State v. Mastriacchio

• Decision Date: 03 May 1945
• Docket Number: No. 8648.,8648.
• Citation: 42 A.2d 496
• Parties: STATE v. MASTRIACCHIO et al.
• Court: Rhode Island Supreme Court

42 A.2d 496

STATE

v.MASTRIACCHIO et al.

No. 8648.

Supreme Court of Rhode Island.

May 3, 1945.

Exceptions from Superior Court, Providence and Bristol Counties; Walter Curry, Judge.

Gerald Mastriacchio and Frank Romano were convicted of rape, and they bring exceptions.

Exceptions sustained and case remitted for new trial.

CONDON, J., dissenting.

John H. Nolan, Atty. Gen., and Raymond F. Henderson, Asst. Atty. Gen., for the State.

Michael Addeo and Edward F. McElroy, both of Providence, for defendant Mastriacchio.

William G. Troy, of Providence, for defendant Frank Romano.

CAPOTOSTO, Justice.

The defendants in this case were convicted of rape on an indictment which charges that Gerald Mastriacchio and Frank Romano, on June 1, 1943, did rape the complaining witness.

The defendants are now before us on separate bills of exceptions containing many exceptions, all of which are waived excepting Mastriacchio's exception numbered 22 and Romano's exception numbered 10. Since these two exceptions raise the same question, we shall deal with them as one exception, our decision, however, applying with equal force to the exception of each defendant. In view of the question so raised, we note here that the verdict, as returned by the jury and recorded by the court, reads: ‘verdict guilty.’

A mere outline of the testimony is sufficient for our purposes. Complaining witness testified that she had recently come to Providence with her husband, who was in the armed forces and had been transferred to a station in this state; that in the early afternoon of June 1, 1943, she went to a certain establishment in this city for employment; that it was raining when, having completed her mission, she started to go for a bus which would take her to the business section of Providence, where she intended to make certain purchases; that, as she started for the bus, three men in an automobile, whom she did not know at the time, asked her if she wanted a ride; that she accepted the invitation and entered the automobile, sitting in the front seat beside the driver; that she thereafter told them her destination; and that they promised to let her off where she desired.

Complaining witness further testified that, after traveling for some considerable time, she became suspicious and asked the men where they were going; that the was told that they were taking one of the men to his home, as he had to go to work; that they stopped at a house on Admiral street in this city, where the man who had been driving the automobile up to that time left it; that Mastriacchio then took the wheel of the automobile and continued driving out on Admiral street until he came to an isolated and wooded place, where he stopped; and that, after making some improper advances and suggestions, he, actively assisted by Romano, overcame her by force and, on the rear seat of the automobile while Romano was outside, committed the offense charged in the indictment. She also testified that she was forced to submit to a partial consummation of a similar act by Romano after Mastriacchio left the automobile.

In his testimony Mastriacchio admitted the sexual act, but insisted that it was with the consent of the complaining witness. Romano supported him in this respect and also testified that, when the act with Mastriacchio was about to take place, she told him to take a walk, which he did; and that, when he came back after a short time and looked in the automobile, he saw Mastriacchio and the complaining witness on the back seat still in performance of the act. Romano denied that he carnally knew the complaining witness, although he admitted that, with her consent, he engaged in a certain lewd and lascivious act with her.

The trial justice began his charge by reading the indictment to the jury and then proceeded as follows: ‘It is a charge that the two men acting together committed one rape of her. Hence it follows that these two men are either not guilty, or these two men are guilty. It is not proper that you should return a verdict that one is guilty and one is not guilty. Your verdict must be that the two are guilty, or the two are not guilty.’ We find this instruction reiterated in substance a number of times throughout the charge and, almost at the very end, he said: ‘I tell you, Mr. Foreman, Ladies and Gentlemen, in this case your verdict must be either that both of these men are guilty, or both are not guilty.’

After the jury had retired to consider their verdict, the exception before us was taken in the following manner:

‘Mr. McElroy: The defendant, Mastriacchio, excepts to that part of the Court's Charge in which the Court charged the jury that they must find both defendants guilty, or both defendants not guilty. That is for Romano also.

‘The Court: Both defendants take the same exception?

‘Mr. Troy: Yes, Your Honor.

‘The Court: All right, exceptions may be noted.’

No question is raised by the state as to the form or scope of the exception under consideration. It concedes its validity for the purpose of raising the fundamental question which each of these defendants presses for determination.

The defendants contend that although the indictment is joint in form, nevertheless in law it is both joint and several, and that under such an indictment the trial justice committed prejudicial error in omitting to instruct the jury that they might convict one defendant and acquit the other. The state frankly admits that, except in certain offenses with which we are not here concerned, a joint indictment against two defendants is also an indictment against each of them severally. See State v. O'Brien, 18 R.I. 105, 110, 25 A. 910; State v. Brown, 45 R.I. 9, 13, 119 A. 324. In view of this admission we need not further consider the nature of the indictment.

The state, however, contends that there was no error in the charge under consideration because the evidence against each defendant was the same; in other words, that there was no evidence upon which to base instructions that the jury could convict one defendant and acquit the other; they were either both guilty or both were not guilty. In support of this contention it cites a number of cases, among which are People v. Cleaver, 365 Ill. 93, 5 N.E.2d 463; People v. Shorr, 227 Mich. 243, 198 N.W. 969; and Duroff v. Commonwealth, 192 Ky. 31, 232 S.W. 47.

In the Cleaver case, 365 Ill. at page 98, 5 N.E.2d at page 465, the court says: ‘The charges and the evidence against each defendant were identical and the defense interposed by each defendant was exactly the same. There was no imaginable basis for a verdict against one defendant and for the other defendant.’ In the Shorr case, 227 Mich. at page 250, 198 N.W. at page 971, the court expresses itself as follows: ‘The offense charged and testimony were the same as to each of the defendants. * * * Neither took the stand or offered any testimony. * * * Under the testimony and circumstances of this case we do not find this reversible error.’ In the Duroff case, 192 Ky. at page 36, 232 S.W. at page 50, the court says: ‘But a court is never required to nor should it give an instruction which finds no support in the evidence. There is not a word of evidence which would tend in the slightest degree to prove or even indicate that one of appellants was less guilty than the other if either was guilty. Both were guilty under the evidence or neither was guilty. The jury could not upon reason have found one guilty and the other not guilty. Such a verdict could have resulted only from caprice.’

We find no reason to disagree with these and other cases to the same effect. The difficulty now confronting the state is that those cases are clearly distinguishable from the case at bar. The evidence here, as distinguished from that in the cases upon which the state relies, was not the same as to each of the defendants; nor was the defense interposed by them exactly the same; nor did either of them fail to take the stand.

The state tried this case on the theory that Mastriacchio is the one who actually committed the rape and that Romano knowingly the purposely assisted him in its commission. The defendants interpose different defenses. Mastriacchio admits the sexual act but contends that he committed it with the consent of the complaining witness. Romano, on the other hand, insists that, even if Mastriacchio did commit rape, he took no part whatever in that offense, either by threats or by actively assisting Mastriacchio in accomplishing his purpose. The evidence therefore raised various and different issues of fact which were clearly for the jury to consider and their determination of such issues could reasonably result in different verdicts.

It is the duty of a trial justice to instruct the jury as to the law governing all issues of fact which they are called upon to decide. G.L.1938, chap. 496, § 20. See State v. Quigley, 26 R.I. 263, 58 A. 905, 67 L.R.A. 322, 3 Ann.Cas. 920. In the instant case the trial justice failed to fully...