People v. Maggio

• Decision Date: 16 February 1927
• Docket Number: No. 17468.,17468.
• Citation: 324 Ill. 516,155 N.E. 373
• Parties: PEOPLE v. MAGGIO.
• Court: Illinois Supreme Court

324 Ill. 516

155 N.E. 373

PEOPLE

v.MAGGIO.

No. 17468.

Supreme Court of Illinois.

Feb. 16, 1927.

Error to Criminal Court, Cook County; Harry B. Miller, Judge.

Recco Maggio was convicted of murder, and he brings error.

Reversed and remanded.Benjamin J. Cossman, of Chicago, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, Edward C. Fitch, of Springfield, and Merrill F. Wehmhoff, of Decatur (Henry T. Chace, Jr., and Edward E. Wilson, both of Chicago, of counsel), for the People.

DUNN, J.

An indictment was returned in the criminal court of Cook county charging George Backley and Rocco Maggio with murdering Frank Lamacchio. Maggio was tried separately on motion of the state's attorney, was found guilty of murder, and sentenced to imprisonment for life, and has sued out a writ of error.

At 10 o'clock in the evening of August 12, 1924, some shots were heard in the alley back of the house at 1723 Washburn avenue, in Chicago, and a Ford car was seen in the alley. A few minutes later Lamacchio's dead body was found lying in the alley, with two gunshot wounds through the head, one in the body which passed through the heart, and one in his leg. Paul De Franco and George Backley were indicted for the murder. On the trial Backley turned state's evidence, for which he was given his liberty by the state, and De Franco was acquitted. Backley was subsequently indicted, together with the plaintiff in error, and was again arrested. On this trial, also, Backley was called as a witness by the people. Before he was called a colloquy occurred, which is set forth in the abstract as follows:

‘Mr. Levy: Mr. Cossman, step up to the bench. (Whereupon both counsel stepped up to the bench of the court.)

‘Mr. Levy: If the court please, let it be understood that George Backley in this case has also testified in the case where Paul De Franco was tried, and that he was given his freedom in consideration for his testimony, and that after this defendant has been arrested it became necessary to rearrest Mr. Backley for the purpose of the prosecution of this case, and I don't believe that counsel can bring out the facts of his testimony in the prior case and of receiving his freedom, and I have information from the state's attorney's office that no such testimony of any other case can be offered.

‘The Court: I believe you are right, Mr. Levy.

‘Mr. Cossman: Do I understand the court to hold that I have no right to bring out the fact of Mr. Backley's testimony in the former case and his receiving his freedom? After all, the former case was before this case and the same subject-matter was involved.

‘The Court: No; you cannot bring that out.

‘Mr. Cossman: Objection.

‘The Court: Overruled.

‘Mr. Cossman: Exception. I believe there are a number of authorities which I can cite to the court on my proposition which will probably reverse your honor's opinion on this matter.

‘Mr. Levy: I have information from the state's attorney's office, and it has been pretty well looked up, and they seem to be of the opinion that Mr. Cossman has no right to show that this witness has been released for his testimony.

‘The Court: This is too elementary.

‘Mr. Cossman: Objection.

‘The Court: Overruled.

‘Mr. Cossman: Exception.’

Backley was then called and testified that he was a chauffeur, 23 years old, a codefendant with the plaintiff in error, testifying as a state's witness with no promise of immunity but leaving himself to the mercy of the court; that he had known the plaintiff in error about two years and Paul De Franco about the same length of time, having been introduced to the latter by Maggio; that about August 1, 1924, he hired a car and drove about the streets in it with Maggio, De Franco, and two other men, called Tom and Dave, looking for Frank Lamacchio, whose name Backley did not know at the time but learned later. Maggio told him to catch a Taylor street car starting at Robey street, and he followed it to Jefferson street, driving 60 miles an hour, and caught it, but did not find the man on the car for whom they were looking, so they returned the car to the garage, and De Franco, in the presence of Maggio, Dave, and Tom, paid him $20 for driving. He saw Maggio nearly every day after that, and Maggio said he wanted Backley to drive some other night, to which the latter assented. On August 12 Backley met Maggio and De Franco on the street, and Maggio asked him to drive the automobile again. He said they wanted it for the same thing for which they had it before—to get Lamacchio. He said they were going to beat him up. They went to a garage at Twelfth street and Racine avenue together and saw Keller, the manager, who told them the Case car they had had before was out and if they wanted a car they would have to take a Ford. Maggio said that would be all right. Backley hired the car, and Maggio, De Franco, and Morrie Kramer got in it with him. Maggio paid Backley $50 for the night before they started. They took Kramer along because they wanted a man to impersonate an officer. Maggio and De Franco sat in the rear seat and Kramer in front, with Backley. After they started they drove through several streets and De Franco pointed out Lamacchio, who was standing on the corner of Garibaldi and Polk. De Franco and Maggio then left the car and went over to an alley between Washburn and Twelfth, where Maggio said Backley and Kramer were to bring Lamacchio. Backley and Kramer waited until Lamacchio walked up the street and then pulled up and stopped beside him. Backley had a star, which he had given to Kramer, and the latter got out of the car, showed it to Lamacchio, and said he was wanted at headquarters. He searched Lamacchio, took a pistol from him, and put him in the car. They sat in the back seat and Backley in front, driving. They drove to the alley where De Franco and Maggio were waiting for them. There De Franco and Maggie got in the back seat with Lamacchio and Kramer in front, with Backley. There was somebody in the alley, so they drove out to Paulina street, going over to Washburn avenue, and when they got to the light Lamacchio called out, ‘Let me out!’ and started to fight. Maggio told Backley to drive into the alley because ‘he was getting tough.’ Backley did so and stopped about 100 feet from the corner. The door was kicked open and De Franco got out, holding an automatic pistol, and began shooting at Lamacchio, whom Maggio was holding by the shoulders, with his head just outside the door. Shots were fired in rapid succession, and when the shooting ceased Maggio got in the back seat and told Backley to go ahead, and De Franco ran down the alley. Backley drove as fast as possible to Lincoln and Fourteenth streets, where Maggio got out, shook hands with him, and told him to keep his mouth shut or it would be bad for him. Backley then drove to the garage, where Keller saw blood on the fender and two holes in the door. He kept $7 out of the $15 deposit which Backley had made, besides $3 for the use of the car, and returned $5 to Backley.

On cross-examination of this witness, the plaintiff in error's attorney offered to show that he had been arrested in connection with the case, and testified against De Franco and was given immunity for his testimony, and that he was testifying against the plaintiff in error in the hope of getting immunity, but the court refused the offer, saying:

‘I will not permit you to show anything of that kind; be careful, and don't ask such questions of the witness.’

Backley was then asked if at the inquest he was asked whether he had told all up to the present time, and answered, ‘Yes, sir,’ adding:

‘If you put me in a cell, you will have a good story.’

He was asked what he meant by that answer, and an objection was sustained to the question. He stated that he did not testify at the inquest that there were four men in the automobile, and that the first time he told any one that there were four men in the car was at the former trial—De Franco's trial. The court sustained an objection to any questions as to what happened in the De Franco case, saying it made no difference to this jury what happened in this man's case. He stated that he had made a confession, but his first confession was not true, and he was making the right one now and was telling the truth because he just wanted to tell the truth and help the state. He also identified several letters which he had written to the plaintiff in error while they were both in jail, asking the plaintiff in error to send him various small sums of money, for which he would testify that the plaintiff in error was not in the car the night of the murder.

Michael Keller testified that Backley, in company with Maggio and De Franco, hired a car of him on August 12 about 9:15 in the evening, and Backley returned it about 10:30 with two bullet holes in the door and blood stains on the windows, the upholstering, and floor, and on the right rear fender. Keller drove the car to the station and reported to the police, and they kept the car. He did not know Maggio and De Franco until after they were arrested. He never saw Maggio until August 12, 1924, and did not see him again until May 21, 1925, when he was asked to go to the police station to identify some one connected with this case. He went into the office, Maggio was brought in, Keller was asked if he knew him, and said he was the man.

Mary Beta testified that she was acquainted with both Maggio and Frank Lamacchio, and about August 1, 1924, she went with Lamacchio to a picture show. After the show he left her and took a street car on Taylor street, and Maggio and De Franco, who were at the corner where Lamacchio took the car, asked her where she had been. She tried not to see them, but said she had been to the show. Maggio said:

‘You are not going to the show any more; we will get him.’

They saw him because they were right at the corner when he went over to get the car. They had a...