State v. Braica, 9076
| Decision Date | 02 February 1951 |
| Docket Number | No. 9076,9076 |
| Citation | 78 A.2d 374,78 R.I. 32 |
| Parties | STATE v. BRAICA et al. Ex. |
| Court | Rhode Island Supreme Court |
William E. Powers, Atty. Gen., Raymond J. Pettine, Special Counsel, Providence, for State.
Peter W. McKiernan, Providence, for defendants Alfred Braica and Paul Calise.
Charles A. Kiernan, Providence, for defendant William S. McCowan.
This is an indictment for burglary. After conviction by a jury in the superior court defendants' motion for a new trial was denied. The case is before us on their exceptions to that decision and to certain rulings during the trial.
It appears in evidence that on July 2, 1948 Francesco Iannarelli and his wife occupied the lower tenement of a two-family house at 764 River avenue in the city of Providence. The front door of that tenement opened onto a porch with a few wooden steps to the sidewalk of the street. A rear room of the tenement had a window which was some six feet from the ground. Iannarelli testified that when he left his home on that evening about 9:30 o'clock to join his wife, who was visiting her mother in East Providence, all doors and windows to the tenement were shut; that about 12:30 a. m. he was notified by the police that his tenement had been entered; and that he immediately went to his home where he found the rear window open and some of the rooms ransacked.
Captain Walter E. Stone of the Providence detective department testified that on the night in question he was in a scout car with detective Saverin Cipolla; that in answer to a radio flash from headquarters he went to 764 River avenue, where he instructed Cipolla to cover one side of the house while he, going along the other side, went to the back yard and saw a rear window to Iannarelli's tenement open; that on raising himself up to the window he heard a noise as if somebody was running through the tenement; that he immediately dropped to the ground and, dashing to the front of the house, he saw two men running down the porch steps thereof; and that he chased them for some distance and finally caught them in a dead-end street. Those men were the defendants Alfred Braica and Paul Calise.
After the captain had brought them to headquarters together with the third defendant William S. McCowan, whom detective Cipolla had chased and caught, he returned to the scene to get Calise's automobile which was parked in that vicinity and, on closer examination of the dead-end street, he picked up a flashlight that, according to the captain, Calise admitted belonged to him. The flashlight was introduced in evidence without objection. Other than to testify that he saw three men running from the porch and that he ran after and caught McCowan, who was one of them, detective Cipolla's testimony with reference to what occurred at the Iannarelli tenement was substantially to the same effect.
An examination of the defendants at headquarters, shortly after their arrest and in the presence of Captain Stone, was stenographically reported and transcribed, which written statements the defendants refused to sign. Neither the statements nor the stenographic notes were used in any way by the state in the presentation of its case. However, Captain Stone testified over defendants' objection that he asked Braica 'what he expected to get in the house' and that his answer was 'Oh, what do you want me to say, what the * * *, you caught me.' Calise's answer to a similar question was: 'You caught us.' Whether the questions just mentioned were asked by Captain Stone in the course of the above-mentioned examination of the defendants or independently thereof is not clear. The fact is that he testified of his own memory without the aid of memorandum of any kind. In addition to the alleged admissions just stated detective Cipolla testified that while he was taking McCowan down to the cell room, the latter told him that 'he was the lookout man' at the time.
Calise was the only defendant to testify. His testimony in substance was that in company with Braica and McCowan he drove his automobile to River avenue sometime after 10 p. m. and parked it in the vicinity of the Iannarelli home; that he was looking for one Gerusso who lived in a house owned by a man named Jordano; that his purpose was to borrow some money from Gerusso and in turn lend it to McCowan, who had asked him, Calise, for a loan which he could not grant because he had no money; and that leaving McCowan in the automobile he and Braica started to look for Jordano and on inquiry from a passerby they were directed to the Iannarelli house. He further testified that, after ringing the bell and receiving no answer, he started down the porch stairs, where he 'tripped' over a piece of...
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