Borrelli v. People

• Decision Date: 19 January 1897
• Parties: BORRELLI v. PEOPLE.
• Court: Illinois Supreme Court

164 Ill. 549

45 N.E. 1024

BORRELLI

v.PEOPLE.

Supreme Court of Illinois.

Jan. 19, 1897.

Error to criminal court, Cook county; Phillip Stein, Judge.

Sliverio Borrelli was convicted of murder, and brings error. Reversed.

W. S. Elliott, Jr., for plaintiff in error.

M. T. Moloney, Atty. Gen., for the People.

PHILLIPS, J.

The plaintiff in error was indicted by the grand jury of Cook county for the murder of Dominick Parento, and at the April term, 1895, was tried, convicted, and sentenced to be hanged. From that judgment this writ of error is sued out, and various errors are assigned. An encounter between the accused and the deceased occurred on Sunday night, November 25, 1894, which was not of a serious character, but in which the accused received some slight bruises, which aroused in him a considerable degree of animosity, and an apparent determination to have revenge. With this object in view, the accused procured metallic knuckles, which he exhibited to several persons at different times when he was explaining how he came by the bruises and scratches which he claimed he received at the hands of the deceased and one Carmine Colantonio in the Sunday night encounter. When displaying those metallic knuckles, he declared an intention to use them in the next conflict, which the evidence shows he was determined to bring about; but no other weapon was exhibited, or other threats made, at those times. On the night of November 28, 1894, between 8 and 9 o'clock, the accused and deceased casually met in an open shed immediately west of and adjoining a saloon kept by one Volz at the northwest corner of Sixty-Ninth and Page streets in the city of Chicago. A few feet to the west of the shed, and upon the north side of Sixty-Ninth street, stands a two-story frame building, constituting the home of Dominick Parento and his family, in the rear of the upper story of which lived Carmine Colantonio and wife, witnesses in this case. About a half a block northward from Sixty-Ninth street, on the east side of Wood street, which is one block west of Page street, stands the house of Raffael Apata, at the beginning of this trial one of the co-defendants herein. About the same distance northward, on the west side of Page street, stands the house of Silverio Borrelli, the defendant. On the northeast corner of Page and Sixty-Ninth streets stands the saloon of Mr. Navagato, within which, just prior to the time of the alleged homicide, the two witnesses Antonio Papio and James Taglier are alleged to have been standing near the stove. To the northward of Navagato's saloon, upon the east side of Page street, and fronting to the west, just across the alley from the premises of Navagato, stands the barber shop of Frank Special, another witness, in whose shop were congregated, upon the night of the homicide, several congenial friends engaged in social convivialities. All of these parties, in moving to and fro in the discharge of their social and business relations, necessarily came to Sixty-Ninth street in going to and from each other's homes, and to the saloons and barber shop mentioned. So far as developed by the evidence, the only artificial light relied upon by the residents of the described locality was that furnished by the city electric lamps, located, one each, at Wood and Sixty-Ninth streets and Page and Sixty-Ninth streets. Each of these lights is at least 300 feet from the scene of the homicide. On meeting in this shed, a conversation commenced between the accused and the deceased, and in a few moments the quarrel was renewed, and a fight commenced between them, in which the accused struck the deceased several brutal blows in the face with his hand wearing the metallic knuckles. The deceased cried out in a loud voice, which attracted the attention of various persons, among others Carmine Colantonio, who ran towards the shed. At about that time a pistol was fired, the ball from which struck and killed Dominick Parento. It is claimed by the prosecution that the shot was fired by the accused, while on the part of the defense it is urged that Carmine Colantonio, a friend and a godson of the deceased, fired the shot at the accused during the struggle, missing him, and striking Parento.

The testimony of Dr. Louis J. Mitchell, the coroner's surgeon who examined Parento's body, is that there was a wound on the nose and face of the deceased which might have been made with metallic knuckles; there was a bullet wound below the left armpit, and five inches from and on a line with the nipple, and its track was from left to right, and slightly forward and upward. The bullet was taken from the body, and was of 38 caliber. Tony Papio says that, about five minutes before the deceased was shot, he drank with him at Navagato's saloon, and shortly afterwards heard him calling for help, and he (Papio) ran out of Navagato's saloon, and says he saw the accused at the south door of Volz's saloon, and Parento had his hands up to his face; that that was the first thing he saw when he got out of the saloon; that he ran west, and, just as he got to the corner, Borrelli shot, and threw the revolver away; that Parento was at the southwest corner of a water trough which was 4 or 5 feet from the saloon; that Parento stood with his knees against the trough when shot, and witness was 12 or 15 feet distant when he was shot; did not see Apata, Colantonio, or Mrs. Volz, or anybody; that Colantonio was stabbed after the shot, and came there first after the shooting. Witness says he followed Borrelli to Special's barber shop, where he charged him with the killing. James Taglier testifies that he was with and just behind Papio, and saw Borrelli shoot as soon as he got out of Navagato's saloon, and saw no one but Borrelli and Parento, and they were punching their faces; that Parento's face was smashed up; that Parento was between the trough and saloon, facing north,-facing the door; when shot, he fell forward, got up, and fell again; did not see Apata or Colantonio; that Borrelli threw gun away after the shot. Thomas J. Haughey left the Volz saloon with his son, and heard quarreling in the shed. He walked to Wood street, one block west of Page, turned around, and saw the flash of a gun, and believes he saw three men; and, when the shot was first fired, it was within three or four feet of the shed. He crossed Sixty-Ninth street, went up on the south side of the street to Page, and crossed on Page, and came to Volz's saloon, and saw Papio going towards Volz; and saw Colantonio in the saloon when he got to the place where Parento was lying on the walk. Mrs. Louise Volz was in the saloon, and heard a shot; rushed to the door; saw Colantonio and Parento standing up and Borelli lying down; and, as she was in the door, Borrelli sprang up, and rushed into the house, pushing her aside, and disappeared at the back part of the saloon. William Schenkel, a son of Mrs. Volz, testified to Borrelli's rushing into the saloon just after his mother opened the door. Raffael Apata testifies that he heard the quarreling between Borrelli and Parento, saw the blows struck, heard Parento halloo, and saw Colantonio running towards him with a pistol in his hands; and he threatened to shoot the witness, who struck Colantonio with a knife on the shoulder blade, and started to run away. When he got a short distance, he heard a shot. He passed on to his home, and returned at once to Special's shop, where he saw the defendant, who said he was fighting with Parento, when Colantonio came up and shot at him, but hit Parento. Borrelli testifies that he was fighting with Parento, when Colantonio came up, and snapped his gun at him two or three times before it was fired, and at the shot Parento cried out. A revolver was found near the body of Parento which was a 38 caliber, and contained one unexploded cartridge, unmarked and unpunctured; one unexploded cartridge marked ‘C. C. C.,’ punctured; one empty shell marked ‘U. M. C.’; one empty shell marked ‘C. C. C.’; and there was one empty chamber. Colantonio had borrowed of James Snow a revolver, which was returned to him a day or two before this difficulty. Snow says all the chambers of that revolver were loaded when it was loaned, as also when it was returned to him, and had not been fired. He got it at Colantonio's house, and, when it was handed him, Colantonio took another from a table, and put it in his pocket, as Snow testifies. Snow's revolver was a 32 caliber, and he got the same from Colantonio between 5 and 6 o'clock on Monday morning; and, the night before, Mrs. Colantonio desiring to attract the attention of the police, fired a revolver twice. She says it was Snow's she shot. She also says she loaded it again from cartridges she had in the house. Colantonio says he loaded it after it was shot off by his wife. If Colantonio had another revolver than Snow's, as the latter testifies, then, if Mrs. Colantonio fired that one off instead of Snow's, and it was loaded as claimed, it might explain the different make of cartridges in the one found. It is apparent that the death of Parento resulted from a shot from the revolver...