State v. Picillo

• Decision Date: 14 April 1969
• Docket Number: No. 330-M,330-M
• Parties: STATE v. Warren Vincent PICILLO. P.
• Court: Rhode Island Supreme Court

Page 191

252 A.2d 191

105 R.I. 364

STATE v. Warren Vincent PICILLO.

No. 330-M.P.

Supreme Court of Rhode Island.

April 14, 1969.

Herbert F. DeSimone, Atty. Gen., Richard J. Israel, Donald P. Ryan, Asst. Attys. Gen., for plaintiff.

Pasquale T. Annarummo, Warren, Joseph D. Accardi, Bristol, for defendant.

OPINION

POWERS, Justice.

This is an application for a writ of habeas corpus which, for reasons that are apparent from the travel of the case, we have treated as a petition for a writ of certiorari.

The petitioner, hereinafter referred to as defendant, was indicted by a Kent county grand jury for an alleged violation of G.L.1956, § 11-19-18, ¹ referred to, in the vernacular, as the common gambler statute. The case was tried to a superior court justice and a jury which returned a verdict of guilty. The record certified in accordance with our writ indicates that the case was called ready for trial on June 19, 1967. At this point, defendant's counsels made the following motion:

'Now comes the defendant, through his attorneys, and declares that Title 11-19-18 of the General Laws of Rhode Island (1956) and generally known as 'Common Gambler' statute, be declared unconstitutional in that it is too vague, too general to indicate what persons are included or what acts are prohibited.'

The trial justice reserved decision thereon and a jury was impaneled. The following morning before the jury was brought in, the trial justice announced that he had reached a decision as to the constitutionality of the challenged statute and thereupon proceeded to state his reasons for holding the statute to be constitutional. He concluded his decision with the statement that defendant's exception thereto was noted for the record.

The case then proceeded to trial and resulted in a verdict of guilty. The defendant thereafter seasonably moved for a new trial, which motion was denied and a sentence of one year imposed. Thereafter, within 30 days, defendant claimed an appeal pursuant to superior court rules of civil procedure, rule 73. He did so in the mistaken belief that said rules were applicable to criminal cases as well as civil actions. Having adopted this course, he did not, as the practice in this state requires, give notice within seven days of the denial of his motion for a new trial, of his intention to prosecute a bill of exceptions. General Laws 1956, § 9-24-17, as amended. Upon learning that his appeal was ineffectual, he filed a motion in this court, seeking permission to prosecute a bill of exceptions out of time. On December 12, 1967, that motion was denied, this court lacking jurisdiction to grant it. Stanton v. Hawkins, 41 R.I. 501, 103 A. 229.

Thereafter, on December 18, 1967, defendant filed in the superior court a motion which, averring that defendant's motion filed on the first day of trial sought in the alternative to have the trial justice either declare § 11-19-18 unconstitutional or certify the question of constitutionality to the supreme court, now sought the certification of the constitutional question to this court. In addition to the averment that defendant's original motion was in the alternative, the December 18 motion asserted that certification of the question to this court was mandatory under § 12-22-10. ²

This latter motion was heard by the superior court justice who presided at the trial. He concluded, in effect, that he lacked jurisdiction to grant the motion and defendant's remedy was by way of appropriate post-conviction relief. So concluding, he denied the motion, and defendant applied to this court for a writ of habeas corpus.

When the application was considered by this court, we concluded, in the interest of orderly procedure, that said application should be treated as a petition for certiorari, which, should that writ issue, would result in bringing to this court the records of the superior court pertaining to the question of certification. Accordingly, we issued a show cause order to the attorney general. That officer's reply was such as to persuade us that the writ should issue. The cause was then assigned for hearing on oral arguments and briefs.

At that hearing, substantial argument was devoted by defendant and the state on the merits of the trial justice's denial of the December 18, 1967 motion. Because we have concluded, out of an abundance of caution for defendant's rights that this court should reach the ultimate constitutional issue, we see no reason, in the special circumstances of this case, to consider the merits of the procedural question.

This brings us, then to a consideration of defendant's contention that § 11-19-18 is unconstitutional in that it is violative of the due process guarantees of art. I, sec. 10 of the Rhode Island constitution and art. 14 of amendments to the constitution of the United States. This contention is founded on the proposition that the statute in question is so vague and indefinite as to fail to give defendant, as a person of ordinary intelligence, fair notice that his alleged conduct was proscribed, citing Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894. That a legislative declaration of what conduct will constitute a crime must conform to the standard for which defendant contends is not open to question. However, in applying such standard to the statute in the case at bar, defendant misconceives its clear import. The statute imposes penal sanctions on one convicted of being a common gambler and clearly delineates three courses of conduct, each of which, in the wisdom of the general assembly, is so contrary to public policy as to constitute a person convicted thereof as a common gambler, quite apart from any question of whether such person was guilty of gambling. State v. Melville, 11 R.I. 417.

As noted by the trial justice in upholding the constitutionality of...