State v. Spink

Supreme Court of Rhode Island

State v. Spink

69 A. 364, 29 R.I. 111, 1908 R.I. LEXIS 30

DecidedApril 20, 1908

StatusPublished

This text of 69 A. 364 (State v. Spink) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Spink, 69 A. 364, 29 R.I. 111, 1908 R.I. LEXIS 30 (R.I. 1908).

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Opinion

Per Curiam.

The record shows that the trial of this complaint in the District Court was adjourned for more than fourteen days, and it does not show whether or not this continuance was taken with the consent or at the request of the accused, as required by C. P. A. § 167. We think that such consent or request, being a condition on which the jurisdiction of the court to adjourn the case depends, should appear on the record. But, the statute being enacted for the benefit of the defendant, and his failure to consent being, the only obstacle to the power of the court to continue the trial, his subsequent appearance without protest was an effectual waiver of the ir- ■ regularity and supplied the consent which was lacking.

The third exception objects to a remark of the presiding judge in his charge relating to the appearance of the person *112 claimed to have been assaulted, as follows: "and she then introduces the testimony of this woman, Mrs. Rathbun, who goes over and sees them in the kitchen, and she says, ' What has happened? ’ and this woman Nellie, as she calls her, says, ' You see what has happened; ’ and there was no explanation at that time on the part of Mr. Spink, no defence made by him at that time, and I do not think that he claims that he made any explanation at that time. Perhaps he thought that none was necessary; however, he made none.” '

Henry W. Greenough, Assistant Attorney-General, for State. Edward M. Sullivan, for defendant.

This observation was not a misstatement of the testimony, and it was proper for the court to call the attention of the jury to it.

The only other exception which is relied upon is to the refusal of the trial court to grant a new trial on the ground that the verdict was against the evidence. We think the motion was properly refused. The testimony of the parties to the assault was contradictory, and the jury believed one statement rather than the other. There was corroboratory evidence to sustain the charge.

We think the evidence-was sufficient to support the verdict.

The defendant’s exceptions are overruled and the cause is remitted to the Superior Court for sentence.

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Per Curiam.

The record shows that the trial of this complaint in the District Court was adjourned for more than fourteen days, and it does not show whether or not this continuance was taken with the consent or at the request of the accused, as required by C. P. A. § 167. We think that such consent or request, being a condition on which the jurisdiction of the court to adjourn the case depends, should appear on the record. But, the statute being enacted for the benefit of the defendant, and his failure to consent being, the only obstacle to the power of the court to continue the trial, his subsequent appearance without protest was an effectual waiver of the ir- ■ regularity and supplied the consent which was lacking.

The third exception objects to a remark of the presiding judge in his charge relating to the appearance of the person *112 claimed to have been assaulted, as follows: "and she then introduces the testimony of this woman, Mrs. Rathbun, who goes over and sees them in the kitchen, and she says, ' What has happened? ’ and this woman Nellie, as she calls her, says, ' You see what has happened; ’ and there was no explanation at that time on the part of Mr. Spink, no defence made by him at that time, and I do not think that he claims that he made any explanation at that time. Perhaps he thought that none was necessary; however, he made none.” '

Henry W. Greenough, Assistant Attorney-General, for State. Edward M. Sullivan, for defendant.

This observation was not a misstatement of the testimony, and it was proper for the court to call the attention of the jury to it.

The only other exception which is relied upon is to the refusal of the trial court to grant a new trial on the ground that the verdict was against the evidence. We think the motion was properly refused. The testimony of the parties to the assault was contradictory, and the jury believed one statement rather than the other. There was corroboratory evidence to sustain the charge.

We think the evidence-was sufficient to support the verdict.

The defendant’s exceptions are overruled and the cause is remitted to the Superior Court for sentence.

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Bluebook (online)

69 A. 364, 29 R.I. 111, 1908 R.I. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-spink-ri-1908.