State v. Harris
| Decision Date | 26 February 1970 |
| Docket Number | 10760,Nos. 10759,s. 10759 |
| Parties | STATE v. George F. HARRIS (two cases). Ex. &c. |
| Court | Rhode Island Supreme Court |
After a trial to a jury in the Superior Court, the defendant George F. Harris was convicted of aiding and assisting 'in the recording of a bet on a horse race' in violation of G.L.1956, § 11-19-14, and of knowingly promoting a 'Policy Lottery' in violation of § 11-19-1. A motion for a new trial in each case was denied; sentence was thereafter imposed, and the defendant is now in this court prosecuting a bill of exceptions in each case.
The record discloses that defendant, employed as a bartender in Phil's Tap, a licensed place located on Pine Street in the city of Providence, had been under observation by a member of the Providence Police Department, James H. Higgins, for some nine or ten days prior to August 10, 1963. The police officer testified that during that period he had on several occasions observed defendant take slips of paper from the top of a refrigerator, talk to a patron, make some notation on the paper, accept money from the patron, and then place the paper in the pocket of a coat hanging on a nearby clothing rack. On August 10, 1963, the police officer placed a bet with defendant on a horse known as 'Portrayel which was running in the sixth race at Rockingham Park.' At the same time the detective placed a number-pool bet with defendant, and notations as to both were placed in the pocket of the jacket hanging on a clothing rack. On August 17 defendant was arrested and charged with promoting a lottery and assisting in the recording of a horse bet.
The defendant argues that it was error to permit the police officer to testify that during the time the officer had the place under observation defendant recorded horse bets on repeated occasions. There is no merit in this contention. It is conceded that generally evidence of prior criminal conduct is inadmissible to prove another offense. However, such evidence may be admitted where it tends to establish the existence of a criminal intent as to the offense under consideration. State v. Mazzarella,103 R.I. 253, 236 A.2d 446; State v. Peters, 86 R.I. 447, 136 A.2d 620. We noted the latitude of this exception in State v. Colangelo, 55 R.I. 170, 174, 179 A. 147, 149, where we said: 'Any circumstance that is incidental to or connected with the offense under investigation in such a way that it tends to establish guilty knowledge, intent, motive, design, plan, scheme, system, or the like, is proper evidence according to the overwhelming weight of authority.' Despite defendant's contention to the contrary, we know of no rule requiring that the prosecution lay a foundation for the introduction of such evidence in order to justify its admission as being necessary to prove the commission of the offense under consideration, nor does defendant direct our attention to any such authority.
Neither do we perceive any merit in defendant's argument that the evidence adduced concerning his prior recording of bets could prejudice him by reason of its probative force on the issue of his guilt of the crimes with which he is here charged. He argues that because of this the trial justice was required to give a cautionary instruction as to the purpose of its admission and that it was not to be considered on the question of his guilt. It is to be noted, in the first place, that the evidence to which reference is made was properly admitted, and it is conceded that, if believed, it would prejudice defendant. But this does not obligate the trial justice to give such a cautionary instruction to the jury, absent a specific request therefor from defendant.
It does not appear from the record that defendant requested the court to give such an instruction, and this court will not charge a trial justice with error simply because he fails to charge on the effect of evidence otherwise admissible, absent a specific request for such an instruction. It is the duty of counsel to direct the attention of the trial court to whatever circumstances exist in the case which, in his opinion, would warrant the giving of the cautionary instruction particularly to minimize the prejudicial effect of evidence to whatever degree might be necessary. Absent such a request and absent any peculiar circumstance, the failure of a trial court to give a cautionary charge as to the prejudicial effect of evidence properly admitted will not be considered in this court unless a specific request for such an instruction was made below. State v. Wiggin, R.I., 256 A.2d 219; State v. Jefferds, 89 R.I. 272, 152 A.2d 231.
The defendant contends that the court erred in allowing the prosecution to introduce evidence that one Theodore Isabella, the manager of Phil's Tap and defendant's immediate superior, had been arrested in the establishment in August of 1962 while 'looking at the Armstrong' in the presence of defendant. This evidence was proffered by the state for the purpose of impeaching defendant's testimony that he had never seen an 'Armstrong' on the premises. An 'Armstrong' is a racing publication wherein the horses running at various tracks around the country are listed from day to day. It was not error to admit this testimony. We have held that the prosecution may, for the purpose of laying a foundation for contradicting, discrediting, or impeaching the witness, introduce evidence as to what that witness said or did on a prior occasion. State v....
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