People v. Ignofo

• Decision Date: 07 October 1946
• Docket Number: No. 53.,53.
• Parties: PEOPLE v. IGNOFO.
• Court: Michigan Supreme Court

315 Mich. 626

24 N.W.2d 514

PEOPLE

v.IGNOFO.

No. 53.

Supreme Court of Michigan.

Oct. 7, 1946.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Berrien County; Fremont Evans, judge.

Joseph Ignofo, alias Joe Neuff, was convicted of murder in the first degree, and he appeals.

Judgment set aside and new trial granted.

Before the Entire Bench.

Thomas N. Robinson, of Benton Harbor, for appellant.

Karl F. Zick, Pros. Atty., and Arthur E. Leckner, Asst. Pros. Atty., both of Benton Harbor, for the People.

SHARPE, Justice.

Defendant, Joseph Ignofo, was charged, tried and convicted of murder in the first degree.

The following facts are well established by the record. In the early morning of February 6, 1935, the partially clothed and frozen body of one Augustina Gagliana was found in an alley in the city of Benton Harbor. The head of the body was bruised and the throat had been cut. There was no blood on the body except a small quantity on the clothing. The head bruises were on the left side of the scalp. Deceased resided in the country, a few miles from Benton Harbor. The widow and young son of deceased left on February 2, 1935, for a visit in Chicago leaving Mr. Garliana alone on the farm. On their return Sunday evening, February 3, 1935, with other members of the family, they found that he was not at home. There was no sign of any struggle in the home.

The law enforcement agencies made an investigation of the crime and questioned one Sam Tomasello and defendant, Joseph Ignofo also known as Joseph Neuff. Sam Tomasello was a brother of one Joe Tomasello who was a son-in-law of deceased. Sam Tomasello had made his home with the Gagliana family for several years, aiding in the farm work, but about two weeks before the murder he had obtained employment in a factory in St. Joseph, Michigan. Joseph Ignofo was a nephew of the deceased's wife. He was 23 years of age and had been employed at the factory where Sam Tomasello had obtained employment. He also had lived at the Gagliana farm. A short time before the death of Mr. Gagliana, Joseph Ignofo and Sam Tomasello had taken a room together in St. Joseph. The factory records show that defendant worked eight hours on Friday, February 1, 1935, and all intervening days through February 8, 1935, except Sunday, February 3, and Thursday February 7, the day of Mr. Gegliana's funeral.

On or about December 13, 1940, Sam Tomasello, having been arrested in Chicago, was brought to Michigan and charged with the murder of Augustina Gagliana. He implicated defendant with the murder.

The cause came on for trial. The prosecuting attorney produced Sam Tomasello as a witness who testified that when Mrs. Gagliana left for Chicago on Saturday morning February 2, 1935, defendant with Sam Tomasello, both of whom had slept at the Gagliana home the previous night, went to Benton Harbor to take her to the bus; that near midnight of the same day defendant suggested to Sam that they go out to the Gagliana home to be there early the next morning to cut wood; that upon entering the Gagliana home they found Mr. Gagliana asleep on a day bed in the dining room; that the house was cold and Sam went into the yard to get some wood and on his return about 15 minutes later he saw deceased partly or entirely off the day bed and defendant pounding his head with a four or five pound hammer and accusing deceased of having raped defendant's sister; that defendant came into the kitchen, washed the hammer and took a basin of water into the dining room; that defendant insisted that Sam should aid defendant in removing the body because they were both involved; that the body was hidden under some floor boards in the chicken coop; that on the way back to Benton Harbor, defendant threw the hammer into a creek near the Gagliana home; that they both stayed at a hotel in Benton Harbor; and that he did not know how or when the body was removed from the chicken coop.

Defendant testified and denied the material parts of the story told by Sam Tomasello. The jury returned a verdict of guilty of the crime of first degree murder. Defendant filed a motion for a new trial upon the grounds that the verdict of the jury was contrary to the great weight of the evidence; that the misconduct of the prosecuting attorney in his argument to the jury resulted in a miscarriage of justice; that the court erred in instructing the jury substantially as follows:

‘It is immaterial whether this killing occurred February 3, 1935, or February 4, 1945.’

‘You are instructed that you must also closely scrutinize the testimony of the respondent in like manner as that of the confessed accomplice.’

That the court erred in permitting the prosecuting attorney to exhibit to the jury three pictures of the body of deceased as it lay in its casket taken in January 1941 when the grave was opened; and that the prosecuting attorney in his concluding argument to the jury stated among other things, as follows: ‘Joe Neuff killed that man. He has been slick enough and smooth enough to get away with it a number of years. Oh, yes, but there is the record and it has caught up with him.’

On March 16, 1945, defendant filed a supplemental motion for a new trial in which it is claimed that the court was in error in permitting the prosecuting attorney to cross-examine defendant on confidential communications between himself and his former wife relative to the charge against him. The court denied the motions for a new trial.

Defendant appeals. It is alleged that the trial court was in error in instructing the jury that it was immaterial whether the killing occurred February 3, 1935, or February 4, 1935.

Section 17265, 3 Comp.Laws 1929, Stat.Ann. § 28.991, reads as follows: ‘Except insofar as time is an element of the offense charged, any allegation of the time of the commission of the offense, whether stated absolutely or under a videlicet, shall be sufficient to sustain proof of the charge at any time before or after the date or dates alleged, prior to the finding of the indictment or the filing of the complaint and within the period of limitations provided by law: Provided, That the court may on motion require the prosecution to state the time or identify the occasion as nearly as the circumstances will permit, to enable the accused to meet the charge.’

In the case at bar the information alleges that the offense was committed on, to wit, the 4th day of February 1935. Time is not the essence of this offense. The objection is without merit. See, People v. Robinson, 228 Mich. 64, 199 N.W. 622.

It is also urged that the verdict of the jury was contrary to the great weight of the evidence. The evidence given by the accomplice, Sam Tomasello, if believed, was sufficient to justify a verdict of guilty.

In People v. Zesk, 309 Mich. 129, 14 N.W.2d 808, 809, we quoted with approval from 1 Gillespie on Michigan Criminal Law and Procedure, § 379: “The credibility of an accomplice, like that of any other witness, is exclusively a question for the jury, and it is well settled that a jury may convict on such testimony alone. * * *”

The testimony of the accomplice was positive and based upon what he said he saw and heard. It was corroborated to the extent that the doctor who examined the body on February 6, 1935, testified that there were severe bruises on the head which had the appearance of having been made by blows dealt from some blunt heavy instrument; and when the body was exhumed and the head examined, a hole in the skull was found corresponding in size to an indenture made by the blunt end of a hammer. It is our opinion that there was competent evidence from which a jury could find defendant guilty of the crime beyond a reasonable doubt.

It is also urged that the prosecuting attorney in his argument to the jury used vicious, intemperate, improper, abusive and inflammatory language which prejudiced the jury against defendant. Space will not permit us to quote the language used. The language used was bellicose. It certainly was not anemic. We note that during the argument to the jury the prosecuting attorney stated as follows: ‘Joe Neuff killed that man. He has been slick enough and smooth enough to get away with it a number of years. Oh, yes, but there is the record and it has caught up with him.’

In People v. Quick, 58 Mich. 321, 25 N.W. 302, 303, respondent was convicted of stealing a watch. In his argument to the jury, the prosecuting attorney made the following statement in reference to certain witnesses: ‘I stand here to-day under the solemnity of my official oath and say to you, as a man and a citizen, that I believe they not only lied, but I believe they committed willful and deliberate perjury. I do not believe that they were there that night, nor do I believe that that man, the defendant, ever in God's world took that watch from the sidewalk, but he stole it from the person of David Wright, and then hid it away within five minutes.’

Objections were made to this statement and again it was complained of in a specific request to charge which was refused. We there said: ‘This language came from an officer whose sworn duty required him to act only in furtherance of justice, and who is bound by statutory requirements to stand entirely impartial between the complainant and the prisoner. When such an officer gives the jury to understand that what he says is under the sanction of his official oath, and the court, when applied to, declines to correct that statement, it cannot be supposed that jurors may not give credence to it, and govern their decision more or less by it. The impropriety of expressing a personal opinion to the jury upon disputed facts has always been regarded as great, and has in some notable instances led to unpleasant strictures on the character of celebrated counsel. Whatever allowance may be made for professional enthusiasm, a deliberate and solemn averment of counsel's opinion should never be allowed to influence as an opinion under oath, it should have as an opinion...