Mandella v. State
| Decision Date | 18 November 1947 |
| Citation | 29 N.W.2d 723,251 Wis. 502 |
| Parties | MANDELLA v. STATE (two cases). FAZIO v. SAME. LAMPONE v. SAME. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeals from orders and judgments of the Circuit Court of Kenosha County; Edward J. Gehl, Circuit Judge.
Affirmed.
Prosecutions of John Mandella, Jerome Mandella, Louis M. Fazio and Dominic Lampone on informations charging each of them on the first count with the crime of murder in the first degree and on a second count with assault with intent to murder. The informations were issued, after their arrest upon complaint made against them, pursuant to which there was a preliminary hearing in the municipal court of Kenosha county, which resulted in each of them being bound over to the circuit court for said county for trial on informations charging the offenses stated above. In the circuit court John and Jerome Mandella and Dominic Lampone filed pleas in abatement based on the alleged insufficiency of the evidence at the preliminary examination to warrant the filing of said informations. Said pleas were overruled by the court and a review of its order to that effect is sought in connection with defendants' writs of error for the review of the judgments finally entered, after a jury trial and verdicts finding all defendants guilty on both charges in the informations, and sentencing each of them to concurrent terms of imprisonment for life for the crime of murder in the first degree, and for one to thirty years for the crime of assault with intent to murder. On their respective writs of error, Fazio seeks a review of the judgment and each of the other defendants seeks review of the orders and judgments against them. Eugene J. Sullivan and James A. Fitzpatrick, both of Milwaukee, for plaintiffs in error.
John E. Martin, Atty. Gen., and William A. Platz, Asst. Atty. Gen., and Urban J. Zievers, Dist. Atty., of Kenosha, for respondent.
On their writs of error the defendants, John and Jerome Mandella and Dominic Lampone, contend that the circuit court erred in overruling their pleas in abatement which were based on the ground that on their preliminary hearing there was not sufficient evidence to warrant the municipal court in holding that either of the crimes charged in the informations ultimately filed against them was committed by them; and that there was no reasonable ground to believe any of them committed the offenses charged or to warrant binding them over for trial in the circuit court on those charges. Furthermore, each of said defendants, and likewise the defendant Louis M. Fazio, on his writ of error, contends that the court erred as to each of them in denying his motion for a separate trial and for a directed verdict and his discharge, for the setting aside of the verdict, and for the granting of a new trial for the reason that there was no credible evidence in the record sufficient to support the verdict of guilty.
In relation to the contentions on behalf of John and Jerome Mandella and Dominic Lampone that the circuit court erred in overruling their pleas in abatement, it suffices to state that, upon reviewing the evidence introduced at the preliminary hearing, it is our conclusion that there was enough evidence to warrant the charge against each defendant of murder and also assault with intent to murder. At said hearing no evidence was offered by defendants to establish their respective alibis upon which they subsequently relied on the trial. On the other hand there was evidence to warrant finding (briefly stated) that during the night of March 12, 1946, after three radios and a fur coat had been stolen from John Mandella's home in Milwaukee and hauled to Kenosha in a truck occupied by Mike and Joe Farina and Tony Bruno, the defendants Fazio, Lampone and Jerome Mandella, riding in an automobile operated by John Mandella, jointly participated and cooperated,-after John Mandella drove in such manner as to compel the halting of the truck in which the Farinas and Tony Bruno were riding-in endeavoring to compel them to admit the theft and disposition of the radios; and that in the course of the joint activities of all defendants to that end, they participated in brutally mistreating and threatening the Farinas, and while doing so, with Lampone in the driver's seat of the truck and Joe Farina on the floor in the rear part thereof, and Mike Farina attempting to come to his aid by entering the front right door thereof, the latter was killed and Joe Farina was seriously wounded by shots fired at them by Fazio. Consequently the court did not err in overruling the pleas in abatement.
In support of the defendants' contentions that the circuit court erred in denying their motions for a directed verdict and to set aside the verdict and grant a new trial on the ground that there was no credible evidence sufficient to support the verdicts of guilty, each defendant claims that Joe Farina's testimony is wholly uncorroborated in its essentials and is insufficient to sustain a conviction, and is even contradicted by other state's witnesses; but that the testimony on behalf of each defendant is corroborated in every essential detail and maintained his innocence at all times.
It is true that the evidence necessary to support the jury's verdict of guilty as to each defendant consists largely of the testimony of Joe Farina and that his testimony is somewhat contradicted by other state's witnesses in a few respects which are, however, not fatal or even so serious as to render his testimony in relation to the facts essential to sustain the verdict and judgment incredible or insufficient. He and Tony Bruno are the only surviving witnesses as to the concerted acts and conduct of the defendants which led up to and culminated in the shooting by Fazio of the bullets which resulted in wounding Joe Farina and the killing of his brother Mike. Until shortly prior thereto Tony Bruno had been with them, but, as will appear from the evidence as to facts hereinafter stated, he escaped somehow unscathed before the shots were fired and showed up in Milwaukee early the following day not seriously injured.
By the defendants themselves there was no testimony whatever given or introduced as to the immediate events which preceded or occurred at the time of the attack and shooting of Mike and Joe Farina. On the contrary, as their defense, each defendant pleaded and offered proof solely in support of an alibi.
On the trial there was testimony by Joe Farina, which, if the jury was satisfied of the truth thereof beyond a reasonable doubt, warranted the jury in finding facts to the following effect. About 3 o'clock a. m. on March 13, 1946, while Mike and Joe Farina were in a Plymouth panel truck, with the painted lettering ‘A. C. Window Cleaning Company’, on a highway in Kenosha county, Mike was killed and his brother Joe was seriously wounded by shots fired at them by the defendant Fazio. In the early evening of March 12, 1946, the Farina brothers,-accompanied by Tony Bruno,-had driven to the home of John Mandella in Milwaukee and there they stole three radios and a fur coat and drove to Kenosha, where Mike sold the radios. Several hours later they started back toward Milwaukee, with Joe driving the truck; and while still in Kenosha county, the truck was forced to the side of the road and compelled to stop by a Chrysler car known to be customarily used by John Mandella. Thereupon, as Joe Farina testified,--
‘We pulled over to the side of the road and got out. * * * Mike was about the first guy out and Bruno and I were getting out about the same time. We got around the back; by that time the fellows in the other car were out already. By the time I got back there I could hear a lot of swearing and cussing. Well, at the time when I first got out I couldn't see who it was; the lights blinded me. I moved to one side, then seen who it was. It was John Mandella and his brother Jerry, Fazio and Lampone. (Witnesses identified defendants in court as being the men he referred to.) I heard John yell at Mike saying something about you thought we wouldn't find you, but-well, they were telling us how slick they were that they found us and that we didn't have a chance to get out of there, and that they had all the roads blocked, * * *. They were swearing at each other and calling each other names. John was asking Mike where the radios were. Mike said he didn't know anything about where the radios were. He denied it. They asked us if we had guns and we told them we didn't. They argued some more. Well, they kept that up quite a while and every time they kept arguing the words got harsher-worse and worse; and every time they would get up to a certain point they would ask us if we had guns again. * * * After a while, I don't remember who it was, but one of them sort of ‘kinda’ frisked us to see if we did. They were sure we didn't have any; then right after that is when they stuck their hands in their pockets as if they had guns in their pockets, and you could see the outlines and everything of them; and they pointed them at us and they told us to get in the Chrysler. It was Jerry and Fazio who put their hands in their pockets and I could see the outline of the guns. Somebody, I think it was John, told Lampone to drive the truck in the ditch off the road which he did. They all told us to get into the Chrysler and we all got into the Chrysler and I started to reach to close the door and one of them, I think it was Fazio or Jerry thought I was going to try to run. One of them jumped up and grabbed me by the back here (indicating) and held on tight, jerked me back and slammed the door. * * * John Mandella was driving; I was sitting next to him; we were the only two in the front. Jerry was in the left side of the car right behind the driver, then came Tony Bruno, then Mike, and Fazio on the inside. * * * They made a U-turn and started south towards Chicago then. Along that time, Mandella would ask where the radios...
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