State v. Hart

• Decision Date: 28 October 1969
• Docket Number: No. 449-E,449-E
• Citation: State v. Hart, 258 A.2d 70, 106 R.I. 213 (R.I. 1969)
• Court: Rhode Island Supreme Court
• Parties: STATE v. Albert J. HART. x. &c.

Page 70

258 A.2d 70

106 R.I. 213

STATE v. Albert J. HART.

No. 449-Ex. &c.

Supreme Court of Rhode Island.

Oct. 28, 1969.

Herbert F. DeSimone, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., for plaintiff.

Rosedale & Iannuccillo, Anthony G. Iannuccillo, Providence, for defendant.

OPINION

POWERS, Justice.

This is an indictment charging that the defendant '* * * did break and enter in the nighttime a certain building, to wit, the shop of Ultra Lux Cleaners, inc., a corporation, with intent to commit larceny.' The case was tried to a superior court justice and a jury which returned a verdict of guilty. It is before us on the defendant's bill of exceptions wherein he assigns as errors, the denial of his motion for a directed verdict and the denial of his motion for a new trial.

After the parties had rested, defendant moved for a directed verdict. He based this on the proposition that the evidence, viewed in a light most favorable to the state, and the reasonable inferences to be drawn therefrom would not support a finding that defendant had participated as a principal in the offense charged. In advancing this argument, he relied on State v. Colvin, 82 R.I. 212, 107 A.2d 324, wherein this court held that the common law distinction between a principal and an accessory is still preserved, not having been abrogated by now G.L.1956, § 11-1-3. ¹ See also: State v. Shapiro, 29 R.I. 133, 69 A. 340.

Thus, having been indicted as a principal, defendant argued, as he did before us, that it was incumbent upon the state to prove that he actually participated in the breaking and entering of the cleaning establishment and did so with intent to commit larceny. In support of his motion for a directed verdict, he pointed to a record that is admittedly barren of any evidence tending to show that defendant ever entered the premises in question.

The trial justice denied the motion, and so doing, pointed to the evidence which he felt required him to submit the case to the jury. This evidence establishes that at or about one o'clock in the morning of December 6, 1966, a Providence police officer operating a police vehicle along Potters Avenue observed a car parked on Homestead Street, some 50 feet from its intersection with Potters Avenue. The officer further noticed that the lights on the parked car were out but that its motor was running. Moreover, the car was parked some 3 feet from the curb of Homestead Street. Apparently suspicious, the officer continued west on Potters Avenue, made a U-turn at Cranston Street and headed back towards Homestead Street, into which he turned with his lights out. It is the officer's testimony that, as he came within a car's length of the parked vehicle, he observed two girls approaching the passenger side of the parked car, carrying parcels. As one of the girls was reaching for the door of the parked car, they observed the police car and, crying 'cops', fled. The officer further testified that, simultaneously with the girl's outcry, the parked vehicle took off and the officer gave pursuit. Some short distance later he overhauled the car that aroused his supicions and determined the operator to be the instant defendant. Describing the apprehension of defendant, the officer stated that defendant jumped from his car and appeared to be ready to run when the officer threatened to shoot. Thereupon, defendant submitted.

Subsequent investigation disclosed that the Ultra-Lux Cleaners, Inc., an establishment located on Potters Avenue, had been broken into and entered, and clothing stolen therefrom. Further, on returning to the scene where defendant's car had been parked and where the girls observed by police officer had dropped several parcels in their flight, there was discovered clothing which was in plastic bags bearing the Ultra-Lux Cleaners, Inc., labels.

When apprehended by the police officer, there was another man and woman in defendant's car. The defendant testified that he had picked up these two passengers and two other girls at Oxford Street and that the other two girls had asked to be let out near the intersection of Potters Avenue and Homestead Street; that he did not know any of the girls nor why the two left the car where they did and that with their departure, defendant simply turned the corner and parked on Homestead Street to 'socialize' with the remaining two passengers. He admitted that he was to drive the remaining girl back to Oxford Street but added that he was in no hurry to do so. He kept his motor running, he stated, because it was a cold night and he wanted the benefit of his heater while he and his passengers 'socialized.'

Clearly, this evidence, if believed, would support reasonable inferences that the two girls had broken and entered the cleaning establishment; that defendant knew what they were about and was standing by for them to return with whatever they succeeded in taking from the cleaners. It being the duty of the trial justice to consider this evidence without regard to weight or credibility, ² he correctly denied defendant's motion unless, as defendant argues, the evidence is susceptible only to the inference that defendant participated, if at all, as an accessory and not as a principal. Stated otherwise, defendant contends that the evidence, however viewed, is not open to a reasonable inference that he actually participated in the breaking and entering of the...