69 Conn. 212 | Conn. | 1897
The appellant was tried in the Court of Common Pleas for the transaction of criminal business in New Haven county, charged with the crime of refusing and neglecting to support his wife. He was convicted, and appealed to this court.
It appears from the finding that upon the trial the State offered evidence to prove the neglect and refusal of the appellant to support his wife; that the appellant offered no evidence to contradict this, but relied for his defense upon the claim, as an excuse, that his wife bad been guilty of adultery with one Daniel Donegan of New Haven. Under such claim the appellant offered testimony tending to prove, and claimed that he had proved, various acts of adultery on the part of his wife with said Donegan upon particular dates in July, August, September and October, 1895.
. The State, in rebuttal, offered in evidence, the files and records in certain divorce proceedings brought by the appellant against his wife, tried in the Superior Court and dismissed. This evidence was objected to; but the court, after examining the papers, said: “ It appears from an examination of the files in the divorce proceedings in the case of John H. Bradnack vs. Mary C. Bradnack, that the specific statement filed by the plaintiff contains allegations of adultery on all the dates which have been claimed .here : that these allegations were denied, and therefore put in issue. I think the record is admissible.” To this ruling the appellant excepted.
The court in its charge to the jury, referring to this evidence, said: “There is one thing that I ought to suggest to the jury, and that is that Mr. Bradnack on his own volition, or at his own volition, has had a portion, at least, of this case submitted to a tribunal which had jurisdiction of it. He brought an action for divorce against his wife, and had a trial, and that tribunal was not satisfied that he had there proved the charges on the dates which he now alleges in this court were the dates on which she committed adultery. While I do not rule that this is conclusive evidence in this case, it is my duty, having admitted it, to suggest to the jury that it is evidence to which they ought to give serious consideration.”
The appellant offered evidence to prove that on one occasion the said Donegan was caught at night in the bedroom occupied by the appellant’s wife; that he endeavored to escape, but as he came running out of the house, hat in hand, he was arrested by an officer. Thereupon the appellant’s brother, who was present at the time of such arrest, was asked as a witness for the defense: “ What was the conversation that you had with Daniel Donegan at that time when Officer Shields grabbed him, or what statements, if any, did he make?” The question was objected to by counsel for the State, on the ground that whatever Donegan then said was hearsay, and not admissible in the absence of Mary Bradnack. It was claimed by the appellant to be admissible as part of the res gestee, as words accompanying an act and explanatory of the act. The question was excluded' and the appellant excepted. A similar question was asked of another witness, and a similar ruling made and exception taken. These rulings were correct. Stirling v. Buckingham, 46 Conn. 461. The declarations in question did not grow out of the main fact—the alleged adultery—were not contemporaneous with it, nor did they serve to illustrate its character. They would be useful to the appellant only as a statement out of court by one person concerning the past conduct of another not present at the time such statement was made.
But a far different situation was presented later during the trial. The said Donegan was offered as a witness for the State upon rebuttal, and testified regarding the events which happened on the various dates on which it was claimed that he had committed adultery with Mrs. Bradnaek, and denied that on those dates he had been in her apartments, and in general testified that he had never committed adultery with her or been unduly intimate with her. On cross-examination Donegan was asked if he had not, at a certain place and on a certain day while in conversation with one Evans, stated to said Evans that he was criminally intimate with Mrs. Brad
The other reasons of appeal are of slight importance* and do not seem to require special attention.
There is error, and a new trial is granted.
In this opinion the other judges concurred.