Raggio v. People

• Citation: 26 N.E. 377,135 Ill. 533
• Parties: RAGGIO v. PEOPLE.
• Decision Date: 22 January 1891
• Court: Supreme Court of Illinois

135 Ill. 533

26 N.E. 377

RAGGIO

v.PEOPLE.¹

Supreme Court of Illinois.

Jan. 22, 1891.

Error to criminal court, Cook county; R. W. CLIFFORD, Judge.

Indictment for murder. Defendant was convicted, and he appeals. In his closing speech to the jury the assistant state's attorney repeatedly expressed his personal belief in the guilt of the defendant.

Dwight & Kern and Mills & Ingham, for plaintiff in error.

Geo. Hunt, Atty. Gen., for defendant in error.

WILKIN, J.

Plaintiff in error, together with Thomas and Michael Raggio, his brother, and Frederick Dahl, was indicted by the grand jury of Cook county for the murder of Edward Kelly. At the trial, after the evidence for the prosecution was closed, the court instructed the jury to return a verdict of ‘not guilty’ as to the three last-named defendants. Plaintiff in error was convicted of manslaughter, and sentenced to 10 years' imprisonment in the penitentiary. He prosecuted this writ of error, and insists- First, that the verdict is not supported by the evidence; and, second, that the assistant prosecuting attorney was allowed to make statements in his closing address to the jury unwarranted by the evidence, and calculated to prejudice the jury against him.

On the night of June 17, 1888, about 11 o'clock, the prisoner and his co-defendants were together on the west side of South Clark street in Chicago, near a saloon, No. 396. A number of other parties were also there. Thomas and Michael Raggio were quarreling with Dahl when deceased and Bert Kern came up. Words passed, and a fight immediately ensued between the three Raggios and Dahl on one side and the deceased and Kern on the other. Plaintiff in error struck the deceased, and was in turn knocked down, twice or oftener, by him. There is much evidence in the record (which will be noticed hereafter) to the effect that, immediately after the fight between the prisoner and his party and Kelly and Kern had ceased, several boys or young men standing by made an attack on Kelly, and that a struggle ensued between him and them in which he was struck several times, and in which he knocked several of his assailants down. It is satisfactorily established by the evidence that during one of these encounters Kelly received a wound in the neck, and left the scene of the struggle bleeding profusely. On the following day the county physicial made a post mortem examination ‘on the body of a young man’ (not named or particularly described by him) in the morgue at the Cook County Hospital, and found death had resulted from a cut upon the left side of the neck, extending through the carotid artery and jugular vein. It is insisted on behalf of plaintiff in error that the proof fails to indentify that body as the body of Edward Kelly. While it is true that little attention seems to have been given by the prosecution, to showing where the deceased went after the fight, when and where he died or how his body reached the morgue, yet we think enough appears from the evidence to show that the body examined by the county physician on the following day was that of the deceased named in the indictment.

The question of difficulty in the case is, does the proof show beyond a reasonable doubt that plaintiff in error inflicted the mortal wound? It must be conceded that the evidence on this branch of the case is in irreconcilable conflict.

Bert Kern, who was with the deceased when the fight began, and engaged in it, testified, in substance: ‘They [Raggios and Dahl] ran at us, and got to fighting with us. I was struck by Mike Raggio,-he shoved me out of the way. Then Tony [plaintiff in error is referred to by witness by the name Tony] got at Ed, [deceased,] and they were fighting together. Just as Mike shoved me, Tony went for Ed. Then Tom picked up a chair, and struck me on the head. When I was struck by the chair I was knocked down. I seen Tony at Ed. They were slapping each other,-pounding each other. I guess Tony struck Ed first. I did not lose consciousness; I was no more than down, than I was up again. I seen Tony with a knife next when I got up. Ed Kelly was standing near the lamp-post at that time. Tony was immediately by Ed. Had a knife in his hand. When I saw the knife I got up and run. When I saw Tony with the knife he was about two feet from Kelly. They were fighting each other. I ran south to Polk street. Was followed by three or four, but don't know who they were.’ On cross-examination he said the knife he saw was a pocket-knife; that he could tell from the blade whether it was a butcher knife, or a knife to be shut up.

Andrew Vander testified on behalf of the people: ‘Tony was fighting with Kelly at the lamp-post. I seen him [Tony] receive a kick, and then go away after receiving it. After Tony went away, Kelly went to the assistance of Kern, who had been knocked down with the chair. I was standing between the door and lamp-post, right near the fighting, in the middle of the sidewalk. Tony went into North's saloon before Kelly went to Kern's assistance. It was after Tony went into the saloon that Kelly left the lamp-post to go to his partner, or where his partner was. Tony came out with a knife in his hand, a carving knife; blade about five inches long. I next see Tony cut the fellow in the neck. He stood there and bled awhile. Then Kern ran towards Polk street, and a couple followed him. The man that was cut stopped and bled awhile by the saloon door. He stopped in front of my place and bled, and then he went right down the street. He stood there, and he sees that the patrol-wagon was coming up, and he says: ‘Boys, I'm done.’ Question. Do I understand you to say that you yourself saw Tony Raggio cut Kelly with the knife? Answer. Yes. I was standing between the lamp-post and the door, about five feet from the door, when I saw Tony go into the saloon. I heard him ask for a knife. I could not tell you the man that was asked. Q. Did you see the man he asked? A. Well, I was looking at the man he asked for the knife. Q. Where was the man standing? A. He was standing near the counter. He was standing in there, as you go back by the alley. Q. Do you know Hank North? A. Yes. Q. Did you see him? A. I do not remember seeing him. I saw his bar-tender in there. Q. Did you hear anybody say anything to Raggio? A. I heard the man tell him he didn't have no knife. Then I saw Tony come out. There was a big crowd pretty near filling the sidewalk between the door and lamp-post. They were standing all around me. I got a front seat. I made the remark ‘Kill him’ while coming across the street, before getting the front seat. I saw the police when they came in the patrol-wagon. The man that was stabbed says, ‘Boys, I'm done.’ Don't know who he said it to. At that time he was cut ‘somewhere about the neck.”

Sol Friedman testified that, after the prisoner had been knocked down at the lamp-post by deceased, he went into the saloon, and was in there about a minute, and came out with something in his hand; but he could not tell what it was, and did not see him do anything with it. He says that after that he saw Kern knocked down with a chair, and that when he got up he ran away; that he then saw deceased go over to where Kern had been knocked down, and looked around, and then walked away; that he went back to the saloon, saw no blood, thought it was a little fight, and went away.

Eugene Sullivan testified that when the deceased ‘got hold of the lamp-post they [meaning the prisoner and his brother] kept running at him, and he kept knocking them down. Then Tony ran into the saloon. Then Kelly ran as far as the ‘stoop,’ and I saw Tony have a knife. It looked like a carving knife, or something of that sort.' That the crowd then ran up to the saloon door, and he saw no more. That nothing had happened to the crowd when he started home. He also says, when he left Tony was standing in the door of the saloon.

Jacob Franks testified to seeing Tony and deceased fighting at the lamp-post, and says Kelly knocked Tony down, and that he got up and ran into the saloon, chased by Kelly, who went as far as the door, and came back with his hand to the right side of his neck, and saw the blood coming through his fingers. This witness' testimony is to the effect that plaintiff in error ran some five steps into the saloon, while the deceased only reached the door. He also says, ‘When Tony got about five feet in I did not see him; I guess he must have gone all the way through;’ that immediately after the deceased came back bleeding he ran north towards Harrison street; and that the first that he saw of Tony after he went into the saloon was when he met him 10 minutes after, on Polk street.

Abe Foster testified he saw the fight around the lamp-post while standing in the street, and then went to the doorway of the saloon; and he says: ‘While I was standing in the doorway, after the fight around the lamp-post had ceased, he [Tony] stepped into the saloon, and asked Hank North, would he loan him a knife.’ He further says: ‘When Tony was struck by Kelly he staggered and fell. Quickly after that Tony rushed into the saloon. Question. Then it was from the fight at the lamp-post you saw him rush in? Answer. Yes, sir. After he rushed past me, I did not turn round to look at him at all. After hearing him ask for a knife I turned to look if he got the knife, and when I turned round to look he was already gone. North refused the knife. He went about three steps into the saloon. Then I went away. The fight was pretty near over when I went away. I went right away after he had gone into the saloon. Did not see him come out. I saw Kelly at the lamp-post only. Did not see him come towards the building from the post. Did not see Kelly, and did not see him bleeding. Whether he was cut or not I cannot say. Could not say whether he had gone away or not. As I stood in the door-way Tony went by me; asked North for a knife; North refused him; turned to see if he got the knife, and Tony was...