State v. Main

• Decision Date: 08 May 1962
• Docket Number: No. 10057,10057
• Citation: 94 R.I. 338,180 A.2d 814
• Parties: STATE v. Harry MAIN et al. Ex.
• Court: Rhode Island Supreme Court

Page 814

180 A.2d 814

94 R.I. 338

STATE v. Harry MAIN et al.

Ex. No. 10057.

Supreme Court of Rhode Island.

May 8, 1962.

Motion for Reargument Denied May 25, 1962.

J. Joseph Nugent, Atty. Gen., Corinne P. Grande, Special Counsel, for the State.

Ralph Rotondo, Michael Addeo, Providence, for defendants.

ROBERTS, Justice.

This is an indictment charging the defendants with having conspired to bring about a false, fraudulent, and fictitious return of the votes cast at a primary election. After trial to a jury in the superior court each of the defendants was found guilty. The case is in this court on the defendants' exceptions to the denial by the trial justice of their motion for a directed verdict and to certain evidentiary rulings made by him.

The indictment charges that on September 17, 1956 a primary election was conducted on behalf of the Republican party at Goff Junior High School in the city of Pawtucket for the nomination of candidates of that party for public office and for the election of certain political committees. It is not disputed that defendant Melvin Main served as the warden at this election, that defendant Charles Fogarty served as a supervisor thereat, or that defendant Harry Main at that time was treasurer of the Republican city committee of Pawtucket. It appears that at that election the voters were to register their votes by the use of voting machines and that five such devices were in the room at the Goff Junior High School used for the election.

The evidence relating to illegal voting at this primary is in conflict. The state produced several witnesses to testify in this regard, and among them were others than defendants who had functioned as officials at the primary. The evidence adduced through these witnesses was, in substance, that sometime after eight o'clock on the morning of September 17 defendant Harry Main entered the room and greeted several of the persons present, including the officials conducting the primary. The defendant Harry Main then made some statement, the substance of which was 'to the machines,' and went to one of the voting machines and proceeded to operate the levers thereof some eight or ten times. At that same time others among those present, including defendants Melvin Main and Fogarty, went to other voting machines and operated the levers thereof repeatedly.

Evidence was also adduced through the state's witnesses that defendants Melvin Main and Fogarty and other of the primary officials proceeded to check the names of persons who had not appeared thereat to vote on the voting lists supplied for use at the primary. This action continued until they had checked a number of names on those lists which corresponded to the total vote registered on the voting machines. Some of these witnesses testified that the voting at the school during the primary election was light and that the number of persons who actually appeared to vote thereat was substantially less than the number of votes registered on the machines. Also introduced into evidence by the state were a number of affidavits in which persons whose names were checked on the voting lists as having voted at the primary denied having participated in the election.

Each of the defendants, testifying in his own behalf, denied specifically that he had voted more than once at the primary or that to his knowledge any other person had repeatedly operated the levers of the voting machines thereat. Each denied that defendant Harry Main had made any remark in the nature of a direction or a suggestion that they go to the voting machines as was testified to by the state's witnesses. They denied also that they had checked on the lists as voting the names of persons who had not appeared to vote and that to their knowledge no other person in the polling place did so. All testified that throughout the day no complaints were made concerning irregularities in the conduct of the primary and that at the close thereof no question was raised as to the accuracy of the return then being prepared.

One of the contentions of defendants is that error inhered in the denial by the trial justice of their motion for a directed verdict of acquittal. The record discloses that at the close of the trial defendants did move for such a direction, setting out three grounds in support thereof. After hearing argument thereon the trial justice rejected each of the grounds and denied the motion.

In support of the motion to direct, defendants first urge that there is no evidence in the record that would warrant the jury in finding that in fact a conspiracy existed. The only evidence adduced in the instant case, they urge, is evidence which tends to establish certain misconduct on their part while in the school on the day of the primary. According to their contention, there is nothing in the record from which the jury could find that any of the defendants had met and discussed 'anything about the primary prior to the date it was held * * *.' The defendants obviously are contending that the existence of a conspiracy can be proved only where there is evidence of some prearrangement, that is, of some planning of overt acts at a time prior to the commission thereof. This is a misconception of the law. Evidence of such a prearranged plan or of prior planning is not essential to prove a conspiracy. Breedlove v. State, 84 Ga.App. 370, 66 S.E.2d 409. It is well settled that a conspiracy may be established on the basis of evidence showing that the alleged conspirators acted in concert. State v. Edwards, 89 R.I. 378, 153 A.2d 153; Commonwealth v. David, 335 Mass. 686, 141 N.E.2d 827.

The defendants also urge in support of their motion for a direction that there is no evidence in the record from which a jury could find that the primary election which is the subject matter thereof was the primary election of a political party as set out in the indictment. The defendants were charged with conspiring to make a false return of the votes cast at a political party primary, the specific charge being that the primary was held by 'a political organization within Rhode Island, which said party and political organization, at the preceding General Election on the first Tuesday after the first Monday of November in the year of our Lord one thousand nine hundred and fifty-four, nominated a candidate for Governor, which candidate at said election polled at least five per cent of the entire vote cast for Governor in Rhode Island * * *.'

The statute that provided for and governed the conduct of primary elections in 1956 was P.L.1948, chap. 2100. A political party within the purview of that statute was defined therein as a political organization that at the general election next preceding the holding of a proposed primary election had nominated a candidate for governor who at that election had polled at least 5 per cent of the vote cast for that office. In the instant indictment, however, no reference is made to that statute, either in whole or in part. It is clear from the form in which the indictment was drawn that the state was proceeding on the theory that the making of a false or fraudulent return of the vote cast at a primary election held by a political organization of the kind described in the indictment would be an unlawful act and that a conspiracy to accomplish the making of such false return would be criminal. The defendants do not challenge the validity of that view.

It appears from the record that when, on their motion to direct, defendants questioned whether the record contained any evidence from which could be established the kind of political party for which the primary had been conducted, the trial justice considered first a reopening of the case to permit the state to introduce relevant evidence on this issue. This he did not do but, asserting that the kind of political party involved here was a matter of which the court could take judicial notice, he took judicial notice thereof and rejected this ground for the motion. In arguing before this court on the question, the state maintained the position of the trial justice that the holding of primary elections by political parties is a matter of which courts could properly take judicial notice and that therefore no error inhered in rejecting this as a reason for the direction of a verdict of acquittal. This argument, in our opinion, does not reach the precise issue before us.

The posture in which this case has been presented to this court is fixed by two circumstances of substantial significance. First, the state does not dispute the contention of defendants that there is in the record no evidence on which the jury would have been warranted in finding that the primary was held on behalf of a political party of the kind set out in the indictment. Second, the state does not contend that those allegations of the indictment concerning the kind of party for which the primary was conducted are unnecessary or should be disregarded as surplusage.

In the circumstances the issue raised is whether a trial court, in passing on a motion for a directed verdict in a criminal case, may properly determine that motion on the basis of facts, the existence of which is ascertained by the court's taking judicial notice thereof. On such an issue, in our opinion, argument as to the power of the trial court to take judicial notice of matters which are notorious or of common knowledge is not in point. In other words, the precise issue raised here does not require an inquiry into the scope of the authority of a trial court to take judicial notice of the particular facts, but rather the issue is whether a trial court, in determining a motion to direct, properly may resort to judicial notice to establish the existence of material facts that could not be found by a jury on the evidence contained in the record.

A motion for a direction of a verdict of acquittal in criminal cases raises a question as to the sufficiency of the...