State v. Cohen

• Decision Date: 21 July 1961
• Docket Number: No. 10105,10105
• Citation: 172 A.2d 737,93 R.I. 215
• Parties: STATE v. Morris COHEN. Ex.
• Court: Rhode Island Supreme Court

Page 737

172 A.2d 737

93 R.I. 215

STATE v. Morris COHEN.

Ex. No. 10105.

Supreme Court of Rhode Island.

July 21, 1961.

J. Joseph Nugent, Atty. Gen., Corinne P. Grande, Special Counsel, Providence, for the State.

Maxwell W. Waldman, Aram A. Arabian, Providence, for defendant.

POWERS, Justice.

This is an indictment for murder. A jury in the superior court found the defendant guilty of manslaughter. His motion for a new trial was heard and denied by the trial justice. The case is before us on his exceptions to the denial in part on his motion for a directed verdict and the denial of his motion for a new trial, and also on his exceptions to certain evidentiary rulings and certain portions of the charge.

The defendant and his wife were married in the city of Providence about ten days prior to her death on October 24, 1958. His uncontradicted testimony is that they had been acquainted for many years, having first met in 1930, and that during the years they had remained on friendly terms. He had never married, but she had. Her first husband died about six months before her marriage to defendant. After their marriage, defendant and his wife took up residence on Emerson street in Providence, where he had lived with his mother for some years prior to her death.

The house on Emerson street is a three-story dwelling. The defendant and his wife occupied the second-floor apartment. The Richmond family occupied that apartment on the first floor and the Pfeiler family occupied the third-floor apartment. It is undisputed that on the evening of October 23, 1958, after leaving their respective places of employment, defendant and his wife had gone to their apartment and remained there during the night and that she died in the apartment sometime early on the morning of October 24.

The defendant was thereafter indicted and tried for the murder of his wife. After the state and defendant had rested, he moved for a directed verdict of acquittal. The trial justice granted the motion as to the charge of murder in the first degree, but denied it as to the charge of murder in the second degree and manslaughter, on which charges the case was submitted to the jury. After the verdict of manslaughter had been returned, defendant filed a motion for his discharge on the ground that there was 'no evidence in the record warranting a conviction for manslaughter * * *.' The trial justice denied this motion.

While we feel that such a motion has no standing in criminal trial procedures in this state, we do not deem it necessary to pass upon defendant's exception to the ruling thereon since the motion is in the nature of a motion to direct a verdict of acquittal. State v. Meen, 171 Wis. 36, 176 N.W. 70; People v. Ledwon, 153 N.Y. 10, 46 N.E. 1046; People v. Bennett, 49 N.Y. 137. In the Bennett case, with reference to such a motion the New York court said at page 140: 'Although the motion was in form, for an absolute discharge of the prisoner, it may be regarded, in substance, as a request to direct an acquittal * * *.' Viewed in that light, the motion was clearly superfluous, defendant having already made a timely motion for a directed verdict and having duly saved his exception to the denial thereof. The defendant's exception to the denial of his motion for discharge is therefore overruled.

We shall next consider defendant's exception to the denial in part of his motion for a directed verdict of acquittal. It is well settled that on such a motion in a criminal case the evidence and all inferences which can reasonably be drawn therefrom must be viewed in the light most favorable to the state, and that the trial justice may not weigh the evidence thereon or pass upon the credibility of witnesses. State v. St. Angelo, 72 R.I. 412, 417, 52 A.2d 513; State v. Wright, 70 R.I. 39, 36 A.2d 657. This exception, in our opinion, is clearly lacking in merit.

The effect of defendant's motion, although inferentially bearing on his guilt or innocence, was to deny that the state had proved, beyond a reasonable doubt, that the death of Anna F. Cohen resulted from the commission of a crime and could not within reason have resulted from an accident or natural causes attributable to her general physical condition. It is elementary that unless the state established the corpus delicti beyond a reasonable doubt the defendant was entitled to an acquittal.

Although no person other than defendant could describe the circumstances in which the deceased came to her death, because it is undisputed that he alone was with her at the time, an autopsy was performed on behalf of the state by Dr. Gary P. Paparo. He observed the condition of the corpse, the multiple bruises and the condition of the throat, and from these factual conditions expressed the opinion that death resulted from manual strangulation. Admittedly opinion evidence, it was based on the observation of a trained mind and was not mere speculation. It constituted evidence competent for consideration by the jury which, coupled with the photographic exhibits and the testimony of Dr. Joseph A. Hindle that death could not have resulted from an attack of asthma, could be weighed by the jury in passing on the question of criminal culpability.

That the defense offered an alternative theory, namely, that the deceased met her death from an asthmatic attack and that the injuries to her throat resulted from her striking some part of the bed in her fall, does not deviate from the principle that both contentions are questions of fact properly and exclusively within the province of the jury. In passing on the question of corpus delicti, it was their duty to resolve it on the basis of the evidence before them beyond a reasonable doubt, as distinguished from beyond all doubt. This exception is therefore overruled.

The defendant preserved 267 exceptions on evidentiary rulings relating to the admission and exclusion of testimony, to the denial of motions to strike, and to admit certain exhibits. We have carefully examined all of these exceptions and find them to be without merit. Conceding that in some instances the rulings to which exceptions were taken may have constituted technical error, we are not persuaded that any of them was prejudicial. These exceptions are overruled.

The defendant further excepts to the refusal of the trial justice to charge the jury that 'Proof of motive is essential in this case and in its absence, you must find the defendant not guilty.' He bases the request for this charge upon the language in State v. Gordon, 1 R.I. 179, 188. The defendant misconceives the import of that decision. Therein this court simply held that evidence of motive, if any exists, must be submitted to the jury to aid it in evaluating incontrovertible evidence from which the mind might tend to shrink in the absence of a moving cause.

Moreover, at defendant's request the trial justice did charge the jury that there was no evidence of motive in this case and its absence was a strong circumstance in favor of the innocence of defendant. It is well settled that an accused is not entitled to any more than was accorded to the instant defendant by the instructions given to the jury by the trial justice. Trobough v. State, 119 Neb. 128, 227 N.W. 443, 65 A.L.R. 1051.

In addition, defendant presses 15 exceptions to the charge as given by the trial justice to the jury, each exception being to isolated phrases taken, as it were, from context. While each of those exceptions when read singly seems plausible, the charge when read as a whole is not open to successful attack. We have repeatedly held that phrases taken out of context must be considered in the light of the instructions in their entirety. See Templeton v. Bateman, R.I., 159 A.2d 609.

The defendant particularly presses a contention that since his motion for a direction of not guilty of murder in the first degree had been granted by the court, the general language of the charge to the effect that defendant could be found guilty of murder tended to prejudice the jury and may have contributed to their arriving at the verdict that defendant was guilty of manslaughter. We perceive no merit in this contention. The fact that the jury concluded defendant was guilty of manslaughter clearly precludes any assumption that they were misled by the instructions given them in the charge of the trial justice. All of the exceptions to the charge are without merit and are overruled.

The defendant's final exception is to the denial of his motion for a new trial. It is well settled that the decision of the trial justice on such a motion is entitled to great weight and will not be disturbed unless it is clearly wrong or fails to do justice between the parties. In the instant case the trial justice carefully reviewed the evidence, exercised his independent judgment, commented on the credibility of the witnesses, and in all respects complied with the obligation with which he was confronted in passing on the motion.

He referred to the protracted period of time during which screams were heard by the neighbors and of which no explanation was given by defendant. Further, he commented on statements made by defendant in his explanation as to what occurred which were inconsistent with established facts. The court in great detail credited the testimony of Drs. Paparo, Hindle and Ford and flatly discredited the testimony of the medical experts for defendant. He summarized the condition of the corpse, the multiple bruises, the broken bones and teeth and the numerous lesions disclosed by the autopsy. Against this he commented on every factor in favor of the defendant and concluded that on all of the evidence the...