Manna v. State

• Decision Date: 09 January 1923
• Citation: 192 N.W. 160,179 Wis. 384
• Parties: MANNA v. STATE.
• Court: Wisconsin Supreme Court

179 Wis. 384

192 N.W. 160

MANNA

v.STATE.

Supreme Court of Wisconsin.

Jan. 9, 1923.

Error to Circuit Court, Ozaukee County; Martin L. Lueck, Judge.

Dominic Manna was convicted of murder in the first degree, and he brings error. Affirmed.

Eschweiler, J., dissenting.

Murder in the first degree. Dominic Manna, plaintiff in error, hereafter called the defendant, was found guilty of murder in the first degree on the 19th day of November, 1920, in the circuit court of Ozaukee county; Hon. Martin L. Lueck, Judge.

The defendant is charged with having feloniously, and with malice aforethought, shot and killed August Folcinelli on the 6th day of February, 1920. The scene of the alleged crime was at the Lake Shore stone quarry in Ozaukee county. Two maps of the locality were introduced in evidence, one by the state and one by the defendant. Both are drawn to scale, and are testified to be accurate, but they differ in some respects in measurements, and there is some confusion in the testimony in this respect. For the purposes of this statement we take the Defendant's Exhibit No. 2, apply the scale, and give the figures approximately, accordingly.

It appears that there were several people, Austrians, Poles and Italians, employed at the stone quarry, some of whom had families living near by. The quarry had not been running for a month, and has been since abandoned.

At the northerly end of the map we find the blacksmith shop, and directly south from the blacksmith shop, a distance of 340 feet, was an old railroad track running southwest by northeast. At the point on this railroad track directly south from said blacksmith shop, the defendant claims that he fell, and that a gun which he was carrying was accidentally discharged, resulting in the shooting and killing of Folcinelli. South from the front of the blacksmith shop 160 feet, and slightly to the west, was the front of the engine room. Directly across to the west of the blacksmith shop, about 16 feet distant, was a machine shop. The machine shop is not shown on the map, but the evidence places it at this point. Between the engine room and the point on the railroad track above mentioned was a stock pile of stone of varying heights, which had been quarried, and which obstructed the view from the blacksmith shop and engine room to the railroad track, more or less. Running between the blacksmith shop and the machine shop, in a southerly direction, was a road. This road ran on the east side of the engine room, and, as it left the engine room going south, it curved somewhat to the east, so that it crossed the railroad track about 40 feet east of the point where defendant fell, as he claims. It then curved to the west, and continued to the south over a small culvert, which culvert was directly south of the blacksmith shop. At a point 50 feet north from where the road crossed the railroad track a path branched off and ran southwesterly to and across the railroad track at the point where defendant claims to have fallen, and continued in a southerly direction a distance of approximately 50 feet, where it rejoined the road. From the point where the path rejoined the road to the culvert was about 40 feet. From such point of junction of the path with the road, along the road to the north, was a bunch of cedar trees, through which the road ran. From these cedar trees to the north, where the path joined with the road, was a distance of about 86 feet. Between the two junction points along the pathway the distance is approximately 117 feet, and along the roadway approximately 126 feet. From the blacksmith shop to the culvert is about 425 feet.

On the 6th of February, in the forenoon, the defendant went hunting with a double–barrel shotgun loaded with duck shot. It was a breech–loading gun, and took a 12–gauge cartridge. The right barrel was slightly choked. In one barrel was a cartridge of No. 4 duck shot, and in the other barrel a cartridge of No. 6 duck shot. He found no game, and did not fire his gun, and about 11 o'clock arrived at the blacksmith shop, where he put his gun upon a bench, and then went across to the machine shop, where he met five men, Donaldson, May, Grelle, Thombari, and Zatello, who were working there. The defendant stayed there some time talking to them, and went back to the blacksmith shop. There he cut a strip off of a metal sheet to make a stove poker, and returned to the machine shop, where he met Grelle, Donaldson, May, and Folcinelli, the deceased. He returned to the blacksmith shop at about noon, took his gun, and started for his home, which was 750 feet south from the blacksmith shop along the road before mentioned. As he reached the engine room he saw Folcinelli ahead of him about 10 or 15 feet. Both men continued along the road in this manner, the defendant keeping behind Folcinelli. There were no words spoken, and it does not appear that Folcinelli knew that he was followed by the defendant. When the defendant reached the north point of junction of the path with the road, Folcinelli was about 10 feet ahead of him on the road, and defendant turned on the path and followed that to the railroad track. The defendant says that when he was within 2 feet of the railroad track, Folcinelli was under the cedar trees. He looked over to the defendant, and said, “If I see any crows.” At this point defendant was 2 feet from the track. He stepped over the first rail of the track, slipped, and fell, according to his testimony, and the gun struck the ground in such a way as to discharge both barrels. Immediately he looked up and saw Folcinelli to the south on the road at its junction with the path. Folcinelli was facing the defendant, and staggered backward until he fell. The defendant got up, leaving his gun where it fell, and hurried back to the machine shop, where he called May, and told him that he had fallen and accidentally shot Folcinelli. He asked May to go with him to Folcinelli. May did not go, but Grelle did. When the defendant and Grelle reached Folcinelli, they thought he showed life, but after a moment Grelle said that Folcinelli was dead. Thereupon the defendant went to his shack about 330 feet further south on the road, to change his clothes and return, with the intention of going to Port Washington and surrendering himself to the authorities, which he did.

Grelle left the body of the dead man as it was, and went away. Shortly thereafter Donaldson, who had heard the defendant's statement to May and Grelle, went out to the body, which he found about 8 or 10 feet north of the culvert. The body lay alongside the road on the snow bank, which was about one foot higher than the road, and slanted upwards away from the road. The face was towards the north. The feet were about 18 inches or 2 feet from the road, somewhat doubled up and under the body. Apparently Folcinelli had stepped out from the road into the snow bank about 18 inches or 2 feet and then fallen, for the snow was not broken between the point he had fallen and the road. There was a wound in the neck, and blood was found underneath in the snow. While Donaldson was viewing the body, the defendant came from the south and met him near that point. Donaldson said, “This is bad business,” and asked the defendant how it happened. The defendant said that he fell on the railroad track, and that his gun was discharged by accident, and shot Folcinelli. He went with Donaldson back to the railroad track where the gun lay, and picked it up. He then pointed out to Donaldson that one of the hammers on the gun was bent out of place, and that a piece of the gutta percha on the stock was broken off. This piece he picked up from the ground and showed to Donaldson. Defendant then left for Port Washington, to surrender to the authorities. The body was left in the same position as when found, until the coroner and sheriff came about 2 o'clock. The body then was taken to Port Washington, and the clothes removed.

Folcinelli was dressed with heavy underclothes, corduroy pants, overalls, a heavy outside shirt, a woolen sweater, and a sheep–lined vest. When the clothing was removed it was discovered that Folcinelli had been shot twice, once in the left hip and once in the neck. In Folcinelli's left hip pocket he had a tin can of Velvet tobacco. The main part of the charge of shot had hit this can directly. Some of the shot had punctured both sides of the can and entered the body. Others were found in the can. Also in the can were found two gun wads. The shot were scattered over an area measured by a circumference of 5 1/2 to 6 inches in diameter. The shot were not deeply imbedded in the body, and the wound was not dangerous. The other shot had penetrated the clothing of Folcinelli at the top of the right shoulder joint, and cut the flesh of the shoulder slightly. It then went on in a direct course at right angles with the spine, broke the collar bone, severed the jugular vein, the carotid artery, and the pneumogastric nerve, and lodged partly against the spinal column, between the sixth and seventh cervical vertebræ, part glancing off and going a little further into the body. The charge had passed through the sheep–lined vest, the sweater, the overshirt and undershirt, cutting a clean hole, and no shot were found outside the hole made by the entry of the discharge into the neck; in other words, there was no scattering of the shot, as in the hip. In probing the wound the doctors found two gun wads, together with parts of the clothing and pieces of bone. Two doctors examined the wound, and testified that it was of such a character that Folcinelli would have fallen in his tracks, or nearly so, as a result of the injury. The doctor called on the part of the defendant testified that Folcinelli may have gone some distance before falling, possibly 40 feet.

Folcinelli and the defendant had been warm friends for several years. The day before the tragedy the defendant had helped Folcinelli to butcher a pig, and...