State v. Mcelroy

• Decision Date: 28 March 1946
• Docket Number: No. 8695.,8695.
• Citation: 46 A.2d 397
• Parties: STATE v. McELROY et al.
• Court: Rhode Island Supreme Court

46 A.2d 397

STATE

v.McELROY et al.

No. 8695.

Supreme Court of Rhode Island.

March 28, 1946.

Exceptions from Superior Court, Washington County; Patrick P. Curran, Judge.

James E. McElroy, Arthur Rushton and another were charged with conspiracy to burn an unoccupied dwelling house. A verdict of guilty was returned against Arthur Rushton, and he brings exceptions.

Exceptions overruled and case remitted.

John H. Nolan, Atty. Gen., and James O. Watts, Sp. Asst. to Atty. Gen., for the State.

Michael De Ciantis, of Providence, for defendant Arthur Rushton.

BAKER, Justice.

This is an indictment in which three defendants, James E. McElroy, Arthur Rushton and Maus Wheelwright, were charged with conspiracy to burn an unoccupied dwelling house. Upon arraignment in the superior court McElroy pleaded nolo contendere and the other two defendants pleaded not guilty. Thereafter the case proceeded to trial before a jury, which acquitted Wheelwright but returned a verdict of guilty against Rushton, who will hereinafter be referred to as the defendant. His motion for a new trial was later denied, and the defendant's bill of exceptions to that and other rulings made by the trial justice during the trial and thereafter is now before us for consideration.

In substance the indictment herein charged that the above-named persons, between September 21 and October 17, 1938, at Narragansett in the county of Washington, unlawfully and fraudulently conspired together to wrongfully and maliciously set fire to and burn, and to cause to be burned, a certain unoccupied dwelling house, the property of Lillian Rushton and Emma A. Crees, co-owners, situated at Sand Hill Cove in said town of Narragansett. The evidence in the case disclosed that the building in question, an unoccupied furnished summer cottage, which had been greatly damaged by a hurricane on September 21, 1938, was destroyed by fire between 6 and 7 o'clock on the evening of October 17, 1938. Lillian Rushton is the wife of the defendant and Emma A. Crees is her mother. The building was insured against loss by fire for upwards of $5,000 and a claim for the loss was made through the defendant's office to the agent who had written the policies of insurance on the property.

Before any evidence was introduced at the trial, the defendant moved that the indictment be quashed and the denial of such motion is the basis of his second exception. In support of his motion the defendant contended that by reason of the assistant attorney general's opening statement to the jury it appeared that there would be a variance between the allegation of the indictment and the proof to be offered in support thereof. It is clear, however, that this motion was prematurely made by the defendant and its denial by the trial justice was correct. Until the evidence was actually presented it could not be determined whether or not any such variance would appear. The defendant's second exception is therefore overruled.

Thereafter the defendant, at the conclusion of the state's evidence and without resting his own case, moved to dismiss the indictment on two grounds. The denial of that motion is the subject of the defendant's twenty-first exception. We have no statute authorizing the making of a motion to dismiss at that stage of the proceedings, and at common law no such motion ordinarily could be made unless on some ground alleging lack of jurisdiction. However, if such a motion may be considered, apart from the above ground of alleged lack of jurisdiction, it must be as one for a nonsuit or for a directed verdict. Motions thus made without the defendant resting his case are addressed to the discretion of the court and their denial is not a subject of exception. Solomon v. Shepard Co., 61 R.I. 332, 338, 200 A. 993. If we have considered such an exception in any other criminal case, it is because of exceptional circumstances and is not to be taken as a modification of the above rule.

The defendant, however, strongly urged, in support of his motion to dismiss the indictment, that the superior court was without jurisdiction to dispose of this indictment in view of General Laws 1938, chapter 625, § 31. In so doing he raised a question which, to the best of our knowledge, has not heretofore been decided in this state. He maintained that this statute provides that trials upon indictments ‘shall be held before the superior court in the county in which the offense may lawfully be alleged to have been committed or shall have been committed, and not elsewhere’, and that such indictment was wrongly brought in Washington county, where the overt act was carried out in pursuance of the alleged conspiracy, whereas the correct venue of the indictment should have been Providence county where the evidence admittedly showed that the alleged conspiracy was entered into and where, he contends, the offense charged was completed and committed.

In support of his position the defendant points out that this court has already adopted a recognized principle of the common law in respect to conspiracy by holding that ‘the gist of a conspiracy is the unlawful confederacy to do an unlawful act, or a lawful act for an unlawful purpose, though nothing be done in prosecution of it; the offense being complete when the confederacy is made.’ State v. Bacon, 27 R.I. 252, 261, 61 A. 653, 656. See also State v. Bellin, 55 R.I. 374, 392, 181 A. 804. In view of such holding and the above statute he argues that it logically follows that the instant indictment could properly be brought only in the county in which the conspiracy was made, because we have no statute dealing with the necessity or effect of an overt act where such an offense is charged and are governed, in conspiracy indictments, only by the rules of the common law. Further, the defendant relies on the case of Regina v. Best, 1704, 1 Salk. 174, as his authority for the holding that such venue was the requirement of the common law. The state, on the other hand, contends that it is settled by the great weight of authority that an indictment for conspiracy may, under the common law be brought in the place where any overt act was done by any of the conspirators in furtherance of the common design, and that in the instant indictment the venue may therefore properly be laid in Washington county, where the actual burning took place.

We find that the principle underlying the state's contention was enunciated in the case of Rex v. Brisac, 4 East 164, decided in 1803, the opinion therein citing favorably the case of King v. Bowes, 1787. The same holding has been made by numerous courts in this country in cases wherein apparently no statute was involved or relied upon and where the decisions were under the common law. Among such cases are the following: People v. Mather, 4 Wend., N.Y., 229, 21 Am.Dec. 122; People v. Arnold, 46 Mich. 268, 9 N.W. 406; Commonwealth v. Gillespie, 7 Serg. & R., Pa., 469, 10 Am.Dec. 475; Commonwealth v. Bartilson, 85 Pa. 482; Commonwealth v. Saul, 260 Mass. 97, 156 N.E. 679; Fire Insurance Companies v. State, 75 Miss. 24, 22 So. 99; Noyes v. State, 41 N.J.L. 418. See also Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914A, 614, 632, Note; Regina v. Connolly, 25 Ont.Rep. 151; 2 Whar.Cr.Law 1936, § 1666.

In People v. Arnold, supra, 46 Mich. at page 275, 9 N.W. at page 409, the court stated: ‘It is also objected that the defendant was informed against and tried in the county of St. Joseph while the conspiracy is alleged to have been formed in Calhoun; so that the defendant has been deprived of his right to a trial by a jury of the vicinage. But the overt act was committed in St. Joseph; and according to the common-law precedents the misdemeanor may be tried wherever an overt act in pursuance of the conspiracy takes place.’

In People v. Mather, supra, 4 Wend., N.Y., at page 259, 21 Am.Dec. 122, the court used the following language in explanation of the principle upon which conspirators are punishable at the place where an overt act done pursuant to the conspiracy takes place: ‘In indictments for conspiracy, the venue may be laid in any county in which it can be proved that an overt act was done by any one of the conspirators in furtherance of their common design. * * * If conspirators enter into the illegal agreement in one county, the crime is perpetrated there, and they may be immediately prosecuted; but the proceedings against them must be in that county. If they go into another county to execute their plans of mischief, and there commit an overt act, they may be punished in the latter county without any evidence of an express renewal of their agreement. The law considers that wherever they act, there they renew, or, perhaps, to speak more properly, they continue their agreement, and this agreement is renewed or continued as to all whenever any one of them does an act in furtherance of their common design.’

See also Holmes-Pollock Letters, where Sir Frederick Pollock in a letter to Judge Holmes discussed the nature of conspiracy, apart from statute and as it was at common law, and at page 196 stated: ‘On principle it seems to me that conspiracy must be a continuing offense, like trespass, and continues as long as the common unlawful design is in being an capable of execution. * * * If it is a continuing offense then every act done in pursuance of the unlawful common purpose is the act of all the conspirators, and (as proof of a continuing agreement then & there) makes a good venue at the place where it is done.’

The defendant relies entirely on a single sentence near the end of the opinion in Regina v. Best, supra, which reads: ‘The venue must be where the conspiracy was, not where the result of the conspiracy is put in execution.’ This case is very briefly reported in 1 Salk. It appears clearly that the case was before the court on a demurrer to an indictment charging conspiracy. The indictment, however, set out merely the...