Foglia v. People
| Decision Date | 23 October 1907 |
| Citation | 229 Ill. 286,82 N.E. 262 |
| Parties | FOGLIA et al. v. PEOPLE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; Marcus Kavanagh, Judge.
Vito Foglia was convicted of murder and Tony Foglia of manslaughter, and they bring error. Reversed and remanded.
A. J. Hanlon (Francis Borelli, of counsel), for plaintiff in error.
W. H. Stead, Atty. Gen., and John J. Healy, State's Atty. (F. L. Barnett, of counsel), for the People.
Plaintiff in error were tried by a jury in September, 1906, in the criminal court of Cook county, and the father, Vito Foglia, was found guilty of the murder of one Giovanni Toscano and sentenced to 14 years in the penitentiary. Tony Foglia, the son, then aged about 14 years, was found guilty of manslaughter, and sentenced to the reformatory.
A stenographic report of the testimony was not kept, and the record as to the statements of witnesses has been compiled and agreed upon by counsel from their best recollection of what was said at the trial. The homicide in question took place between 8 and 9 o'clock on the evening of October 15, 1905, on La Salle street, Chicago, near the fire plug in front of a row of buildings known as ‘405-409.’ When the witnesses for the state first appeared upon the scene, attracted by the shots, plaintiff in error Vito Foglia was lying on the sidewalk, face up, and Toscano, the man who was killed, was lying on top of him, face down. According to the testimony of the state, plaintiffin error Tony Foglia, at the time he was first seen, was standing in the street near the two prostrate men, shooting with a revolyer. He then came over to where the two men were, and pulled Toscano off of Foglia and turned him over, face upward, on the sidewalk. Toscano was then dead. When Vito Foglia got up from the ground, his face and head were wounded with several cuts, and covered with blood. He had a revolver in his hand, which the policeman who arrested him stated was a 38-caliber, with four shells empty and one loaded. This policeman stated that he did not find any revolver or knife on the person of deceased, but found a rusty four-bladed knife lying under deceased's body when he took him up; that the knife was closed, but was broken in such a way as to have a sharp edge; that one blade was missing entirely. The state's witnesses substantially agree on the facts of the shooting as above given. No disinterested witness testified as to the cause or beginning of the trouble. Apparently no person outside of the deceased and the plaintiffs in error was present when the difficulty began.
Plaintiff in error Vito Foglia lived with his family a little distance north of where the shooting occurred. His story is that on the Sunday night of the trouble, about 8:30 o'clock, he left his house and went out on the sidewalk to call his son Tony, who was playing in the street with other boys, and when he got to the sidewalk the deceased (Toscano) assaulted him (Vito), stating that he was going to kill him, and immediately struck and knocked him to the sidewalk and jumped upon him; that he (Vito) having a revolver, fired three or four shots in the air and called out, or words to that effect; that deceased was striking him and cutting him on the head with a knife; and that thereupon his son Tony shot at the deceased. The witness testified that he had known the deceased for some time intimately, but had never had any trouble of any kind or character with him; that he was arrested and taken to the emergency hospital, where the wounds on his head and face were sewed up.
Plaintiff in error Tony Foglia stated that he was playing on a wagon on the opposite side of La Salle street with some other boys whose names he did not remember. As he was playing, he heard some shots and his father cry out, or words to that effect. As he ran towards his father, he saw him on the ground with another man on top, striking him with something in his hand; that some person unknown to the witness placed a 32-caliber revolver in his hands, and told him to protect his father; that he went near to where his father was lying while the other man was on top, striking him, and fired two or three shots; that after firing the shots, on seeing the man on top not moving, he pulled the deceased off of his father.
The manager of the emergency hospital where Vito Foglia was taken to have his wounds dressed testified that the records of the institution showed that there were five wounds in the patient's head and face, necessitating the insertion of 20 stitches.
The coroner's physician who made the postmortem examination testified that he found four gunshot wounds in the body of the deceased; that two of them were neck wounds made by two 38-caliber shots from before backwards, the balls escaping without penetrating any vital organs; also a wound in the back, caused by a 32-caliber bullet entering between the ribs, passing through the lung to the heart, the ball being found in the right pleural cavity; also a wound in the side from a 32-caliber bullet, which passed between the ribs, through the stomach and upper border of the kidneys and lodged in the muscles of the back. In his opinion death was due to shock and hemorrhage from the gunshot wound of the 32-caliber bullet which pierced the right lung and heart, causing instant death.
Pedro Foglia, another son of Vito, testified that he was on the second floor of a house in the vicinity, playing cards, when he heard the shooting and ran out on the sidewalk; that he had no revolver or anything in his hand, and did not fire any shots. The witnesses for the state did not contradict this testimony of Pedro, or claim that he took any active part in the shooting, with the exception of one witness, who testified that about the time Tony Foglia pulled deceased off of Vito and laid him on the sidewalk, face up, Pedro came up and fired three or four shots at the body of the deceased as it lay on the sidewalk, face up.
Tony Foglia and Pedro Foglia ran away from the scene of the killing and went to Philadelphia, where they lived for some time under assumed names, but they testified that they afterwards came back on the advice of their counsel, and surrendered themselves to the police. Pedro was put on trial with his father and brother, but at the close of the state's evidence the presiding judge ordered him discharged, and the state thereupon entered a nolle pros. as to him.
It is stated at the close of the bill of exceptions that We find nothing in this record that conclusively upholds the theory of either the state or defense. There is no positive evidence as to the beginning of the trouble other than that given by plaintiffs in error. In this state of the record the case called for care and accuracy in instructing the jury as to the law.
Several instructions were given that were prejudicial to plaintiffs in error. All the testimony agrees that at the time the fatal shot was fired-and, indeed, when all the shots were fired-plaintiff in error Vito Foglia was lying on his back on the ground, with the deceased on him, holding him down; and the testimony of the plaintiffs in error is to the effect that the deceased was at the time striking Vito on the face and head with a knife or some other implement. The other testimony in the record is in harmony with their statements in this regard, except that it shows that the knife found under the body was closed....
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