People v. Pizzino

• Citation: 20 N.W.2d 824,313 Mich. 97
• Decision Date: 03 December 1945
• Docket Number: No. 71.,71.
• Parties: PEOPLE v. PIZZINO.
• Court: Supreme Court of Michigan

313 Mich. 97

20 N.W.2d 824

PEOPLE

v.PIZZINO.

No. 71.

Supreme Court of Michigan.

Dec. 3, 1945.

Appeal from Recorder's Court of City of Detroit; Henry F. Sweeney, judge.

Theodore Pizzino was convicted of second degree murder, and from an order denying a motion for new trial the defendant appeals.

Affirmed.

Before the Entire Bench.

John R. Dethmers, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Gerald K. O'Brien, Pros. Atty., and Michael A. Guest, Asst. Pros. Atty., both of Detroit, for the People.

John W. Coury, of Detroit for appellant.

STARR, Chief Justice.

In April, 1931, Leo Cellura, Angelo Livecchi, and defendant Theodore Pizzino were indicted by a grand jury for the murder of one William Cannon on July 3, 1930. Livecchi and defendant Pizzino were arrested and on jury trial in June, 1931, were convicted of second degree murder. Their motion for a new trial was denied, and they were sentenced to life imprisonment. Cellura was not apprehended until 1936, and he was thereafter tried, convicted of first degree murder, and sentenced to life imprisonment. On appeal his conviction was affirmed. People v. Cellura, 288 Mich. 54, 284 N.W. 643.

In 1940, having obtained leave, defendant Pizzino filed motion for a new trial based upon alleged errors in his trial and upon a claim of newly discovered evidence. This motion was denied, and, having obtained leave, he appeals. No question is raised as to the great weight of the evidence, and the only issue presented is whether or not there were irregularities in his trial which require reversal and the granting of a new trial.

Cellura, Livecchi, and defendant Pizzino were under-world characters. There was testimony indicating that they were associated together in the unlawful distribution of narcotics from rooms in the LaSalle Hotel in Detroit. On July 3, 1930, at about 6:20 o'clock in the afternoon said William Cannon and two other men entered an automobile parked on Adelaide street, a few feet from the entrance to the hotel. A man identified as Cellura approached and fired several shots into the car, killing Cannon and the man in the front seat beside him and wounding one Stitzel, who was in the back seat. Although it was disputed, there was testimony that defendant Pizzino was with Cellura at the time of the shooting. As no question is raised as to the great weight of the evidence, it would serve no purpose to discuss the testimony in detail. Suffice it to say that the record indicates that the murder resulted from a feud between gangsters engaged in nefarious and unlawful activities. It should be noted that defendant Pizzino did not take the stand in his own defense.

On this appeal defendant first contends that the trial judge coerced the jury into arriving at a verdict. It appears that during the course of their deliberations the jury requested further instructions, and on these occasions the judge stated in part as follows:

‘I just want to impress on your minds this matter has taken almost two weeks and it is an important case. Naturally we can't afford to litigate the question forever, on account of the city * * * cannot afford to have it done that way. It takes time to try these cases and I want you, if possible, to reconcile and agree and arrive at some conclusion and settle the facts in the case at least. * * *

‘I want to emphasize the fact that while you have been out deliberating, of course, for some time, yet, as long as you feel you are able to arrive at a verdict, why, the court feels that you should be permitted to deliberate because in a case of this importance it has taken considerable time and you should not be stubborn-you should simply base your conclusions upon the evidence in the case and the law that I have given to you.’

On another occasion the jury asked to view the scene of the crime, and in granting them permission the trial judge said in part: ‘I think for the purpose of aiding the jury in having a better visualization * * * of the testimony that has been introduced, I will exercise the discretion in that respect and permit a view of the permises to be taken. * * * I don't want to unduly retain you. You have not been deliberating long when you figure it all out. You have been out, of course, a matter of entering, as it were, the third day, but when you reduce the hours of deliberation from the actual hours you have been together, it only amounts to 16 or 20 at the most, because you have had your sleep and meals and other hours away from deliberations, so that I don't feel that you have been burdened in any way at all, especially in view of the facts of the case that has taken so long to try as this case has taken. And, of course, you have all sworn to bring in a verdict according to the evidence. It is not your personal opinion that amounts to anything, excepting as that is based upon the evidence, having in mind the doctrine of the presumption of innocence and the doctrine of reasonable doubt as I have charged it to you. Soarrangements will be made for a view of the premises.’

The above-quoted statements by the trial judge must be considered in connection with the entire context of his instructions to the jury. People v. Serra, 301 Mich. 124, 3 N.W.2d 35. It should be noted that in the statements complained of he expressly stated to the jury, ‘You should not be stubborn-you should simply base your conclusions upon the evidence in the case and the law that I have given to you.’ In the case of People v. Kasem, 230 Mich. 278, 290, 203 N.W. 135, 139, we said: ‘We have not right to reverse a conviction, unless we are satisfied that there was such error committed on the trial as deprived the defendant of substantial rights or resulted in a miscarriage of justice.’

In Zeitz v. Mara, 290 Mich. 161, 166, 287 N.W. 418, 420, we said: ‘Examination of the authorities show that, when it is claimed that a jury has been coerced into returning a verdict, all of the facts and circumstances must be considered as well as the particular language used by the trial judge.’

In People v. Kasem, supra (230 Mich. at pages 290, 291, 203 N.W. at page 139), we quoted with approval the following statement from 16 C.J. p. 1091: ‘It is proper for the court, after the jury have been deliberating for some time, to recall them to ascertain why they cannot agree, and to inquire as to whether there is any likelihood of an agreement. Provided nothing is said to coerce an agreement, or to indicate what verdict should be rendered, or that may be considered as an appeal to the jury to decide the case in some way even at the expense of honest convictions, the court may give the jury further instructions or advice calculated to assist them in coming to an agreement; may call their attention to the time taken in the trial and the great expense incurred therein, or which would be incurred by a retrial; may impress upon them the importance of the case and urge them strongly to come to some agreement; may ask them if any one has intruded upon their deliberations or has attempted to tamper with them; and may direct them to retire for further consideration.’

See, also, [23 C.J.S., Criminal Law, § 1380] Decker v. Schumacher, 312 Mich. 6, 19 N.W.2d 466;Gordon v. Samson, 294 Mich. 294, 293 N.W. 654.

We have examined the above-quoted statements in connection with other instructions given, and are convinced that under the facts and circumstances shown they did not operate to coerce the jury in arriving at a verdict.

Defendant next contends that the verdict of guilty was not the unanimous verdict of the jury. It appears that they began their deliberations on June 24th and returned their verdict on June 27th. The record indicates that during this time the weather was extremely hot. On the second evening one juror was affected by the heat, and it was necessary for the matron to administer spirits of ammonia to revive her. One juror made affidavit that he voted for a verdict of guilty because he was physically exhausted. Another juror made affidavit that she was under the influence of ‘threats made and the heat,’ and that at the time the jury were polled she did not give a free and voluntary answer to the question as to whether or not she voted for a verdict of guilty. In support of defendant's motion for a new trial another juror made affidavit that when the verdict of guilty was returned, she was ‘in a very bad physical condition on account of the long and tedious hours of deliberation and due to the heat;’ that she was incapacitated from performing her duty as a juror; that she had not recollection of what took place; and that when she was polled by the clerk, she had no intention of voting guilty. When the jury were polled, the following occurred as to this juror:

‘The clerk: Catherine Wiles, is that your verdict?

‘Juror Wiles: (No audible response).

‘The reporter: I can't hear you.

‘The court: She said, ‘Yes.”

The rule is well established that jurors may not impeach their verdict by affidavits. To permit this would open the door for tampering with the jury subsequent to the return of their verdict. Affidavits of like purport might be made by jurors in many cases where their deliberations are long, argumentative, and tiring. In the present case the jurors were able to enter the court room and be polled, We are not impressed by the affidavits of certain jurors that they were incapacitated by the heat and their extended deliberations. As stated above, the trial judge heard juror Wiles answer, ‘Yes.’ The reporter may not have heard her answer, but the judge apparently did. In 8 Wigmore on Evidence, p. 704, § 2355, it is stated:

‘The act of assent to a verdict is constituted by the express answer to the clerk at the polling in open court, or by the silence which implies an assent. This outward act is final. * * *

‘Hence, the fact that the verdict as delivered was by one or more individual jurors not assented to by them in the juryroom, or is different from the one there...