 557 (1984); or alibi. State v. Parham, 174 Conn. 500, 509-11, 391 A.2d 148 (1978). Nothing in the circumstances of this case suggests that a different rule should obtain for the defense of cohabitation. The defendant is on surer footing with his more limited claim that the trial court, having once determined to instruct the jury on cohabitation, committed plain error by misstating the effect of the governing statutes. Misinterpreting the statutes on cohabitation, the trial court in its instructions expressly and incorrectly precluded any jury consideration of this affirmative defense. It is well established that an instruction containing a misstatement of the law is more likely to be prejudicial than an instruction that contains an omission or an incomplete statement of the law. Henderson v. Kibbe, 431 U.S. 145, 155, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977); State v. Kurvin, supra, 563. Furthermore, we have held that instructions that misstate the statutory defense of self-defense unconstitutionally implicate a defendant's due process right to establish a defense. State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1983); State v. Miller, 186 Conn. 654, 660-61, 443 A.2d 906 (1982). The present case is distinguishable from the cases dealing with self-defense, because cohabitation is an affirmative defense, while lack of justification is an element of a criminal prosecution on which the state bears the burden of proof. See General Statutes § 53a-12; State v. Cassino, 188 Conn. 237, 241, 449 A.2d 154 (1982). Nonetheless, these precedents demonstrate the seriousness with which we have viewed instructions that misinform the jury about the statutes that govern a criminal defense. This case falls squarely within the parameters of the plain error doctrine of Practice Book § 3063. As in State v. Burke, 182 Conn. 330, 332, 438 A.2d 93 (1980), a recent legislative change led the trial court into statutory error. Having noted the recent enactment of § 53a-70b, which imposed criminal liability for sexual assault in a spousal or cohabiting relationship, the trial court overlooked § 53a-67 (b), which preserved the defense of cohabitation for sexual assault for the crime with which this defendant was charged. A charge that demonstrates that the trial court has overlooked the applicable statute justifies consideration as plain error. State v. McCall, 187 Conn. 73, 88, 444 A.2d 896 (1982); Stoni v. Wasicki, 179 Conn. 372, 377, 426 A.2d 774 (1979); Campbell v. Rockefeller, 134 Conn. 585, 588, 59 A.2d 524 (1948); Schmidt v. Manchester, 92 Conn. 551, 555, 103 A. 654 (1918); see also Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259 (1980). In the interest of justice, taking into account the importance of proper instructions on a defense for which there is an evidentiary foundation; see State v. Cassino, supra, 243; State v. Rosado, 178 Conn. 704, 707-708, 425 A.2d 108 (1979); we conclude that the trial court's charge constituted reversible error. The court's mistaken charge on the defense of cohabitation fails to comport with the primary purpose of a charge, which is "to assist the jury in applying the law correctly to the facts which they might find established." State v. Gabriel, supra, 419; State v. Sumner, 178 Conn. 163, 170, 422 A.2d 299 (1979). The trial court's erroneous instruction on cohabitation requires us to set aside the judgment with respect to the conviction of sexual assault. Although instructional error can sometimes be determined to be harmless, the state has advanced no such argument in this case. Vacating the defendant's conviction of sexual assault obviates discussion of the defendant's second claim of error, that the instruction on cohabitation had the effect of an improper amendment of the information charging him with sexual assault under § 53a-70 (a). The defendant's conviction need not, however, be set aside in its entirety. There has been neither claim nor showing that the court's erroneous instruction on a defense to the crime of sexual assault bore any relation to the defendant's convictions on the other counts of the information, for kidnapping in the second degree and assault in the third degree. In the absence of other error, the defendant's conviction on these other counts must stand: Because further proceedings on the charge of sexual assault will, however, be required, it is useful for us to consider the defendant's third claim of error concerning alleged evidentiary error related to that count. The defendant alleges that the trial court erroneously restricted the defendant's cross-examination of the victim regarding her prior sexual activities with the defendant. That restriction, the defendant argues, violated both his common law rights and his constitutional rights to confront his accusers. The defendant sought to cross-examine the victim about the use of inanimate objects and sexual devices in her relationship with the defendant. The defendant argued that such evidence was relevant to the general credibility of the victim and to the specific issue of her consent to the use of pliers. Defense counsel was permitted to ask the victim: "[W]as there a time . . . two or three weeks before this incident, where [the defendant] used a candle for your sexual gratification with your consent?" The victim replied in the affirmative. In a prior hearing outside of the presence of the jury, the defendant had indicated that he wanted to inquire into the use of other objects and devices. At that hearing, however, when the victim denied the use of any objects other than candles, defense counsel expressly agreed to limit his cross-examination to the use of candles. Despite the court's assurance that it would allow questioning going to the questions of veracity and of resistance, defense counsel stated that he would defer additional exploration of this subject until the defense put on its case. The defense never pursued this issue further. On this state of the record, the defendant has no basis for complaint about the scope of the victim's cross-examination. The decision to limit the exploration of the use of unnatural sexual objects was a decision made by defense counsel and not by the trial court. Instead of seeking a ruling to which he might take exception, defense counsel abandoned his effort to cross-examine further on this subject. In the absence of a claim by the defendant that his right to cross-examine the victim was in any other way impaired, the defendant has failed to establish that the trial court deprived him of his constitutional right of confrontation. Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v.Milum, 197 Conn. 602, 608-609, 500 A.2d 555 (1985); State v. Shindell, 195 Conn. 128, 140, 486 A.2d 637 (1985). It may well be that, at a retrial, the defendant will take further steps to provide a proper foundation for this line of questioning. Proper pursuit of the matter may well require the defendant to substantiate his claim with appropriate extrinsic evidence; see State v. Denby, 198 Conn. 23, 32-33, 501 A.2d 1206 (1985); but even the offer of such evidence will not relieve the trial court of its responsibility to determine what measures it should take to limit the highly prejudicial impact of such cross-examination. See State v. Asherman, 193 Conn. 695, 718, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Gaynor, 182 Conn. 501, 508, 438 A.2d 749 (1980); and compare State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982); State v. Turcio, 178 Conn. 116, 129, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980). Absent such extrinsic support for further inquiry of the victim, if the victim again denies the occurrence of the events alleged, at a new hearing in limine, it would be within the exercise of the sound discretion of the trial court to bar further cross-examination on this issue. See State v. Parker, 197 Conn. 595, 601, 500 A.2d 551 (1985). There is no error in the defendant's conviction of the crimes of kidnapping and of assault; there is error in the defendant's conviction of the crime of sexual assault in the first degree, that judgment is set aside and the case is remanded to the trial court for a new trial on that charge. In this opinion the other judges concurred. "[General Statutes] Sec. 53a-70. sexual assault in the first degree . (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." "[General Statutes] Sec. 53a-94. kidnapping in the second degree: class B felony, (a) A person is guilty of kidnapping in the second degree when he abducts another person. . . ." "[General Statutes] 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; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. . . ." "[General Statutes] Sec. 53a-67. affirmative defenses. . (b) In any prosecution for an offense under this part, except an offense under section 53a-70b, it shall be an affirmative defense that the defendant and the alleged victim were, at the time of the alleged offense, living together by mutual consent in a relationship of cohabitation, regardless of the legal status of their relationship." "[General Statutes] Sec. 53a-70b. sexual assault in spousal or COHABITING RELATIONSHIP: CLASS B felony, (a) For the purposes of this section: "(1) 'Sexual intercourse' means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim's body; and "(2) 'Use of force' means: (A) Use of a dangerous instrument; or (B) use of actual physical force or violence or superior physical strength against the victim. "(b) No spouse or cohabitor shall compel the other spouse or cohabitor to engage in sexual intercourse by the use of force against such other spouse or cohabitor, or by the threat of the use of force against such other spouse or cohabitor which reasonably causes such other spouse or cohabitor to fear physical injury. "(c) Any person who violates any provision of this section shall be guilty of a class B felony." The legislative hearings accompanying the enactment of Public Acts 1981, No. 81-27, which has been codified as § 53a-70b and which amended § 53a-65, 53a-67 and 53a-16a, demonstrate no legislative intent to abrogate the defense of cohabitation for all sexual assaults. See 24 S. Proc., Pt. 3, 1981 Sess., pp. 768-69; 24 H. R. Proc., Pt. 3, 1981 Sess., pp. 963-1010. The defendant makes no claim that this case falls under the first exceptional circumstance under Evans of a newly discovered constitutional right not readily foreseeable at the time of trial. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). "[Practice Book] Sec. 3063. ERRORS CONSIDERED. "The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court." Nothing in Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967), compels a different result. Despite the defendant's contention to the contrary, Washington v. Texas, supra, 19, does not establish an unqualified constitutional right to correct jury instructions on any defense the defendant may have. The only relevant issue therein decided was the applicability, in state court proceedings, of the sixth amendment right of a criminal defendant to have compulsory process for obtaining witnesses in his favor. The defendant has cited a number of cases from other jurisdictions in which the failure of the trial court to instruct on a defense, even in the absence of a request, was held to have been erroneous. Most of these cases, however, are distinguishable from the present case. The Missouri court in State v. Howard, 615 S.W.2d 498 (Mo. 1981), and in State v. Hegwood, 558 S.W.2d 378 (Mo. 1977), was obligated by then applicable Missouri rules of criminal procedure to instruct the jury on every defense warranted by the evidence presented, even in the absence of a request. There is no such rule in Connecticut. The Georgia court in Jackson v. State, 149 Ga. App. 253, 254-55, 253 S.E.2d 874 (1979), and in High v. State, 153 Ga. App. 729, 732-33, 266 S.E.2d 364 (1980), required an instruction on a defense even in the absence of a request because the defense at issue was the defendant's sole defense. (This rule was later clarified in Grubbs v. State, 167 Ga. App. 365, 366, 306 S.E.2d 334 [1983]: "A defendant is entitled to an unrequested charge on a particular defense only when it is his sole or principal defense and it is supported by the evidence." [Emphasis added.]) The Michigan appellate court in People v. Peoples, 75 Mich. App. 616, 624, 255 N.W.2d 707 (1977), also focused on the fact that an omitted instruction had the effect of "foreclosing the defendant from his only potential excuse for an otherwise admitted homicide." (Emphasis added.) The cohabitation defense in the present case was not the defendant's sole defense. The Massachusetts court in Commonwealth v. Collins, 374 Mass. 596, 599, 373 N.E.2d 969 (1978), found that a defendant is entitled to an instruction placing the burden of disproving the defense of justification on the commonwealth. In the present case, the defendant had the burden of proving his affirmative defense. Only the California, court seems to have adopted the broad rule the defendant urges on us. That court imposes on the trial court a duty to instruct, sua sponte, on general principles of law relevant to all issues raised in evidence, including "defenses . . . and on the relationship of these defenses to the elements of the charged offense." People v. Sedeno, 10 Cal. 3d 703, 716, 518 P.2d 913, 112 Cal. Rptr. 1 (1974). We decline to follow the California court's lead in this case. The defendant's cross-examination of the victim, which covered ninety-seven transcript pages, included unrestricted inquiry into the details of the crime, past arguments between the victim and the defendant, and previous sexual relationships between the victim and the defendant.

DICKENSON, J. The action as originally brought was against the City of New Haven and owners and lessee of prop' erty known as 167 Columbus Avenue, New Haven, for in' juries received as a result of a fall by the plaintiff on a sidewalk on Columbus Avenue in front of No. 167. To the complaint the city filed a demurrer on the grounds: (1) no allegation of control (2) no allegation of duty to keep the sidewalk free of ice or snow (3) section 2 of Special Acts of 1937, No. 576, purporting to place that duty and liability for failure upon the "adjoining property owner." The Court held the allegations sufficient to sustain the action if it appeared the city owed the plaintiff a duty to keep the sidewalk free and clear of ice and snow and further held that by virtue of the above act (Special Acts of 1937, No. 576, §2) it had been divested of that duty and sustained the demurrer on that ground. Other defendants, first answering, obtained permission to and did withdraw answers and filed demurrers. That of the de' fendants D'Antonio, O'Connor and Reardon was heard in argument and is now to be decided. It is based upon a claim that section 2 of the Special Acts of 1937,* No. 576, makes a special exception to sections 1419 and 1420 of the General Statutes, Revision of 1930, which exception is discriminatory and generally violates the Constitution of the State of Con' necticut and the Constitution of the United States, and further, is ambiguous. That it is constitutional so far as the city is concerned has already been decided in this action on the theory that the "Lord giveth and the Lord taketh away"; that in sections 1419 and 1420 of the General Statutes, Revision of 1930, the State granted a general right to sue its political subdivisions and in Special Acts of 1937, No. 576, it took that right away as to New Haven; that, "What the Legislature may prescribe it may dispense with." Sanger vs. Bridgeport, 124 Conn. 183, 198 Atl. 746. But when it shifts a self-imposed duty from itself to an individual not a political entity, another question arises, and after considerable study I do not feel that it can be answered better than it was by McEvoy, J., in Fabricator vs. Salovitz, reported in 6 Conn. Sup. 301, to which reference may be had for reasons supporting- the sustaining of the demurrer on both grounds.

INGLIS, J. Upon argument of this matter, the defendant pressed three contentions. He contended first, that the Commissioner erred in not apportioning the compensation as between the incapacity caused by the injuries sustained by the plaintiff in the accident and the incapacity caused by diabetes. Secondly, he contended that the Commissioner erred in refusing to find that the claimant refused treatment. In the third place, his principal claim is that the Commissioner erred in concluding from the subordinate facts found that the defendant did not regularly employ less than five employees. As regards the first contention, it seems to be admitted that the claimant at the time of his injury was a diabetic and that, before he could be operated upon, it was necessary to treat him for a period of weeks to get him sugar free. These facts, however, do not bring the case within that provision of the statute (Gen. Stat. [1930] §5223), which is that; "In case of aggravation of a pre-existing disease, compensation shall be allowed only for such proportion of the disability or death due to the aggravation of such preexisting disease as may be reasonably attributed to the injury upon which the claim is based." This was not the case of an injury aggravating a preexisting disease. The medical testimony was unanimous to the effect that the injury had no effect on the diabetes. Rather it was the existence of the diabetes which magnified the seriousness of the injury. Accordingly, the statute quoted above had no bearing on this case. Moreover, as pointed out by the Commissioner, if the defendant were going to take any advantage of that statute, the burden was on him to estab' lish the facts requisite to an apportionment. Stier vs. Derby, 119 Conn. 44, 53. That is to say, it was incumbent upon the defendant to produce evidence as to what portion of the inca' pacity was caused by the diabetes and what by the injury. This he utterly failed to do. The second contention of the defendant is easily disposed of because it was a question of fact as to whether the plaintiff had refused treatment. On the conflicting testimony the Commissioner acted with reason in finding that there had been no such refusal. The third contention of the defendant raises the question as to whether the conclusions set forth in paragraphs 7 and 8 of the Commissioner's finding, to the effect that between April and October, 1935, the defendant's employees as a group varied from two to seven and that there was no regU' larity in the conduct of the respondent in employing less than five employees, can stand. This requires an examination of the finding of subordinate facts set forth in the original find' ing and in the amplification of that finding and also a resort to the testimony to ascertain whether the findings of the sub' ordinate facts can be justified. The subordinate facts found by the Commissioner are, that between April and October. 1935 (the plaintiff's injuries hav' ing occurred in October 3d) there was a total of 13 different men employed by the defendant. These men were (1) the claimant, (2) Fred Haddy, (3) Joe Stevens, alias Steponaitis, (4) Wallace, (5) Wallace's helper, (6) Fred Stevens,, (7) Keefer, (8) a Lithuanian whose name is unknown, (9) Ben' dell, (10) a man who helped Bendell, (11) John Clark, (12) a paper hanger, and (13) a painter. It is found, and the finding cannot be successfully attacked, that the claimant was regularly employed by the defendant as a laborer continuously from April to October, that Haddy was employed by the defendant as a painter and general handy-man from April through most of August, and that Clark was continuously employed by the defendant as a carpenter and handy-naan from June to October. As regards Joe Stevens, alias Steponaitis, it is found that during the period in question he acted as janitor and collector of rents, caring for property of the defendant located on Riverside Street, in Waterbury, and received by way of compensation five per cent of the rents collected. This finding coincides with the evidence and upon it there can be no question but that the Commissioner was justified in concluding that he was an employee of the defendant and was regularly employed. The facts concerning Wallace and his helper as they are found by the Commissioner are that Wallace was a plumber who, from time to time, was called upon by the defendant to do plumbing work on his various properties. Upon the evidence it was undisputed (page 80 of the transcript) that "Mr. Wallace worked for Mr. Munson under agreements expressed and implied frequently throughout the year. In one case he made a contract of $94, for the job complete. On all other occasions Mr. Munson hired Mr. Wallace as he would any plumber for so much an hour and no special agreement price —he would do the work, send his bill and he got his money." It also appears to be undisputed that Wallace used his own tools, that he was in the general plumbing business doing work for various customers, that the defendant did not direct the work, that Wallace employed the helper who was chosen by him and under his control and pay, he charging the defendant for the work he did on a labor and material basis. The facts set forth in the last two sentences are added to the finding. Upon the facts found by the Commissioner and the facts added to the finding it seems clear that the arrangement between Wallace and the defendant was such that Wallace was contracting to produce a given result by means and methods of his own, and that the defendant had no right to direct him as to the methods to be employed to accomplish that result. Accordingly, Wallace was-an independent contractor and not an employee of the defendant and the helper was a direct employee of Wallace and not of the defendant. Tortorici vs. Moosop, Inc., 107 Conn. 143, 146; Battey vs. Osborne, 96 id. 633; Aisenberg vs. Adams Co., Inc., 95 id. 419. It follows, that the Commissioner erred in concluding that either Wallace or his helper were employees of the defendant. As regards the unnamed painter and paper hanger, it appears from the finding that each of them was engaged for only one small job in May. The conclusion of the Commissioner either that they were employees or that they were regularly employed was not justified. The finding with reference to Bendell and his helper is that Bendell was a tenant in one of the properties owned by the defendant, that the roof of the garage leaked and Bendell offered to perform the labor of putting on a new roof if the defendant would furnish the materials. The work was done during September and October, 1935, Bendell being helped by a friend gratuitously. Neither Bendell nor his friend received any pay for the work from the defendant. It does not appear that the Commissioner finally found that either Bendell or his friend were employees of the defendant. The Commissioner says in the Amplification of Finding: "It appears to the Commissioner not necessary to determine whether either or both of these men were employees of the respondent within the Act." But if he did include them in the five or more employees of the defendant he erred in so doing because neither of them was rendering services for pay. Gibbs vs. Downs, 94 Conn. 487. This leaves for consideration only Fred Stevens, Keefer and the Lithuanian. The finding as regards these men is that they were all engaged for about two weeks in July for haying on the defendant's farm and that the Lithuanian stayed on for a few days in August to cut brush. The word "regularly" in that portion of the act excepting from the act employers who regularly employ less than five employees connotes "customarily", or "as a rule." It is apparent that these men were hired for a special occasion and that at a time quite remote from the time when the plaintiff was injured. If the period from April to October is taken as the period to which inquiry shoüld be directed, the proportion of that time during which these men worked is so small that it could not fairly be said that they were regularly employed during the period. The same would be true even though the period were narrowed to cover only the months of July, August, September and October, and certainly if one looks at the situation as it was on the date when the plaintiff was injured it would seem apparent that it could not in reason be said as of that date that three men who were hired for a special occasion and who terminated their services two months before and who would not be rehired or their places filled until the following July, were then regularly employed or that there was then any regularity in the defendant's employment of them. Fisher vs. Sargent, 117 Conn. 496; Schneider vs. Raymond, 103 id. 49; Green vs. Benedict, 102 id. 1. On the finding of the Commissioner as corrected, therefore, it appears that the only men who were regularly employed by the defendant for a long period of time prior to the plaintiff's injury were the claimant, Fred Haddy, John Clark and Joe Stevens, alias Steponaitis. The conclusion is irresistible that at the time of the plaintiff's injury the defendant was regularly employing less than five employees and accordingly was not under Part B of the Workmen's Compensation Act. For that reason judgment may enter sustaining the appeal, and setting aside the award.

CORNELL, J. It appears that Elisa E. Bland deceased on June 2, 1932 leaving an estate which, according to the inventory, comprised the following items: House and lot appraised at....................................... $4,050.00 Deposits in bank.................................................................. 1,074.57 Wearing apparel.................................................................. 10.00 Total.......................................................................................... $5,134.57 In paragraph two of her last will, the deceased provided: "I give and bequeath to my sister, Ada Broadley, wife of James Broadley of Lawrence, Massachusetts, all of my personal property and effects of every kind and character, to have and to hold the same absolutely to her and to her heirs and assigns forever." In the third, and final, paragraph, the deceased provided: "All the rest, residue and remainder of my estate, both real and personal . . ., I direct shall be divided by my executor into four equal parts and of said four parts, I make the following disposition." In the division which follows, the deceased's sister, Ada Broadley (who, as noted, is the beneficiary under the second paragraph of the will) is given a one-fourth share of the residue outright and a remainder in another fourth following the life use in said fourth bestowed upon another sister, viz;., Jennie Rigg. The executor submits two questions for the advice of the court, viz;., (a) Is Ada Broadley entitled to all the personal estate under paragraph second of the will? (b) Are the beneficiaries under paragraph third entitled to any of the personal property?" It is, of course, manifest that if the testatrix intended by the provision in paragraph two, that her sister Ada and the latter's heirs should have all of her personal property there could be no estate of that species to pass under the residuary clause in the third paragraph. From this the inference must be drawn that she used the term "personal property" as it appears in the second paragraph as not connoting the same thing as does the word "personal" in the phrase "all the.... residue . of my.estate, both real and personal" in the third paragraph. Otherwise, it would be impossible to give effec. to both provisions. In Stearns vs. Stearns, 103 Conn. 213, 220, it is said: " 'Personal estate' is an ambiguous term. It may be used to designate every species of property not coming under the denomination of real estate; in its broader meaning it embraces personal property of every description and kind. . It may be used to designate personal effects, as jewelry, wearing apparel and the like, but not stocks or intangibles." In the absence of extrinsic evidence to throw light on the sense in which the testatrix employed the term, the court is limited to the context of the will in ascertaining the testamentary intention. Obviously, were the sense in which the term "personal property" is used in the second paragraph to be 'given a broad significance an irreconcilable repugnancy would exist between the provisions of that paragraph and the third. The only permissible construction to be given the provisions in question when read together, it would seem, is to hold that the words "personal property" as used in the second paragraph are employed synonomously with "personal effects" which follow it and since the only "personal effects" in the estate were the testatrix' wearing apparel, that is all that passed to Ada Broadley under that clause. From this it follows that all other personal property (i.e. everything except real estate and any interests therein) of which the testatrix died possessed, is subject to the operation of the residuary clause. The executor is, therefore, advised: (1) that Ada Broadley is entitled to have only the personal effects owned by the testatrix at the time of her death under the second paragraph of the will, and (2) the beneficiaries under paragraph third of the will are entitled to all personal property owned by the testatrix at the time of her death, except the testatrix' personal effects.

McEVOY, J. The evidence clearly shows that the plaintiff passed a "stop sign" as she entered the intersection when the collision occurred. In entering from the plaintiff's left into this intersection the defendant operator was entitled to assume that the plaintiff would obey the direction of the stop sign and to govern his conduct accordingly. In this assumption he was disappointed. The plaintiff did not obey the stop sign. The claim under which the plaintiff attempts to justify her failure to stop at the indicated sign is that she did not see it, and that her vision of the sign was obstructed by a large truck then- present, which subsequently disappeared immediately after the collision. Assuming that her vision of the sign were obstructed and obscured, yet it would seem that, under the law, this obstruction does not justify her admitted failure to obey the direction impliedly required of her by the existence and placing of the sign. The sign was erected by public officers. "Public officers acting officially are presumed to have done their duty until the contrary appears." Hellman vs. Karp, 93 Conn. 317, 323. Even if one has the right of way yet he himself must proceed with due care, i.e. operate his car as a reasonably prudent person would under the same circumstances knowing that he had the right of way. Jackson vs. Brown, 106 Conn. 143. Upon the trial of this action both counsel agreed that Col umbus Avenue was a through way. In section 76c of the Cumulative Supplement to the General Statutes (1935), ac subdivision c of that section, it is provided that "each person operating any vehicle upon any street intersecting any official' ly designated through way shall bring such vehicle to a full stop at the place where such street meets the prolongation of the nearest property line of such through way or at a clearly marked stop line, subject to the direction of any traffic control sign or signal of any officer in uniform at such intersection." It is essential to observe that this subdivision of the section is m the disjunctive rather than the conjunctive and that fob lowing the word "or" we find the words "at a clearly marked stop line." Section 76c is an amendment and a following out of the purpose of section 394 of the General Statutes, Re' vision of 1930, in which it is provided under subsection (b) that "no operator of any motor vehicle . . . shall disobey the instructions of any such traffic sign or signal unless otherwise directed by an officer in uniform." In Andrews vs. White Line Bus Corporation, 115 Conn. 464, at page 467, our Supreme Court said: "There is no want of reason or fairness in our established rule that he who violates one of the statutory mandates does so at his own risk as to the resulting liability for injuries or damage of which such transgression is the proximate cause." This opinion was in apparent confirmation of the rule ex' pressed in Murphy vs. Way, 107 Conn. 633, at page 638, where our Supreme Court said: "Also, if the law of the road may be subjected to unexpressed exceptions and individually varying applications, what becomes of the recognized rights of every user of the highway to govern his conduct upon the assumption that other users know and will obey the law regulating their own use of it?" Syssa vs. Heminway, 106 Conn. 499, 138 Atl. 223. In Guhring vs. Gumpper, 117 Conn. 548, at page 551, our Supreme Court said: ". . . the purpose and spirit of the statute is to require a vehicle approaching the intersection of a 'through street' to be brought to a full stop before proceeding into the intersection, and that result is accomplished by a stop at the stop sign, which it is to be presumed has been located by the traffic authority in the performance of its duty, in accordance with the requirements of the statute." Under all of the circumstances it is very apparent that the collision was caused by the failure of the plaintiff to obey the stop sign and the consequent reliance of the defendant's open ator upon the obedience of the plaintiff to the regulations embodied in the stop sign. The defendant's operator was clearly entitled to rely upon the theory that the plaintiff would so comply and to govern his conduct accordingly. Upon all the evidence the issues are found in favor of the defendant and judgment may be entered for the defendant to recover its costs.

McEVOY, J. The defendant filed a special defense which reads as follows: 1. The defendant, at all times mentioned in the complaint, was and is now a charitable corporation without capital stock whose members derive no profit from its operation. To this defense the plaintiff has filed a demurrer as follows: 1. The fact that the defendant is a charitable corporation without capital stock whose members derive no profit from its operation, is no defense to the particular acts, negligence, breaches and defaults set forth in the complaint. ' 2. The fact that the defendant is a charitable corporation without capital stock whose members derive no profit from its operation, does not exonerate the defendant from liability for the corporate neglect In the performance of its corporate duties as set forth in the complaint. Upon argument briefs and in a letter supplementing the -defendant's brief, the defendant claimed that the demurrer should be overruled because it is not applicable to the alleged negligence set out in the complaint for the reason that the defendant claims that the complaint is broad enough to include negligence other than "corporate neglect" of the defendant corporation. The complaint is so drawn and the second paragraph of the demurrer is so worded as to indicate a clear intent on the part of the plaintiff to rely, for her recovery, solely upon the alleged "corporate neglect" of the defendant. Bearing these claims in mind this memorandum is addressed only to the question of 'whether or not the special defense, as pleaded by the defendant, does, in the language of the demurrer "exonerate the defendant from liability for the corporate neglect in the performance of its corporate duty." In our leading Connecticut case, Hearns vs. The Waterbury Hospital, 66 Conn. 98, it appears that the Court was careful to refrain from any decision upon the question of corporate neglect as follows: At page 104, bottom of the page, it was said: "The negligence which caused the injury is stated to have been that of the attending surgeon and attending nurses. . . ." At the top of page 105 it was said: "Possibly it might be claimed that the complaint raises the further question of the defendant's liability for its own negligence... .but such claim has not been made, and we do not think it can properly be made upon this appeal.... " (Italics mine.) Further, on page 105: "The conclusion we have reached makes it unnecessary to pass upon the question whether the hospital's attending physicians can really be regarded as standing to the corporation in the relation of servant.to master, or to discuss the nature and extent of the corporate liabilities of an eleemosynary corporation." At the top of page 115: "There is no case which decides (that) there is an exception from all liability in favor of public or charitable associations." (Italics mine.) And finally at page 126: "It is enough that a charitable corporation like the defendant—whatever may be the principle that controls its liability for corporate neglect in the performance of a corporate duty . . ." It is very evident, therefore, that, in the Hearns case, the question of liability for corporate neglect, as such, was not only not decided but was distinctly and expressly eliminated from the decision. Many reasons are assigned in the various cases for the exemption from liability for the acts or negligence of servants and agents in whose care and selection due care is exercised by the hospital corporation as such. At page 127 of the Hearns opinion, the following appears: "This defendant does not come within the main reason for the rule of public policy which supports the doctrine of respondent superior; it derives no benefit from what its servant does, in the sense of that personal and private gain which was the real reason for the rule. Again, so far as the persons injured are concerned, especially if they be patients at the hospital, the defendant does not 'set the whole thing in motion' in the sense in which that phrase is used as expressing a reason for the rule. Such patient, who may be injured by the wrongful act of a hospital servant, is not a mere third party, a stranger to the transaction—he is rather a participant." Another basis for the exemption is the claim that the funds which go to the operation of the hospital are trust funds and that the entering of judgment against the hospital would result in the taking of the funds for an unlawful or unwarranted or unrecognised purpose and would therefore be a violation of'the trust. A different view was taken in Glavin vs. Rhode Island Hospital, 12 R.I. 411. This .case is quoted in the Hearns case at page 120, where it is said: ". . . The result of the English cases is: (a) Where there is a duty, there is a prima facie liability for neglect; and a corporation being created for certain purposes which cannot be executed without the use of care or skill, it becomes the duty of the corporation to exercise such care, and funds acquired for the purposes of its creation will be applied to satisfy a judgment for its default in this respect, (b) The corporate funds can be applied notwithstanding the trusts for which they are held, because the liability is incurred in carrying out .the trusts and is incident to them. . . ." In the recent case of Cashman vs. The Meriden Hospital, 117 Conn. 585, the complaint was in four counts and a demurrer was filed and it was overruled by the trial court on the ground that "the facts alleged in the special defense constituted a good defense to the claim of negligence set up in the second count of the complaint." The second count of the complaint was based upon negligence on the part of the servants and agents of the hospital. In that complaint there was no express allegation of "corporate neglect." At page 587 of that case, quoting from the Hearns case, our Supreme Court said: "Whatever may be the principle that controls its liability for corporate neglect in the performance of a corporate duty, etc. . . ." Further along on page 5 87 of the Cashman case the Supreme Court used this language: "The courts are practically agreed that a charitable institution is not responsible to those who avail themselves of its benefits for any injuries that may be sustained through the negligence or torts of its managers, agents and servants." Upon the argument of this demurrer it was claimed by the defendant that the word "managers" in this opinion was intended to mean that the managers, as such, stand in the place of the corporation and that their acts are what the plaintiff has elected to style "corporate" acts as distinguished from the acts of those employed by the corporation. It would seem that the use of the word "managers" in the Cashman case, since the word is used in connection with agents and servants, is used to indicate those acting under the direction of the corporation and not for it, that is, in its corporate stead or place. The language of the Cashman case was quoted with approval in the recent case of Boardman vs. Burlingame, 123 Conn. 646, 652, 653. The reasons assigned by the various courts in the United States and England for their judgments that the eleemosynary corporation is not liable, for the negligence of its agents or servants in whose selection it has exercised reasonable care are many and varied. Some are based upon the theory that, to permit a judgment to be entered against the corporation, would naturally result in a diversion of the property of the corporation and this would not be in accord with the intent of those contributing to the funds; others, that the principle of respondeat superior does not apply; others, that it would be against public policy to permit a diversion of the funds, and so on. Another reason found in a number of the cases is that the person who accepts the benefit of the hospital treat ment places himself on a par with the agent or servant and that therefore the negligence of the agent or servant is also the negligence of the participating patient. Apparently the decision of the question as to the liability of an eleemosynary corporation for its "corporate neglect" as distinguished from its liability for the negligence of its agent or servant, must be based on a question of sound public policy. Admittedly such corporations are organised and chartered so that they may act for the public good. Would it be consistent with the general public good to hold that corporations so acting by virtue of State granted authority are in a more impregnable situation than even the State itself? It is elementary that, although there was no common-law liability to that end, yet the State of Connecticut has since a very early date, by statute, made towns and other branches of the State government liable for defective roads and bridges. With the advent of the State built and maintained highways the same statutory liability was extended through the permission of the State to sue the Highway Commissioner. Money paid, by way of taxes, for the support of the State and its governmental branches, is not, in the first place, paid or exacted upon any theory other than to apply it for State purposes. The payment of judgments for violation of statutes governing defective roads or bridges is not in the original concept of a State expense. It would seem that this extension of the theory of liability of the State and its branches is based upon a doctrine of public policy which ought to be carefully considered and compared in its application to the eleemosynary corporation. To hqld that such a corporation should be freed from any and all liability under any and every circumstance would not be according to the policy of our law. It would not tend to induce the exercise of reasonable care which should characterise and.limit the relations of all whose actions affect, directly or indirectly, the health, safety or lives of others. It would be a distinct disadvantage and prejudice to the ordinary person who enters a hospital if the law were so that, no matter what the corporation itself, as distinguished from the servant or agent, did, yet that that person who so enters, relying upon the supposedly careful management and the supply of proper equipment, should be without any redress in case of a corporate neglect. Such a principle is not found anywhere among our cases. For the reasons stated the second paragraph of the demurrer to the special defense is sustained. The first paragraph, which goes to the question of particular acts, negligence, breaches and default, is overruled. The purpose of the decision on the demurrer is to rule that the corporation, eleemosynary though it is, is responsible for its corporate neglect as distinguished from the negligence of its employees.

Memorandum of decision in action to recover damage inflicted by parked automobile. FITZGERALD, J. By writ, summons and complaint dated April 20, 1937, and returned to this court on the first Tuesday of May, 1937 (amendment to complaint being filed on June 15, 1937), plaintiff seeks to recover damages of defendant for the alleged destruction of a set of golf clubs and golf bag owned by him. It appears that on Sunday morning, May 31, 1936, at about 9 o'clock, plaintiff drove his car to the premises of the Hubbard Heights Golf Club in Stamford for a game of golf. Plaintiff parked his car in a parking area provided by the club. This area is located west of the Caddy House and north of the Club House. The parking lane in which plaintiff parked his car was in the westerly part of the parking area in close proximity to the highway. The car, when so parked, was headed west. At about 12.TO p.m. plaintiff completed an 18 hole game of golf (the 18th . green is located slightly to the northeast of the parking area) and his caddy brought his golf bag con' taining his clubs over to his aforesaid parked car and stood the bag up on the ground leaning against the rear bumper of the car. A few minutes later defendant's car, without operator or occupant therein, rolled some 45 feet from the east, in a westerly direction, into the rear of plaintiff's car. Result: plaintiff's golf clubs were seriously damaged. In addition to matters contained in the foregoing, the court expressly finds: (1) That defendant had parked his car in the parking area sometime around l'l a.m.; (2) that the car when parked occupied a position in a parking lane east of the lane in which plaintiff's car was parked, and in. a direct line with it; (3) that the parking lanes extended in a northerly and southerly direction; (4) . that at the time defendant parked his car, headed west, two lanes of parked cars were between defendant's lane and plaintiff's lane; (5) that the terrain of the parking area sloped somewhat westerly, resulting in de' fendant's car occupying higher ground than plaintiff's car; (6) that at 12 o'clock noon many of the operators of the parked cars commenced to go home for Sunday dinner; (7) that at the time of the impact aforesaid (about 12:15 p.m.) the two lanes of parked cars on a direct line between plaintiff's and défendant's respective cars had dispersed. Plaintiff's theory of liability is set out in paragraph 3 of his complaint, as follows: "Said damage to the plaintiff's property was caused by the carelessness and negligence of the defend' ant in that he had parked his automobile in the rear of the plaintiff's automobile, and carelessly and negligently failed to apply the brake to his car, so that said automobile of the de' fendant rolled downgrade into and against the rear1 of the plaintiff's automobile." Plaintiff relies upon the doctrine of res ipsa loquitur to recover judgment. The fact that plaintiff has alleged specific negligence does not, under the Connecticut rule, preclude the application of the doctrine. Briganti vs. Connecticut Co., 119 Conn. 316, 319. The doctrine, as such, permits but does not require, the trier to infer negligence; so also, the doctrine has "no evidential force", does not "shift the burden of proof", and does not give rise to a "presumption" of negligence. Livingston vs. New Haven, 125 Conn. 123, 126, and cases therein cited. The defendant testified that when he parked his car he put on his brake and also put his car in gear. Although an employee of the club was on the parking area for the purpose of keeping caddies away from the parked cars, and presumably / other persons as well, it is conceivable that one of the caddies or some other person, undetected by this employee, released defendant's brake and put the car out of gear. Had defendant's car rolled down the incline a very short period after it was parked, the court in that event might be justified in concluding that defendant's testimony de brake and gear was not correct. However, since more than an hour elapsed between the time defendant parked his car and the occurrence in question, the court feels duty bound to credit defendant's testimony. "If other relevant facts are proven, those facts are to be considered along with those which furnish the basis for the application of the doctrine [res ipsa loquitur], and the issue of negligence is then to be determined upon the whole case as so made." Ryan vs. Lilley Co., 121 Conn. 26, 30, citing Motiejaitis vs. Johnson, 117 id. 631, 635. Further discussion is deemed unnecessary. The issues are found for the defendant. Accordingly, judgment necessarily will enter for the defendant.

BALDWIN, J. The Killarney Show-boat has again been hauled out and on to the ways of this court and she has been scraped and overhauled from stem to stern and from bilge to the top of the top-mast. From the extensive files in the case it would appear that during this receivership she could have caused no more headaches than she has—at least to the receiver—if she had run afoul of every rock and bar along the New England, New York and New Jersey coasts, for she has provided the object of attacks, almost comparable with those of the pirates of old, from the inception of this action to date, and a large part of this bar and nearly every judge on this bench has been concerned with some of these overhaulings. The receiver, who was a stockholder in the owning corporation, and by far the largest of a long list of creditors, has, under the orders of the court, sold and retaken and resold and retaken the Show-boat over and again and extricated her from conditions under which she was in distress, because the would-be purchasers were equipped with more nerve and gall than with the means with which to attempt the purchase, during the economic times we have been going through, of a ship of the type and tonnage of this ship. The receiver might have, on occasions piloted a somewhat different course for this receivership than that which he took, but the ultimate results could not have been substantially improved. In addition to the loss of an investment of $2,000 in the stock of the owning corporation and a claim of over $9,000 against the corporation, as receiver he has expended from his private purse in excess of $7,000, and he hasn't a chance in the world of recovering a cent of that loss and expenditures nor will he receive any fee for acting as receiver. This motion includes ten allegations of reasons for removal of the receiver, none of which the evidence supports. The motion is therefore denied. The receiver's final account is accepted and in the interests of all concerned, the receivership should now be terminated.

Memorandum of decision in action to abate nuisance. O'SULLIVAN, J. In this action instituted on February 20, 1935, a temporary injunction was issued on March 21, 3935, restraining the defendant "from grinding castor bean pomace upon [its] premises located at Howard Avenue in the City of Bridgeport", and "from loading or shipping castor bean pomace from said premises, excepting only by boat, or by rail in the night season", until further order of this court. Thereafter the matter lay dormant until the middle of last May, when it flared up again as the result of the plaintiff's moving that the defendant be adjudged in contempt because of a claimed violation of the temporary restraining order. The defendant, not to be outflanked, filed a motion that the injunction be dissolved. After discussing in chambers the desirability of obtaining a permanent answer to the questions arising out of the litigation, the parties agreed that the motions should be ignored and the matter be fully heard on the issues created by the pleadings. This course has been pursued. The difficulties between the parties, as the age of the case indicates, are of ancient origin, tracing their beginnings to the middle twenties. Each owns and, for many years, has operated a manufacturing plant on Howard Avenue, Bridgeport, the plaintiff's being on the westerly and the defendant's on the easterly side of the street, and each being substantially opposite the other. This section of Bridgeport is in a heavily industrialized zone. It is what one commonly calls the gas-house district. In fact, the tanks of the local illuminating company are scarcely three blocks away from the parties' plants. The value of the plaintiff's pfoperty runs over $600,000, and is approximately twice that of defendant's, while the annual gross sales of the former, approaching $4,000,000, bear to those of the latter about the same proportion. At the present time, the plaintiff is engaged to the full limit of its capacity in making forgings exclusively for the war purposes of the United States Government. The defendant manufactures fertilizer and in connection therewith operates a plant to extract oil from castor beans. At the conclusion of the various processes through which the beans pass, there is left a residue known as pomace, which is highly nitrogenous and an important ingredient for fertilizer of excellence for certain types of crops. This oil plant represents about one-third of the value of the defendant's property. It was put into operation in 1927 and produces today more than 1,000,000 gallons df castor oil, an amount, I might add, that seems staggering if devoted to the purposes for which, until the trial of the action, I had supposed it was largely limited. But it appears that castor oil has a vast field for utilization, and particularly where the war effort is concerned. Indeed, it is one of the products on the Government's so-called critical list of commodities. Of the defendant's total production, substantially 85% is destined for war purposes. It will be used as a hydraulic fluid in trucks, tanks, airplanes, turrets, gears, recoil mechanisms on cannon, and, to a limited extent, in engine lubrication. It will likewise be used in finishing textile and leather materials which eventually will be fabricated into uniforms, belts, and shoes fo£ the armed forces. It will be used as an emulsion breaker for crude oil, in drawing tubing' and wire, and in the manufacture of plastics, rubber products, ammunition, pyrotechnics and adhesives. And it will be broadcasting no military secret to. observe that there are but three other castor oil plants in the entire United States. The beans are shipped by barge to the defendant in large quantities and, upon unloading, are temporarily stored in a hopper preparatory to their being conveyed by belts to various apparatus, such as ovens and presses, housed within the plant. It is needless to detail the stages through which the beans move. Suffice it to say that at one point, after a considerable amount of oil has been extracted, they have been mashed together into a cohesive mass, known as castor bean cake or pomace, a product which, prior to 1935, was cut up into small pieces by a grinding machine. It was against the last mentioned process that the temporary injunction was directed. It is fitting to say that the defendant has honored the restraining order by a continuous and strict compliance with its mandate. What brought the plaintiff into court was the inability of the defendant to prevent castor bean dust from getting into the surrounding atmosphere with the result that, on certain days, its presence in the plaintiff's plant was manifested by a reaction upon some of the plaintiff's employees. It had been noticeable that certain men had been affected almost from the very day the oil plant began to operate. Of this, the defendant was aware and in an effort to cooperate, tried various measures to rectify the condition. From 1930 on, it spent about $45,000 in the installation of ventilating mechanisms and other appliances designed to catch and dispose, of the dust before it permeated the free atmosphere. In spite of these efforts, the plaintiff's employees still complained and the plaintiff felt warranted in seeking equitable relief from this court. Since the issuance of the injunction, the amount of castor bean dust in the air has greatly diminished, but on a so'Called heavy day or when the wind is in the east, it still persists in entering the plaintiff's plant and continues to cause varying degrees of discomfort to some of the employees and interferes with the performance of their duties. The men who complain are subject to an allergy. The ex' tent to which they are affected varies greatly. One may in' dulge in a fit of sneering; his nose may run and tears come to his eyes. Another may gasp for breath and exhibit symptoms comparable to those seen in the asthmatic. Another may turn cyanotic. One may be unable to work for a short period of time, a matter of minutes or hours. Another may be obliged to quit his work entirely. For the more seriously affected, sleep is difficult and at times, impossible. But what' ever the degree of severity, each attack taxes the heart of the sufferer to a greater or lesser extent. The plaintiff's production has been discommoded by the recurrence of these occasions when certain of its employees are affected, but no effort was made at the trial to translate the loss into dollars. While the records kept in its clinic are not complete, they give some indication of the frequency of the employees' complaints as well as of the number of men involved. These records disclose that since March, 1935, one or more men made complaint on 124 days, which it will be noted, averages one occasion in about every 21 days. From March, 1935, until June, 1942, the number of employees at the plaintiff's plant increased from 125 to 474. For the past five years, the employment turnover has averaged about 30 a month. Of the hundreds of new employees hired since 1935, only three are reported as having exhibited symp' toms caused by castor bean dust. Including these three, 28 employees have complained during that period of time. On 27 occasions, it was necessary for the affected workman to quit his work and go home, and 16 of these 27 occasions were accounted for by one man, a Mr. Marshall, who has been with the company for a long time and who is now in his 73 rd year. The following statistics give a fair picture of the effect upon these men between March 18, 1935, and May 22, 1942. Employees required to quit work and go home: Hume ' Humber of Days Britner . 1 Crump . 1 Csom . 1 Hackey . 1 Marshall . 16 Nagy . 1 Papp . 5 Vaughn . 1 Employees reporting to company clinic: Hume ' Humber of Days Bacon, Dr...........,.............. 13 Bacon, J.......................... 1 Bierholm . 16 Bonnyman . 9 Britner . 82 Burgman . 7 Caliento . 13 Crump . 84 Csom . 13 Delladonna . 17 Flynn . 1 Gibell . 5 Grant . 4 Hackey .:........... 3 Kasper . 1 Liberty . 4 Macviri? . 1 Marshall.......................... 93 Mayer . 1 Miles .'. 3 Nagy . 19 Oros, F........................... 1 Oros, J........................... 1 Papp . 32 Porter . 50 Sekeres . 3 Swartg . 6 Vaughn . 58 The following table gives the days of the months through' out the year when at least one employee reported to the clinic: 1935 March 18, 20, 21, 23, 25, 26, 27, 28, 29 'April 1, 2, 4, 5, 6, 8, 9,10,12,25,29,30 May 2, 3, 4, 6, 7, 23, 24 June 1, 4, 18, 19, 20 July 9 August 15, 20, 30 September 3, 4, 5, 9, 13, 14, 16, 17 October 9, 10, 16, 21, 30 November 14 December 13, 14 1936 January 3, 4, 6, 7, 8, 9, 15, 25 February 15, 24, 25, 26 March 2, 3, 9, 12, 16, 17, 24 April 2, 10, 15, 30 May 1, 6 June 19, 25, 26 1937 February 18 June 16 July 30 August 25 1938 February 3 August 17, 18 November 3, 4 1939 February 6, 15 March 9 April 9, 28 May 3, 6, 15, 16, 17, 22, 23, 26 1940 January 3, 12, 31 February 15 March 1, 4, 14, 18 April 1, 2, 3, 11 May 14, 15, 21, 23, 24 . June 11, 24 July IV, 22 August 13, 22, 28 October 30 December 12, 19, 26, 29 1941 January 3, 9, 23 February 4, 6 March 11 April 7, 16, 17, 21, 29 May 1, 2, 7, 9,11,13,28,29 June 4, 6, 23 July 14, 15, 16 September 3, 9. 20 October 7 November 6 1942 May 6, 7, 14, 15, 21, 22 These are a fairly imposing set of statistics and one's impulse, I fear, is immediately to seek the means for putting an . end to what must be expectant agony for those men grievously allergic to castor bean dust. But as he examines and then re-examines the law, he encounters principles which make impossible the granting of relief in the instant case. And no matter how sympathetic to the alleviation of ills may be the judge, he is, in conscience, bound to apply the law as he sees it to the problem he is called on to decide. The basic rule which must govern this case may be stated as follows: An injunction should issue against an actor for a non-trespassory invasion of 'another's interest in the private use and enjoyment of land if (a) the other has property rights and privileges in respect to the use or enjoyment interfered with; and (b) the invasion is substantial; and (c) the actor's conduct is a legal cause of the invasion; and (d) the invasion is either (1) intentional and unreasonable; or (2) unintentional and otherwise actionable under the rules governing jural rights arising from negligent, reckless or ultra-hazardous conduct; and (e) the effects of the invasion cannot be adequately compensated by money damages or the invasion is of a continuous or frequently recurring character. Restatement, Torts §822. Of these subdivisions, little need be said of (a), (c), and (e), for as to (a), the plaintiff by its ownership of the land upon which its plant stands, has the necessary interest to maintain this action (Webel vs. Yale University, 125 Conn. 515); as to (c) the defendant's operation of the castor oil plant is the direct cause of the invasion; and as to (e), even though money damages might compensate for the events of the past, they cannot destroy, or even suspend, the continuity of the invasion. The difficulties for the plaintiff to surmount are to be found in those essentials stated in (b) and (d). It is required by the former that the invasion be substantial, which means, as the adjective indicates, that the invasion must involve more than slight inconvenience or petty annoyance, for the law will not concern itself with trifles. At first blush, one might well conclude that the invasion in this case meets the required test because the affected employees are subjected to something far more grievous than slight inconvenience or petty annoyance. But the rub is, that the legal formula for determining the substantiality of an invasion uses, as its standard, the effect of the invasion upon normal persons in the particular locality. "If normal persons [working] in the locality would regard the particular situation as definitely offensive or annoying, then the invasion is substantial. If normal persons in that locality would not be definitely annoyed or disturbed by the situation, then the invasion is not substantial even though the idiosyncrasies of the particular plaintiff make it unbearable to him. Rights and privileges in respect to the use and enjoyment of land are based on the general standards of normal persons in the community and not on the standards of the individuals who happen to be using or occupying particular parcels of land at a particular time." Restatement, Torts §822, comment on cl. (6). See, also, §827, bottom of p. 246. This leads to the delicate question whether those who are allergic to castor bean dust are legally to be classified as normal persons, for the limited purpose of applying legal principles. The normal person is the average person. He does not represent physical perfection. If in a given community, everyone is nearsighted, the normal person living there would be nearsighted, for that would be the blemish of the average person. However, if but a small fraction of the population was so afflicted, the normal person would not be myopic, for he pos sesses only the attributes of well-being or the physical defects of the average man. The evidence available to the court as to the relative number who are allergic to'castor bean dust in the locality under consideration is reflected in the statistics above set forth. Of the 474 employees, only 28 have been listed as complainants. This is slightly less than six per cent of all who work in the plaintiff's plant, while from the defendant's force, which now totals 125, there have been but four cases reported since 1927, two before, and two after 1935. Neither party offered any evidence as to what" effect, if any, the employees of other industries in the immediate vicinity experienced from the dust. It is fair to state that in the locality where the oil plant is located the percentage of persons allergic to the dust is relatively small. Under such circumstances, the conclusion is inevitable that those marked by a castor bean allergy are not normal persons in the legal sense. This statement, of course, is not to be deemed an aspersion on these men who command my sympathy and for whom I would gladly extend relief, were it legally possible. . Perhaps some of the sting of this statement, if sting there is, may be removed by applying an example .concerning my own family. Some of us are subject to severe attacks of hay fever, so-called. Depending upon the extent to which others living in this locality are afflicted, those of my, family will not legally be normal persons who fail to conform with the average person's subjection to or freedom from this particular allergy. That the principle now under discussion is sound and quite universal is borne out by decisions in other jurisdictions. I find no Connecticut authority sufficiently in point to cite. Alabama Power Co. vs. Stringfellow, 228 Ala. 422, 153 So. 629; Dorsett vs. Nunis, 191 Ga. 559, 13 S.E. (2d) 371; Meyer vs. Kemper Ice Co., 180 La. 1037, 158 So. 378; Petroleum Refining Co. vs. Commonwealth, 192 Ky. 272, 232 S.W. 421: Wheat Culvert Co., Inc. vs. Jenkins, 246 Ky. 319, 55 S.W. (2d) 4; Dittman vs. Repp. 50 Md. 516; Rogers vs. Elliott, 146 Mass. 349, 15 N.E. 768; Wade vs. Miller, 188 Mass. 6, 73 N.E. 849; Stevens vs. Rockport Granite Co., 216 Mass. 486, 104 N.E. 371; Tortorella vs. Traiser & Co., Inc., 284 Mass. 497, 188 N.E. 254; Melucci vs. Eagan, 124 N.J. Eq. 241, 1 Atl. (2d) 452. Consequently, as the invasion by the defendant is not sub' stantial, as the word is legally used, the plaintiff is not entitled to the relief it seeks. There is another insurmountable difficulty confronting the plaintiff. It is found in subdivision (d) of the rule and requires that the invasion be either (1) intentional and urn reasonable, or (2) unintentional and otherwise actionable under the rules governing jural rights arising from negligent, reckless or ultra'hazardous conduct. The second of these alternatives is inapplicable because the condition created is intentional. "To be 'intentional', an in' vasion of another's interest in the use and enjoyment of land need not be inspired by malice or ilbwill on the actor's part towards the other. An invasion so inspired is intentional but so is an invasion which the actor knowingly causes in the pursuit of a laudable enterprise without any desire to cause harm. It is the knowledge which the actor has at the time he acts or fails to act that determines whether the invasion which results from his conduct is intentional or unintentional." Re' statement, Torts §825. This definition amply brings the de' fendant. within it. But whether the invasion is unreasonable is a more elusive problem. An intentional invasion of another's interest in the use and enjoyment of land is unreasonable unless the utility of the actor's conduct outweighs the gravity of the harm. Restatement, Torts §826; Nailor vs. Blakeslee & Sons, Inc., 117 Conn. 241. Entangled in every case involving a nuisance is the problem of weighing conflicting interests that are often most difficult to evaluate. The process has been called the doctrine of "balancing interests" or "balancing conveniences" or "com' parison of injuries" or "balancing hardships." The doctrine has been subject to criticism as an odious method by which the larger property owner always has the advantage over the smaller, Note 23 Va. L.R. 465, 469. This criticism can hardly be applied to the outcome of the instant case, in as much as the smaller concern is the gainer over the larger by the application of the doctrine. And, by way of parenthesis at this point, it should be observed that this is not a controversy between certain employees and the defendant. It is litigation between two industries in which one is seeking to restrain the other from certain activities because its production suffers. The doctrine of balancing interests is well ingrained in equity procedure, although many of the courts which actually apply it refuse to admit it is a part of their practice. They prefer to base their conclusions on the ground that the use to the invader is not unreasonable under all the circumstances. But this is splitting hairs, because, fundamentally, the unreasonableness of an intentional invasion is a problem of relative values to be determined after giving due weight to all of the factors of each case. That the defendant has made an honest effort to rectify the condition caused by the operation of the oil plant must be conceded by everyone. It has spent thousands of dollars in the installation of ventilating systems and other appliances in the hope that the dust might be controlled. -These systems are operating to their maximum efficiency. They have so far reduced the amount of dust in the atmosphere as to make negative to reaction those allergens produced on one occasion from air samples in the plaintiff's plant. Indeed, this is one of the mysteries of the case. The defendant has sought the advice of specialists,' both of local, state and national repute. Officials from the State Department of Health and from the United States Public Health Service are unable to recommend further installations that will completely absorb 'the dust. This action, then, is, in effect, not one to abate a nuisance but rather to enjoin the activity itself. This is a serious thing to seek even in normal times, when, were it granted, many employees of the defendant would be thrown out of work and .a costly plant would become idle. But far more serious is it in these days of national emergency. This plant is under the supervision of the chemical division of the United States Army. Its product is indispensable to the prosecution of the war. To restrain the defendant at such a time as this is taking a step farther than I would care to go, even were the invasion substantial. The gravity of the harm now caused to the plaintiff is outweighed, it seems to me, by the utility of the conduct of the defendant. The unreasonableness of an intentional invasion is determined from an objective p'oint of view. The question is not whether a reasonable person in the plaintiff's or defendant's position would regard the invasion as unreasonable, but whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable. Regard must be had not only for the interests of the person harmed but also for the interests of the actor, for the interests of the community, and, under the present circumstances, for the nation. Restatement, Torts §826; Anno. 61 A.L.R. 924; Comment 37 Yale L.J. 96; Daniels vs. Keokuk Water Works, 61 Ia. 549; Richards' Appeal, 57 Pa. 105; Ebur vs. Alloy Metal Wire Co., 304 Pa. 177, 155 Atl. 280; Roy vs. Chevrolet Motor Car Co., 262 Mich. 663, 247 N.W. 774; Madison vs. Ducktown S. C. and I. Co., Ltd., 113 Tenn. 331, 83 S.W. 658; Monlezun vs. Jahncke Dry-Docks, Inc., 163 La. 400, 111 So. 886. The plaintiff advances the further claim that section 5908 of the General Statutes, Revision of 1930, expressly affords a right to injunctive relief. The pertinent part of the statute reads that "if any manufacturer shall so carry on his business . as to constitute a nuisance to the public or to individuals, any persons aggrieved thereby may unite in a complaint to the superior court. . .for the discontinuance or abatement of such nuisance.... If... . the court shall be of opinion that the plaintiffs are entitled to a decree, it may make such order.... as it shall find to be necessary." This, it seems to me, is nothing more than the codification of existing law. To obtain relief under its provisions still requires the plaintiff to establish that the invasion affects normal persons in its plant. And the second sentence of the section goes no farther than to call upon the discretion of the court. Indeed, the statute indirectly recognizes the doctrine of balancing conveniences, for it provides that where the court is of the opinion a decree should enter for the plaintiffs, a restraining order does not necessarily follow. The court may, under such circumstances, act, but it is not obliged so to do. From the» foregoing reasoning, it is apparent that no permanent injunction should issue. Similar reasoning requires the dissolution of the temporary injunction, although it would seem that from the angle of a decent respect for the men who are more seriously affected, the defendant ought to refrain from the grinding of the castor bean pomace. Enter judgment accordingly, without costs.

BOOTH, J. The plaintiff is the owner of a certain tract of land located in the Town of Fairfield consisting of about 32 acres upon which are located two buildings, a small swimming pool, a stream of water and a large number of trees. On June 23, 1938, the defendant, as Highway Commissioner of the State, acting by virtue of various legislative enactments concerning the layout of the so-called Merritt Highway, filed with the clerk of the court for Fairfield County a condemnation certificate as to 9.21 acres of said land in which damages were assessed at $8,780.67 in favor of the plaintiff. The land described in the above certificate contains the two aforesaid buildings, swimming pool, a portion of the stream and certain trees above referred to. The taking of this portion of the plaintiff's land leaves him two segments separated from each other by the aforesaid taken land; the southerly segment containing about 15 acres and the northerly segment containing about seven acres. The plaintiff claims that the establishment of the highway in the location designated by the aforesaid certificate and maps attached thereto will render both of the remaining segments of his property non-accessible to any highway and that therefore the act of the defendant amounts to a confiscation of the entire tract. He also claims that the legislative enactments concerning the condemnation of land for the Merritt Highway contain no authority to pay for damages resulting from injury to the right of access to adjoining property of an owner and seeks to restrain the defendant from proceeding to take possession of the land condemned. It did not appear that the defendant in his individual capacity did or threatened to do anything which would cause the plaintiff any damage but that all of the acts complained of were done by the defendant in his representative capacity. Whether the $8,780.67 assessed as aforesaid in favor of the plaintiff includes an element of damage for the non-accessibility of his remaining land did not appear in evidence, but assuming that it was not included, the fundamental question which the motion presents ÍS' whether the plaintiff under the circumstances has or has not an adequate remedy at law. In the opinion of the undersigned he has such a remedy. The so-called Merritt Highway from Stratford to the New York line, by virtue of chapter 282 of the Public Acts of 1927, was included in the trunk line system of highways. Section 1528 of the General Statutes, Revision of 1930, provides, among other things, that the Highway Commissioner may take any land he may find necessary for the layout of any trunk line highway and provides for the payment to the owner of such land so taken of "all damages . . . resulting from such taking." The procedure for the assessment of such damages is also provided for in the above statute and the payment therefor is provided for in the succeeding section. Section 1531 of the General Statutes, Revision of 1930, provides a right of appeal to any person claimed to be aggrieved by such assessment and a re-assessment thereof may be had thereunder. These sections appear to apply to the highway in question as the only references therein are to trunk line highways and as previously stated the Merritt Highway is a trunk line highway. It is a general rule of law that the owner can recover damages for a direct injury to his right of access. Park City Yacht Club vs. Bridgeport, 85 Conn. 366, 82 Atl. 1035. If, then, as claimed by the plaintiff, the taking of the land described in the condemnation certificate of the defendant in fact renders his remaining land or any portion thereof inaccessible to any highway, he would be entitled to have such element of damage included in his assessment. If such is not included in the present assessment as filed it may properly be urged on the appeal which counsel for the plaintiff conceded is now pending. In view of the foregoing it is apparent that the plaintiff has no cause of action against the defendant in his individual capacity and that insofar as the cause against him in his representative capacity is concerned the plaintiff has an adequate remedy at law. For the foregoing reasons the motion for a temporary injunction as made is hereby denied.

Memorandum of decision in action against abutting owner to recover for injuries sustained in fall on sidewalk. FOSTER, J. County Street in New Haven runs north and south. Goffe Street runs east and west and intersects County Street. On the southeast corner of County and Goffe Streets is a building, which on December 6, 1940, was owned by the defendant and used by her as a tenement house, the lower floor being occupied and used as a store. On the west side of the building near the southwest corner thereof there had existed for several years an eight-inch galvanized iron pipe, running from the roof of the building down to the entrance to a sewer pipe just above the level of the ground, the use of the pipe being to carry rain water and water caused by the melting of snow and ice from the roof of the building to the sewer. Such pipe had in some way become dented and broken about four feet above the ground and had been in that condition for a long time before December 6, 1940. By reason of such break in the pipe, water was accustomed to flow from the pipe across the sidewalk adjacent to the building at a location near the pipe. It is conceded that George Kaufman was the general agent of his mother, the defendant, in the care and maintenance of the tenement house and the land upon which it stood. George Kaufman testifies that "someone ran into the pipe in the fall", and that he called it to the attention of one Lakoff, a sheet iron worker, who repaired the pipe by replacing the entire pipe with a new pipe on January 3, 1941. What Lakoff did to the pipe after noon on December 6, 1940, is only considered for the purpose of determining' that George Kaufman knew during a period of several weeks before December 6, 1940, that the pipe was so defective as to permit water to flow across the sidewalk and did not use such care as would cause the defect to be mended before December 6, 1940. Snow fell on December 4, 1940, and continued up to 3:05 p.m. on December 5th. Oh December 5, 1940, the temperature rose as high as 35 degrees. On December 6, 1940, the temperature did not rise higher than 25 degrees. On the morning of December 6, 1940, the snow was shoveled from the sidewalk by men employed by George Kaufman. From the pipe there extended all the way across the sidewalk an. area of "glassy, shiny ice" of substantial area. Such ice was caused by the leakage of water from the defective drain pipe. About- noon on December .6, 1940, the plaintiff was walking north on County Street on the sidewalk upon which was the ice above mentioned. She saw the area of ice extending across the sidewalk and advanced with much care. Notwithstanding the care that she used in crossing the area of ice, she fell and received injuries. The proximate cause of the plaintiff's fall and injuries was the failure of the defendant to use reasonable care to keep her premises in such condition as not to endanger the plaintiff in her lawful use of the highway. Ruocco vs. United Advertising Corp., 98 Conn. 241, 247; Kane vs. New Idea Realty Co., 104 id. 508, 515. The defendant claims that the plaintiff cannot recover in this action, because of a variance between the complaint and the proof. In the action as instituted, Sarah Kaufman and the City of New Haven were named as defendants. In the first count is set forth the plaintiff's cause of action against Sarah Kaufman. In the second count is set forth the plaintiff's cause of action against the City of New Haven. On April 14, 1942, in open ' court the plaintiff by her counsel orally withdrew her action against the City of New Haven and was directed by the court to make such withdrawal in writing, which she did on April 15, 1942. In the second count wherein is set forth the cause of action against the City of New Haven, it is alleged that the plaintiff when injured was walking on Goffe Street—not County Street. In the first count it is alleged that when injured the plaintiff was walking on the sidewalk "in front of the defendant's premises." All of the evidence was to the effect that the plaintiff fell on the sidewalk on County Street. County Street bounds the defendant's premises on the west—the building being adjacent to the sidewalk. The drain pipe was near the southwest corner of the building—'the County Street side. There was no question or confusion or surprise throughout the trial as to the location of the area of ice upon which the plaintiff fell. The defendant claims that on the morning of December 6th the defendant caused the ice on the County Street sidewalk to be covered with ashes. The evidence on this question is conflicting. The testimony as to this question given by the defendant's witnesses is not in accord. I find as a fact that the defendant did not cover the ice in question with ashes on December 6, 1940, before the plaintiff fell. The plaintiff fell upon her back and was assisted to the home of a friend, where she remained until that evening. She suffered contusions and sprains of the muscles of her back, neck, shoulders, buttocks and coccyx. On the evening of December 6, 1940, she was removed to her home, where she was totally incapacitated and remained in bed for a period of eight weeks. She was partially incapacitated until July 1, 1941. During all this time, even up to the present, the plaintiff has suffered much pain. For 15 years prior to the receipt of her injuries the plaintiff had been a laundress, earning $18 a week. During the months of March, April, May and June, 1941, she was able to work only one-half day each week earning $1.50 per week. During the eight weeks that she was in bed she was attended by two women, the fair value of whose services to her in nursing was $1.50 per day. Her doctor's bill was $20. She spent $4.90 for medicines and liniments. The doctor's bill was small, because she required little medical treatment, and her doctor was a man of integrity. Her recovery depended upon immobility, rest and the application of hot packs and massage. The total damage of the plaintiff as claimed in her complaint and proved by a fair preponderance of the evidence is $1,799.40. After the institution of this action, the City of New Haven paid the plaintiff $250 for a covenant not to sue for recovery on account of her damage suffered as alleged in the complaint. This sum must be deducted from the amount found to be the plaintiff's total damages. Judgment is rendered that the plaintiff recover from the defendant, Sarah Kaufman, damages of $1,549.40.

ELLS, J. This is an appeal from an order of the Public Utilities Commission revoking the plaintiff's certificate or franchise for the operation of three bus lines in Norwalk. Restrictions requiring a minimum ten cent fare were imposed on all three routes. The only route directly serving the same territory as the established C.R. & L. Co. route along West Avenue is route three, and an additional restriction was imposed requiring that no passengers be picked up between a point 1,000 feet northwest of the junction of New Canaan and Bartlett Avenues and the South Norwalk railroad station. The revocation complained of followed a citation setting forth numerous alleged violations as to route three, a hearing thereon, and a finding that the respondent "deliberately violated the restrictions in his route three for the gain involved." Based upon the evidence then presented, "and upon the records of the Commission involving the respondent herein-before referred to" the Commission concludes Fabrhio is not a fit and proper person to operate a motor bus service, and therefore revoked his license. Upon the trial of the appeal the first important issue con' cerned a matter of procedure. The plaintiff contended the trial was de novo, and that this Court ought to hear, or re' hear, the testimony of all the witnesses. The Court was in sympathy with this idea, because it felt it could reach a more satisfactory result if it heard and observed the various wit' nesses, but upon careful consideration of subdivision (g) of section 1414c of the Cumulative Supplement to the General Statutes (1935), I concluded the Legislature had intended to change, and had actually changed the former procedure, and I took the case upon the record and the transcript certi' fied by the Commission. Doubting the correctness of my ruling, I have reconsidered the matter, but have now reached the same conclusion. The statute provides that "The court, upon such appeal, shall review, upon the record so certified, the proceedings of the commission and examine the question of the legality of the order, authorisation or decision appealed from and the propriety and expediency of such order . so far as said court shall have cognisance of such subject and shall proceed thereon in the same manner as upon complaints for equitable relief." The last clause is confusing and be' clouds an otherwise clearly expressed statute. The word "thereon" means something, but what that something is is in doubt. But the doubt is dispelled by the next sentence, which provides that "If, upon hearing such appeal, it shall appear to the court that any testimony has been improperly excluded by the commission or that the facts disclosed by the record are insufficient for the equitable disposition of the appeal, it shall refer the case back to the commission to take such evi' dence as it may direct. . . ." This is conclusive, for if this Court heard the testimony there would quite obviously be no need of referring it back to the Commission to take the same testimony. The reason for this departure from our former procedure is obvious, and it is unnecessary to point out analogies. Inch dentally, it reflects the faith and confidence which the Legisla' ture justly reposes in our Public Utilities Commission. The second main point is the claim that this statute is un' constitutional. I pass lightly over this contention, for it is not the province of this Court to declare statutes unconstitu' tional unless it is fairly clear that they do contravene the Constitution. It does not so appear in this case. The remaining question is whether the order appealed from is arbitrary and unreasonable. Based on the hearing of November 8th alone, I conclude that the Commission was legally justified in its action. The only doubt arises from the fact that the violations had to do entirely with route three, and that possibly the certificate holder did not sanction, or even know of the violations. But they were numerous and persistent, even flagrant. The Commission heard all the witnesses face to face, including the owner, and I do not feel disposed to disturb its conclusion that the owner knew of them. Like other triers of fact, they are entitled to draw reasonable and logical inferences from the evidence. Fabrmio's certificate carried three routes. "The Commission may revoke . . . any certificate . . . for wilful and repeated violations." It has properly found those violations. Wrapped up in the point also is the question whether he is a fit person to possess the certificate; and they have found he is unfit. The plaintiff complains, with some reason, that the witnesses were employees of a competitor, the C. R. & L. Co., and were biased. The Commission sised them up, considered their relationship, and chose to believe them. A cold page does not reveal too much, but a reading of the transcript of testimony supports the conclusion reached—especially in the absence of testimony available to the plaintiff. The remaining testimony has to do with the so-called "bad boy" theory. The Commission had had other experiences with Mr. Fabrico which it set up in full in the record. It based its final conclusion in part upon this previous experience. As hereinbefore stated, I think there is enough without this. But I believe also that it has a legal right to consider its past records, and that this Court may legally consider such as are fully set forth in the appeal record. Its right to revoke is based on "repeated" violations. The board is a committee of experts, and possesses much technical and exploratory machinery. It keeps in constant touch with all who hold its certificates. It watches, inspects and supervises them. This Court has no such facilities. As long as the Commission uses its experience fairly, and sets it up in full detail on appeal, it is exercising an almost necessary right. If it is not the law, it ought to be; there is every indication, from the wording of the various statutes creating the Commission and defining its powers, that such is the law. Judgment is to be entered dismissing the appeal.

Memorandum of decision on motion for summary judgment. DEVLIN, J. The son of the defendant enrolled in the course given by the plaintiff under the terms of which he agreed to pay $172 at the rate of $8 monthly. Two pay' ments were made and then the son notified the plaintiff of his disaffirmance of the' agreement. He was a minor at the time of entering into the agreement and in order to protect its interests the plaintiff secured the signature of the defendant guaranteeing the amount set forth in the application. Upon default, suit was instituted and a motion for sum' mary judgment filed setting out the above facts and asking for judgment in the amount of $156. The defendant in his counter affidavit has set out the dis' affirmance .of the contract; that the payments made fully com' pensate the plaintiff for any services or materials furnished; and that since the notice no services of any nature, whatever [have been rendered by the plaintiff. The plaintiff then made the present motion for judgment on the ground that the answering affidavit establishes that the defendant is legally indebted to the plaintiff. As a general rule, the liability of a surety ends with the extinguishment of the obligation of the principal. 50 C.J. Principal and Surety §150, p. 92. This rule is subject to an exception in the case of a surety for a minor or other person incapable of contracting, and the extinction of the contract and discharge of the principal by operation of law, because of the principal's legal incapacity, does not release the surety. Anno. 24 A.L.R. 838, 844. Where, however, the infant dis-affirms the contract and restores the other party to status quo the surety is discharged thereby. Keokuk County State Bank vs. Hall, 106 Iowa 540, 542, 76 N.W. 832; Seeley vs. Seeley-Howe-Le Van Co., 128 Iowa 294, 103 N.W. 961. Upon repudiation it is sufficient if the infant restores all that he has received under it that is capable of restoration. International Text Book Co. vs. Doran, 80 Conn. 307. This presents a question of fact which the defendant is entitled to support by evidence. Another matter the defendant is entitled to be heard on concerns the question of damages. The plaintiff is making a claim for the full contract price but its performance has accomplished only a small part of the original undertaking. To grant its request would in effect be giving it specific performance of an agreement on even better terms than originally contracted for because of the expense saved in not having to complete the course. "The general rule regarding breaches of contract. . .is that the injured party shall recover that compensation which will leave him as well off as he would have been had the contract been fully performed." Lee vs. Harris, 85 Conn. 212, 214. Where performance on the part of the plaintiff would have entailed expense to him, he is not entitled to the contract price without deduction being made for the expense of performance. 25 C.J.S. Damages §79, p. 581. The plaintiff cites the case of International Textbook Co. vs. Martin, 221 Mass. 1, as supporting its claim for the full contract price but the court is of the opinion that the ruling in that case can be supported only on the assumption that there was no saving to the plaintiff by the defendant's failure to take the instruction contracted for. This, however, represents what is known as the Massachusetts rule. The Michigan rule is that the plaintiff must affirmatively prove the difference between the contract price and the cost of giving the service, and failing to do so can recover only nominal damages. Walton School of Commerce vs. Stroud, 248 Mich. 85, 226 N.W. 883; International Textbook Co. vs. Schulte, 151 Mich. 149, 151, 114 N.W. 1031; International Text-Book Co. vs. Jones, 166 Mich. 86, 88, 131 N.W. 98, 99. Other jurisdictions have accomplished the same result by placing the burden on the defendant to prove any saving made by the plaintiff. International Text-Book Co. vs. Martin, 82 Neb. 403, 117 N.W. 994; International Correspondence School vs. Crabtree, 162 Tenn. 70, 34 S.W. (2d) 447, 78 A.L.R. 330. The application of the Michigan rule would seem to accomplish a more equitable result. That the plaintiff would be allowed an unjustifiable advam tage by not following the above rule is noted from the fact that under section four of the agreement, it agrees to furnish motor coach or bus transportation from the station nearest the applicant's home to Chicago and return for the purpose of attending its laboratory for final training. Undoubtedly this is an item of expense which was given consideration when the cost of the course was figured and one which they will not be called upon to pay in view of the default. The' court is of the opinion that the counter affidavit has set out sufficient matter for defense and, accordingly, judg' ment on the motion is denied.

Memorandum of decision in action for divorce. FOSTER, J. The plaintiff is a woman now 37 years of age; the defendant is a man 43 years of age. They were married on June 4, 1932. For some years prior to that date the defendant was the owner of a store in New Haven, where he conducted the business of selling radios and parts thereof, and repairing radios and going about servicing radios. He also furnished and operated amplifiers at meetings and dinners •where such operation was desired. Prior to his marriage his brother worked for him. His brother would open the store in the morning and the defendant would not arrive at the store until 10:30 to 11:00 o'clock in the forenoon. The defendant would then continue at his business all day and keep the store open evenings. For some time before June 4, 1932, the plaintiff's mother conducted a restaurant in New Haven. The plaintiff, at times, worked for her mother as a waitress in the restaurant. The defendant, having closed his store in the evening or having finished some task of servicing a radio or operating an amplifier, was in the habit of going for- his supper to the restaurant conducted by plaintiff's mother. He would arrive at the restaurant at 9:00 or 10:00 o'clock and, at times, as late as 11:00 o'clock. There, the plaintiff frequently waited upon the defendant in, serving him his supper. As they became friendly and courtship began and continued, the defendant, at times, took the plaintiff for automobile rides after he had had his supper, returning, at times, not until the early hours of the morning. From this brief recounting of > undisputed evidence it appears that the plaintiff knew before she married the defendant the late hours that he worked. As soon as the plaintiff and defendant were married, the plaintiff went into her husband's store and waited on customers as best she was able. For a time the defendant's brother was absent from business, but he returned. The plaintiff knew nothing about the technicalities of the radio business—and much of the business was technical. At times when she would be waiting on a customer, the defendant or his brother would see or hear that she was not serving the customer satisfactorily and the defendant or his brother would brush her aside and continue with the customer in the hope of satisfying the latter. The plaintiff worked in the store about a year and then she remained in the home provided by the defendant. She became lonesome because the defendant left her alone so much of the time. She sought women friends during the evening. With these women friends she played card games for small stakes—penny games, they called them. She often went to bingo games with these friends. At times she read such books as an ,uneducated person might be ex pected to read. The defendant upbraided the plaintiff for these activities. She would leave word where she was at night but sometimes the defendant would not call for her after he closed his business. On several occasions the plaintiff left her home and city for several days at a time, without telling her husband of her intention to go. She would leave in the home a note telling her husband where she was, or she would write to him after she had left. For parts of three days the court received testimony from witnesses called by the plaintiff and the defendant, who re' lated a multitude of incidents. The plaintiff claims that on several occasions the defendant slapped her. This the defendant vigorously denies. There is no satisfactory corroborating testimony that the defendant ever used any physical violence toward the plaintiff. There is evidence persuading me not to credit the plaintiff's testi' mony as to any such violence of the defendant. That the plaintiff was lonesome is, undoubtedly, true. But she knew the kind of life her husband led before she married him; and at that time she was not a young, inexperienced, impressionable girl, captivated by an attractive man. Before she married her husband she knew what hours he kept and how hard he worked. She thought she was marrying a man of steady habits and one who was the proprietor of a good business and who had an ample income. She, undoubtedly, expected to enter his store and aid him in his business. In a year's time both he and she discovered that she did not have the experience or mental equipment to do this. The occupa' tion of a waitress and that of waiting on customers in a radio store are quite different. If absence from home at night were to be the underlying basic ground for divorce, thousands of families would find themselves in trouble. It may well be that the defendant was at times harsh in his criticism of plaintiff on account of her card and bingo playing, her gaming associates and her choice of • reading mat' ter; but if the plaintiff is to be heard in complaint of the ways of life of the defendant, which she knew before she married him, she cannot well complain of his criticism of her mode of life acquired after they were married. After studiously perusing all of the' testimony and delib' erating upon the case for many weeks I cannot escape the impression that the plaintiff desires a decree of divorce so that she may be free to live her life without obligation to her husband and, at the same time, receive from him a substantial sum by way of alimony. The plaintiff on several occasions absented herself from her husband and then when she chose returned to him and tolerated his treatment of her, whatever it might be. At another time she instituted an action of divorce against him and then withdrew the action. She finally left him in July, 1941, and two months later instituted this action. Our Supreme Court of Errors has said: "Cruelty includes-any wilful act of a human being which inflicts unnecessary pain. . .But there are trials causing much weariness and suffering, which parties to the marriage contract must bear; the policy of the State, as well as the sacred nature of the marriage covenant, requires patient endurance... .It is only when the cumulative effect of the defendant's cruelty upon the suffering victim has become such that the public and personal objects of matrimony have been destroyed beyond-rehabilitation, that the condition of fact contemplated by the intolerable-cruelty clause of the statute... .should be found to exist." McEvoy vs. McEvoy, 99 Conn. 427, 431. This is the law of this State today. I find that the defendant should not be free from censure. He has not done what a reasonably kind man would do to give unto his wife a happy life with him. Nevertheless, I find that the plaintiff has failed to prove by a fair preponderance of the evidence that the defendant has been guilty of conduct toward her that amounts to intolerable cruelty, as that term is interpreted by the law of this State. The plaintiff's complaint is denied and dismissed.

Memorandum of decision in action on note. INGLIS, J. On April 25, 1903, Abel P. Tauner, the defendant's decedent, made his promissory note for $1,500 payable on demand to the order of the plaintiff's father, Urban O. Whitford, with interest at the rate of five per centum per annum. In 1923 Urban O. Whitford handed the note to the plaintiff, saying that he gave it to him, and at that time the father intended to make a gift of the note to his son. He did not, however, indorse it. No part of the principal of the note has been paid. The interest was paid regularly each year by the decedent to the plaintiff from the time that the note was given to the plaintiff until the spring of 1938. The plaintiff's father died in 1928 and in 1934 or 1935 the plaintiff and Tauner had a conversation in which in reply to a question by the plaintiff, Tauner, who was a lawyer, assured him that it was not necessary to have the note changed so as to be payable to the plaintiff personally. Said Tauner died on March 23, 1940, the defendant was appointed administrator of his estate on April 23, 1940, and the period of six months from the latter date was limited for the presentation of claims. The plaintiff's claim was disallowed on December 18, 1940, and this action was instituted on April 16, 1941. The defendant makes three claims. The first is that the note is buried by the statute of limitations. The finding that interest on the note was paid as late as March or April of 1938, however, disposes of that claim. The second contention is that in as much as the plaintiff's father did not indorse the note, the plaintiff never acquired title to the note. It is of course true that in order to negotiate a note so as to carry all of the incidents of negotiability, the note must be indorsed. (Gen. Stat. [1930} §4347, 4348.) That, however, is not the question involved here. The question here is not as to whether this note was "negotiated" but as to whether title or ownership passed by the manual delivery of the note with an intention to make a gift. The Negotiable Instruments Act itself (§4366) recognizes that title to a note may pass without indorsement, at least where the transfer is for value. Aside from that, it is generally held that negotia' tion as provided in the Act is not an exclusive method of transferring ownership, but that title may be passed by delivery without indorsement, provided the transfer in some manner shows the making over to another of the right or interest in the note. 10 C.J.S. Bills and Notes §226, p. 717. Moreover, in Connecticut the case of Brown vs. Brown, 18 Conn. 410, holds that a gift causa mortis is valid where there is a delivery of a note unindorsed with an intent to make a gift causa mor' tis. If such a delivery and intent is all that is necessary to complete a gift causa mortis there is no reason why such a delivery with an intent to make a present gift does not constitute a good gift inter vivos. It is therefore concluded that the gift of the note to the plaintiff was sufficient to transfer the ownership of the note to him. The third point made by the defendant is that, granting that the ownership of the note passed to the plaintiff, nevertheless, taking the note as he did without indorsement, he took it subject to any infirmities therein, and that one of those infirmities appears to have been that the note was outlawed at that time. It is of course true that no evidence was introduced on the trial that interest had been paid on the note within the six years prior to the date of the transfer of the note to the plaintiff. But however that might be, Tauner is estopped by his statements in 1934 or 1935 acknowledging the validity of the note to now claim that it was outlawed at the time the plaintiff acquired it, and in any event the continued payments of interest down to 1938 would remove the bar of the statute. In his brief the defendant refers to a claimed variance between the complaint and the proof as regards the method by which the plaintiff acquired the note. Before the start of the trial the plaintiff was granted leave to amend the complaint so as to allege a gift from his father, with the understanding that a written amendment would be filed later. After that amendment is filed judgment may enter for the plaintiff to recover of the defendant $1,836 and his taxable costs.

INGLIS, J. In 1934, the defendant bank was in a precarious position and needed additional capital. The Reconstruction Finance Corporation offered to invest $100,000 in preferred stock on condition, among other things, that the surplus of the bank be bolstered up by the directors contributing $15,000 in cash. On December 7, 1933, The Federal Deposit Insurance Corporation had examined the bank and reported that certain notes held by the bank, the total book value of which as then fixed by the bank at $125,766.79, were subject to criticism in that each one of said notes would show a loss. On four of those notes it was anticipated that the loss would be total. The remaining 17 of the notes were each partially secured and it was antici' pated that the loss would be only partial. The total loss on all of the notes was estimated at $75,200.71. Between the date of the examination and October 18, 1934, a total amount of $15,911.43 had been paid on these criticised notes. On October 18, 1934, in consideration of the directors of the bank contributing $15,000 to the surplus of the bank, the bank entered into the trust agreement which is referred to in the application. The application is for advice as to whether certain collections made by the bank and later by the receiver on account of the notes referred to in the trust agreement are the property of the bank itself or are to be applied to the trust for the benefit of the directors created by that agreement. The directors claim that under the agreement all collections made on the notes must go into the trust fund for the benefit of the directors until that fund equals $15,000. The receiver claims that collections made up to the book value of the notes less the estimated loss thereon are the property of the bank and that the trust is entitled to only such collections as are made in excess of those amounts. This controversy can be resolved only by determining what, under the agreement, the corpus of the trust was intended to be. If the corpus was intended to be the entire notes referred to the directors are right in their contention. If, however, it was intended that only such portion of each note as had been estimated as loss was to be in the corpus of the trust then the receiver's contention is right. A careful examination of the wording of the agreement indi' cates that it was only that portion of each note which had been estimated as "loss" that was to be subject to the trust. One of the recitals in the agreement reads as follows: "Where as it was agreed by the Bank that in consideration of the contribution of said sum of $15,000.00 in cash by the afore* said persons certain criticized and/or unacceptable promissory notes of a fair amount, not exceeding $60,000.00, said notes being part of $75,000.00 face value of notes classified as "loss" by the Federal Deposit Insurance Corporation Examination of December 7, 1933, should be held in trust by the said Bank for the benefit of the aforesaid persons.... " Then the agreement clause itself reads as follows: "Now, therefore, these presents witness that the said The East Hamp' ton Bank and Trust Company hereby declares that it holds the title to the criticized and/or unacceptable promissory notes of a fair amount not exceeding $60,000.00 listed in the Schedule attached hereto and made a part hereof, said promissory notes being part of $75,000.00 face value of notes classified as "loss" by the Federal Deposit Insurance Corporation Examination of December 7, 1933, in trust for the benefit of the aforesaid per* sons who contributed the said sum of $15,000.00 to the capital and surplus of said East Hampton Bank and Trust Company; but only to the extent of such, payment.... " In other words, it is expressly provided that the corpus of the trust shall be made up of obligations to the amount of $60,000.00, which obligations were listed in the $75,000.00 total which was listed as "loss" by The Federal Deposit Insur' anee Corporation. The only item of $75,000.00 in the F. D. I. C. examination is the total of those portions of the criticized notes which were estimated to be losses. Moreover, reference to the schedule attached to the agree' ment, which the agreement itself specifies as listing the obliga' tions which are to form the corpus of the trust, discloses that that schedule is entitled "Schedule Of Criticized And/Or Un' acceptable Promissory Notes Referred To In The Foregoing Agreement" and that schedule has three columns headed respectively "Name of Maker", "Amount on Dec. 7, 1933" and "Amount Set Up In Trust." Under the column headed "Amount Set Up In Trust" is listed an amount which is equal to the amount which the F. D. I. C. had estimated would be the loss on each note. On the face of the agreement itself, therefore, the expressed intention of the parties was clearly to place in the trust only that portion of each of the promissory notes as has been estl' mated to be "loss." That such was the intention of the parties is fortified by a consideration of the circumstances under which the agreement was made. It must be borne in mind that the purpose of the directors in contributing the $15,000 was to improve the con' dition of the bank. It had been estimated that the bank stood to lose $75,000 on account of the notes in'question but that the balance of these notes was good. It would not improve the statement of the bank to put $15,000 into its assets if at the same time securities owned by the bank then of a book value of $125,000 and recognized as being good at least to the extent of $50,000 were in substance imposed with a lien to se' cure the repayment of the $15,000. The Bank's statement would be improved by the contribution of $15,000 only in the event that the Bank continued to hold for itself so much of those securities as was estimated as being good in making up its statement. On the other hand, inasmuch as the statement was being made up on the assumption that certain portions of each note were loss it was only fair to let the directors who were making the contribution get the benefit of any salvage which might be made on those losses. Certain of the directors have testified that it was their un' derstanding of the contract that such collections as were made on the notes as a whole, that is, on the portions of the notes which had been listed as good, should be held for their benefit until the $15,000 had been repaid. On all of the evidence it cannot be found that their present recollection of the intent which they had in mind at the time the contract was signed is accurate or correct. But even though it were, the question is not as to what the intent of some of the parties to the contract was, but rather as to what is the intent which is expressed in the contract. It is concluded that the intent of the parties expressed in the contract was that the corpus of the trust estate was to be only such portion of each of the notes as had been estimated as being "loss" as those items are listed in the last column of the schedule annexed to the contract. From which it follows that, on each note, taken separately from the others, all payments made thereon, whether of principal or interest, belong to the bank free of the trust until the principal of that note is reduced to the amount shown in the third column of the schedule, and any payments thereafter made on account of that note should be held as a part of the corpus of the trust for the benefit of the directors until the amounts so credited to the trust equal $15,000. In accordance with that conclusion the questions propounded in the application are answered as follows: (a) All amounts collected by the receiver down to May 31, 1938, on account of the notes in question are the property of the defendant bank. (b) Collections made'in the future on each note should be treated as the property of the bank until the amount collected pays the note down to the amount listed in the column headed "Amount Set Up In Trust" on the schedule annexed to the contract. Payments thereafter received on each note respectively are to be credited to the account of the "directors' trust." (c) The balance of $479.15 now credited to "Directors Trust Accounts" is the property of the bank and is not properly credited to the directors' trust.

BALDWIN, J. This action was brought claiming a fore' closure of a mortgage upon and possession of the mortgaged real 'estate which is located in the Town of Fairfield. The plaintiff, Bertram H. Cramer and Mary F. Doran, are the ex' ecutor and executrix of the last will and testament of Sallie Blauvelt, late of White Plains, in the State of New York, deceased, appointed by the Surrogate's Court of New York County, and there duly qualified. No ancillary probate appears to have been had upon this estate in this State. The defendant has demurred, "because the plaintiffs have not been appointed ancillary executors by any Court of Probate within the State of Connecticut, said plaintiffs therefore having no authority in any official capacity before this Court." From the facts which appear upon the face of the record the parties to the action are all residents of White Plains in the State of New York, the plaintiffs having been appointed executor and executrix by a Surrogate's Court in that State and having there qualified as such executor and executrix, but having failed to acquire ancillary probate in this state. A cause of action is, however, set forth in the complaint. The defect which the defendant would take advantage of does not lie in the failure to set forth a cause of action; it lies in the fact that the plaintiffs have no right now to invoke the aid of our Courts. "Executors and administrators are officials only of the court in the State where they were appointed, and consequently neither executors nor administrators appointed and qualified in a foreign jurisdiction can sue here until qualified here." Cleaveland, Hewitt & Clark, Probate Law and Practice of Conn., §189, p. 224. "The qualification of an administrator or executor in a foreign jurisdiction does not, as such, give him the right to administer upon assets here, or to sue to recover a debt due here. He must first take out ancillary administration." Equitable Trust Co. vs. Plume, 92 Conn. 649, 654, citing Hobart vs. Conn. Turnpike Co., 15 Conn. 145, 147, and Riley vs. Riley, 3 Day 74, 88. Since the complaint sets forth a cause of action the method of attack should not have been by demurrer. The defect lying in the fact that the plaintiffs have now no right to sue in our Courts, the defendant should have moved to erase the cause from the docket. In Equitable Trust Co. vs. Plume, supra, the defendants pleaded in abatement and also filed a motion to erase in the trial court. At page 653 of the opinion, the Court says: "The trial court decided the motion to erase and not the pleas in abatement, and it decided merely the question of law arising upon the facts of record and ignored consideration of questions dependent upon facts extraneous to the record. . . . The ground upon which the trial court granted the motion to erase, was that upon the facts of record the plaintiff trust company did not have the right as executor to maintain this action in Connecticut." Since a defect apparent upon the face of the record exists and which goes to the jurisdiction of the Court and is fatal, the Court, of its own motion should direct that the case be erased from the docket. The case may therefore be erased from the docket.

WYNNE, J. The defendant's brief is well written and is persuasive in argument that there is no difference in principle between husbands and wives in connection with motions such as the present. The difficulty is that only by force of statute can orders be made in divorce actions. Allowances to a wife to prosecute or defend are in the nature of alimony pendents lite. Such orders are made by virtue of the statute (Gen. Stat. [1930] §5182) to a woman on complaint or cross-complaint. The Court is aware that there is ample authority for the application of equitable principles prompted by public policy. This does not permit judicial encroachments. Until the statute was changed no Court would have been justified in permitting women to serve on juries on the theory that there was no longer any principle why they shouldn't so serve. The statute had to be changed so that defined qualifications did not include the term "men." No Court would have held that the term was generically comprehensive rather than restrictive in definition and use. So here where the statute says "woman", this Court holds that it has no right to include men. The motions are denied.

QUINLAN, J. Motions for disclosure were intended in part to shorten court actions by subjecting certain kinds of evidence to the examination of one's opponents before trial. In this special defense certain damage is claimed, and by specific statement, paragraphs "5"' and "6" of the special defense recite the names of those to whom goods were sold and of those with whom the defendant lost its good reputation. Surely the defendant can support those allegations and if it has records or documents in its possession, an inspection of which will aid the plaintiff in meeting the defense without the loss of the time of the Court, as would be the case if the matter were brought to the plaintiff's attention for the first time on trial, I believe such an inspection should be granted. After all, a substantial claim is made as a result of the para' graphs referred to, and in these busy times courts, counsel and parties cannot be subjected to the surprise which compli' cated records sometimes precipitate, and therefore it is my inclination to endeavor to avoid such a situation. • Motion granted.

INGLIS, J. Many of the grounds of demurrer assigned are the same grounds assigned in the pleas in abatement (6 Conn. Sup. 215) or the motions to quash (6 Conn. Sup. 227) in these proceedings. The reasons for overruling them which appear in the memoranda on those pleadings still obtain here. So far as practically all of the other grounds of demurrer are concerned, they all rest back on the fact that the information alleges certain overt acts in each of which only a limited number of the accused are alleged to have participated. Counsel for the accused seem to construe the information as though it were made up only of those allegations of overt acts, forgetting that the gist of the information is the charge that all of the accused entered into a single conspiracy to defraud the City of Waterbury by the use of unlawful means. That is the charge set forth in the first few pages of the information. All of the rest of the information is taken up with the allegations setting forth the unlawful means adopted by all of the conspirators and put into operation by various groups of the conspirators and also overt acts done by various conspirators in pursuance of the conspiracy. When it is borne in mind that the information charges in the main that all of the accused were parties to a single conspiracy and that all of the allegations of other specific acts are simply incidental to that main charge, it becomes apparent that the grounds of demurrer are not well taken. Take for instance the claim made by some of the accused that the statute of limitations has barred the prosecution. That is based upon the contention that the overt acts alleged are, at most, misdemeanors and, therefore, outlawed after one year. It may be true that some of the overt acts alleged to have been done in pursuance of the conspiracy are merely misdemeanors, but the real charge is that of conspiracy, a continuing conspiracy, which operated down to the date of the information. A prosecution for conspiracy is barred only after five years from the date that it ceased to operate. It is therefore obvious that the conspiracy here charged is not barred by the statute of limitations. So it is with reference to the claim made by the two Coppetos and Purdie, that the only charge against them is that they struck a good bargain with the city and that is no crime. Whether the overt acts in which it is charged that the Cop petos or Purdie participated, in themselves, constitute a crime, is immaterial. The fact is that they are charged with unlaw' fully conspiring with the other accused, and that is a crime. Several of the accused say in substance that it prejudices them to charge them with separate misdemeanors in the ab' sence of facts from which it can reasonably be concluded that those specific acts were a part of the conspiracy. The answer of course, is that they are not charged only with those mis' demeanors. The charge is that they were members of a con' spiracy and it is charged that the misdemeanors were com' mitted in pursuance of that conspiracy. The ground of demurrer which is, in substance, that there is no allegation that the overt acts done by the various ac' cused respectively were done with the knowledge that they were done in pursuance of any conspiracy, likewise fails when it is remembered that each of the accused is charged with having been a member of the conspiracy. If he was a mem' ber of the conspiracy it follows that he had knowledge of the fact that the acts which he did were being done in pursuance of that conspiracy. He also was chargeable with knowledge of the acts done by any of his fellow conspirators if they were done, as it is alleged they were, in pursuance of the con' spiracy. And all this is true whether the particular conspirator was an original member of the conspiracy or joined it later. Still another ground of demurrer set up by several of the accused is that there is ho privity among the various groups of the accused, each of which group is charged with having committed overt acts separate and distinct from those committed by the other groups. It is claimed that there is no connection alleged among the various groups. And from this follows the other ground of demurrer, namely, that there has been a misjoinder of causes of action or of alleged crimes. It is of course true that, if this information charged a group of several little conspiracies, each conspiracy involving different groups of accused, it would be demurrable for mis' joinder. It is fundamental that it is not permissible to join in one information charges of two or more separate crimes against different individuals or groups of individuals. How' ever, as pointed out at the beginning of this memorandum, the allegation in this information is that all of the accused con' spired together. It is one single conspiracy which is charged. Proof simply of a number of separate independent conspiracies would not be proof of the conspiracy alleged. Terry vs. U. S. 7 Fed. (2d) 28 (C.C.A.); Wyatt vs. U.S., 23 id. 791 (C.C.A.); Tinsley vs. U. S., 43 id. 890 (C.C.A.); U. S. vs. Siebricht, 59 id. 976 (C.C.A.). That, however, is a matter of proof. U. S. vs. McConnell, 285 Fed. 164 (D.C.); Wilson vs. U. S., 190 id. 427 (C.C.A.). In ruling upon a demurrer the Court is not concerned with what the proof may be. In this case all of the allegations of fact contained in the information are admitted for the purpose of the demurrers. And the allegation of the information is that there was one single conspiracy in which each and all of the accused were conspirators. In the face of that allegation, it certainly can not be held that the information fails to allege that there was privity among all of the accused. It can not be held that there has been a misjoinder of causes of action. For the foregoing reason all of the demurrers are overruled.

QUINLAN, J. The defendant has filed a motion to vacate clerk's order in re oyer. The motion is erroneously signed "The Defendant" by Nevas & Nevas, his attorneys. Never' theless the motion to vacate should be passed upon. The plaintiff has set up Exhibit B as the written instrument upon which he relies. The rule simply requires by way of oyer that a copy, and not the original, be filed. This has been done. It must be assumed that this is the only contract on which he relies and that he will not undertake on the trial to claim other memoranda as and for the contract. If that is his purpose copies of such memoranda should now be filed. If, however, there is memoranda in the way of exhibits which buttress the contract evidentially, I know of no requirement that his evidence shall be filed. This does not mean that he can escape the effects of alleging a contract which he is bound to rely upon. There is no reason why a demurrer cannot be interposed to the pleading on the assumption that Exhibit B is the contract. The clerk's order is modified in so far as to conform with this memorandum.

Memorandum of decision on demurrer and motion to expunge. BALDWIN, J. The defendant, as its second defense, has pleaded assumption of risk. The language it has employed is the following: "The plaintiff knew, comprehended and appreciated or should have known, comprehended and appreciated that unless she took steps to protect herself she would be liable to injury through falling on said stairs; yet, notwithstanding she assumed the risk of injury by passing through an unlighted second floor hallway and attempting in the darkness the descent of the unlighted stairway." The plaintiff demurs because there is no allegation that the plaintiff was negligent or unreasonable in encountering the risk. The defense of assumption of risk as pleaded is sufflcient to withstand any attack. There is no occasion to allege that the plaintiff was negligent or unreasonable in assuming the risk. The demurrer is overruled. As a third defense defendant has alleged that the cause of action set forth in the amendment to the complaint is barred by the statute of limitations and plaintiff has moved to expunge this defense upon the ground that this is an allegation of a legal conclusion and not one of fact. The allegation is not of a legal conclusion. It is an allegation of fact. It proceeds, however, upon a mistaken hy pothesis—that is that the amendment to the complaint sets up a new cause of action—one that was not brought within the statute of limitations. This is a misconception of the effect of the amendment. -It sets up no new cause of action. The amendment sets forth more explicitly the negligence which is claimed was the cause of the injury for which recovery is sought and the amendment relates back to the complaint, so far as the operation of the statute of limitations is concerned. Vickery vs. New London Northern R.R. Co., 87 Conn. 634, 641. The motion to expunge is upon the wrong ground, but since the defect is plain, the third defense should be expunged, and therefore the motion is granted. (Practice Book [1934] §63.)