Com. v. Ronchetti

• Decision Date: 13 July 1955
• Parties: COMMONWEALTH v. James A. RONCHETTI (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 334

128 N.E.2d 334

333 Mass. 78

COMMONWEALTH v. James A. RONCHETTI (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 3, 1955.

Decided July 13, 1955

Herbert F. Callahan, Stephen C. Struffolino, John F. Cremens, Boston, for defendant.

George E. Thompson, Dist. Atty. for Northern Dist., Boston, Lyman C. Sprague, Asst. Dist. Atty., John P. Forte, Asst. Dist. Atty, for Commonwealth.

Before QUA, C. J., and WILKINS, SPALDING, WILLIAMS and COUNIHAN, JJ.

WILLIAMS, Justice.

These are two indictments which were tried together before a judge of the Superior Court sitting without jury. In the first indictment, numbered 42953, the defendant was charged with assault on Dorothy Albanez on December 20, 1952, at Cambridge with intent to commit rape upon her. In count 2 of the second indictment, numbered 42954, he was charged with breaking and entering in the nighttime 'the dwelling house of Dorothy Albanez situated in said Cambridge with intent therein to commit a felony, and did assault Dorothy Albanez a person lawfully therein.' G.L.(Ter.Ed.) c. 266, § 14. The Commonwealth specified in a bill of particulars that the felony which it is alleged in the second indictment the defendant intended to commit was larceny.

There was evidence that about 1 a. m. on December 20, 1952, Dorothy Albanez, a married woman with two children, was asleep in her bed in a bedroom on the first floor of a duplex house at 59 Walker Street, Cambridge. She was awakened by feeling a hand on her throat and saw a man bending over her with his right arm raised as though to strike her. She brushed the hand from her throat, grabbed the arm descending to strike her, and screamed. The man turned away and she followed him. He ran out of the bedroom, through the dining room into the hall, and down Walker Street. Louise Black, a tenant on the top floor, was awakened by the sound of the front door opening and thought it was Mrs. Albanez's husband coming in. She heard a scream and going down stairs found Mrs. Albanez in the front hall in a hysterical condition. The front doors were open. When the police came Mrs. Albanez noticed the lock on the front door was damaged. The house had been secured and locked and the front door was locked. The defendant lived with his parents, brother, and sisters on Middlesex Street, Cambridge. He was arrested on January 15, 1953, and identified by Mrs. Albanez as the man she saw in her bedroom on December 20, 1952. When confronted by her at police headquarters he said, 'I was not there'; 'I'm a thief but no raper.'

At the conclusion of the evidence the defendant requested rulings that as to count 2 of indictment numbered 42954 'there must be a finding of not guilty' and 'the evidence is not sufficient to warrant a finding of guilty.' To the judge's refusal so to rule the defendant excepted. A finding of not guilty was entered on indictment numbered 42953, and a finding of guilty on count 2 of indictment numbered 42954. Sentence was imposed.

Before sentence the defendant moved for a new trial 'I. Because the verdict is contrary to the evidence. II. Because the evidence is insufficient in law to sustain the verdict. III. Because the verdict is against the weight of evidence. IV. Because the whole evidence was too slight and too inconclusive to warrant a conviction. V. Because the verdict is against the law. VI. Because the verdict, if allowed to stand will work a miscarriage of justice. VII. Because the prosecuting attorney's argument to the court was fallacious and prejudicial, containing improper insinuations and assertions calculated to mislead the court. VIII. Because the verdict rendered was inconsistent with other findings of fact made by the court in said trial, namely, the verdict of not guilty as to the defendant on Indictment No. 42953. IX. Because justice has not been done the defendant. X. For any other cause for which by law a new trial may be granted.' At the hearing on this motion the defendant requested the following rulings: 'I. The finding of guilty of the assault on Dorothy Albanez as set out in this indictment and not guilty of assault on Dorothy Albanez as set out in indictment No. 42953, both verdicts being based upon the same evidence at the same trial, is contradictory and inconsistent and the verdict on this indictment should be set aside. II. The verdict of guilty is so violently contrary to the evidence, as matter of law, the court is required, in the exercise of its discretion, to set the verdict aside and grant a new trial.' The requests for rulings and the motion were denied subject to the defendant's exceptions.

Later there was a second motion for a new trial on the ground of newly discovered evidence, accompanied by affidavits. At the hearing on the motion a request was made that the evidence, if believed, required the granting of a new trial. The motion and the requested ruling were denied and the defendant excepted.

An examination of the substitute bill of exceptions discloses sufficient evidence to warrant findings of all the factual elements necessary to the offence set forth in G.L. (Ter.Ed.) c. 266, § 14. It could be found that Mrs. Albanez was dwelling on the first floor of 59 Walker Street, that the premises were secured and locked, Commonwealth v. Stephenson, 8 Pick. 354; Commonwealth v. Strupney, 105 Mass. 588, and that the defendant broke and entered those premises in the nighttime. Commonwealth v. Domanski, 332 Mass. 66, 76-77, 123 N.E.2d 368. The Commonwealth was required to prove the specific intent with which the break was committed. See Commonwealth v. Merrill, 14 Gray 415, 417; Commonwealth v. Carter...