State v. St. Angelo

• Decision Date: 17 April 1947
• Docket Number: No. 8760.,8760.
• Citation: 52 A.2d 513
• Parties: STATE v. ST. ANGELO et al.
• Court: Rhode Island Supreme Court

52 A.2d 513

STATE

v.ST. ANGELO et al.

No. 8760.

Supreme Court of Rhode Island.

April 17, 1947.

Exceptions from Superior Court, Providence and Bristol Counties; Walter Curry, Judge.

Joseph A. St. Angelo was found guilty of procuring the miscarriage of a pregnant woman and John F. R. Williams was found guilty of being an accessory before the fact. After denial of each defendant's motion for new trial they procured bills of exceptions to the Supreme Court.

Exceptions overruled in part and sustained in part and case remitted to the superior court for new trial.

John H. Nolan, Atty. Gen., and Raymond F. Henderson, of Pawtucket, Special Counsel for State.

Joseph Mainelli, of Providence, for defendant Joseph A. St. Angelo.

Francis A. Manzi, of Providence, for defendant John F. R. Williams.

CONDON, Justice.

This is an indictment of Joseph A. St. Angelo for procuring the miscarriage of a pregnant woman and also of John F. R. Williams as an accessory before the fact. The defendants were tried together in the superior court and found guilty. After the denial by that court of each defendant's motion for a new trial, they duly prosecuted bills of exceptions to this court.

Summarized, the indictment charges that St. Angelo did unlawfully and willfully force and thrust into the body and womb of Laura Viveiros, a pregnant woman, a certain instrument, to the grand jurors unknown, with the intent to procure her miscarriage, it not being then and there necessary to cause said miscarriage to preserve her life, against the form of the statute in such case made and provided. The indictment further charges that Williams aided and abetted St. Angelo and in so doing was an accessory before the fact.

The part of the statute, General Laws 1938, chapter 606, § 22, upon which the indictment is based declares that ‘Every person who, with the intent to procure the miscarriage of any pregnant woman or woman supposed by such person to be pregnant, unless the same be necessary to preserve her life * * * shall use any instrument or other means whatsoever or shall aid, assist or counsel any person so intending to procure a miscarriage * * * shall be imprisoned * * *.’ Under that statute the exception, expressed in the words ‘unless the same be necessary to preserve her life’, is a constituent element of the offense and must be negatived in the indictment and proved as a necessary part of the state's case. In other states where the courts have been called upon to construe a similar statute there is a division of authority. Underhill's Crim.Ev., 4th Ed., 1159, § 589; 1 C.J.S., Abortion, § 23b(2), p. 330; 1 R.C.L. 77, § 14. The weight of authority and, we think, the sounder reason support the view which we have taken.

Although the indictment in the instant case does contain such a negative averment, the state contends that it is mere surplusage which it is not required to prove. In support of that position the state relies on G.L. 1938, chap. 625, § 5, and more particularly on the second sentence thereof. That section is as follows: ‘An excuse, exception or proviso which is not stated in the enacting clause of a statute creating a crime, or which is stated only by reference to other provisions of the statute, need not be negatived in the complaint or indictment unless it is necessary for a complete definition of the crime. If a statute which creates a crime permits an act, which is therein declared to be criminal, to be performed without criminality under stated conditions, such conditions need not be negatived.’

The applicability of that statute to the offense charged in the instant indictment is not free from difficulty. From one point of view the section would seem to be ambiguous. Under its first sentence a negative averment of the exception in § 22 is clearly required, as such exception is stated in the enacting clause of that section. On the other hand, under the second sentence it seems not to be required, since the said exception is plainly a condition which deprives the offense of its criminality. In these circumstances we cannot say what the effect of § 5 is generally.

In respect to the particular indictment before us, however, and by way of answer to the state's specific contention on this point, we may say that § 5 is a part of the chapter of our general laws entitled ‘Pleading, Practise and Procedure in Criminal Cases' and first appeared therein by virtue of public laws 1915, chap. 1261. That chapter was designed, among other things, to annul or revise certain archaic rules of criminal pleading and procedure, and otherwise to reform and modernize the existing statutory and common-law system. Whatever the reform that chapter was designed to effect we are of the opinion that § 5 aimed at no more than a reform of criminal pleading and that it does not purport to introduce a new rule of criminal evidence or to alter the well-established principles of the substantive law of crimes. One of those principles is that the state must prove every constituent element of the offense charged against the accused. And under the rules of criminal evidence the accused is presumed to be innocent of each such element until the same is proved beyond a reasonable doubt.

On the above view, § 5 does not absolve the state from the obligation to prove the negative averment set out in the indictment, as it is a constituent element of the offense charged against St. Angelo. At this point we are not concerned with either the quantum or the mode of proof which is necessary to establish that averment. All that we say is that the state must present some evidence to support it in order to make out a case for the jury and avoid a dismissal of the indictment.

In the case at bar, did the state present such evidence, not only of that element but of all the other essential elements of the offense? Did the trial justice properly instruct the jury in the law as to the constituent elements of the offense and on whom lay the burden to prove those elements? These are the questions raised by St. Angelo's exceptions numbered 110, 173, 175 and 176. After carefully examining numerous other exceptions briefed and argued by him, we are of the opinion that only those exceptions are material and require consideration. Nor do we find it necessary to consider the exceptions which Williams has briefed and argued, except his exception 37, to the denial of his motion for a new trial. We shall now proceed to treat the aforementioned exceptions.

Exception 110 is to the denial of St. Angelo's motion to dismiss the indictment at the conclusion of the state's evidence. No exception lies to such denial. This court has held repeatedly that in a criminal case a defendant may not require the trial justice to rule on the sufficiency of the state's evidence, unless he first closes his case. State v. Lorenzo, 72 R.I. 175, 48 A.2d 407; State v. Kozukonis, 71 R.I. 456, 46 A.2d 865; State v. McElroy, 71 R.I. 379, 46 A.2d 397.

However, substantially the same question which St. Angelo sought to raise by that exception he raised later at the conclusion of all the evidence by his motion for a directed verdict, which was denied. Exception 173 is to such denial. In support of that exception St. Angelo contends that there are four elements constituting the offense as it is charged against him in the indictment, and that in no single instance has the state presented any evidence on which the jury could reasonably find him guilty. Those elements, as he states them, are: First, the pregnancy of the woman; second, his knowledge of, or belief in, the existence of such pregnancy; third, insertion by him of an instrument into the body and womb of the woman with the intent to procure her miscarriage; and, fourth, nonnecessity of the miscarriage to preserve her life. He is...