People v. Morte

• Decision Date: 09 October 1919
• Docket Number: No. 12579.,12579.
• Citation: 289 Ill. 11,124 N.E. 301
• Parties: PEOPLE v. LE MORTE.
• Court: Illinois Supreme Court

289 Ill. 11

124 N.E. 301

PEOPLE

v.LE MORTE.

No. 12579.

Supreme Court of Illinois.

June 18, 1919.

Rehearing Denied Oct. 9, 1919.

Error to Criminal Court, Cook County; Kickham Scanlan, Judge.

Rocco Le Morte was convicted of murder, and he brings error. Affirmed.De Stefano & Mirabella, of Chicago (Charles Hughes and Rocco De Stefano, both of Chicago, of counsel), for plaintiff in error.

Edward J. Brundage, Atty. Gen., Maclay Hoyne, State's Atty., of Chicago, and James B. Searcy, of Carlinville (Edward E. Wilson and Hayden N. Bell, both of Chicago, of counsel), for the People.

CARTER, J.

Plaintiff in error was indicted at the December term, 1917, of the criminal court of Cook county for the murder of Martin Pina. At his trial before a jury in February, 1918, he was found guilty, and his punishment was fixed at imprisonment in the penitentiary for 15 years, and judgment was entered on that verdict. This writ of error has been sued out to review those proceedings.

In July, 1917, John Rosol kept a saloon on State street, in Blue Island, in Cook county, and in connection with it he ran a dance hall and pool room. The saloon and dance hall were located on the first floor in a two-story building; the pool room being between them. The second floor of the building was occupied by Rosol and his family as a residence. On Saturday evening, July 14, 1917, in the street in front of this saloon, Martin Pina, a Mexican, was shot and killed. The evidence tends to show that dances had been conducted in this hall on several previous Saturdays; that they were carried on from early in the evening until midnight, and such a dance was being conducted on the evening of July 14th; that between 50 and 75 persons, mostly Mexicans and Italians, were in the saloon, pool room, and dance hall that night. The evidence tends to show that the saloon was closed a few minutes before 12 o'clock. Shortly after it was closed five revolver shots were fired in quick succession, after which Pina was found lying dead on the sidewalk in front of the saloon. Marie Kujowski was employed as a housemaid by Rosol, the proprietor. She had been keeping company with Stanley Groszwicz and he was visiting her that evening. She testified that she saw the plaintiff in error dancing in the hall during the Saturday evening of July 14th; that she was quite well acquainted with him, and had seen him at various times during the last few months; that his aunt lived next door; that she saw him come into the saloon from the dance hall just a few minutes before the saloon closed, in company with another Italian, Gugliemucci; that after the saloon closed she and Groszwicz started to go upstairs, when they heard a bottle crash on the sidewalk; they hurried to the front window upstairs, and she saw a crowd of Mexicans in one group and a crowd of Italians in another in front of the saloon; that plaintiff in error was with the Italians and stood three or four feet in front of them; that she became frightened and turned her eyes away and then heard the shots fired; that when she looked back she saw Pina lying on the sidewalk and two Mexicans standing by him and the Italians running away through the yard; that when she first saw the Mexicans and Italians they were about 15 feet apart, about a dozen men in each group.

Stanley Groszwicz testified that he reached the saloon that night 7 o'clock, and remained there and in the dance hall until it closed; that he was well acquainted with plaintiff in error and had known him for three years; that he saw him that evening first at about 7:30 o'clock in the saloon; that he also saw him in the saloon before it closed; that there were 12 or 14 Italians with him. His story agreed substantially with the testimony of the maid, Marie. He testified to hearing the bottle smash when they were on their way upstairs, and that when they reached the window and looked out he saw the group of Italians and group of Mexicans walking toward each other. He also testified that he saw plaintiff in error in front of the Italians with a revolver in his hand; that he saw him when he fired the five shots toward the Mexicans, and that Pina immediately fell to the sidewalk and the Italians ran away; that he and Marie ran downstairs and got some water and went out to the man lying on the sidewalk; that he wrote the name of plaintiff in error, Rocco Le Morte, on paper and gave it to the police two weeks after the shooting; that he did not give the information sooner because he was afraid of the Italians. He testified positively that the man who fired the shots was plaintiff in error, and that at the time of the shooting he was farthest in front of the group of Italians and nearest the Mexicans. It appears that after this witness had testified at the inquest he was talked to by some of the Italian friends of plaintiff in error, and one of them, a witness in this case, Mike Le Morte, said to him, in effect, as did others, ‘Try your best to get Rocco out of this trouble; he is a good fellow;’ that in fear of his life he told some of them that he had not testified to the truth at the preliminary hearing; that shortly after they talked to him he met a crowd of Italians whose appearance aroused his fears, and he called up the police and a patrol wagon was sent to take him home.

Charles Schwartz was a special police officer detailed for the dance hall on the evening in question, and was there during the evening and at the time of the shooting. He testified that there were two are lights in the street near the saloon on the night in question which lit up the space quite clearly, and that a person looking through the window of Rosol's residence, as Marie and Groszwicz testified they looked, could plainly see the surroundings in front of the saloon and the people near by.

Two Italian girls, 15 or 16 years of age, who lived near the saloon in question, testified they were well acquainted with the plaintiff in error; that they were at the dance hall that evening and did not see him there at any time during the evening, although they had seen him there at other times and had danced with him. Several other witnesses testified that they were at the dance hall during the evening and did not see plaintiff in error there.

There was testimony on behalf of plaintiff in error by Tony Capiello, Joe Capiello, Anna Capiello, and Mike Le Morte that on the night of the shooting plaintiff in error stayed all night at Tony Capiello's house, located some three miles distant from the saloon. Plaintiff in error had recently married. The Capiellos swore that he was there during the entire evening of Saturday, July 14th, and some of them testified that he and his wife remained there all night and were there the next forenoon. It appears from the evidence that plaintiff in error and his wife had never stayed with the Capiellos at any other time, and it is argued by counsel for the state that their story is unreasonable in thinking that the wife on such short acquaintance-since July 4th of that year-would visit the Capiellos and remain all night. Counsel for the state also question the story of some of these witnesses that they remembered the time when plaintiff in error's wife was there, because one of them at least, talked about it a day or two after the shooting with a friend of plaintiff in error and his lawyer. They argue that this is unreasonable, because there had been no public charges made against plaintiff in error as to the shooting until some time thereafter, and that nobody was charging him with being in any way connected with the shooting until after Groszwicz, at least two weeks after the shooting, gave his name to the police. Counsel for plaintiff in error, on the other hand, argue that the story of Marie and Groszwicz, whose testimony was practically the only evidence in the record that connected plaintiff in error directly with the shooting, is unreliable because it is too nearly identical, one with the other, in all particulars, and in an affidavit in support of the motion for new trial the attorney for plaintiff in error stated that such testimony was concocted by Rosol, and that these two witnesses perjured themselves at Rosol's suggestion.

Counsel for plaintiff in error first argue that error was committed by the trial judge with reference to his actions in the examination of witnesses during the hearing and by his statements and actions showing that he was prejudiced against plaintiff in error during the trial. The examination of some of the witnesses was long and tedious, some of them not understanding English very well, but we find nothing in the examination of any of these witnesses or in the part that the trial judge took with reference to such examination or in his rulings on the evidence that would lead the jury to believe that he was prejudiced against plaintiff in error. It is true that he ruled repeatedly contrary to the contention of counsel for plaintiff in error, but it is also true that this counsel made frivolous objections, and at one time stated that he made the objection just because he wanted to object. If the judge, because of his actions in this regard, spoke sharply to him, he was justified in so doing. We find nothing in the record that justifies the criticism of counsel for plaintiff in error as to the court's action in taking part in the examination being prejudicial to plaintiff in error, even if, as argued, such action be considered in the light of the reasoning of this court in People v. Lurie, 276 Ill. 630, 115 N. E. 130, and O'Shea v. People, 218 Ill. 352, 75 N. E. 981.

Counsel for plaintiff in error object to several instructions given on behalf of the state, among others instruction 10, on the ground that it did not confine the jury to the consideration of the evidence in the record. We do not think the instruction in question was misleading in this regard.

Counsel also object to instruction 11 given for the state, on the ground,...