Fizini v. State

• Decision Date: 25 June 1906
• Parties: FIZINI v. STATE.
• Court: Texas Court of Criminal Appeals

100 S.W. 394

FIZINI v. STATE.

Court of Criminal Appeals of Texas.

June 25, 1906.

On Rehearing, March 14, 1907.

Appeal from District Court, Brazos County; J. C. Scott, Judge.

Joe Fizini was convicted of manslaughter, and he appeals. Affirmed.

A. G. Board, Doremus & Butler, and Lamar Bethea, for appellant. J. E. Yantis, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of manslaughter, and his punishment assessed at two years' confinement in the penitentiary. There are no bills of exception in the record.

The facts show that deceased was Jennie Mongonia (wife of Ross Mongonia). All of the people connected with the transaction, either as witnesses or otherwise, lived in the immediate vicinity of the tragedy. A day or two before the homicide Ross Mongonia had shot a dog for chasing a goat belonging to Joe Mongonia, his 10 year old son. This brought about ill feeling, and the Fizini brothers (Joe and John) had been to see Ross Mongonia in reference to the shooting of the dog. Joe Mongonia (son of Ross) testified: That John and Joe Fizini seemed to be angry when they were talking to his father in regard to the dog. That his father told them he shot the dog to make him go home. That this occurred two or three days before his mother was killed. He was at home when and where his mother was killed; that he had been out that day persimmon hunting with Leonardo Salvijo. Just after they had reached home Peter Vinch and his wife, Angelina Vinch, Joe Fizini, John Fizini, and Frank Deneaner came to the residence of Ross and Jennie Mongonia. Ross Mongonia was not then at the house. He had gone off to water a cow and some mules. John Fizini inquired for Ross Mongonia, and was informed that he was off watering a cow and mules. They sat there a little while, and asked if Ross Mongonia was coming. Jennie Mongonia sent Joe to call his father. The boy went and returned, and just after his return his father, Ross Mongonia, came in through the house from the backway, and walked out on the gallery where the Fizinis, Deneaner, and the Vinches were sitting. When his father came upon the gallery John Fizini stated to him, "We come about that business." Ross Mongonia immediately caught hold of Frank Deneaner, and said, "Leave here and do not give me any trouble." Then appellant jumped off the gallery, out into the yard, raised his gun, and said to Ross Mongonia, "Turn him loose or I will shoot you." Ross Mongonia then turned Deneaner loose, and went into the house, and Mrs. Vinch caught hold of Frank Deneaner's gun. That his father did not go into the house to get a gun. When they turned Frank loose Joe Fizini lowered his gun and did not shoot. No one grabbed John Fizini. This witness did not know who did the shooting. That all of the shots were right together. That his father did not shoot, and had no gun in his hand at all. He says his father was mad when he came in. His father after going into the house was trying to get out of doors, and his mother (deceased) was trying to put his father in the house. That his father did not have any gun during the trouble and did not fire any shot at defendant or John Fizini or Frank Deneaner.

Peter Vinch testified: That he and his wife were at home. That they lived about 50 yards from the Fizini brothers and Frank Deneaner, who were brothers and brothers-in-law. They came to his house together, each armed with a gun. While they were at the house they said to the Vinches, "Let's go up to Ross Mongonia's house," and witness said "No," and John said, "You are scared to go." Angelina Vinch then said, "If you say we are scared we will go," and they all went over to Ross Mongonia's house together. When they got there they found Ross was not at home. Jennie (deceased) invited them to have seats on the gallery. After they had gotten seated, John Fizini asked for Ross Mongonia, and was informed by deceased that he had gone to water the mules and cow. Deceased called her husband, but he did not hear, and she then sent her little boy, Joe, after his father. The boy returned and said his father was coming. They were all seated on the gallery and having a friendly talk, and had been sitting there from a half to three-fourths of an hour, when Ross Mongonia came to the house. The Fizinis and Deneaner had their guns lying across their laps. On the gallery, at the time Ross Mongonia returned, were seated Joe and John Fizini, Frank Deneaner, Leonardo Salvagio, Angelina Vinch, and Peter Vinch. When Ross Mongonia came upon the gallery, John Fizini remarked to Ross Mongonia, "How was this?" Ross Mongonia then took hold of Frank Deneaner with both hands by the arm and said, "Leave here; don't give me any trouble." John Fizini was sitting with his gun across his lap when he remarked to Mongonia, "How was this." When Ross took Frank by the arm, and said, "Leave here," etc., John Fizini got up. Joe (appellant) who was sitting on the floor of the gallery with his feet on the front steps got off the gallery, cocked his gun, and said, "Turn him loose, or I will kill you." John then got around on the side of the gallery on the ground. Joe was right in front of the gallery. When Joe cocked his gun they were all off the gallery. Ross did not strike Frank, just took him by the arm and told him to please leave. Joe had his gun cocked when Ross told Frank to leave, and when Ross had hold of Frank's arm. John was near the cistern. Angelina Vinch grabbed Frank Deneaner's gun after Ross Mongonia turned Frank loose. Frank drew his pistol. When he did this Angelina Vinch turned him loose. This witness says when he saw they were going to have trouble he ran to call Charley Salvigo. This witness did not know how many guns were fired. When he returned all of the parties had gone, running off together, each one having a gun in his hand. Jennie was just inside the door on the floor, wounded in the neck, from the effect of which wound she died about midnight. In this connection it may be well enough to state that the witnesses agree that it is usual among the Italians to carry their guns around with them when they are not at work, and they were not at work on this particular day; it being a holiday. The effect of three shots were found about the house after the difficulty was over. A load of buckshot passed through the wall of the gallery seven or eight feet above the floor, and there were two pistol ball holes in the front gallery.

Angelina Vinch's testimony was practically the same as that of her husband. She further stated that when she grabbed Frank Deneaner's gun Frank drew her back eight or ten feet off the gallery out into the yard. At the time she took hold of Frank's gun he was not doing anything. At the time she turned the gun loose he had drawn his revolver, and when he did that she turned the gun loose and left. She stated that Ross Mongonia caught Frank by the lapel of the coat, her husband having stated that he, Ross, caught him by the arm. She states that when Ross Mongonia came upon the gallery John Fizini said to him, "We have come about that business." Mongonia did not say anything in reply to what John said, except when he grabbed Frank and said, "Leave here and do not give me trouble." She says that she took hold of Frank to avoid a fight. Witness Leon Salvago testified that he and Joe Mongonia had been out persimmon hunting; that they returned to Mongonia's residence, and after they reached there John and Joe Fizini, Peter Vinch and his wife, and Frank Deneaner came there; that they were all armed with guns, and he testified in regard to sending for Ross Mongonia as the others did. This witness did not know who did the shooting. He states, "I know that Joe shot." At the time of the shooting Mrs. Jennie Mongonia (deceased) had hold of her husband, and was either pushing him back into the room from the gallery or was trying to prevent his return from the room out on the gallery. This scuffle between deceased and her husband occurred practically in the door that leads out to the front gallery where the parties had all been sitting.

There was some impeaching testimony introduced to the effect that these parties had gone to the house with the view of getting Ross Mongonia to assist in surveying 1¼ acres of land that the Vinches had rented from John Fizini. However, this was simply introduced as impeaching testimony. Impeaching testimony was also introduced to contradict Joe Mongonia to the effect that he stated to another witness that his father shot on this occasion. This is practically the case as we understand the record. It is not necessary to discuss any of the issues relating to the charges submitting the theories of murder in the first and second degrees, inasmuch as the conviction was for manslaughter, and the minimum punishment assessed.

It is contended that the court erred, in reference to self-defense, in not charging the jury as to a theory as against an attack of Ross Mongonia and Angelina Vinch. This contention is based on the testimony already stated; to the effect that after Ross Mongonia turned Frank Deneaner loose, Angelina Vinch grabbed Frank's gun and was holding on to it and continued to hold on to it until Frank had pulled her out into the yard, and had drawn his revolver. We do not think this theory of self-defense was suggested by the testimony. The Vinches were friends of the defendant and his crowd, and went to the home of deceased at their request. When the trouble came up she undertook to hold Frank's gun, as we understand this testimony, to prevent his using it, and prevented his use of the gun until Frank drew his pistol, when she turned him loose and left. At the time Ross Mongonia had turned Frank loose, and had either gone into the room or was being pushed into the room by his wife during the trouble between Angelina Vinch and Frank Deneaner, there is nothing in the record, not a fact or circumstance that we can discover, that indicates there was any...