Pettine v. Territory of New Mexico, 3,617.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 201 F. 489
• Decision Date: 21 October 1912
• Parties: PETTINE v. TERRITORY OF NEW MEXICO.
• Docket Number: 3,617.

201 F. 489

PETTINE
v.
TERRITORY OF NEW MEXICO.

No. 3,617.

United States Court of Appeals, Eighth Circuit.

October 21, 1912

[201 F. 490] T. B. Catron, of Santa Fe, N.M., for plaintiff in error.

Frank W. Clancy, of Albuquerque, N.M., for the Territory.

Before SANBORN and CARLAND, Circuit Judges, and WILLIAM H. MUNGER, District Judge.

SANBORN, Circuit Judge.

This writ challenges the trial of Antimo Pettine, the defendant below, for murder in the first degree, his conviction of murder in the second degree, and his sentence therefor to imprisonment in the penitentiary for 45 years. After the verdict the defendant made a motion for a new trial, which was denied, and an appeal from the judgment was taken to the Supreme Court of the territory of New Mexico, which affirmed the rulings below, and that affirmance is now presented to this court for review.

The defendant was tried for shooting and thereby killing Mr. Berardinelli [201 F. 491] 'with malice aforethought and from a deliberate and premeditated design, unlawfully and maliciously to effect his death. ' Berardinelli was a quarrelsome man, who weighed about 200 pounds, and he had been drinking on the day of his death. He had previously threatened to kill the defendant, who was a small man, and he had been notified of the threat and warned to look out.

On the morning of the shooting Pettine was passing a store on his wheel in the street, when Berardinelli called him, and, after he had dismounted, Berardinelli charged him with writing a letter. Pettine denied the charge. Berardinelli then called him foul names, seized him, and rubbed the letter in his face, when bystanders interfered, caught and held Berardinelli, while Pettine mounted his wheel and escaped. Within an hour thereafter Pettine was again passing the store on his wheel in the street. He stopped and dismounted. Berardinelli advanced toward him threateningly. Pettine backed away and Berardinelli followed, and, when the latter was close upon the defendant, Pettine fired and killed him. The foregoing facts are established without contradiction or dispute. But the witnesses for the prosecution testified, that when Pettine came along the street the second time, he laid his wheel aside, called Berardinelli, and said he was ready, and told him to call him those names again if he desired to do so, that Berardinelli then advanced upon him, and Pettine retreated until he fired. On the other hand, Pettine and his witnesses testified that Berardinelli stopped Pettine on the street, and compelled him to dismount, that Pettine then retreated toward the other side of the street, and Berardinelli threateningly followed, and Pettine testified that he had been previously notified that Berardinelli had threatened to kill him; that as he came along the street Berardinelli rushed at him and compelled him to dismount from his wheel; that he did so and retreated toward the other side of the street and Berardinelli followed; that the latter was a powerful man, twice as large as he was; that he called upon the bystanders to catch him and keep him away and one of them testified that he took hold of and tried to hold Berardinelli, but that he tore himself away and went for Pettine. Pettine also testified that he backed away from Berardinelli; that he was afraid of him; that he told him to stop; that he warned him that he would shoot if he did not stop, but that he still advanced, and that when he was within six feet of him, in fear of his life, he fired to save it; and that he never intended to kill Berardinelli until forced to shoot to save himself. This was the state of the evidence when the defendant closed his case. The prosecution had then taken the evidence of four or five witnesses and the defendant the testimony of eight. Pettine was the last witness on his own behalf. Just before the close of his testimony, he was asked if he did not tell Luciano Campagnoli, in the latter's shop at Santa Fe, that he had intended to kill Berardinelli, Caesar Grande, and Charles Grande, but that he had never been able to get them together, and he answered that question in the negative. On rebuttal counsel for the prosecution called Campagnoli, who testified that about three months after the shooting Pettine, whom he had never seen before, came into his ship [201 F. 492] in Santa Fe and told him that he had killed Berardinelli, that he had intended to kill him and Caesar Grande and Charles Grande, but had never been able to get them together. Campagnoli further testified that no one but himself and Pettine were present when the latter made this statement. Pettine in surrebuttal testified that he never was in Campagnoli's shop, and that he never had any conversation with him. Upon this evidence the case went to the jury. After the verdict Campagnoli made an affidavit that Pettine never came into his shop and made the statement to which he, Campagnoli, had testified; that he was intoxicated when he so testified; that he subsequently became sober and became acquainted with Pettine; and that he then knew that the latter had never been in his shop, and had never made the statements to which he testified. Pettine made an affidavit that he had never made any such statements and that he never intended or wished to kill either of the Grandes or to kill Berardinelli until he believed it necessary at the moment of the shooting to fire upon him to protect his own life or to save himself from great bodily harm; that he had no knowledge or information whatever that Campagnoli would testify as he did until he gave his testimony at the close of the trial; and that, as he testified that no one but himself and Pettine were present when the statements to which he testified were made, he had no way to disprove his testimony but by his own denial. One of the grounds of the defendant's motion for a new trial which was supported by these affidavits was the submission of this case to the jury upon this false testimony of Campagnoli. It is assigned as error that the trial court overruled the motion, and that the Supreme Court of the territory of New Mexico affirmed that ruling.

It is suggested in answer that if this ruling was error it was not prejudicial because the testimony of Campagnoli went only to the defendant's preconceived intention to kill, and the jury by its verdict of murder in the second degree, instead of in the first degree, as charged, found that he had no such intention. But the legal presumption is that error produces prejudice, and it is only when the fact so clearly appears as to be beyond doubt that an error challenged did not prejudice, and could not have prejudiced, the complaining party, that the rule that error without prejudice is no ground for reversal is applicable. Deery v. Cray, 5 Wall. 795, 807, 808, 18 L.Ed. 653; Peck v. Heurich, 167 U.S. 624, 629, 17 Sup.Ct. 927, 42 L.Ed. 302; Smith v. Shoemaker, 17 Wall. 630, 639, 21 L.Ed. 717; Moores v. Bank, 104 U.S. 625, 630, 26 L.Ed. 870; Gilmer v. Higley, 110 U.S. 47, 50, 3 Sup.Ct. 471, 28 L.Ed. 62; Railroad Co. v. O'Brien, 119 U.S. 99, 103, 7 Sup.Ct. 118, 30 L.Ed. 299; Mexia v. Oliver, 148 U.S. 664, 673, 13 Sup.Ct. 754, 37 L.Ed. 602; Railroad Co. v. O'Reilly, 158 U.S. 334, 337, 15 Sup.Ct. 830, 39 L.Ed. 1006; Railroad Co. v. McClurg, 8 C.C.A. 322, 325, 326, 59 F. 860, 863; Association v. Shryock, 20 C.C.A. 3, 11, 73 F. 774, 781; Railroad Co. v. Holloway, 52 C.C.A. 260, 114 F. 458; Armour & Co. v. Russell, 75 C.C.A. 416, 144 F. 614, 615, 6 L.R.A. (N.S.) 602.

The main issue at the close of the trial of this case...