Colombo v. People

• Decision Date: 19 October 1899
• Citation: 182 Ill. 411,55 N.E. 519
• Parties: COLOMBO et al. v. PEOPLE.
• Court: Illinois Supreme Court

182 Ill. 411

55 N.E. 519

COLOMBO et al.

v.PEOPLE.¹

Supreme Court of Illinois.

Oct. 19, 1899.

Error to circuit court, Williamson county; A. K. Vickers, Judge.

Tona Bonardo was convicted of murder and George Colombo of manslaughter, and they bring error. Affirmed.Smith & Henshaw, J. L. Gallimore, and Wm. A. Schwartz, for plaintiffs in error.

E. C. Akin, Atty. Gen., and R. R. Fowler, State's Atty. (Ed. M. Spiller, of counsel), for the People.

This is an indictment against plaintiffs in error for the murder of one John Young, Jr., on the 16th day of October, 1897. The indictment was found by the grand jury of Williamson county at the May term, 1898, of the circuit court of that county, and the trial was had at the September term, 1898, of said court. The jury found plaintiff in error Tona Bonardo guilty of murder as charged in the indictment, and fixed his punishment at imprisonment in the penitentiary for 25 years; and found the plaintiff in error George Colombo guilty of manslaughter, and fixed his punishment at imprisonment in the penitentiary for 2 years. A motion for a new trial was made and overruled. Motion in arrest of judgment was also made and overruled. Judgment and sentence were then pronounced in accordance with the verdict of the jury. The present writ of error is sued out for the purpose of reviewing said judgment.

Plaintiffs in error were coal miners, and for some time prior to the killing of the deceased were working in what are known as the ‘Brush Mines,’ near Carterville, in Williamson county. The coal company for which they worked had built houses for its employés near the coal shaft, and the name given to the group of houses so built and occupied is Greenville. Between the rows of houses, running east and west, is a public street 60 or 70 feet wide. On the evening of October 16, 1897, between 8 and 9 o'clock, plaintiffs in error were in one of the houses, called in the record ‘House No. 2,’ in company with quite a number of other persons, who, during the early part of the evening, had been drinking beer, and later in the evening were eating lunch. Outside, and in the street, were four or five persons, to wit, the deceased, John Young, Jr., an Italian named Charlie Calcatarie, and one John Ward, Sr., and his son, John Ward, Jr. With them also was a man named Walter Jacobs, who lived in house No. 22. The night was a starlight night. While plaintiffs in error were in house No. 2, and while these parties were in the street, either opposite or very near to house No. 2, a pistol shot was fired. The evidence tends to show that more than one shot was fired, but whether two or three shots were fired is left somewhat uncertain by the testimony. According to the testimony of a number of witnesses, the shots were fired considerably to the east of the place where these parties were standing in the street, and in or near what is spoken of as the ‘Main Road,’ running north and south. After the firing of the second shot, plaintiff in error George Colombo came out of house No. 2 into the street, and asked who fired that shot. Calcatarle, who is said by some of the witnesses to have been intoxicated, replied to Colombo that he did not know who fired the pistol, and told him if he wanted to know who fired it to go and find out. Colombo continued asking who fired the pistol, and John Ward, Sr., told him that some one out in the road east of them fired it. In a few moments plaintiff in error Tona Bonardo came out of house No. 2, and entered into conversation with Calcatarie, and asked, as did Colombo, who fired the pistol. There is some testimony to the effect that the deceased, John Young, Jr., who was standing there in the street, replied to Bonardo that he had fired the pistol. The deceased had been drinking that evening, and was evidently under the influence of liquor. Some of the witnesses deny that the deceased said that he had fired the pistol, and others state that he did say so. The evidence, however, does not show that any pistol was found in his possession. The impression made upon the mind by the testimony is that the pistol was not fired by the deceased. When Tona Bonardo came out of the house, he and George Colombo rushed towards the deceased, after they had made their inquiries in regard to the shooting of the pistol, and struck and pushed him in his breast and on his side with their hands. They were subsequently joined in their onslaught upon the deceased by two other persons, who were subsequently indicted, but who escaped arrest. While plaintiffs in error were making this onset upon the deceased, the deceased took a bottle out of his pocket, and struck plaintiff in error Tona Bonardo in the face or on the forehead, breaking the bottle, and cutting Bonardo's face, so that it bled. After the deceased had thus struck Bonardo with the bottle, he ran away some 45 feet. Plaintiffs in error, joined by the two persons already referred to, ran after the deceased, and renewed the attack upon him. They struck him, and knocked him down. While he was sitting upon the ground, he called out, and said: ‘Don't let them hit me any more!’ One of the Wards said: ‘For God's sake, don't let them hit him any more!’ John Ward, Jr., went forward, and picked up the deceased in his arms, and tried to carry him off, but plaintiffs in error pulled him away from Ward, and renewed the attack upon him. After he was prostrate upon the ground, these parties continued to strike and kick him. Some movement on the part of the attacking party seems to have been made towards making an attack upon John Ward, Sr. Thereupon the Wards left the place where the fight occurred, but one of them returned in about 30 minutes, and found the deceased nearly dead. He was mortally stabbed, and a wound, about an inch and a quarter long, the result of the stab, was found in the left side of his body. The plaintiffs in error are shown by the evidence to have kicked and beaten the deceased, and, while doing so, one of them kept crying out, ‘Kill him! kill him!’ The testimony shows that he was beaten into insensibility, and left prostrate on the ground, where he died in about an hour.

MAGRUDER, J. (after stating the facts).

1. It is claimed by plaintiffs in error that the facts do not justify the verdict. The evidence was such as to warrant the jury in finding that plaintiff in error Tona Bonardo stabbed the deceased, and inflicted the wound which caused his death. Before Bonardo left the house, and when the pistol shot was heard, he was sitting at a table, with a butcher's knife in his hand, cutting cheese and bread to be distributed to those who were there eating with him. When he left the house, he had the butcher's knife in his hand. When he returned to the house, after making the assault in question, he still had the butcher's knife in his hand, and there was blood upon it. It is true that his face was bleeding from the blow inflicted upon him by the deceased with the bottle, and the witness who speaks of seeing blood on the knife says that he could not say whose blood it was. But Bonardo made an attack upon the deceased, and he is the only person shown to have had a weapon capable of inflicting the stab which caused the death of the deceased. Bonardo fled, and was arrested by the officers a mile and a half from the place of the killing, three days after it took place, in a yard or field where the weeds were high enough to conceal him. The proof shows that it was difficult for the officers to find him on account of the weeds in which he had concealed himself. He did not admit in so many words that he had stabbed the deceased, but when asked by one of the officers, and also afterwards by the jailer, why he had stabbed the deceased, he replied, ‘Because he hit me with a bottle.’ The plaintiff in error Colombo is shown by the evidence to have been engaged in the assault made upon the deceased, and to have participated in the blows inflicted upon him. The testimony also shows that Colombo cried out during the assault: ‘Kill him! kill him!’ When Colombo, who, as well as Bonardo, was an Italian, was asked to desist from striking the deceased, he said, ‘No God damned American can come here and shoot pistols.’ The proof also shows that about a year prior to October 16, 1897, a difficulty had occurred between Colombo and the deceased, and threats were then made by Colombo against the deceased. We are of the opinion that the verdict of the jury, so far as it applies to plaintiff in error Colombo, was warranted by the evidence.

Plaintiff in error Colombo testified in his own behalf, and contradicted much of the testimony given by the other witnesses as to his participation in the killing of the deceased, and as to his utterances and conduct at that time. But it was for the jury to determine, as between the contradicting witnesses, where the truth lay. In Gainey v. People, 97 Ill. 270, we said (page 275): ‘In capital cases, like the present, the accused, if guilty, has the most powerful and urgent of motives to misrepresent the real facts, and, if this court is bound in every case of the kind to set aside the conviction merely because the testimony of the accused shows a case of justifiable homicide, it would not be long until there would be no security for life or limb, and trials by jury would become idle and useless ceremonies.’ Verdicts of juries will not be interfered with by the courts when they are manifestly authorized by the evidence. There is nothing here to show that the verdict was not the result of a dispassionate consideration of all the evidence in the case; and, this being so, it is not the duty of a court of review to set aside the conviction, unless it is shown that there is material and substantial error in the record. It is peculiarly the office of the jury in criminal cases to pass upon the guilt or innocence of the prisoner, and therefore it is not our duty as a court to set aside the verdict of the jury in such a...