Halpern, Allcorn and Botter. The opinion of the majority was delivered by Botter, J.A.D. Allcorn, J.A.D. (dissenting).
Defendant was convicted in a jury trial of breaking and entering with intent to steal and was sentenced to a three to five-year term in State Prison. On this appeal defendant contends that the trial judge erred (a) in charging the jury, in effect, that voluntary intoxication was not a defense to the crime charged, and (b) in admitting, over defendant's objection, exhibits showing that defendant had been convicted in 1965 for two crimes involving breaking and entering.
Defendant was charged with breaking and entering into the one-family home of Mr. and Mrs. Maggipinto (M) on August 22, 1974 with intent to steal property, in violation of N.J.S.A. 2A:94-1. Defendant was apprehended in the home shortly after midnight. The homeowners, who were in an upstairs bedroom, heard a loud noise downstairs around 12:15 A.M. Thinking it was her young son, Mrs. M went to investigate. She testified that she heard a voice in the den say, "just don't turn on the light." She screamed and ran upstairs to call her husband. During this time defendant remained in the den which, incidentally, contained a door leading to the outside patio. Mr. M arrived and again the voice said, "don't turn on the light." Mr. M ignored the warning and turned on the light. Mrs. M testified that when they saw defendant in the den they "told him to get out." To this defendant replied, "I'm in the wrong house." Seeing that defendant had nothing in his
hands, Mr. M seized him and led him into the kitchen. Mrs. M went upstairs to telephone the police. While waiting for the police defendant asked for a cigarette and again said he was in the wrong house. Further investigation revealed that a lock on a basement window had been broken, the window was open and the door jamb leading from the basement to the kitchen was splintered and its sliding bolt lock had been forced.
A police officer testified that defendant said he believed he was entering the home of a girlfriend named S.V. who, defendant said, lived next door to the house in which he was apprehended and that he entered the house through the window because he did not want S.V.'s husband to know he was coming to see her. An investigation failed to disclose any person named S.V. living in the area.
Defendant did not take the stand. However, defense witnesses testified that defendant had been intoxicated earlier that day and evening. One witness was defendant's partner in a business involving the sale and service of radios, television sets, car radios and other items. This witness suggested that business was good but that defendant had been drinking heavily because of marital problems and that it was difficult to run the business without defendant's help. There was evidence to show that defendant had been drinking all day on August 22, 1974. His partner testified that he last saw defendant around 6:30 P.M., that defendant was totally drunk and had a bottle in his hand.
To rebut the defense of mistake or accident the prosecution offered in evidence certified copies of defendant's two convictions in 1965. One was for entering without breaking with an intent to steal and the other was for an attempt to break and enter with intent to steal. Reliance was placed on Evid. R. 55, the rule dealing with the admissibility of other crimes evidence. Defendant's objection to the admissibility of this evidence was overruled. In his charge to the jury the trial judge stated that evidence of the commission of other crimes is inadmissible to establish a propensity
to commit the crimes charged in the indictment for which defendant was on trial. He further charged that the 1965 convictions could be considered solely as they bear "upon the issue of the absence of mistake or accident when the defendant entered the home of Mr. and Mrs. Maggipinto on August 22, 1974."
Subject to Rule 47, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed a crime or civil wrong on another specified occasion but, subject to Rule 48, such evidence is admissible to prove some other fact in issue including motive, intent, plan, knowledge, identity, or absence of mistake or accident.
Evid. R. 47, referred to in Evid. R. 55, provides in part that the prosecution may not offer proof of a trait of character of the defendant in a criminal trial unless the judge has previously admitted evidence of good character offered by the defendant. Evid. R. 48, which pertains to evidence of a person's character with respect to care or skill, is not pertinent to the issue before us.
Were the 1965 convictions for similar offenses admissible to prove "absence of mistake or accident" (or, for that matter, motive, intent or plan) with respect to defendant's conduct in 1974? We think not. On the facts of this case we conclude that the trial judge erred in admitting this evidence. (Under present law, evidence of these prior convictions could have been admitted only to affect defendant's credibility had defendant offered himself as a witness at the trial. See N.J.S.A. 2A:81-12; State v. Hawthorne , 49 N.J. 130 (1967); State v. Kociolek , 23 N.J. 400, 417-418 (1957)).
In State v. Kociolek, supra , the court said that, although proof of other crimes of a like nature cannot be offered to show that defendant would be likely to commit the crime for which he is being tried, such proof may be offered if it tends to show "opportunity, motive, intent, a particular
element of the crime charged, and the like * * *." The court noted, however, that where other crime evidence is offered to prove motive, knowledge or intent "such evidence is limited to facts which are so connected with the subject in controversy as to make it apparent that the party had a common purpose in both transactions," quoting from Bullock v. State , 65 N.J.L. 557, 575 (E. & A. 1900). In Bullock the court went on to say (at 575) that "it is not relevant to show that the defendant has committed other similar crimes which are not connected in any way with the one in question."
State v. Kociolek, supra , also quotes extensively from State v. Raymond , 53 N.J.L. 260, 264 (Sup. Ct. 1891). Raymond held, in a case in which defendant was tried for arson of a dwelling house, that error was committed in showing that in a six-year period six fires had occurred in other buildings in which defendant had an interest. The trial judge charged the jury that this proof was limited to the issue of whether the fire in question had been accidental or whether defendant had a motive or intent to defraud anyone at the time of the fire in question. The court (at 264-265) reviewed exceptions to the rule excluding proof of other crimes. It said (at 265) that there must be "some other real connection" between the extraneous crimes and the crime in question beyond the fact that they "sprung from the same vicious disposition." (While this holding supports our determination in this case, Wigmore's analysis of the problem, which will be referred to below, raises doubts as to its correctness. See 2 Wigmore, Evidence (3 ed. 1940), §§ 300 to 307, at 192 to 207, especially § 303 at 201-202 dealing with "anonymous instances" of the same or similar occurrence.)
We must distinguish the problem at hand from other-crimes evidence problems more commonly encountered. In its worst form, proof that a defendant committed various previous or subsequent crimes unrelated to the crime being tried may tend simply to show that defendant is a "bad
man," one who has a "criminal disposition," and this proof is explicitly precluded by Evid. R. 55. State v. Kociolek, supra , in which defendant was on trial for murder, offers an example. There the court condemned the cross-examination of defendant which elicited proof that he had committed other crimes involving a stolen automobile, bad checks and forgery which the prosecution sought to justify as a permissible attack upon defendant's credibility and as proof of "his 'motive' in developing his life story prior to the murder." 23 N.J. at 418. For the same reason State v. Harris , 105 N.J. Super. 319 (App. Div. 1969), found manifest injustice and, therefore, plain error (R. 1:7-2; R. 2:10-2) in the consolidation for trial of two indictments charging a number of unrelated crimes. It is not that proof of bad character or a propensity to commit crimes is entirely irrelevant logically in tending, with other more pertinent evidence, to prove defendant's guilt on a specific instance. Michelson v. United States , 335 U.S. 469, 475-476, 69 S. Ct. 213, 218, 93 L. Ed. 168, 173-174 (1948); see Report of the New Jersey Supreme Court Committee on Evidence (1963) (hereinafter referred to as the 1963 Evidence Committee Report) at 101. The danger is that such evidence may weigh too heavily with the jury and deny defendant fair opportunity to defend himself against a particular charge. Michelson v. United States, supra; Boyd v. United States , 142 U.S. 450, 458, 12 S. Ct. 292, 295, 35 L. Ed. 1077, 1080 (1892); see Spencer v. Texas , 385 U.S. 554, 570-575, 87 S. Ct. 648, 657-659, 17 L. Ed. 2d 606, 618-620 (1967), (Warren, C.J., dissenting), where a minority of the court declared that evidence of prior convictions which served no valid evidential purpose in relation to the crime currently charged jeopardized defendant's presumption of innocence and violated the Due Process Clause. See also, 1963 Evidence Committee Report at 101-102.
On the other hand, prior-crimes evidence is generally accepted "when it is particularly probative in showing such things as intent * * * malice * * * motive * * * a system of
criminal activity * * * or when the defendant has raised the issue of his character * * * or when the defendant has testified and the State seeks to impeach his credibility." Spencer v. Texas, supra , 385 U.S. at 560-561, 87 S. Ct. at 652, 17 L. Ed. 2d at 612 (emphasis supplied). Thus, under Evid. R. 55, which reflects prior New Jersey law (1963 Evidence Committee Report at 101), the beatings defendant previously inflicted upon his wife may be shown in a trial for her murder when such evidence logically tends to prove malice or some other element of the crime charged. State v. Donohue , 2 N.J. 381, 388 (1949). Similarly, defendant's other crimes may prove motive or intent, as in State v. Baldwin , 47 N.J. 379, 391 (1966), cert. den. 385 U.S. 980, 87 S. Ct. 527, 17 L. Ed. 2d 442 (1966), where the State contended that defendant killed the victim, his codefendant in a robbery indictment, to silence him from testifying for the State.
Other-crimes evidence may be offered to disprove innocent intent or the absence of mistake or accident, McCormick, Evidence (2 ed. 1972), § 190 at 450, especially in rebuttal after the claim of accident or mistake has been asserted. Id. at 452; 2 Wigmore, Evidence, supra , §§ 300 and 307 at 192-193, 207. Little difficulty is presented when the prior acts are "so related to the crimes charged as to time, place and circumstance as to evidence a continuous state of mind * * *." State v. Kozarski , 143 N.J. Super. 12, 17 (App. Div.), certif. den. 71 N.J. 532 (1976); see State v. Wright , 132 N.J. Super. 130, 148-150 (App. Div. 1974), rev'd on dissenting opinion of Allcorn, J., 66 N.J. 466 (1975); State v. Rajnai , 132 N.J. Super. 530 (App. Div. 1975).
However, mere similarity or identity in the crimes charged is not sufficient to allow proof of the other crimes. Lovely v. United States , 169 F.2d 386 (4 Cir. 1948); State v. Little , 87 Ariz. 295, 350 P. 2d 756 (Sup. Ct. 1960); State v. Putnam , 178 Neb. 445, 133 N.W. 2d 605 (Sup. Ct. 1965). In State v. Putnam, supra , defendant ...