People v. Biella

• Citation: 28 N.E.2d 111,374 Ill. 87
• Decision Date: 14 June 1940
• Docket Number: No. 25637.,25637.
• Parties: PEOPLE v. BIELLA.
• Court: Illinois Supreme Court

374 Ill. 87

28 N.E.2d 111

PEOPLE

v.BIELLA.

No. 25637.

Supreme Court of Illinois.

June 14, 1940.

Error to Criminal Court, Cook County; Joseph A. Graber, Judge.

Andrew Biella was convicted of manslaughter, and he brings error.

Reversed and remanded.Thaddeus C. Toudor and Irving L. Lansing, both of Chicago, for plaintiff in error.

John E. Cassidy, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and A. B. Dennis, of Springfield (Edward E. Wilson, John T. Gallagher, and Melvin S. Rembe, all of Chicago, of counsel), for defendant in error.

FARTHING, Justice.

Andrew Biella was found guilty by a jury in the criminal court of Cook county of the crime of manslaughter and was sentenced to the penitentiary. Motions for new trial and in arrest of judgment were overruled, and he has sued out this writ of error. He urges that his conviction was against the weight of the evidence; that the venue was not proved; that proper evidence was excluded; and that the jury was improperly instructed.

Michael Tyrka died on September 10, 1939. An autopsy, performed by a physician for the coroner of Cook county, showed that deceased was a well-nourished white man about forty-nine years old, weighing one hundred and forty pounds. There were several cuts about his head and a hemorrhage below the right eye; the skin on his face, shoulder, arm and hand on the left side was discolored; ribs were fractured on the left side of the chest from the fourth to the seventh anterial lateral, and from the fifth to the twelfth in the back. There were 200 ccs. of blood in the right pleural cavity and less than two ounces in the left pleural cavity. This witness was of the opinion Tyrka had died as a result of the numerous fractured ribs. Defendant had a fight with Tyrka on September 5, 1939, and Tyrka was taken to the hospital two hours later. Defendant is the only witness as to the fight. The defendant, who was fifty-two years old, was born in Poland and required the services of an interpreter upon his trial. He testified that he lived in a flat above Tyrka and had had trouble with him before the fight, and that Tyrka had made threats against his life. On the day in question Tyrka was drunk and quarrelsome. When defendant went to call the police, Tyrka attacked him in a hallway with an axe. Defendant was unarmed, but he wrested the axe from Tyrka and threw it to one side. Tyrka then grabbed a broom and threatened to kill defendant with it. Defendant struggled with him, took the broom away from him and struck him with it several, times. He went upstairs and left Tyrka lying on the floor in the hallway. Defendant testified he kept hitting Tyrka, because he feared that Tyrka would fulfill his threats and kill him. The court sustained general objections to questions and refused to permit defendant to testify as to how he thought Tyrka was going to kill him, or as to, ‘How could Mr. Tyrka have killed you at that time?’ The court should have permitted the defendant to answer these questions. In criminal cases where the intention, the motive or belief of the accused is material to the issue, he is allowed to testify directly to the fact. People v. Spranger, 314 Ill. 602, 609, 145 N.E. 706;People v. Scott, 284 Ill. 465, 120 N.E. 553. The circumstances under which the act in question was done usually serve to manifest to a great degree the intent of the actor and may overcome his declaration as to his intention, but he has the right to testify to his intention and to have the circumstances surrounding the act considered in connection with his testimony.

The defendant also introduced the testimony of witnesses who testified that the deceased's reputation as a peaceable and law-abiding citizen was bad. Other witnesses testified that his reputation was good. There was testimony that Tyrka was often intoxicated and on one occasion he called the mother of one of the witnesses certain vile and repulsive names. He also threatened to whip the wife of the defendant shortly before the fight in question, and insulted her with obscene epithets. We have set out enough of the evidence to show that there is a reasonable basis for a claim of self-defense. It was essential that the record be free from prejudicial error. The error in the exclusion of the defendant's testimony as to his intention in striking the deceased and certain errors in the instructions require that a new trial be ordered. The venue was not proved. There was nothing to show that the fight took place in Cook county. All that appears is that the coroner's physician of that county conducted the post-mortem and that a Chicago policeman arrested the defendant. This was not enough. People v. Gregor, 359 Ill. 402, 194 N.E. 550;People v. Strook, 347 Ill. 460, 179 N.E. 821;People v. O'Gara, 271 Ill. 138, 110 N.E. 828.

The defendant complains of the giving of People's fourth...