People v. Garippo

• Decision Date: 21 April 1920
• Docket Number: No. 13210.,13210.
• Parties: PEOPLE v. GARIPPO et al.
• Court: Illinois Supreme Court

292 Ill. 293

127 N.E. 75

PEOPLE

v.GARIPPO et al.

No. 13210.

Supreme Court of Illinois.

April 21, 1920.

Error to Criminal Court, Cook County; Marcus Kavanagh, Judge.

Joe Garippo and others were convicted of manslaughter, and they bring error.

Reversed and remanded.

Lynn, Hallam & Korn and Nicholas A. Pope, all of Chicago, for plaintiffs in error.

Edward J. Brundage, Atty. Gen., Maclay Hoyne, State's Atty., of Chicago, Noah C. Bainum, of Springfield, and William C. Clausen, of Chicago (Edward E. Wilson and Walter T. Stanton, both of Chicago, of counsel), for the People.

CARTER, J.

Joe Garippo, John Luberti, Dominick Damico, and Louis Mirabeella were indicted, tried, and found guilty in the criminal court of Cook county of manslaughter, and their punishment fixed at imprisonment in the penitentiary for the killing of Carmen Scalzitti in the early morning of Sunday, February 9, 1919, in Chicago. This writ of error is sued out to review the sentence of the criminal court on said verdict.

Carmen Scalzitti, who had shortly before his death returned to Chicago from an army camp, was at his home, [292 Ill. 294]2200 Campbell Park, Saturday afternoon, leaving there about 3 o'clock. The four plaintiffs in error are all young men. Dominick Damico was 22 years of age, a teamster by occupation, but unemployed at the time of the occurrence, and recently discharged from the United States Army; Joe Garippo was 22 years old, a newsboy; Louis Mirabella was 21 years old, a laborer, unemployed at the time of the occurrence; John Luberti was 18 years old, a grocery clerk. The evidence shows that about 8 o'clock on Saturday evening, February 8, Garippo, Luberti, and Scalzitti left the Atlas pool room, at Harrison street and Blue Island avenue, for the loop district, where they stayed until about 1 o'clock a. m., during which time they held up two drunken men, the last holdup being near the post office; that they then went to Halsted and Harrison streets and into Messenger's restaurant, reaching there a little after 2:30 o'clock a. m., where they had something to eat and divided the proceeds of their holdups; that there were in the restaurant at that time, Paul Appal, a teamster, Joseph Sangincho (sometimes called Doyle), Scalzitti, the deceased, and the four plaintiffs in error; that all of these persons apparently at times went under other names than the ones here given. The evidence was to the effect that shortly after 3:15 o'clock a. m. Scalzitti left and said he was going home, but came back, saying he had missed the car, and had some further conversation with Doyle about a ring Scalzitti had on his finger; that about that time a drunken man came into the restaurant, well dressed and appearing to have some money, and when the drunken man went out Scalzitti followed him to the corner, talked with him, and told him to go down Blue Island avenue; that Scalzitti then came and tapped on the restaurant window and motioned for the plaintiffs in error to come out, which they did; that Scalzitti, Garippo, and Lubertf walked after the drunken man down the east side of Blue Island avenue, Mirabella and Damico followingabout 10 feet behind; that when the drunken man reached a coffee house about opposite Hope street he went in, and the four plaintiffs in error and Scalzitti walked on down to Polk street; that then Mirabella, Luberti, and Damico crossed over to the west side of Blue Island avenue, Scalzitti and Garippo walking back north on the east side of Blue Island avenue and into a doorway north of the coffee house; that when the drunken man came out of the restaurant Garippo engaged him in conversation, and, when the two got opposite the doorway where Scalzitti was, Garippo pushed the man toward the hallway and Scalzitti took hold of him to pull him into it; that, while this was going on, Mirabella, Luberti and Damico ran across the avenue from the other side, and, when they got to within about 10 feet of the hallway where Scalzitti, the drunken man, and Garippo were, they heard a shot, which was followed by three or four other shots; that Mirabella, Luberti, and Damico then ran away, boarded cars, and went home. The evidence tends to show that when the shooting occurred Garippo apparently also ran away and went home. During this shooting Scalzitti was shot through the forehead and killed instantly.

There is no positive or direct testimony as to who fired the shot that killed Scalzitti. Paul Appal testified on behalf of the state that he knew all the plaintiffs in error and the deceased and saw then in Messenger's restaurant a short time before the shooting; that he was still in that restaurant when the shooting occurred and heard four or five shots fired about five minutes after plaintiffs in error and the deceased left the restaurant following the drunken man, but did not know who fired the shots. George Kohlkous, a witness called on behalf of the state, testified that he was at a window in his coffee house, about opposite where the shooting occurred, and saw several men moving around on the street, which aroused his suspicion, and he soon heard a shot fired; that just before this he saw a drunken man pulled into a doorway and then several other men gathered about the place; that he saw one of these men run behind a large box-a chicken box-a few feet away from the hallway into which the drunken man was pulled, and fire a shot towards the hallway, and then he heard three or four shots fired after that; that he did not recognize any of the men who were gathered near the hallway; that one of them was dressed in soldier's uniform. The evidence tends to show that Damico was the one in uniform, Kohlkous stated that he did not know who fired the shot from behind the box or who the men were in or about the hallway at the time of the shooting, or who else did any shooting. After he heard the shot from behind the box, he got his gun and testified that he fired a shot in the air to attract the attention of the police. His testimony was taken at the coroner's inquest, and it does not appear whether he testified at such inquest about the man running behind the box and firing the shot. The evidence shows that Mirabella returned to Messenger's restaurant shortly after the shooting, but said nothing about the shooting.

The post mortem examination showed a revolver bullet wound in Scalzitti's right temple, passing from right to left through the brain, up and a little forward and lodging above the left eyebrow; that the bullet had apparently been fired some distance from the body. After the shooting, the police officers came to the place and found the body of Scalzitti. The police sergeant testified that Mirabellatold him that he thought the shot came from the hallway where the men were engaged in the holdup.

None of the...