291 A.2d 240 (Conn. 1971), State v. Bitting

Citation:291 A.2d 240, 162 Conn. 1
Opinion Judge:LOISELLE, J.
Party Name:STATE of Connecticut v. AL. J. BITTING.
Attorney:John R. Williams, New Haven, for appellant (defendant)., Jerrold H. Barnett, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., Richard P. Sperandeo, Chief Asst. State's Atty., and David B. Salzman, Asst. State's Atty., for appellee (state). John R. Williams, for th...
Judge Panel:In this opinion the other Judges concurred. Before HOUSE, CJ, and COTTER, THIM, RYAN and LOISELLE
Case Date:November 23, 1971
Court:Supreme Court of Connecticut
 
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Page 240

291 A.2d 240 (Conn. 1971)

162 Conn. 1

STATE of Connecticut

v.

AL. J. BITTING.

Supreme Court of Connecticut.

Nov. 23, 1971

Page 241

[162 Conn. 2] John R. Williams, New Haven, for appellant (defendant).

Jerrold H. Barnett, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., Richard P. Sperandeo, Chief Asst. State's Atty., and David B. Salzman, Asst. State's Atty., for appellee (state).

Before HOUSE, C.J., and COTTER, THIM, RYAN and LOISELLE, JJ.

LOISELLE, Associate Justice.

The defendant, Al Joseph Bitting, was tried Before a jury on a substituted information charging him in the first count with assault with intent to kill in violation of General Statutes § 54-117, and in the second count with carrying a [162 Conn. 3] pistol or revolver without a permit in violation of General Statutes § 29-35. After the state rested, the defendant offered evidence to support his claims of alibi and intoxication. He then filed a written motion requesting permission to testify without being subject to impeachment based on his prior felony record. The trial court denied the motion and the defense rested without offering testimony by the defendant. Prior to submitting the case to the jury, the defendant moved for a directed verdict on both counts. The court granted the motion as to the second count but denied it as to the first count. The jury returned a verdict of guilty of aggravated assault on the first count.

The defendant assigns as error the court's refusal to charge that a specific intent in a necessary element of the crime of assault; the admission of evidence concerning possession of a dangerous weapon, one week prior to the date of the aggravated assault for which the jury found him guilty, and the denial of his motion for permission to testify without being subject to impeachment based on his prior felony record. The remaining assignments of error either have been abandoned or are considered as abandoned because they have not been pursued in the brief. Mendez v. Mendez, 160 Conn.

Page 242

2 37, 239, 278 A.2d 795; Labbadia v. Bailey, 152 Conn. 187, 190, 205 A.2d 377.

The state's claims of proof may be summarized as follows: At the time of the trial the defendant and his wife, Geneva, had been separated for four years. Mrs. Bitting had three children; the oldest was Johnny Pate, age eleven. At about midnight on August 26, 1969, Mrs. Bitting was lying on her bed with Roy Anderson, watching television. She heard two sounds which she believed to be gunshots [162 Conn. 4] and noted 'a smell of powder.' Anderson pushed her onto the floor and leaped through a closed window. The gunfire awakened Johnny Pate, who saw the defendant outside the broken window and spoke to him. Johnny Pate did not observe the defendant with a gun on him that evening, but he had observed him with a pistol in a holster approximately one week earlier. Officer Jefferson Lee of the New Haven police department was dispatched to Mrs. Bitting's home at approximately 12:30 a.m. on August 27, 1969. On arriving, he observed a man running down the street but was unable to apprehend him. Both the and Mrs. Bitting observed evidence of gunshots.

Among the claims of proof of the defendant are that he was in the presence of Almer Godwin continuously throughout the night of August 26, 1969, at a location removed from the incident; that he was so intoxicated he was unable to walk without assistance; and that 'he was passed out' most of the time.

The defendant assigns as error the court's refusal to charge that 'to constitute an assault, that attempt or offer must be found beyond a reasonable doubt to have been an intentional act.' The defendant requested, further that the court charge that specific intent is an essential element of the crime and that 'if the jury finds that the evidence of intoxication is sufficient to create a reasonable doubt as to whether the defendant was sober enough to form the required intent to commit the crime...

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