State v. Andrews, 9697

• Citation: 134 A.2d 425,86 R.I. 341
• Decision Date: 16 August 1957
• Docket Number: No. 9697,9697
• Parties: STATE v. Edward J. ANDREWS. Ex.
• Court: United States State Supreme Court of Rhode Island

Page 425

134 A.2d 425

86 R.I. 341

STATE v. Edward J. ANDREWS.

Ex. No. 9697.

Supreme Court of Rhode Island.

Aug. 16, 1957.

William E. Powers, Atty. Gen., Raymond J. Pettine, Asst. Atty. Gen., Providence, for State.

John Quattrocchi, Jr., Providence, for defendant.

ANDREWS, Justice.

This is an indictment for murder in three counts. The first count charges that the defendant murdered Susan B. Franklin while perpetrating rape upon her. The second count charges that the defendant murdered her while attempting to perpetrate rape upon her, and the third count charges that the defendant murdered her by choking and strangling her.

To avoid possible local prejudice the case was transferred from Newport to Providence for trial. The jury found defendant guilty of murder in the second degree, and the trial justice denied his motion for a new trial. The defendant excepted to this denial and this exception together with forty-four others constitute his bill of exceptions. He has, however, waived all but exceptions 8, 9, 10, 11, 12, 17, 24, 25, 37, 38, 40, 41 and 44. The defendant has briefed these exceptions under certain points and as the state has adopted the same treatment we shall do likewise.

Susan B. Franklin, a retired school teacher who was unmarried, was eighty-six years old at the time of her death, weighed eighty-five to ninety pounds and lived alone at 36 Walnut street in the city of Newport. About 1:30 p. m. on Sunday, April 24, 1955 a neighbor, Mary H. Peckham, who cooked Miss Franklin's dinners, took her dinner over to her. She found the door open and when Miss Franklin did not respond to her call she went into her bedroom and found her lying on the bed, dead. The police were called and took charge of the investigation.

Doctor Frank J. Logler, a local physician, came to the house about 1:30 to 2 p. m. that day. He examined the victim and estimated that she had been dead eight to twelve hours, but on cross-examination said she could have been dead anywhere from four to twenty-four hours. About 8:30 p. m. Dr. Arthur E. O'Dea, chief medical examiner for the state, performed an autopsy. He found bruises and abrasions on the body, a tearing of the vaginal wall and the presence of male spermatozoa in her vagina. He concluded that she had died as a result of asphyxia (shutting off of oxygen because of the presence of blood in the windpipe or the bronchi) following blunt injury to the face and forceful penetration of the vagina.

A Newport police officer, George A. Von Villas, who had locked defendant up the previous Friday night, at the request of his family, for being somewhat drunk and disorderly at the home of his mother where he lived, picked him up again at 8:17 p. m. Sunday on suspicion that he might have had something to do with the murder. He questioned defendant concerning Miss Franklin but he denied knowing anything about the matter. Other officers questioned defendant from time to time during the night but he denied having anything to do with the crime. However, about 10 a. m. Monday, April 25, after one of his associates had said that he, defendant, had stated that he knew where he could get $500 or $600, he confessed that he entered Miss Franklin's house, assaulted her, had sexual intercourse with her, tied her up, and put a pillow over her head to keep her quiet. Before the confession was reduced to writing, certain police officers took defendant to Miss Franklin's house where, in the presence of Dr. Harold C. Harrison, assistant director of the University of Rhode Island laboratories of scientific criminal investigations, he re-enacted the crime as he had orally confessed it. The confession was also taken by tape recording, and it was signed and sworn to by defendant.

The defendant, at the request of the police, gave them some of his public hairs and Dr. Harrison testified that he compared them with other hairs which he obtained from a pair of shorts and a red shirt which were taken from defendant's bedroom, and which defendant admitted had been worn by him, and also from the bed in which Miss Franklin was assaulted, and that they originated from the same source. The doctor also testified that a white hair which was taken from the red shirt of defendant had come from the head of Miss Franklin. Fingerprints of defendant were found on an electric light bulb in Miss Franklin's house.

At the trial defendant denied that he killed Miss Franklin or that he entered her house although he admitted that he was near it in his walks around the neighborhood between nine and ten o'clock Saturday evening, April 23. His mother, two sisters and a brother-in-law testified in support of his alibi, but one of them stated she left the house at eight o'clock and the other three testified that defendant was out of the house from a little after nine to shortly after ten o'clock that night. The defendant lived two or three blocks from Miss Franklin's house. He admitted that he had consumed a bottle of wine that morning and had had more to drink during the day, and felt 'high.' He also admitted to some resentment on Saturday at having been locked up Friday night.

The defendant also offered medical evidence as to his mental condition. His expert testified that he was suffering from inadequate personality, was emotionally immature, and was easily influenced by suggestions. He also testified that he would say that defendant did not know the difference between right and wrong. In rebuttal the state's expert on mental diseases testified in substantial contradiction of defendant's medical expert.

Under his point I defendant argues the part of his motion for a new trial which reads: 'That the verdict is against the law.' To support his claim he relies upon State v. Saccoccio, 50 R.I. 356, 147 A. 878, where this court overruled the defendant's exception to the trial court's refusal to submit second degree murder to the jury under an indictment charging the defendant, as here, with first degree murder committed while he was perpetrating one of the felonies mentioned in General Laws 1938, chapter 606, § 1.

In the case at bar the trial justice charged that the jury could find defendant guilty of first degree murder or of second degree murder on all counts. While defendant claims he excepted to the submission of second degree murder, he did not. His trial counsel only said: 'Those portions of Your Honor's charge where defining second degree murder you stated several times 'where he has no chance to stop or things move so fast that it would be murder in the second degree.'' That was an exception as to how the court charged and not to its charging at all on second degree murder. Nowhere in his brief has defendant argued his exception as taken. However that may be the correctness of the charge was not before the trial justice for review on the motion for a new trial. The defendant is here complaining that the jury followed the law as given to it and found him guilty of murder in the second degree. This point is without merit.

Under his point II defendant contends that the trial justice should not have charged on the law of second degree murder 'by defining second degree murder.' We have already pointed out that defendant did not object to the submission of second degree murder but only to a part of its definition and that he has not argued here that such part was wrong. Exceptions not briefed or argued are deemed to be waived. Exception 40 is overruled.

The defendant contends, under his point III, that the trial justice committed reversible error in not granting his motion for a new trial on the ground of newly discovered evidence. Under this point he first discusses certain evidence introduced at the trial in an apparent attempt to lay the foundation for showing the effect of the newly discovered evidence upon it. There is so little connection between the evidence at the trial and the new evidence that we think it unnecessary to go into that phase here.

Several affidavits were presented. The defendant admits that those of his relatives should be disregarded. That leaves three to be considered. The first affidavit is that of Charles F. McHugh, a probation counsellor for the state. It is all hearsay and avails defendant nothing. Langley v. F. W. Woolworth Co., 46 R.I. 394, 397, 129 A. 1. No explanation is given as to why the affidavits of the persons who could testify were not taken. This affidavit relates chiefly to a navy man who, a barkeeper told him, was acting strangely in the barroom on Saturday night, April 23, but the exact movements of that man on that night are not given. Taking the affidavit at its face value, it is very shadowy and inconclusive.

The second affidavit is that of a bus driver who said that there was a street light shining on the door of Miss Franklin's house and there were no sounds or screams coming from the house at approximately 8:35 p. m. on April 23. Clearly this evidence is without weight. The defendant testified he took his walk in that vicinity between nine and ten o'clock that night.

The other affidavit is that of a person who stated that on Sunday, April 24, between 10 and 10:30 a. m. he was passing Miss Franklin's house and there was a car parked near her front steps and a man standing on the steps knocking at the door. He said the man waited a short time and then drove off. He described the person somewhat but there is nothing to show whom he describes, and the significance of this evidence is far from clear.

In State v. De Cesare, 64 R.I. 123, at page 126, 10 A.2d 724, at page 725, this court stated: '* * * the affidavits of the four persons, upon whose testimony the petition is based, do not disclose evidence of such character as to be so controlling upon a material issue that it would probably change the result, if another trial were had.'

The new evidence does not meet the test, and the trial justice did not abuse his discretion in denying the motion for a new trial on...