State v. Perelli

• Decision Date: 05 April 1939
• Citation: 125 Conn. 321,5 A.2d 705
• Court: Connecticut Supreme Court
• Parties: STATE v. PERELLI. STATE v. VENEZIA.

5 A.2d 705

125 Conn. 321

STATE v. PERELLI.

STATE v. VENEZIA.

Supreme Court of Errors of Connecticut.

April 5, 1939

Appeal from Superior Court, New Haven County; Ernest A. Inglis Judge.

George Perelli and Camillo Venezia were convicted of murder in the first degree and they appeal.

Error and new trial ordered.

Louis Feinmark and Louis Sperandeo, of New Haven for appellants.

Samuel E. Hoyt, State's Atty., and Abraham S. Ullman, Asst State's Atty., both of New Haven, for the State.

Argued before MALTBIE, C.J., HINMAN, AVERY, JENNINGS, and BROWN, JJ.

JENNINGS, Judge.

The defendants, Perelli and Venezia, were convicted of killing Armando Salvione. In their appeal they claim that error was committed in the rulings on evidence, in the charge, and in the arguments of the state's attorneys. It is necessary to summarize the finding in order to understand the rulings.

The state offered evidence and claimed to have proved the following facts: For two years prior to November, 1934, the deceased had lived with his wife Mary in Bridgeport. The defendants had frequently visited at the home of the Salviones and their visits had become much more frequent just prior to the date of the murder. In addition to calling at the house the defendants had frequently called on the telephone and Mary Salvione was familiar with their voices. She was also well acquainted with the Buick car which was being used by the accused. At this time the deceased owned a Ford coupe. On November 5th the deceased told his wife that he was going to New Haven with the accused to watch the movements of a man named Conte. On November 6th the accused Venezia called on the telephone and asked Mrs. Salvione for the deceased. In the evening the defendants came to the house and Mrs. Salvione heard Venezia, while Perelli was there, ask her husband if he was ready to go to New Haven. Before leaving for New Haven the deceased informed his wife that he was going to New Haven with the accused to an inn run by Maresca and Perelli at Lighthouse Point. He also said that they had been watching a man named Conte and that he was supposed to drive the car and that Venezia and Perelli were supposed to kill Conte. The deceased left with the defendants in the Buick car and returned to his home about 1 or 2 o'clock the next morning.

On November 7th Perelli called the Salvione home at about 11 o'clock in the morning and asked for the deceased. He was then informed by Mary Salvione that the deceased was not there. Perelli called again about 2:30 in the afternoon and asked for the deceased. Mrs. Salvione answered and later heard her husband talk to Perelli on the telephone and heard her husband say that they were going to meet in New Haven at a park at 6:30 o'clock. Before leaving for New Haven the deceased told his wife that he was going to meet the defendants at Columbus Park in New Haven, that from there they would go to Lighthouse Point, and that he was then going to inform them that he would take no part in the Conte matter. He left his home at 4:30 that afternoon. His body, horribly mutilated, was found the next morning and there was other evidence connecting the accused with his death.

The defendants offered evidence and claimed to have proved the following facts: They did not go to New Haven with the deceased on November 6th and did not see him on November 7th but were elsewhere. They also attacked the credibility of the state's witnesses and claimed to have proved a motive in the wife of the deceased to bring about his death.

The assignments of error principally stressed by the defendants are based on a series of rulings admitting, over their objection, statements made by the deceased in their absence to or in the presence of his wife relative to his future movements on the fifth, sixth and seventh of November. Some of these were made in answer to telephone calls purporting to be from one of the defendants. The defendants admitted in argument that under State v. Journey, 115 Conn. 344, 351, 161 A. 515, a statement by the deceased that he was going to New Haven, possibly a statement that he was going to New Haven to meet the defendants, would be admissible. Smith v. Firestone Tire & Rubber Co., 119 Conn. 483, 490, 177 A. 524. They insist, however, that the inclusion of what amounted to a rather extended narrative of a criminal conspiracy on the part of the deceased and the defendants to murder a third person in no way connected with the present case, and who appeared therein in no other way, went far beyond the reason and intent of the rule and hopelessly prejudiced them in the eyes of the jury. The point is well taken. The rule as laid down in the earlier cases justified the admission of testimony of a deceased witness as to his intentions on the ground that it was part of the res gestae (Douglas v. Chapin, 26 Conn. 76, 92; State v. Hayden, 1 Ky.Law Rep. 71; State v. Smith, 49 Conn. 376, 381) but was restated in the Journey Case, 115 Conn. page 351, 161 A. page 517, as follows: ‘ A declaration indicating a present intention to do a particular act in the immediate future, made in apparent good faith and not for self-serving purposes, is admissible to prove that the act was in fact performed. It is admissible, not as a part of the res gestae, but as a fact relevant to a fact in issue.’ This is in accordance with the more modern and better reasoned doctrine. 113 A.L.R. 288, note; 3 Wigmore, Evidence (2d Ed.) § 1725. The rule itself is more important than the theory on which it is founded. State v. Farnam, 82 Or. 211, 161 P. 417, Ann.Cas.1918A, 318. The underlying, essential characteristic of all the numerous cases admitting such evidence (see the A.L.R. note, supra) is that the statement must refer to the intention, design or state of mind of the declarant. Those parts of the statements referring to the acts and intentions past and present, of the defendants were pure hearsay as to them, made by a person not subject to cross-examination, and are not within the exception to the hearsay rule defined in the Journey case.

Applying this rule to the evidence in question, most of the statements made by the deceased to his wife related to his then present intention to go to New Haven to meet the defendants and were admissible. When she was pressed for more details she testified as follows: ‘ Yes, he said he wouldn't come here any more; that he would tell them he wouldn't have any more to do with it. Q. Is that all he said? A. Well, that is [pause]. Did he say what ‘ it’ meant? A. This Conte affair. Q. Suppose you tell us what he said. A. He said that they had been watching Conte, that he was supposed to do the driving of the car and Venezia and Perelli was supposed to do the shooting; so I told him to keep out of it and he promised very faithfully that he would, and that he would tell them that he wouldn't have anything to do with it.' Later the same witness testified that the deceased told her ‘ that they [he and the defendants] were scouting around New Haven and watching Mr. Conte's movements.’ These statements, in so far as they related to the intentions and actions of the defendants, were inadmissible for the reasons stated. For the same result, reached on a different theory, on similar facts, see People v. Gress, 107 Cal. 461, 40 P. 752. For a similar line of reasoning on slightly different facts, see State v. Beeson, 155 Iowa 355, 136 N.W. 317, Ann.Cas.1914D, 1275.

No limitation was placed on this testimony in the charge. In his argument the assistant state's attorney repeated the substance of the inadmissible testimony we have quoted and based upon it the claim of the state that the defendants were motivated to kill the deceased because he told them that he was going to withdraw from the attempt to kill Conte. While some attempt was made by the court, on objection by the defendants, to limit the effect of this argument, this limitation was not brought home to the jury with...