State v. Ciocca
| Decision Date | 06 April 1965 |
| Docket Number | No. 332,332 |
| Citation | 209 A.2d 507,125 Vt. 64 |
| Parties | STATE of Vermont v. Ralph CIOCCA. |
| Court | Vermont Supreme Court |
John J. Boylan, State's Atty., Burlington, and Chester S. Ketcham, Deputy Atty. Gen., for the State.
Charles J. Adams, Waterbury, and Samuel C. Fitzpatrick, Montpelier, for defendant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY and SMITH, JJ.
This prosecution was commenced by an information issued by the State's Attorney of Chittenden County dated January 31, 1964. It charged the respondent with the commission of a crime, which for all practical purposes at this point, alleged the attempted burning of a building to defraud certain insurers, a violation of 13 V.S.A. § 506.
Various pre-trial motions aimed at the sufficiency of the information and subsequent action on the part of the State's Attorney resulted in an entirely new information being presented against the respondent in the form of three counts. Following a trial and conviction on each of the three counts, the respondent filed a motion in arrest of judgment, and also a motion for a new trial. Each motion was denied and sentence imposed by the court. A mittimus was issued and the respondent has since been confined in the State Prison at Windsor, Vermont.
The information in effect at time of trial charged the respondent as follows:
Count 1----
Count 2----
Count 3----
'That Ralph L. Ciocca of Burlington in the County of Chittenden at Burlington in said County of Chittenden on to wit: the 13th day of November, 1963; Did then and there wilfully and maliciously attempt to burn and aid counsel and procure the burning of a building to wit: Bob's Spaghetti House in South Burlington, Vermont in violation of Section 505, Title 13, V.S.A.'
The respondent and his wife, Dorothy Ciocca, acquired a piece of property located at 2026 Williston Road in South Burlington, Vermont, in 1957. This property consisted of a cement block stuccoed two-story structure with a restaurant on the ground floor and an apartment on the second floor. The restaurant was known as 'Bob's Spaghetti House', and owned by the respondent and his wife at the time of the events which were the basis of the information issued in this case. The restaurant portion of the property was then under a lease to Robert Hedger. The respondent was operating a restaurant in Burlington, Vermont, known as Bernardini's at this time.
Some of the insurance on the Williston Road property had been cancelled September 20, 1963. There then remained only a single interest policy in favor of the Burlington Federal Savings and Loan Association of $15,000, insuring the interest of the mortgagee. About that time the respondent went to South Hero, Vermont, where he saw an insurance agent named Fiske Fifield who arranged for additional insurance of $37,000 on the Williston Road building, and $5,000 on the personal property. Notices of cancellation of such insurance to the extent of $19,000 on the building, and $5,000 on the personal property were mailed about November 7, 1963, to become effective November 18, 1963.
On November 10, 1963 Edmund Bessery arrived as a passenger in respondent's car in Winooski, Vermont where Bessery visited with Leo Kirby at Kirby's home. According to Bessery's testimony, Ciocca told Bessery to ask Kirby to burn Bob's Spaghteei House, and to offer him $200 for Bessery to ask Kirby to burn Bob's Spaghetti to run out on November 17th or 18th. There was no evidence as to the response by Kirby at that time, but subsequently he saw Lt. Lloyd Howard of the State Fire Marshall's Office and another police officer. It can be inferred that he reported the incident because Lt. Howard testified that as a result of this visit he placed a watch on the building at 2026 Williston Road commencing November 13, 1963.
The watch continued each evening until November 16th, when Lt. Howard with another officer observed two individuals approach the premises in an automobile and go up the stairs to the second floor apartment. One was first observed in a crouched position, and on being spoken to by the officers dropped a newspaper. The other person was apprehended in a third room which was entered by the investigating officers. There were two gallon jugs discovered in the rooms, one containing a fluid which smelled like kerosene or paint thinner, and the other containing a fluid which smelled like gasoline. There was an odor of gasoline in the premises.
There was evidence that one man took something with him which he removed from the back seat of the car, and that the same man who first entered the door appeared back on the steps bent over as though he was picking something off the top step and then re-entered the building. These two men were Roland Garceau and Bernard Woodmansee. Each were arrested and arraigned in the Chittenden County Court.
Bessery testified that prior to this event, and a couple of days after the visit to the Kirby home, the respondent took Bessery with him to find a person by the name of Joseph Cabrera in Winooski. Ciocca asked Cabrera how much he would charge to burn Bob's Spaghetti House. Cabrera said it would be $500, and later while Bessery was in the Bernardini's restaurant he said he saw Ciocca give Cabrera a white envelope with $250, and a key in it. Bessery also testified that he heard Ciocca tell Cabrera to do a good job.
Following are the issues which are presented for our consideration.
(1) Does the information, and counts contained therein sufficiently charge the respondent with offenses under the statute to support the jury verdict of guilty thereon?
(2) Is the evidence, viewed in the light most favorable to the State, sufficient to support the verdicts of guilty to each of the three counts?
(3) Was the jury adequately appraised of the scope, extent and meaning of the several counts contained in the information through the charge as given?
By the respondent's motion in arrest of judgment, which was denied by the court, he therein challenged the legal sufficiency of each count of the information. It is claimed that the information, as to each count, is improper in substance and charges him with no offense under the law of this State.
With the foregoing in mind, we start off with the general statement that one charged with a crime has the right guaranteed by the Constitution to demand the cause and nature of his accusation, which requires that the charge be set forth with such particularity as will reasonably indicate the exact offense with which he is charged. State v. Ryea, 97 Vt. 219, 221, 122 A. 422, citing State v. Villa, 92 Vt. 121, 102 A. 935.
Count 1 is founded on two sections of 13 V.S.A. which in part read:
' § 506. Burning to defraud insurer
'A person who wilfully and with intent to injure or defraud the insurer sets fire to or burns or attempts so to do or who wilfully and maliciously causes to be burned or who wilfully and maliciously aids, counsels or procures the burning of any building, structure or personal property, of whatsoever class or character, whether the property of himself or of another, which shall at the time be insured by any person, company or corporation against loss or damage by fire * * *.'
' § 4. Accessory before the fact
'A person who is accessory before the fact by counseling, hiring or otherwise procuring an offense to be committed may be complained of, informed against or indicted, tried, convicted and punished as if he were a principal offender * * *.'
Count 1 charges the respondent with wilfully intending to defraud certain insurance companies, in that he did 'wilfully, maliciously, aid, counsel and procure the attempted burning of the building. * * *' in violation of section 506, supra, and related section 4, supra.
Respondent urges that for a person to be guilty under section 506, supra, there must be the procurement of an actual burning--and that the procurement of an attempted burning does not constitute an offense under this section. The respondent admits in his brief that if he, himself, had attempted to carry out the burning, but failed, that he would be within the scope of this section. It is claimed by him that aiding, counseling and procuring the attempt to burn does not constitute a violation of section 506, supra, and that Count 1 is defective.
The accessory statute, section 4, supra, makes it a crime to counsel, hire or otherwise procure an...
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State v. Myers
...attack at any time. People v. Heard, 47 Ill.2d 501, 266 N.E.2d 340 (1970); State v. Hook, 433 S.W.2d 41 (Mo.App.1968); State v. Ciocca, 125 Vt. 64, 209 A.2d 507 (1965); State v. Webster, 105 N.H. 415, 200 A.2d 856 (1964). See, also, 42 %.c.j.s./ Indictment and Information, § 101, at B. The ......
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...fair, and correct on all issues, theories, and claims within the pleadings, so far as the evidence requires." State v. Ciocca, 125 Vt. 64, 74-75, 209 A.2d 507, 515 (1965); see also State v. McLaren, 135 Vt. 291, 296, 376 A.2d 34, 38 (1977); State v. Rebideau, 132 Vt. 445, 454, 321 A.2d 58, ......
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