State v. Dipietrantonio

• Decision Date: 16 April 1956
• Citation: 122 A.2d 414,152 Me. 41
• Parties: STATE v. Anthony DIPIETRANTONIO.
• Court: Maine Supreme Court

Page 414

122 A.2d 414

152 Me. 41

STATE v. Anthony DIPIETRANTONIO.

Supreme Judicial Court of Maine.

April 16, 1956.

Gaston Dumais, County Atty., William D. Hathaway, Asst. County Atty., Lewiston, for plaintiff.

Armand A. Dufresne, Lewiston, for defendant.

Before FELLOWS, C.J., and WILLIAMSON, WEBBER, BELIVEAU, TAPLEY and MURRAY, JJ.

FELLOWS, Chief Justice.

This is an indictment for rape. The case comes to the Law Court on exceptions of the respondent and on appeal from denial of motion for new trial, after trial in the Superior Court for Androscoggin County and verdict of guilty.

The indictment charged "that Anthony Dipietrantonio of Portland, County of Cumberland, State of Maine, on September 26, 1954, at Turner, County of Androscoggin, State of Maine on one Mary Helen Sweeney, a female of the age of nineteen years, feloniously did make an assault, and her, the said Mary Helen Sweeney, then and there, by force and against her will, feloniously did ravish and carnally know ***".

Briefly the facts appear to be that on Saturday evening September 25, 1954 at about 11 o'clock Mary Helen Sweeney of Portland, the complainant, weighing 110 pounds, nineteen years old and unmarried, met an acquaintance, one Nicholas Dipietro, on Temple Street in Portland. Dipietro was with his cousin, Anthony Dipietrantonio, the respondent. The respondent was previously not known to Miss Sweeney. After some conversation the three left Portland in the respondent's automobile for Rumford to call on Miss Sweeney's sister, whom she had not recently seen and with whom Dipietro had apparently been friendly.

They stopped outside of Portland, and Dipietro got out of the car and went into a store to buy several bottles of beer. Miss Sweeney remained in the car with the respondent, while Dipietro made the purchase. The two men drank the beer. Later they stopped again for more beer. The three sat on the front seat and Dipietrantonio drove the car. They passed through Gray and Auburn on the way to Rumford.

When they reached the town of Turner, Dipietro said that it was necessary for him "to go to the bathroom," and he got out of the front seat. It was very dark and no houses were near. Miss Sweeney testified that after Dipietro left the car Dipietrantonio "tried to kiss me and put his arms around me and I didn't want him to and I pushed him away and he grabbed me and pushed me against the back of the seat and hurt my back. He pushed me over on to the back seat and I tried to fight him and he kept hitting me ***. I told him to leave me alone and he kept hitting me and ripping at my clothes, and he tore my skirt and my brassiere, and the more I told him to leave me alone the more he would hit me ***. I had black and blue marks on my arms and legs ***. I tried to fight back. I hit him and scratched him. I tried to kick him but I couldn't move my legs because he had them spread and was laying on them ***. I told him if he didn't leave me alone I would tell the police and he said I would not be able to tell anybody. He said he would kill me. I hit him and I know I scratched him and tried to kick him away from me. He had my pants ripped off. He held my arms and forced me."

"Nicky came back to the car and he asked me what happened. He wanted to know what happened because I was crying and everything, and I tried to tell him but I couldn't, and he asked Tony what he did to me and Tony said 'nothing.' He said he didn't do anything. I wanted to go home and so Nicky drove the car and I sat in front and Nicky drove and Tony sat alongside of me and on the way back he said he wanted to get in the back seat with me and I said, 'No', and I told Nicky not to let him take me in the back seat and to tell him to leave me alone and he told him to leave me alone."

"Q. What were you doing while you were driving back? A. Just sitting there, crying.

"Q. You cried all the way back? A. Yes.

"Q. When you arrived home what did you do? A. I went upstairs. I went into the house, and I woke my mother up.

"Q. What time was this, by the way, approximately? A. Around three, I think; around three o'clock.

"Q. Three A.M.? A. Yes. And I told my mother what had happened.

"Q. And then what did you do? A. I took my skirt off and my sweater because it was all ripped, and I put an old pair of dungarees on and I went downstairs and called the police, and they came up and took me down to the police station.

"Q. Will you tell the Court and jury anything you heard said in the police station while the respondent, Tony, was present there? A. Captain McGuire asked him if he knew me and ever saw me before and he said, 'No.' He said he never saw me before in his life. Captain McGuire said, 'You are lying.' Then Captain McGuire asked Tony where he got the scratches on his face and he said that he didn't know. Captain McGuire said, 'You do know. She gave them to you, didn't she?' And he said, 'Yes, I guess she did.' "

The respondent, weighing about 185 pounds, a mason's helper, who had been in the military service for eight years and was twenty-six years old, admitted at the trial that he had intercourse with Miss Sweeney, but he denied that he used force, did not hold her, did not pull or tear her clothes, "did not touch her sweater," "did not touch her brassiere," did not push her over the seat, did not strike her, did not "touch her skirt," and only "helped her over" on to the back seat. The respondent testified that she did not object to the act. Later on, in cross examination, the respondent positively denied that he even "helped her over" on to the back seat, and respondent stated "she got into the back seat herself."

In this case the act of sexual intercourse was admitted by the respondent, so that the jury were required to answer only two questions, (1) was it done by force? and (2) was it against her will?

The crime of rape as described by the statutes of this State is "whoever ravishes and carnally knows any female of fourteen or more years of age, by force and against her will *** shall be punished." Revised Statutes 1954, Chap. 130, Sec. 10.

The elements of the crime of rape that must be proved by the State are, therefore (1) carnal knowledge of a female (2) by force and (3) against her will. The words "without her consent" and "against her will" are used synonymously. The crime may be committed when the woman exhibits no will in the matter, as where she is drugged or non compos mentis. See State v. Flaherty, 128 Me. 141, 146 A. 7, and State v. Castner, 122 Me. 106, 119 A. 112, and authorities there cited. The uncorroborated testimony of the prosecutrix is sufficient if probable and credible. State v. Wheeler, 150 Me. 332, 110 A.2d 578.

The respondent's bill of exceptions shows that Exception I was the exclusion by the presiding Justice of questions, on cross examination of Miss Sweeney by the respondent's attorney relative to whether she had had "intercourse with a man before." The attorney stated that his reason for asking, and his only purpose, was "because it has some materiality with the question of resisting sexual intercourse or consenting to it with other men." It was not material or admissible for the purpose stated. Evidence of general reputation in the community for unchastity may sometimes be admissible, but not specific acts. State v. Flaherty, 128 Me. 141, 144, 146 A. 7. The fact that a woman is unchaste is not a defence to rape. Every woman is entitled to protection, and the statute recognizes this. The statute says "any female." Revised Statutes 1954, Chap. 130, Sec. 10. If specific acts in a person's life were admissible, each trial for rape might have a number of true or false accusations, for a jury to decide, that were not material to prove the questions of force or consent in the case on trial. Gore v. Curtis, 81 Me. 403, 17 A. 314; 3 Greenleaf's Evidence, "Rape", 2nd Ed., 192.

Exception II was taken to the fact that the presiding Justice asked of the complainant witness a series of questions relative to distances, and the comparison of distances that she was familiar with in Cumberland County, with the distance she travelled in Turner beyond the "Chickadee Restaurant." The respondent's attorney objected to the questioning by the Court because "the State is represented by able counsel" and because questioning by the presiding Justice "is prejudicial to the respondent." The presiding Justice stated to the respondent's counsel in open Court and before the jury that his only purpose was "to ascertain if this Court has jurisdiction," and whether this incident occurred in Androscoggin County and within 100 rods of the line of the next county as required by Revised Statutes 1954, Chapter 145, Section 7.

We find nothing in the questions asked by the presiding Justice that was prejudicial to the respondent's right to a fair trial. The Court has a right and duty to ascertain the fact that there is jurisdiction. If the attorney for the State had thought to ask the same questions, the respondent would have had no cause of complaint, and no more has he when the questions are asked by the Court.

Exception III related to testimony of the Sheriff in regard to the swollen condition of Miss Sweeney's face and scratches on the left side of her face, as not being rebuttal evidence. This exception was expressly waived.

Exception IV was taken by the respondent to questions asked by the presiding Justice of the respondent at the close of respondent's testimony. The claim of the respondent's counsel was that the questions might indicate that the presiding Justice had an opinion unfavorable to respondent and was by his questions expressing an opinion, contrary to the provisions of Revised Statutes 1954, Chap. 113, Sec. 104. The questions asked by the presiding Justice of the respondent, related to why the respondent went out, as he had testified, on the Saturday previous to the trial, to locate where the act took place, and why he had stated "I wanted to make...