State v. Ruzzo, No. 8071.

• Court: Rhode Island Supreme Court
• Writing for the Court: CAPOTOSTO, Justice
• Citation: 7 A.2d 693
• Parties: STATE v. RUZZO.
• Decision Date: 07 July 1939
• Docket Number: No. 8071.

7 A.2d 693

STATE
v.
RUZZO.

No. 8071.

Supreme Court of Rhode Island.

July 7, 1939.

Exceptions from Superior Court, Washington County; Philip C. Joslin, Judge.

John Ruzzo was convicted, with a recommendation of mercy, under an indictment charging him with operating an automobile upon a public highway of the state so as to endanger life, resulting in the death of another, and he brings exception.

Exception overruled and case remitted for further proceedings.

Fred A. Otis, Asst. Atty. Gen, for the State.

Arthur Falcone, of Providence, for defendant.

CAPOTOSTO, Justice.

The indictment in this case cnarges that, on June 28, 1937, the defendant operated an automobile upon a public highway of this state so as to endanger life, resulting in the death of one Domenico Di Carlo. The jury returned a verdict of guilty with a recommendation of mercy. The defendant's motion for a new trial was denied by the trial justice. Thereafter, the defendant duly prosecuted a bill of exceptions, which sets forth eleven exceptions, namely, an exception to the decision of the trial justice denying his motion for a new trial; eight exceptions to rulings on the admission or exclusion of testimony during the trial; one exception to an instruction by the court, and one exception to the denial of his request for instructions. At the hearing before us, the defendant relied solely on the exception last mentioned, expressly waiving all other exceptions. The only question in this case, therefore, is whether the trial justice committed prejudicial error in refusing to instruct the jury as requested by the defendant.

In the circumstances, it is unnecessary for us to refer to the evidence except to state, in a general way, the circumstances leading to Di Carlo's death. On the day in question, the defendant drove his automobile,

7 A.2d 694

with Di Carlo and three other friends as passengers, to a picnic, where they all indulged in the use of intoxicating drinks during the afternoon. When the picnic was over, the defendant and his four friends drove to a wayside inn where they continued eating, and drinking intoxicating drinks, until they left for home shortly after midnight, with the defendant driving the automobile.

In the center of the intersection of certain highways, which the defendant had to travel, there was a large circular area surrounded by a concrete curbing for the purpose of controlling traffic, commonly called a rotary. The rotary was well lighted, and the approach to it was marked with warning signs of various kinds. The night was clear, with little, if any, traffic in that vicinity. The defendant, under these conditions, drove his automobile squarely into the rotary, completely demolishing the automobile and severely injuring Di Carlo, who subsequently died, as a result of the injuries that he received. The verdict of guilty, which was approved by the trial justice in denying defendant's motion for a new trial, is supported by the overwhelming weight of the evidence. The plaintiff waived his exception to this ruling.

With the defendant's guilt thus plainly established in fact, we will now consider the only exception upon which he relies. While the jury was considering the case, they came into court and, through their foreman, asked the trial justice if it was "permissible for the Jury, in case the defendant is found guilty, to recommend leniency?" In answer to this question the trial justice told them that they could make such a recommendation, if they desired. The defendant excepted to this instruction, which exception he has since waived, and then requested the trial justice to further instruct the jury that "the Judge presiding at the trial can ignore recommendations of leniency if he sees fit. He can accept their recommendation or he can ignore it." The trial justice refused to instruct the jury as requested and noted the defendant's exception, which is the single exception now before us.

There is no statute in this state which authorizes the jury to recommend a defendant to mercy. In the absence of statute, the overwhelming weight of authority holds that it is not a matter of right for the jury to accompany their verdict with a recommendation of mercy. If such a recommendation is made by them on their own motion, it is treated as mere surplusage and of no legal effect. State v. Doucet, 177 La. 63, 147 So. 500, 87 A.L.R. 1356; State v. Bradley, 6 La.Ann. 554. Although the recommendation does not invalidate the verdict, it is looked upon with disfavor in a number of jurisdictions. People v. Lee, 17...