State v. Shapiro

• Decision Date: 15 April 1908
• Citation: State v. Shapiro, 29 R.I. 133, 69 A. 340 (R.I. 1908)
• Parties: STATE v. SHAPIRO.
• Court: Rhode Island Supreme Court

69 A. 340

29 R.I. 133

STATE

v. SHAPIRO.^*

Supreme Court of Rhode Island.

April 15, 1908.

Exceptions from Superior Court, Providence County.

Louis Shapiro was convicted of larceny, and brings exceptions.Exceptions overruled.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

William J. Brown, for plaintiff.William B. Greenough, Atty. Gen., and Harry P. Cross, Asst. Atty. Gen., for the State.

DUBOIS, J.In the superior courtthe defendant was convicted of larceny under an Indictment charging that he on the 15th day of November, 1906, at Woonsocket, "a certain railroad freight car of the New York, New Haven & Hartford Railroad Company, a corporation duly chartered and organized under the laws of the state of Rhode Island, there situate, unlawfully and feloniously did break and enter with intent then and therein to commit larceny and one thousand six hundred and forty pounds of cotton, each pound of the value of ten and one-eighth cents, all of the aggregate value of one hundred and sixty-four dollars and twenty-five cents, of the goods, chattels, and property of the said corporation then and there in said freight ear being found, then and there feloniously did steal, take, and carry away."The indictment was brought under Gen. Laws 1896. c. 279, § 10, amended byPub. Laws, p. 191, c. 454, § 1(passed May 14, 1897), as follows: "Section TO of chapter 279 of the General Laws of 1896 entitled 'Of offenses against private property,' is hereby amended by adding thereto the following words: 'And every person who shall at any time break and enter any railroad car or break any lock or seal thereon with intent to commit larceny or other crime shall be imprisoned not exceeding two years.'"

The case is now before this court upon the defendant's bill of exceptions, which is founded upon certain exceptions taken by the defendant in the superior court, as follows: "First.To certain rulings of said justice at the trial of said action admitting certain evidence, as shown on page 46 of the transcript of testimony, etc., filed herewith.Second.To certain rulings of said justice at said trial refusing to admit certain evidence, as shown on pages 36, 90, and 106 of said transcript.Third.To the refusal of said justice at said trial to direct a verdict for the defendant, to which ruling the defendant duly excepted, as shown on page 193 of said transcript.Fourth.To the refusal of said justice at said trial to charge the jury in accordance with the requests duly presented by said defendant, as shown on page 193 of said transcript.Fifth.To that part of the charge of said justice at said trial to which the defendant specifically excepted, as shown on page 193 of said transcript.Sixth.To the decision of said court denying the defendant's motion for a new trial, which said action was based upon the following grounds: "(1) That said verdict was contrary to the evidence and the weight thereof.(2) That said verdict was contrary to law."

The first and second grounds of exception are not relied upon, and need not be considered.

The third exception is based upon the refusal of the superior court to direct the jury to acquit the defendant for the following reasons: "(1) That there is no evidence of any breaking and entering of the freight car by the defendant as set forth in the indictment.(2) That the indictment charges said defendant of the statutory crime of breaking and entering a freight car and the committing of larceny therein, while the proof utterly fails to show any breaking within the meaning of the term in the criminal law, and there is therefore a fatal variance between the statutory crime alleged and the proof.(3) That the only evidence tending to show that the defendant entered the car in question and took from it cotton bales as alleged in the indictment is that of La Voie, who admits that he was present and did enter the car and assist Shapiro in taking out the bales of cotton in question, which testimony is denied by Shapiro.Such undisputed testimony of an accomplice denied by the other alleged party to the transaction could not in any event be held to support beyond a reasonable doubt a finding that Shapiro actually participated in the taking of the. cotton in question from the car, and would show, at the utmost, merely that the defendant was only an accessory before the fact, and could not be held under this indictment charging him as a principal in the transaction, under Gen. Laws 1896, c. 284, § 2, as amended bysection 1178 of the court and practice act.This constitutes a fatal variance."

The first and second reasons are without merit.Gen. Laws 1896, c. 279, § 16, as amended byCourt and Practice Act 1905, § 1175, provides, among other things: "If the value of the property or money stolen, received, or embezzled does not exceed five hundred dollars, any person so convicted shall be punished by imprisonment for not more than one year or by fine of not more than five hundred dollars, or by both."The offense of which the jury found the defendant guilty was therefore of a lower nature than that charged in the indictment, and the verdict was in accordance with the provisions of Gen. Laws 1896, c. 285, § 24, as amended byCourt and Practice Act 1905, § 1185, which reads as follows: "Whenever any person is tried upon a complaint or indictment and the court or jury, as the case may be, shall not be satisfied that he is guilty of the whole offense but shall be satisfied that he is guilty of so much thereof as shall substantially amount to an offense of a lower nature, or that the defendant did not complete the offense charged, but that he was guilty only of an attempt to commit the same, the court or jury may find him guilty of such lower offense or guilty of an attempt to commit the same, as the case may be, and the court shall proceed to sentence such convict for the offense of which he shall be so found guilty, notwithstanding that such court had not otherwise jurisdiction of such offense."This statute is an extension of the common-law rule referred to by Ames, C. J., in State v. Colter, 6 R. I. 195(1859)), as follows: "It is a rule in criminal pleading, as well as of pleading in cases of tort, that it is sufficient if part only of the allegation stated in the indictment be proved, provided that what is proved affords a ground for maintaining the indictment, supposing it to have been correctly stated as proved."* * * Indeed, in burglary, that the same count charges a breaking and entering with intent to steal, and an actual theft in the dwelling house, has never been deemed objectionable; but was advised by Lord Hale to insure a conviction of theft, if the proof justified it, when it might not justify a conviction of burglary.1 Hale, P. C, 559, § 5.This mode of charging merely widens the allegations of the count, as to admit, what is so common, a conviction of a lesser offense, included in the charge of the graver one, if the proof should fall short of the latter."

The third reason is based upon an erroneous statement of the evidence.In addition to the testimony of La Voie as to the fact, there was evidence of the confession of the defendant that he entered the car and rendered assistance in the removal of the cotton therefrom.Furthermore, the testimony of the defendant himself and that of Jacob Blum, a witness for him, is to the effect that the defendant was present at the car, though not in it, aiding and assisting in the larceny.His claim that he was an accessory before the fact is inconsistent with such testimony.Anciently there were three kinds of accessories: First, before the fact; second, at the fact; and, third, after the fact.The second kind were afterwards called "principals in the second degree," and still later "principals."1 Russ.Crimes (6th Am. Ed.) 26.Manifestly it is a contradiction in terms to call an accessory at the fact an accessory before the fact.As stated by Putnam, J., in Commonwealth v. Knapp, 9 Pick. (Mass.) 496, 514, 20 Am. Dec. 491."It is an established rule that a statute is not to be construed so as to repeal the common law, unless the intent to alter it is clearly expressed."The rule is the same in civil cases.Langlois v. Dunn Worsted Mills, 25...