DeFusco v. Brophy
| Decision Date | 20 November 1973 |
| Docket Number | No. 1959-A,1959-A |
| Citation | 112 R.I. 461,311 A.2d 286 |
| Parties | Pasco DeFUSCO v. Peter BROPHY et al. ppeal. |
| Court | Rhode Island Supreme Court |
This civil action for malicious prosecution arose out of an incident that occurred in 1965. Seven years later, a jury-waived trial was held in the Superior Court. Judgment was entered for the defendants. The plaintiff appealed. The defendants are Peter Brophy and Kenneth A. Dyer. On July 25, 1965, they were conservation officers in the Department of Natural Resources and on duty in North Kingstown. On the day in question, they spent half an hour observing four individuals taking quahaugs from 'very shallow' and polluted waters off Blue Beach just to the front of DeFusco's residence. The quahaugers would place the quahaugs in four piles. A young girl would come by and place each pile into her apron and then transport the quahaugs to the shore where she would dump each catch into a large wire basket.
The officers apprehended DeFusco as he was leaving the water. Brophy seized the basket and its contents as evidence. Defusco became loud, abusive and obnoxious. He told one of his companions to take the basket away from Brophy. The companion tried but Brophy prevailed.
DeFusco yelled and cursed at the officers. Some of his more printable phrases were his description of the officers as 'a bunch of boy scouts' and his admonition to them to 'get the hell out of here and come back when you got a warrant.' A woman whose voice matched DeFusco's in volume told the officers that DeFusco's father or father-in-law would have a heart attack if the brouhaha continued. At this point, the officers left the scene and went to the state police barracks in Wickford. Shortly thereafter, DeFusco stormed into the barracks and demanded that the officers be arrested for trespassing and larceny of his quahaugs. After the officers conferred with one of their superiors, three charges were lodged against DeFusco. One concerned his taking quashaugs from polluted waters. The other two charged him with obstructing Brophy and Dyer, respectively, in the performance of their duty.
The narrative concerning the 'Blue Beach' incident comes solely from the testimony of Officer Dyer. At the time of trial, Brophy was no longer in the employ of the state and DeFusco did not testify. The record shows that a justice of what was the District Court for the Second Judicial District found DeFusco guilty of the taking of quahaugs from the polluted waters charge and not guilty of the two obstructing charges. DeFusco appealed the guilty charge to the Superior Court. There, a jury returned a guilty verdict. Subsequently, the trial justice imposed the identical sentence prescribed in the District Court-a fine of $50 plus costs.
Two essential ingredients of any malicious prosecution action such as DeFusco has instituted are clear proof of an absence of 'probable cause' for the commencement of the obstructing-justice charge and the presence of 'malice' by the officers who were responsible for the initiation of the charges. DeSimone v. Parillo, 87 R.L. 95, 139 A.2d 81 (1958). DeFusco did not even come close to the establishment of the presence of either ingredient. 1
In 1965, G.L.1956, § 11-32-1 2 provided for a fine or imprisonment for any person '* * * who shall obstruct any officer, civil or military, while in the execution of his office * * *.' DeFusco, in arguing the absence of probable cause, claims that statute only bars the use of physical force in impeding an officer in the discharge of his duties. Since it is conceded that he did not lay a hand on either officer, DeFusco claims that their issuance of the obstruction complaints was totally without probable cause. We cannot agree.
We need only refer to 3 Wharton, Criminal Law and Procedure § 1284 at 633-34, where can be found the following:
'As a general rule, under statutes containing the words 'obstruct, resist, or oppose,' or 'resist, obstruct, or...
To continue reading
Request your trial
-
Johnson v. Palange, 77-297-A
...the crime of obstructing a police officer in the execution of his duty. A like assertion was but recently rejected in DeFusco v. Brophy, 112 R.I. 461, 311 A.2d 286 (1973), where we noted "in certain circumstances, the spoken word can be just as effective in impeding an officer in the discha......
-
State v. Austin, 81-357-C
...that a clear legislative intent is thwarted. See State v. Dussault, 121 R.I. at 754, 403 A.2d at 246; DeFusco v. Brophy, 112 R.I. 461, 464, 311 A.2d 286, 288 (1973). Because § 11-8-4 is only one part of a chapter of provisions dealing with burglary and breaking and entering, we must constru......
-
State v. Morris, C.A. No. P2-2009-2087A (R.I. Super 1/11/2010)
...thwart a clear legislative intent." State v. Dussault, 121 R.I. 751, 753-54, 403 A.2d 244, 246 (1979) (citing DeFusco v. Brophy, 112 R.I. 461, 464, 311 A.2d 286, 288 (1973); State v. Milne, 95 R.I. 315, 320, 187 A.2d 136, 139 "[T]he primary object of the [C]ourt is to ascertain the legislat......
-
Nagy v. McBurney
...is not a sine qua non, for a hostile motive may also be inferred from a showing of a lack of probable cause, DeFusco v. Brophy, 112 R.I. 461, 463 n. 1, 311 A.2d 286, 287 n. 1 (1973); Quinlan v. Breslin, 61 R.I. 327, 331, 200 A. 989, 991 (1938); Beaumier v. Provensal, 58 R.I. 472, 476, 193 A......