State v. Peters, 9475
| Citation | 107 A.2d 428,82 R.I. 292,48 A.L.R.2d 999 |
| Decision Date | 10 August 1954 |
| Docket Number | No. 9475,9475 |
| Parties | , 48 A.L.R.2d 999 STATE v. PETERS et al. Ex. |
| Court | Rhode Island Supreme Court |
William E. Powers, Atty. Gen., William J. Counihan, Jr., Asst. Atty. Gen., for State.
Anthony Grilli, Providence, for defendants.
This is an indictment charging that Albert Peters and Pasquale Petteruti on June 2, 1952 stole from the Liberty Motor Freight Lines, Inc., a New Jersey corporation, hereinafter called the freight line, certain goods and chattels of more than $500 in value. On a plea of nolo contendere Petteruti was sentenced to one year in the Providence county jail. Thereafter Peters was tried in the superior court before a jury which found him guilty. His motion for a new trial was heard and denied. The case is before us on his exceptions to the denial of that motion, to the refusal of the trial justice to direct a verdict in his favor, and to certain rulings and incidents during the trial. All exceptions not briefed or argued are deemed to be waived.
A detailed statement of the conflicting evidence is not necessary for our purposes. The testimony for the state in substance was that after dark on Sunday, April 27, 1952, a truck with lights out was seen entering and shortly thereafter leaving the terminal yard of the freight line. When the truck was stopped by the police officer who had been watching its movements, the defendant, who was driving, and Petteruti were arrested and brought to the police station where the officers found on the truck four cartons marked 'Sylvania TV,' each of which contained a television set. Further prompt investigation at the yard of the freight line showed that the seal on one of its vans parked at that place had been broken and the property just described, which had actually been sold for more than $600, was taken therefrom.
The defendant, who did not take the stand, relied upon the testimony of Petteruti to meet the state's case. Petteruti testified in substance that, after borrowing the truck from a third party, he met defendant and told him that he had purchased four television sets which he wanted him to deliver; that he then asked him as a favor to drive the truck as he had no license; that, upon reaching an agreement with reference thereto, they went for the truck and drove it to the yard of the freight line where they obtained possession of the television sets; and that defendant had no knowledge of any improper conduct in the matter.
The defendant's first exception is directed to the denial of his motion for a continuance on the ground of alleged prejudicial statements published by radio and in the public press on the morning of the trial. The newspaper was not made a part of the record, but from the colloquy between court and counsel it appears that the article at the basis of defendant's claim concerned his arrest, while on bail in the instant case, on a criminal charge in Massachusetts. In denying the motion the trial justice stated that he had not heard the radio broadcast and that he saw nothing in the newspaper article that was 'likely to affect this defendant adversely in any way.' However, he offered counsel the opportunity, rarely granted in the ordinary case, of examining each juror separately when called, but the offer was not accepted as the jury was thereafter drawn in the usual manner.
In the absence of proof in any from showing the tenor and probable effect of the reports upon which defendant relies for his claim of prejudice, it is impossible to determine from the record presently before us the true basis for such claim. In the circumstances the exception is overruled without further consideration.
The defendant's next exception that requires consideration relates to certain language of the assistant attorney general, hereinafter called the prosecutor, while impaneling the jury. In outlining the state's case to a complete but tentative jury and in the presence and hearing of other prospective jurors who were subject to call in the event of peremptory challenges by either party, he stated that Petteruti, the joint defendant, was not on trial because he had been 'sentenced as of yesterday to a year in the Providence County Jail on this particular indictment * * *.' Upon defendant's timely objection followed immediately by a motion to pass the case, the trial justice ordered all jurors withdrawn from the courtroom. In the discussion that ensued defendant claimed that the reference to the disposition of the case against Petteruti was improper and prejudicial in that it would deprive the defendant of a fair and impartial trial. On the other hand, the prosecutor argued that his sole purpose in making such statement was to inform the jury that Petteruti would not be called as a witness for the state.
In denying defendant's motion the trial justice, apparently directing his remarks principally to the prosecutor, said: 'The court will take pains to make this jury, or the jury that is finally selected, understand that this defendant is here himself charged and what happened to others is of no consequence, and that your reference to the disposition of the other party named is merely to explain the nonappearance of the other defendant at this time.' A jury was then selected and sworn, but at no time thereafter were they instructed that the statement complained of was improper and should be completely disregarded by them in determining the guilt or innocence of the defendant. In so far as the jury were informed, the challenged statement was allowed to stand without any adverse comment by the trial justice.
The question of alleged prejudicial remarks by attorneys in the course of a trial has been the subject of numerous adjudications by the courts. Because of the different factual situations appearing in the decided cases it is inadvisable to refer to them at length in this opinion. See 23 C.J.S., Criminal Law, § 1085; 39 Virginia L.Rev. 85. It is generally held that the determination of whether a questioned statement is harmless or prejudicial cannot be decided by any fixed rule of law. Each case must necessarily be determined on its own particular facts. In the first instance the decision of such question rests in the sound discretion of the trial justice. It is his duty...
To continue reading
Request your trial
-
State v. Lead Industries, Ass'n, Inc.
...Mottola v. Cirello, 789 A.2d 421, 424 (R.I.2002); see also State v. Briggs, 886 A.2d 735, 756 n. 9 (R.I.2005); State v. Peters, 82 R.I. 292, 297, 107 A.2d 428, 431 (1954) ("[The Attorney General] is in effect the representative of the people and not an advocate in the ordinary meaning of th......
-
Sharkey v. State
...State v. Fenton , 499 S.W.2d 813, 816 (Mo. App. 1973) ; Pryor v. State , 34 Okla.Crim. 131, 245 P. 669, 672 (1926) ; State v. Peters , 82 R.I. 292, 107 A.2d 428, 432 (1954).¶63. Respectfully, I disagree with the special concurrence's characterizations of some of the changes in our State's c......
-
State v. Lassor
...or ineradicably prejudicial cannot be decided by a fixed rule of law. State v. Brown, 522 A.2d 208 (R.I.1987); State v. Peters, 82 R.I. 292, 107 A.2d 428 (1954). "The trial justice must evaluate the probable effect of the prosecutorial conduct on the outcome of the case by examining the rem......
-
State v. Davis
...of whether a challenged remark is harmful or prejudicial cannot be decided by any fixed rule of law." Id. (citing State v. Peters, 82 R.I. 292, 107 A.2d 428 (1954)). "Rather, the justice must evaluate its probable effect on the outcome of the case by examining the remark in its factual cont......