State v. Colvin

• Decision Date: 23 July 1954
• Docket Number: No. 9353,9353
• Citation: 82 R.I. 212,107 A.2d 324
• Parties: STATE v. COLVIN et al. Ex.
• Court: Rhode Island Supreme Court

Page 324

107 A.2d 324

82 R.I. 212

STATE v. COLVIN et al.

Ex. No. 9353.

Supreme Court of Rhode Island.

July 23, 1954.

On Motion to Reargue Aug. 6, 1954.

William E. Powers, Atty. Gen., William J. Counihan, Jr., Asst. Atty. Gen., for the State.

Aram A. Arabian, Providence, for defendant.

BAKER, Justice

This is an indictment charging that Herbert F. O'Rourke and Clare M. Colvin on November 24, 1950 did enter in the nighttime the dwelling house of Levon M. Juskalian and Irene Juskalian with intent to commit larceny. Herbert F. O'Rourke pleaded nolo contendere and was sentenced. In the superior court Clare M. Colvin, hereinafter termed the defendant, was found guilty by a jury and her motion for a new trial was denied by the trial justice. The case is before us on her bill of exceptions containing a number of exceptions, only two of which are now pressed. These are the twenty-first and twenty-second, being respectively to the failure of the trial justice to direct a verdict of acquittal and to grant her motion for a new trial. Her other exceptions not being briefed or argued are deemed to be waived. The defendant, who was represented by counsel from the beginning, does not contend that she was deprived of any rights under the federal or state constitutions.

The instant indictment, in keeping with the law of State v. Patriarca, 71 R.I. 151, 155, 156, 43 A.2d 54, 56, 160 A.L.R. 387, clearly charges defendant with being a principal in the alleged offense. In that case this court in considering two indictments against the defendant therein as an aceessory before the fact to two murders had occasion to make the following statement: 'The common-law distinction between principals and accessories in felonies still holds in this state. * * * In this state it is still the law that an indictment for a felony must charge a person as a principal or as an accessory before the fact, according to the facts; and that on an indictment which charges the defendant as principal he cannot be convicted on evidence, showing that he was merely an accessory, or vice versa * * *.' It is vigorously argued on behalf of defendant that whatever the evidence may show as to her conduct in connection with the charge, it falls short of establishing beyond a reasonable doubt that she acted therein as a principal rather than as an accessory. That is the chief issue raised here. The state argues there is ample evidence to support the verdict.

It is unnecessary for the disposition of this case to set out all the evidence in detail. It appears from the testimony that in the winter of 1950-1951 defendant was living in the city of Cranston with her husband, a truck driver, and her twin daughters by an earlier marriage, who were about eight years of age. Herbert F. O'Rourke, who was married but living apart from his wife, boarded with the Colvins. There was testimony which tended to show that defendant had seen Irene Juskalian wearing two rings with large diamonds; that she had asked O'Rourke to get them for her; and that in October and November 1950 when riding they frequently drove past the Juskalian house which was located in the Meshanticut Valley Parkway in Cranston.

For some time defendant's car had been under surveillance by several town and state police officers in connection with suspected thefts. On the morning of February 3, 1951 members of the Rhode Island and Connecticut state police went to defendant's home for the purpose of investigating such thefts. She and her children were the only persons at home. The defendant herself opened the door and invited them into the house. Thereafter the Massachusetts state police also went to the house. Later that morning the Cranston police in investigating the instant crime joined them. She was present at all times and although she knew that they were police officers she made no objection to their search of the house. As a result thereof a great quantity of stolen articles such as antiques, clothing, clocks, china and the like were discovered therein. Further, a member of the Cranston police found in the lower left corner of the bottom drawer of a dresser in the downstairs bedroom the jewel box of Irene Juskalian containing costum and inexpensive jewelry. This box and its contents were later identified by Irene Juskalian as belonging to her and there was other testimony, in addition to defendant's statement, that she had control of this box and previously put it in that bedroom dresser.

About noon defendant was driven by the officers successively to several Rhode Island state police barracks where particular thefts were under investigation. Questioning of her was only at intervals in order to check certain facts. Since they had not connected her with any such thefts, she was finally released and late that night was taken home by the state police. Thereafter about midnight the Cranston police took her to their headquarters in connection with their investigation of the instant crime. The interrogation there was considerably delayed by several explained interruptions. Early in the morning of February 4 defendant finally completed her statement with reference to the planned entering of the Juskalian house on the evening of November 24, 1950 for the purpose of committing larceny. That statement, which was entirely voluntary and made without threats, duress or any inducement, was signed by her after she had read it and had made certain corrections. It was introduced in evidence as the state's exhibit 5 and reads as follows:

'Cranston Police Hdqts. Cranston, R.I. February 4, 1951

'This is a true and accurate statement given to Insp. A. J. Moretti in the presence of Chief L. B. Fouchecourt by Clare M. Colvin age 29 of 45 Scituate Ave. Cranston in regards to her activities concerning the series of house breaks in the City of Cranston.

'Q. What is your full name, age and date of birth? A. Clare M. Colvin, age 29, date of birth 2/22/22.

'Q. Where do you live? A. 45 Scituate Ave. Cranston, R.I.

'Q. Who do you live with? A. My husband Edmund L. Colvin age 33 and Herbert F. O'Rourke age 27 and my twin daughters Merrilyn Lee and Sandra Lou both 8 yrs. of age.

'Q. Do you own a beach wagon? A. I do it is a 1949 Ford Station Wagon R. I. Reg. E-454.

'Q. Have you driven your beach wagon in the City of Cranston? A. Yes.

'Q. Will you tell me just what took place on some of the times that you drove your beach wagon?

'A. On C.M.C. at about 7:00 P.M. I drove the beach wagon and my husband and O'Rourke and my 2 daughters were with me, we drove to in front of 78 Meshanticut Valley Parkway and as this house was in darkness I stopped the beach wagon and both my husband and O'Rourke got out, they had a crow bar with them and they each had a flashlight and they busted a window and entered the house and returned in a few minutes with a jewelry box that had an assortment of cheap jewelry. I then drove home and placed this box in my bottom dresser drawer.

'This happened Nov. 24, 1950 C M C

'Is there anything else that you wish to add to this statement? A. No.

'Q. Is this statement taken given of your own free will without threats by the Police? A. Yes.

'Signed

[Signed] Clare M. Colvin

Age 29

45 Scituate Ave

'[Signed] Anthony J. Moretti.'

Information thereafter received by the Cranston police concerning her husband caused them to re-examine defendant on February 6, 1951. They told her that he was not present at the Juskalian break and asked why she had implicated him. Her answer in substance was that she wanted him to be in as deep as O'Rourke. According to the testimony of the inspector and other members of the Cranston police, she stated that the true story was that she and O'Rourke planned the crime; that on the way they agreed if the house was in darkness he would enter it and look for the diamond rings; and that she agreed to drive the car away from that vicinity and return in five or ten minutes. She further told the police that the house was dark, O'Rourke got out of the car, she gave him a crowbar, and drove away from the vicinity. She then said she returned in about ten minutes, parked a distance away from the house, and when O'Rourke beckoned she drove to where he was, picked him up and started toward her home. The above statement made by defendant to the Cranston police was oral and she did not give it until they agreed not to put it in writing or to ask her to sign it.

It is well settled that upon a motion for a directed verdict by a defendant in a criminal case the evidence must be viewed in the light most favorable to the state. State v. Wright, 70 R.I. 39, 36 A.2d 657; State v. Lorenzo, 72 R.I. 175, 48 A.2d 407, 49 A.2d 316. The state introduced independent evidence which sufficiently tended to establish the corpus delicti, that is, the body of the crime, and also exhibit 5, the statement signed by defendant. In support of her motion for a directed verdict, she argues in effect that the credible evidence indicated that at most she might have been an accessory, since she drove O'Rourke to the scene of the crime and then, according to her oral statement, drove away and returned later to pick him up, but that there was no evidence to go to the jury on the charge that she had acted as a principal. In so arguing she not only views the evidence most favorably to herself, contrary to the rule, but also takes the position that exhibit 5 is valueless as evidence because it was not a true narrative of what took...