Bruno v. State
| Decision Date | 26 February 1924 |
| Docket Number | 23425 |
| Citation | 197 N.W. 612,111 Neb. 715 |
| Parties | MAURO BRUNO v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county: CARROLL O STAUFFER, JUDGE. Affirmed.
AFFIRMED.
Bigelow & LaViolette, for plaintiff in error.
O. S Spillman, Attorney General, and George W. Ayres, contra.
Heard before MORRISSEY, C. J., LETTON, ROSE and GOOD, JJ., REDICK and SHEPHERD, District Judges.
Defendant prosecutes error from a conviction for shooting with intent to kill. It is argued that the evidence as to defendant's connection with the shooting was insufficient to warrant the submission of the cause to the jury. At the time the crime is alleged to have been committed, September 22, 1922, defendant resided with his family at 5514 North Sixteenth street in the city of Omaha. The complaining witness, Joseph Vargo, resided with his family in the house immediately south of defendant's house. At defendant's house there lived a man named LaFortazzo, together with his wife, and a man named Joe Maiellai. Defendant, LaFortazzo, and the complaining witness, Vargo, had all formerly been employed in the shops of the Missouri Pacific Railway Company. Some months before the commission of the crime, these men had joined in a general strike which extended over several railroad systems. On the evening of September 22, 1922, Vargo was passing in front of defendant's home and stopped for a short time to have a friendly visit with his neighbors. Without controversy, it appears that there were then on the porch of defendant's home Mr. and Mrs. LaFortazzo, Mr. Maiellai, a neighbor named Folisi, and defendant's wife. Vargo testified that defendant was also present, but this is denied by defendant and his witnesses. The party conversed for a few moments about the strike. Vargo is said to have expressed the opinion that it was lost and to have announced that he had returned to work, but no acrimonious debate developed. Vargo testified that while he was engaged in this conversation defendant left the party, entered the house, and was not seen again by him. After Vargo visited for a few moments at defendant's home, he walked to the front door of his own house, but, finding it locked, proceeded to a side door near the rear of the house. While he was in the act of opening the door, which led onto a small screened porch, he was struck by a charge of No. 6 bird-shot. Almost immediately thereafter he was struck by a second charge of the same kind of shot and fell on the porch. His wife immediately ran to his assistance and helped him into the house. A physician was called, and the police were notified of the shooting. Shot were found in the clothing and skin of Vargo extending from his feet to his face. The shot had not penetrated his body to any considerable depth, and, under proper medical treatment, he made a complete recovery. Upon the arrival of the police officers, they went to defendant's home, and there found the parties heretofore named, LaFortazzo, Folisi, Maiellai, Mrs. LaFortazzo, and Mrs. Bruno, but defendant was not found. The officers took the three men found at defendant's home to the home of Vargo, where, according to some of the witnesses, both for the state and for defendant, Mr. and Mrs. Vargo accused Folisi of having done the shooting. However, it is claimed by Vargo that he asked the officers to arrest all four of the men, defendant as well as the three then in custody. Whether acting under directions of Vargo or upon their own volition is not material, but, while still holding the three men who were then under arrest, they returned to defendant's home in an effort to arrest him. While the officers were still at his home, it is claimed that defendant called his wife over the telephone from a drug store a few blocks from his home. He soon thereafter arrived at his home and was placed under arrest. Defendant and his three friends, heretofore mentioned, were all detained by the police until released on bail. Later in the evening a shotgun, which apparently had been thrown away by some person who feared the consequences of being found with it in his possession, was found a few blocks from defendant's home. Shells found in the gun and shells found in defendant's home were offered in evidence and are attached to the bill of exceptions. There is some confusion over the identification of these shells because of carelessness in tagging them or in the loss or removal of certain of the tags. These shells appear to have been made by two different manufacturers, some being marked "Schultz," while the others are marked "DuPont," but they are all loaded with No. 6 shot and are of the same gauge.
Mrs. Vargo testified that, when she heard the report of the gun, she ran to the porch to assist her husband, and that she looked out and saw defendant with a gun in his hands. Defendant argues, and perhaps correctly, that this is the principal evidence fastening the crime charged upon him, and says it is wholly discredited and unworthy of belief, because it was shown that she did not at the preliminary hearing of defendant give this testimony either verbatim or in substance. It is argued, also, that because of the physical situation she could not have seen defendant even had he been standing at the point where she claims she saw him. As going to the credibility of her story, it is urged that she would not under the circumstances have endangered herself by stepping through the door to look for the man who had shot down her husband. It is said that her first thought would have been to give assistance to her husband, and that, if this part of her story were true, she would have called up the police and told them that defendant was the guilty party.
No doubt this argument was made to the jury, and of course it had their consideration. It is evident that English is not the mother tongue of the witness, and allowance must be made for discrepancies that will inevitably creep into the story...
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