Perrera v. State

• Decision Date: 08 December 1944
• Docket Number: 42.
• Citation: 40 A.2d 53,184 Md. 51
• Parties: PERRERA et al. v. STATE.
• Court: Maryland Court of Appeals

40 A.2d 53

184 Md. 51

PERRERA et al. v. STATE.

No. 42.

Court of Appeals of Maryland

December 8, 1944

Appeal from Criminal Court of Baltimore City; John T. Tucker, Judge.

Angelo Perrera and Joseph LaTerza were convicted of manslaughter and they appeal.

Judgment affirmed.

Ellis Levin, of Baltimore (Joel J. Hochman, of Baltimore, on the brief), for appellants.

Thomas N. Biddison, Asst. State's Atty., of Baltimore (Wm. C. Walsh, Atty. Gen., J. Edgar Harvey, Asst Atty. Gen., and J. Bernard Wells, State's Atty., of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON MELVIN, BAILEY, and CAPPER, JJ.

CAPPER, Judge.

The appellants, together with Anthony Perrera and Peter DelPozzo were indicted for the murder of one Christopher Cibelli in the Criminal Court of Baltimore City. This crime happened on the 7th day of January, 1944. Said four persons were also indicted in the same Court for assault with intent to kill and murder one Joseph D. Inqui, Jr., on the said 7th day of January, 1944.

The appellants were tried on both indictments at the same time. They were acquitted on the charge of murder but found guilty of manslaughter; and on the indictment charging assault with intent to murder, they were acquitted. They filed a motion for a new trial claiming that the verdicts of manslaughter in the first case and not guilty in the second were inconsistent with each other and filed a motion in arrest of judgment upon the same grounds. Both of these motions were overruled. This appeal is taken from the action of the Court in overruling the motion in arrest of judgment and certain exceptions of appellants on questions of evidence.

The facts in this case show that Joseph D. Inqui, Jr., a resident of Baltimore, on January 6, 1944, met Christopher Cibelli, a man from New Jersey, at Belair Market in Baltimore and received from him the sum of five hundred sixty dollars for the purpose of purchasing some liquor in what is known as the black market; that Inqui on the afternoon of the same day went to the eleven hundred block of Washington Boulevard to obtain the liquor when he was robbed of the money in broad daylight by two persons, one of whom was Peter DelPozzo and the other he did not know; that on the same afternoon of the robbery, he met Cibelli at Greenmount and Monument Streets about 5:30 p. m.; that he had seen Appellant Perrera the night of the crime and asked him to talk to DelPozzo about the Washington Boulevard incident; that on the following day at about 4:30 p. m., they met again, and the proceeded together and met Perrera alone on the corner of Ensor and Forrest Streets. They were suddenly joined by appellant, LaTerza, Peter DelPozzo, and another man who was a stranger to them. DelPozzo was the man who had robbed Inqui the previous afternoon.

Inqui testified that after this meeting he and Cibelli were ushered into the Rally Bar when almost immediately appellant, Perrera, inquired of him: 'What is the idea of you squawking;' that Inqui denied squawking but admitted that he had told Cibelli what happened to his money. At that time DelPozzo was standing next to Perrera and DelPozzo called him a liar; whereupon, Cibelli stated to DelPozzo that they had not come there to fight or argue but wanted to get the matter straightened out the best way they could. It was suggested that they sit down at the table. Two tables were drawn together.

Inqui further testified that: 'Pete DelPozzo told us to sit by the wall with our backs toward the wall. This Pete DelPozzo was right next to me all the time. He was supposed to sit next to me. When Perrera told him, he said, well, I will sit here next to Joe, you sit on the other end. Pete DelPozzo sat at the other end of the table and immediately an argument started between Cibelli and DelPozzo. I don't remember everything that was said because I was afraid, scared. I knew there was going to be trouble but I heard DelPozzo say he wasn't going to give this money back to anybody. Before that Cibelli told him that we didn't want any trouble, and he was sure that DelPozzo didn't want any trouble, and the best thing to do was to straighten this thing out, get his money back, and that is when DelPozzo said, I am not giving this money back to anybody. In the meantime, LaTerza says, well, supposing you don't get this money. This is when Cibelli said, I will get it back one way or the other. Immediately after he said that Pete DelPozzo, that was sitting on the end of the table, jumped up from his seat, ran all the way around, around Perrera and was about a foot away from me when he shot me in the stomach.'

It further appeared from the testimony of Inqui that after he was shot there was much confusion about the place; that two shots were fired close to his ear and he heard other shots as he ran through the door, he thought at least ten in all. After the shooting, Cibelli, was found lying on the pavement outside of the door on the Forrest Street entrance and he died later as the result of bullet wounds received on this occasion; that Inqui did not actually see anyone have a pistol excepting DelPozzo and Antonio Perrera; but while these men were in conversation at the bar, he noticed appellant, Perrera, have his hands in his overcoat pocket. Other evidence in the case disclosed that there were bullets of three different calibre found after the shooting, and it is fairly certain that at least two and possibly three pistols were used in this affray.

The appellants denied that they had met Cibelli by prearrangement. Appellant, Perrera, admitted that he had an appointment to meet Inqui the afternoon of the shooting. Both appellants denied that they had a gun--they also testified that they did not do any of the shooting on this occasion.

Exceptions one, three, four, five, and six raised the question of the admissibility of statements made by the State's Attorney in his opening statement and evidence offered in the case concerning the robbery of Inqui on Washington Boulevard. These exceptions were taken upon the theory that the evidence was inadmissible because it pertained to a wholly different crime than the one on trial and was thus prejudicial to appellants.

There was no effort made by the State's Attorney to show that the appellants were present at the scene of the robbery or that either one of them had any connection with it whatsoever. We think the subsequent events, also outlined, clearly show that it was admissible to prove that Cibelli was robbed by DelPozzo. The money taken from Inqui was the subject of discussion when these appellants sat down at the table in the Rally Bar.

It seems apparent from the evidence that there was some...