State v. Saccoccio

• Decision Date: 04 December 1929
• Docket Number: No. 6655.,6655.
• Citation: 147 A. 878
• Parties: STATE v. SACCOCCIO et al.
• Court: Rhode Island Supreme Court

147 A. 878

STATE

v. SACCOCCIO et al.

No. 6655.

Supreme Court of Rhode Island.

Dec. 4, 1929.

Exceptions from Superior Court, Kent County; Antonio A. Capotosto, Judge.

Nazzarino Saccoccio and others were convicted of murder in the first degree, and they bring exceptions. Exceptions overruled.

Louis V. Jackvony, Second Asst. Atty. Gen., for the State.

George J. West, of Providence, for defendant Gaglione.

Thomas J. McGauley, of Providence, for other defendants.

BARROWS, J. Salvatore Saccoccio, Charles Capace, Nazzarino Saccoccio, Ernest Silvio, Philip Gaglione, and Antonio Pettinato were jointly indicted for murder. The last named has not been apprehended. The two first named pleaded guilty to murder in the second degree. The other three went to trial on pleas of not guilty and were found guilty "as charged in indictment." The indictment charged murder in the common-law form, and the proof established a homicide as a result of the use of a gun by one of several accomplices while carrying out premeditated robbery. Such killing was murder at common law. Com. v. Heinlein, 256 Mass. 387, 152 N. E. 380; State v. Cross, 72 Conn. 722, 46 A. 148. Our statute did not alter this. State v. Fenik, 45 R. I. 309, 121 A. 218. Such murder, whether intentional or otherwise, therefore, is murder in the first degree. 1 Wharton, Crim. Law (11th Ed.) § 510, p. 699; Com. v. Pemberton, 118 Mass. 36.

Defendants Nazzarino Saccoccio, Ernest Silvio, and Philip Gaglione are before us on 30 exceptions, which may be grouped as follows: (1) To rulings admitting or rejecting evidence; (2) to refusal of the trial court to grant a new trial because the verdict was against the evidence; (3) to refusal to charge concerning "degrees of homicide."

1. We have read the transcript with care. The case was tried by a court of wide experience in criminal matters, and all rulings on evidence not only amply protected defendants' rights, but show solicitude to give defendants the benefit of every presumption consistent with innocence. The jury was cautioned, not once but several times, that written confessions of Salvatore Saccoccio and Nazzarino Saccoccio furnished no evidence of the guilt of defendants Ernest Silvio and Philip Gaglione. The confessions themselves before being received were subject to closest scrutiny by the court, and all persons connected with their procurement were subject to severe cross-examination by defendants' attorneys and by the court. All preliminary requirements for their admission were fully complied with. Not only was this so, but the jury was carefully instructed and cautioned to scrutinize closely the confessions subsequently repudiated in whole or in part and the testimony of accomplices not on trial who had pleaded guilty to second degree murder. Cf. State v. Riddell, 38 R. I. 513, 96 A. 531. No error in discretion was made in permitting the state, taken by surprise by testimony of certain of its witnesses, to call these witnesses' attention to contradictory sworn statements formerly made. No merit exists in any exception to rulings on evidence.

2. Nor do we find the verdict unsupported by the evidence. A "holdup" of those who should be present at a certain time at a questionable resort kept by one Oorbett in Warwick was planned by certain men. It was carried out by six of them, at least three of whom carried arms. They went to Corbett's in an automobile and caused a dozen to 20 people there present to "stick up" their bands between 1 and 3 a. m., on December 12, 1927. At least 2 of the 6 men "covered" the patrons of Corbett's place with a shotgun and revolver, taking from their persons money and valuables and ordering them to throw all valuables not so taken on a table. The robbers also took a slot machine. While the two who entered the house were inside, others of the robbers, at least one of whom displayed a revolver, stood at windows on the outside, and Nazzarino Saccoccio stood by as the operator of the automobile owned by Gaglione in which the robbers went to Corbett's and in which they expected to escape. During the robbery a shot was fired by Capace, who admittedly was "covering" the victims with the shotgun. This shot hit Oorbett in the abdomen, and from that wound he died on the following day. Nazzarino Saccoccio admitted that he knew that firearms were taken in the automobile to Corbett's, although denying knowledge of the purpose for which they were taken. He said he waited outside the house while the others went into or surrounded the building. Those who went in were masked. The shotgun was Gaglione's or had been lent to him. It was brought by the robbers from the house occupied by Gaglione and Capace. The place of rendezvous before and after the robbery was the house of a woman whose manner on the stand the trial justice says bore every appearance that she was not telling the truth on vital matters.

Concerted action to rob was established, as was the killing of Corbett while carrying out the robbery, The state offered evidence to show defendants planned and were present for the purpose of carrying out the robbery.

We have been much aided in our own study of the testimony by the detailed analysis of the testimony of various witnesses and of their bearing given by the trial justice at the hearing on defendants' motions for a new trial which were stenographically reported. The jury was amply warranted by the evidence in finding guilty as charged the three defendants before us. The trial court was also convinced of their guilt, and no error was made in denying the motions for a new trial on the ground that the verdict was not supported by the evidence.

3. The error of law chiefly relied upon by defendants was the refusal of the trial court to instruct the jury "on the possible verdict, the degrees of homicide" pursuant to Gen. Laws 1923, c. 395, § 1. It is true that in most cases where murder is charged instructions concerning its degrees are not only proper, but necessary. There are cases, however, where such instruction is not required. 30 C. J. p. 404, § 650. To ascertain whether these were such cases, the nature of the defenses offered is important. When a defense is solely an alibi, instruction on murder in the second degree properly may be omitted. 30 C. J. p....