State v. Fitzsimon

• Decision Date: 15 March 1893
• Citation: 18 R.I. 236,27 A. 446
• Parties: STATE v. FITZSIMON.
• Court: Rhode Island Supreme Court

27 A. 446

18 R.I. 236

STATE

v. FITZSIMON.

Supreme Court of Rhode Island.

March 15, 1893.

Albert Fitzsimon was indicted and convicted for burglary, and petitions for new trial. Granted.

George J. West and Patrick J. McCarthy, for petitioner.

Robert W. Burbank, Atty. Gen., for the State.

TILLINGHAST, J. One of the principal reasons urged by the defendant in support of his petition for a new trial is the joinder in the indictment of a count for assault with intent to commit rape with a count for burglary, whereby he alleges that he was embarrassed and prejudiced in his trial, the court below refusing to compel the attorney general to elect upon which of said counts he would go to the jury. At the common law the general rule of practice was to allow several felonies, or several misdemeanors, to be charged in several counts of the same indictment but not to allow the joinder of a felony with a misdemeanor. 2 Hale, P. C. 173; King v. Fuller, 1 Bos. & P. 180; Rex v. Benfield, 2 Burrows, 980; 1 Chit. Crim. Law, 208, 209; Storrs v. State, 3 Mo. 9; Scott's Case, 14 Grat 687, 694; Harman v. Com., 12 Serg. & R. 69, 70. Nor could there be a conviction of a misdemeanor on an indictment charging a felony. Rex v. Cross, 1 Ld. Raym. 711; 2 Hawk. P. C. c. 47, § 6. The reason for this rule, as stated by Paxson, J., in Hunter v. Com., 79 Pa St 503, 505 "was that persons indicted for misdemeanors were entitled to certain advantages at the trial, such as the right to make a full defense by counsel, to have a copy of the indictment, and a special jury,—privileges not accorded to those indicted for a felony." See, also, State v. Smalley, 50 Vt 736, 749. By the passage of the statute, 7 Wm. IV., and 1 Vict. c. 85, § 11, known as "Lord Denman's Act" however, which makes it lawful for the jury, in case of felonies committed against the person, to acquit the defendant of the felony, and find him guilty of a constituent misdemeanor, said rule was practically abrogated, and it is to be presumed, therefore, that the reason on which it was based no longer exists. See Reg. v. Bird, 2 Denison, Cr. Cas. 99. Later English statutes and decisions have still further modified the rigor of the common law in regard to the matter now under consideration. See Steph. Dig. Crim. Law, pp. 178-181; Ferguson's Case, Dears. Cr. Cas. 427. The common-law rule first above referred to, that a felony and a misdemeanor should not be joined in the same indictment, was based upon substantially the same reasons as the rule which prohibited the conviction for a misdemeanor under an indictment for felony. It cannot be contended, however, that the reason of said rule, even if it were still in force in England, has any application in those states where, like our own, the defendant in any indictment whatsoever is not only entitled to the assistance of counsel, who are furnished and paid by the state if he is too poor to furnish his own, but where he may testify in his own behalf, call witnesses at the expense of the state, if need be, and have every privilege and facility possible for making a full and complete defense. Indeed, as said in Hunter v. Com., supra: "By the merciful provisions of our criminal law, the higher and more atrocious the crime, the more numerous are the safeguards thrown around the accused, and the more jealously does the law guard every legal right to which he is entitled." The practice has always been in this state, on an indictment for felony, to allow the jury to convict of any lesser offense included therein, (see P.ub. St. R. I. c. 248, § 23,¹) and also to allow of the joinder of a count for misdemeanor with a count for felony, where the offenses are cognate, such as larceny and the receiving of stolen goods, and rape and an assault with intent to commit rape. State v. Hazard, 2 R. I. 474. And whether, in case of such joinder, the attorney general shall be compelled to elect upon which count he will ask for a conviction, rests in the discretion of the trial court. Whart. Crim. Pl. (9th Ed.) §§ 294-297, and cases cited; State v. Maloney 12 R. I. 251; State v. Bell, 27 Md. 675, 677; Wall v. State, 51 Ind. 453, 454. An examination of the decisions in other states upon the question of the joinder of counts for felony and misdemeanor in the same indictment shows that while they are by no means uniform, yet that such practice is generally allowable in all cases, "except where the offenses charged are repugnant in their nature and legal incidents, and the trial and judgment so incongruous as to deprive the defendant of some legal advantage." Henwood v. Com., 52 Pa. St. 424. In other words, the general rule is that felonies and misdemeanors forming part of the development of the same transaction may be joined in the same indictment. Whart. Crim. Pl. §§ 285-294, and cases cited; Harman v. Com., 12 Serg. & R. 69; Com. v. McLaughlin, 12 Cush. 612; 10 Amer. & Eng. Enc Law, 599c, and cases cited in note 4; State v. Lincoln, 49 N. H. 464; Stevens v. State, 66 Md. 202, 7 Atl. Rep. 254; Staeger v. Com., 103 Pa. St. 469, 472. In Cawley v. State, 37 Ala. 152, 153, Walker, C. J., says: "After an elaborate and care-fid review of the authorities we feel safe in announcing the conclusion that two offenses committed by the same person may be included in the same indictment, where they are of the same general nature, and belong to the same family of crimes, and where the mode of trial and nature of punishment are also the same."

The first question which arises in the case at bar, then, is this: Are the offenses of burglary and an assault with intent to commit rape cognate offenses? We do not think they are. Burglary is the breaking and entering the dwelling house of another in the nighttime with intent to commit a felony therein, whether the felonious intent be executed or not, (Russ. Crimes, [6th Amer. Ed.] 786; 4 Bl. Comm. 227;) while an assault with intent to commit rape is merely a statutory misdemeanor, entirely distinct from, and having no necessary connection with, the first-named crime. Nor are said offenses so related that the greater necessarily includes the less, as is the case in murder, which includes manslaughter, and in rape, which includes an assault with intent to commit rape. Com. v. Thompson, 116 Mass. 346. Moreover, our statutes recognize a marked distinction between burglary and assault with intent to commit rape, by classing the former with "offenses against private property," and the latter with "offenses against the person." Pub. St. R. I. cc. 240, 242. We have been referred to no case in which such a joinder as the one now before us has ever been allowed, and a somewhat thorough examination of the authorities satisfies us that none can be found. For a full discussion of the general question Involved, see Archb. Crim. Pl. & Pr. (8th Ed.) 292-300, and cases cited; Gilbert v. State, 65 Ga. 449; State v. Hooker, 17 Vt 658; Rex v. Galloway, 1 Moody, Cr. Cas. 234; Young v. King, 3 Term R. 98; People v. Tweed, 5 Hun, 353; State v. Boise, 1 McMul. 189; Kane v. People, 8 Wend. 203; Cook v. State, 24 N. J. Law, 843; Com. v. Doberty, 10 Cush. 52; Crowley v. Com., 11 Mete. (Mass.) 575, 579; Campbell v. People, ...