State v. Jenkins

• Decision Date: 08 April 1969
• Citation: 158 Conn. 149,256 A.2d 223
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Elisha JENKINS.

Page 223

256 A.2d 223

158 Conn. 149

STATE of Connecticut v. Elisha JENKINS.

Supreme Court of Connecticut.

April 8, 1969.

Thomas N. Wies, New Haven, for appellant (defendant).

Robert K. Walsh, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., Richard P. Sperandeo and David B. Salzman, Asst. State's Attys., for appellee (state).

Before KING, C.J., and ALCORN, HOUSE, COTTER and THIM, JJ.

KING, Chief Justice.

The defendant, after a trial to the jury, was convicted of committing, with a knife, an aggravated assault on his wife, in violation of General Statutes § 53-16.

Only two assignments of error are pursued in the brief, each of which involves a ruling on evidence. The state had offered evidence to prove that the defendant and his wife had been living apart for about two years; that on the evening of January 16, 1967, the defendant came to the hall outside his wife's second-floor apartment and remained there from about 8 o'clock until 11 o'clock; that the wife asked him to leave, but instead of doing so, he entered her apartment; that, after the defendant had blocked his wife's attempts to secure the aid of the police, the wife finally went downstairs to the apartment of her sister, Mrs. Essie Mae Dawson, to telephone the police; and that near the foot of the stairs the defendant made an unprovoked attack upon her with a knife, inflicting wounds requiring some thirty-eight stiches.

Mrs. Dawson testified to the circumstances of the assault; that two police officers arrived and took the defendant into custody; that the wife went upstairs for more clothing; and that about two minutes later she was escorted out of the house by the police to be taken to the hospital.

The state asked the witness what happened then. This question was objected to on the ground that it went beyond the incident of the aggravated assault with which the defendant was charged. The court intimated that the evidence would be admissible as part of the res gestae. The state also claimed the evidence was relevant to show the defendant's state of mind. The court asked how long a time elapsed between the arrival of the police and their starting to escort the wife out of the house to take her to the hospital, and the witness said not more than two minutes. The court then stated that it would admit the question.

Thereupon the witness answered, over objection, that the defendant made a break to grab his wife as the police escorted him past her on the street outside; that, when the police tried to catch him, the defendant turned on the officer, grabbed him by the throat and started beating him; and that the defendant was finally subdued by the two officers after he had been hit on the head twice with a nightstick.

The second ruling was similar to the first. Joseph DePalma, one of the two police officers at the scene, was called as a witness and testified that he took the defendant into custody and remained with him outside the apartment house until the defendant caught sight of his wife. He was then asked what the defendant did and, over objection that the testimony was irrelevant, testified that the defendant attempted to assault his wife and did assault another police officer who was protecting the wife and then assaulted the witness, who came to the aid of the officer engaged in protecting the wife.

The claim of the defendant is that evidence of the subsequent assaults on the wife and on the police officers protecting her was inadmissible since it was in proof of unconnected crimes. A statement of the rule is given in State v. Gilligan, 92 Conn. 526, 530, 103 A. 649, 651 as follows: 'The argument against admitting evidence of other similar but unconnected crimes is not that it has no probative value. As Wigmore said: 'It is objectionable, not because it has no appreciable probative value, but because it has too much' (§ 194); meaning, of course that its appeal is not confined to the intellect or to the precise issue. Such evidence, when offered in chief, violates the rule of policy which forbids the state initially to attack the character of the accused, and also the rule of policy that bad character may not be proved by particular acts. Wigmore, § 57. These two rules of policy are firmly established, and they mark one important difference between the Anglo-American criminal procedure and the French. On the other hand, evidence of crimes so connected with the principal crime by circumstance, motive, design, or innate peculiarity, that the commission of the collateral crime tends directly to prove the commission of the principal crime, or the existence of any essential element of the principal crime, is admissible. The rules of policy have no application whatever to evidence of any crime which directly tends to prove that the accused is guilty of the specific offense for which he is on trial. The objection on the ground of policy applies exclusively to evidence of crimes which are logically unconnected with the principal crime; this is to say, to evidence the probative effect of which is indirect, in the sense that its direct application is exhausted in showing that the accused was possessed of a bad character or of a disposition to commit the particular crime of which he is accused, and thereby it furnishes a justification for a conviction rather than proof of guilt of the specific offense.' See also 29 Am.Jur.2d 366-372, Evidence, §§ 320-321; McCormick, Evidence § 157; 1 Wigmore, Evidence (3d Ed.) § 216. A collection of cases involving the rule may be found in annotations in 93 L.Ed. 185 and 170 A.L.R. 306. A more modern, and probably better, statement of the rule is given in rule 311 of the Model Code of Evidence to the effect that 'evidence that a person committed a crime * * * on a specified occasion is inadmissible as tending to prove that he committed a crime * * * on another occasion if, but only if, the evidence is relevant solely as tending to prove his disposition to commit such a crime * * * or to commit crimes * * * generally.'

This rule seems to be the one applied in the second circuit. See cases such as United States v. Deaton, 381 F.2d 114, 117 (2d Cir.). And its principle, at least, seems to have been favored by Wigmore, 1 Wigmore, loc. cit. Although under either statement of the rule the evidence of the subsequent assaults was not relevant to prove the specific assault, as such, with which the defendant was charged, it would be relevant, and therefore admissible, as hereinafter more particularly explained, on the issue of self-defense if that issue was then in the case.

The court made use of the term 'res gestae' which is an unfortunate term because of its lack of any precise meaning. See, for instance, Morgan, 'A Suggested Classification of Utterances Admissible as Res Gestae,' 31 Yale L.J. 229; 1 Wigmore, op. cit. § 218, p. 722; 1 Wharton, Criminal Evidence (12th Ed.) § 279, p. 630. Here however, it is clear that the court, in intimating that the evidence of the subsequent attempt to assault the wife was part of the res gestae, was not referring to an utterance of any kind but meant that the proffered evidence was part of the whole crime of aggravated assault on his wife on which the defendant was tried. This is referred to by Wharton as 'the relevant evidence concept' of the term res gestae. 1 Wharton, loc. cit.; see also McCormick, Evidence § 157, subdivision (1), p. 328. As already pointed out, the state claimed the...