State v. Nettis, 9110

• Decision Date: 06 August 1951
• Docket Number: No. 9110,9110
• Citation: State v. Nettis, 78 R.I. 489, 82 A.2d 852 (R.I. 1951)
• Parties: STATE v. NETTIS et al. Ex.
• Court: Rhode Island Supreme Court

Page 852

82 A.2d 852

78 R.I. 489

STATE v. NETTIS et al.

Ex. No. 9110.

Supreme Court of Rhode Island.

Aug. 6, 1951.

William E. Powers, Atty. Gen., Archie Smith, Asst. Atty. Gen., for the State.

Aram A. Arabian, John J. McGrane, Providence, for defendants.

BAKER, Justice.

This is an indictment charging that three named defendants on October 17, 1947 with force and arms at Providence did rob one Abraham Epstein. Two of the defendants Joseph J. Nettis and Armando Mosco were tried together in the superior court before a jury which found them guilty. The trial justice denied their motions for a new trial and they have duly prosecuted to this court their bill of exceptions containing twenty-six exceptions. Those exceptions which are not briefed or argued are deemed to be waived. It appears that the third defendant is confined to the state hospital for mental diseases.

The evidence shows that Abraham Epstein, who was about seventy years of age, was a sexton of a synagogue at the time of the alleged robbery and he resided in Providence. While attending college in that city his grandson Stephen Cohen, about nineteen years of age, was living with his grandfather. About eight o'clock on the morning of October 17, 1947 Epstein returned to his home from the synagogue. He entered the house by the back door and found that his grandson was dressed and about to leave for his studies. However, as they delayed to prepare some food there was a knock at the back door. The grandson opened the door and three men pushed into the kitchen, one being tall, one of medium height, and the other short. The man last referred to threatened Epstein and his grandson with a revolver.

Without attempting to rehearse the evidence in detail it shows in substance that the men immediately pulled down the window shades in the kitchen; that the wire to the telephone which was in that room was cut; that two of the men tied up Epstein and his grandson while the man with the revolver covered them; that their hands and feet were fastened with adhesive tape, pieces of curtain, neckties and whatever material of that kind was available; that a gag was put in Epstein's mouth but was later loosened; that a cloth of some sort was pulled over the grandson's head and fastened around his neck; and that Epstein and Cohen were then placed in the bedrooms of the apartment. One of the men removed several dollars and a bunch of keys from Epstein's pocket. The latter was asked where the money was and after some delay told the men it was 'In the top drawer' referring to a bureau which was in the kitchen. Two of the men searched the rooms and removed about $200 from the bureau while the third man with the revolver guarded Epstein and Cohen. The men then left the apartment having spent between ten and fifteen minutes there.

In a short time thereafter Cohen succeeded in getting his head free of the cloth covering. With some difficulty he went from the bedroom to the pantry where he found a knife which he gave to his grandfather who cut the bindings on Cohen's hands and feet. The latter thereupon freed his grandfather. Cohen called the police from a telephone in an upstairs apartment. They answered the call in a short time and after making an examination took Epstein to a hospital for treatment of a cut on his head caused by a blow from the handle of the revolver. Cohen was not injured but had been struck in the face and pushed around when the men entered the kitchen.

At the trial defendant Nettis did not testify, but defendant Mosco and several members of the latter's family attempted to prove that he was at his home in bed at the time the alleged robbery took place. Both defendants also contended that the evidence of the state's witnesses on the issue of defendants' identification was unsatisfactory and not credible. The defendants press a group of four exceptions which raise the same question and may be treated together. They relate to the exclusion of certain testimony followed by offers of proof tending to show that defendant Mosco, who had previously been convicted and sentenced several times and finally had been paroled in September 1941, was thereafter harassed, threatened and picked up by the police notwithstanding his alleged good habits in an attempt to rehabilitate himself.

We have examined these exceptions and in our opinion they are without merit. They do not properly raise any question respecting Mosco's character and they deal with matters that are not material to the issue which was before the jury in the instant case, namely, whether he participated in the alleged robbery. Further the case of State v. Papa, 32 R.I. 453, 80 A. 12, is not applicable here. There is nothing in that opinion to support Mosco's contention that he could properly show by the excluded testimony a course of conduct indicating an intent not to become involved further with the law. Also the evidence in question, being general and on immaterial issues, was not admissible as evidence of habit and custom. The exceptions under consideration are overruled.

In addition both defendants rely on a group of fifteen exceptions which involve the same general point. They deal with the exclusion of testimony and offers of proof concerning the action of certain police officers toward defendants and relating to proceedings in the district court when they were before that court on October 23, 1947. Broadly speaking defendants wish to show by the excluded evidence that they were held by the police without being charged with any offense for a time longer than the law allows; that during said period they were assaulted by the police; that they were without legal representation at the hearing in the district court; and...