Rizzolo v. Commonwealth

• Decision Date: 29 April 1889
• Docket Number: 412
• Citation: 17 A. 520,126 Pa. 54
• Parties: MICHAEL RIZZOLO v. THE COMMONWEALTH
• Court: Pennsylvania Supreme Court

17 A. 520

126 Pa. 54

MICHAEL RIZZOLO v. THE COMMONWEALTH

No. 412

Supreme Court of Pennsylvania

April 29, 1889

Argued April 15, 1889

ERROR TO THE COURT OF OYER AND TERMINER OF LUZERNE COUNTY.

No. 412 January Term 1889, Sup. Ct.; court below, No. 165 January Term 1889, Q.S. cert. to O. and T.

On January 9, 1889, the grand jury returned as a true bill an indictment charging Michael Rizzolo with the murder of Bernard McClure and Hugh Flanigan, employees of Charles McFadden, a railroad contractor, on October 19, 1888, upon a mountain road about two miles from the village of Miner's Mills. The prisoner had been arrested and committed on January 3d. The case was set down for trial on January 29th when at the request of the defendant it was continued to February 6th, and then again continued to the next day.

At the trial on February 7, 1889, the counsel for the prisoner moved for a change of venue, alleging as ground thereof the great excitement and prejudice against him in Luzerne county, and asked for a rule to take the testimony of witnesses. The court refused to grant the rule to take testimony, but offered to hear at bar any testimony in support of the petition. No testimony was offered and the motion was refused.

Counsel for the prisoner then filed motions to quash the array of jurors for the term, and also the indictment, the ground alleged in support of the motions being that, while the order of the court for filling the jury wheel for the year 1889 specified 1550 as the number of names to be placed therein yet, as shown by the testimony of a witness who had counted the names on the list, the names so placed in the wheel aggregated 1554. One of the jury commissioners, producing the certified list of names, testified that the intention of the commissioners was to place 1550 names in the wheel; that they did so place that number in the wheel, as certified on said list, and that they had no knowledge that four additional names had been put in. The motions were refused.

Certain jurors were called, who stated on their examination that they had formed opinions concerning the guilt or innocence of the prisoner from what they had read in the newspapers about the murder, but all said they could render a verdict upon the evidence uninfluenced by such opinions. The challenges were all overruled and the jurors were sworn.

The commonwealth offered in evidence a confession alleged to have been made orally to R. J. Linden, at Philadelphia, taken down by a stenographer, transcribed and mailed to Wilkes-Barre and there signed by the prisoner. It was objected, on the part of the prisoner, that the confession offered was preceded by an engagement on the part of one Thayer, a subordinate of Linden, that the prisoner should be protected both from punishment by the law and from the vengeance of Bevivino, implicated by the confession as the guilty actor; that Thayer had said to the accused after his arrest and being brought before the chief, "that he had better tell the captain all he knew and it would be better for him." It was shown on the part of the commonwealth that, before giving his confession, the prisoner had been fully cautioned by Linden and told that anything he said would be used against him. The objection was overruled, and the offer admitted.

The facts of the case sufficiently appear from the charge of the court, RICE P.J., which after general instructions defining the crime of murder at common law and under the statute, proceeded:

Now, gentlemen of the jury, having thus stated the general principles which govern the consideration of the different grades of crime which are included in this indictment, I call your attention briefly to some of the facts which we think it is safe to say are undisputed, or at least which are proved by testimony which is not contradicted.

It would appear that on the morning of the 19th of October, Bernard McClure and Hugh Flanigan started from the works of Mr. McFadden, above Miner's Mills, to come to Wilkes-Barre, for the purpose of getting money to pay the men employed at those works. They went to the Wyoming National Bank, and there obtained twelve thousand dollars in money, largely paper money, and also some silver and smaller coin. This was put in a satchel, and they started upon their return. They stopped for a moment at Miner's Mills, at the post-office, and then started up the road which has been described to you by the witnesses. Mr. McFadden that same morning started down the road for the purpose of coming to Wilkes-Barre. On his way down a short distance, which has been described to you by the witnesses, above what is called the White House road, he found his horse standing in the road, and upon examination found the dead body of Bernard McClure under the wheel. He made no further examination at that time, apparently, but returned to his work, and having got his superintendent they again returned to this scene. They then found, about 500 feet below where McClure lay, the body of Flanigan, he also being dead, having been shot. The money that had been in the wagon was gone. The horse had been shot. The physicians have described to you the wounds which McClure received. They have also produced two bullets which were taken out of his body. They have described the third would in the head, and have testified that either one of these would have been fatal. These circumstances would be very strong evidence that not only the crime of robbery, but the crime of murder had been committed.

There is only one person who has given direct testimony as to what took place at that time, as to the circumstances surrounding that transaction, and that is the defendant. And for the purpose of bringing before your minds the circumstances of the killing, I will read an extract from the confession which he is alleged to have made to Capt. Linden, and then also an extract from the testimony which he gave upon the stand here. Speaking of McClure and Flanigan he says:

"When I got close to the forks of the road, McClure and Flanigan passed me, but I did not speak to them. When they got to the little hill they went slow and I followed them. I see Bevivino come out and shoot from the bushes. He shot McClure twice in the back; then he shot the other man, but I didn't think he hit him. Then Vallillo came up in front of them and shot the other man twice in the face. I had a revolver in my hand and was running after them. The horse run away and McClure was hanging with his feet under the wheel. When they had gone about twenty or thirty yards the old man fell out and Vallillo ran away down the road, and Bevivino looked at me mad, and told me to come. I went with him and when they got to the place where they afterward found the horse he stopped, and then Bevivino shot the horse and shot McClure again in the head. He then shot a good many times at the horse. I was standing still and he cursed me and got very white and said: 'Here, you hold this gun and if anybody comes you kill them.' I held it, and with the knife he cut the straps that held the valise to the buggy, then put the valise on his shoulders and said: 'Let us go through here.' It was raining and muddy and we went up and took the money and hid it a couple of miles from the scene of the murder; also the gun."

In the same connection I read to you the testimony that he gave here upon the stand, as taken down by the stenographer.

"When I got to this place they passed me." Q. "Who passed you?" A. "Mr. McClure and Flanigan, they passed me. When they passed me I suppose the old man spoke and he says, 'How do you do?' I say, 'How do you do?' When they passed I walk with him, that is, the buggy was going not on a trot but pretty lively; and they got away from me -- well, here to that officer out to the front door, little closer than that. When I got there I was walking, I had an umbrella in my hand; I seen Bevivino come out of the bush and shot McClure once; after, he shot twice, I think, or three times, and McClure first. He was standing on the other side of the buggy, standing on the right side going up. After he shot McClure, McClure fell; he stood a little while and then fell on the side. After he fell he shot the other man; he shot him two or three times; this here Flanigan, he stands, then he falls. After a little while the horse got scared and the time he shot the first time he looks at me, and that is the time he cursed me to follow him, when he looked at me; this here Flanigan was living yet, I suppose; I don't know; but he was hanging after he spoke to me and cursed me."

Q. "Who cursed you? What did he say, how did he curse you?" A. "He cursed me, you know." Q. "What did he have in his hand?" A. "He had a rifle." Q. "How did he have it pointed?" A. "He didn't have it pointed; he just look at me and look at me. So after he cursed me, you know" --

Q. "Tell what he said, how he cursed?" A. "He says J C , hurry up. He looked at me and he got kind of white. After he got white, you see I thought the man -- After he says that, I got scared from the way he spoke to me three or four days ago, that the man who would lose his courage he would got killed; that what made me pull out the revolver, and I shot three or four times while the horse was running, mind. The horse was running and those people they was most hanging pretty near dead; I don't know whether they were or not."

Q. "What distance were they away at the time you shot?" A. "They got a little farther; because the horse got scared." Q. "Go on." A. "When he was shot this here Vallillo he come out and shot in front, and after that they got scared and run away. This old man he fell. I walked slow and he runs. He turns back again but he didn't tell me anything after he" --

Q. "Who turns back and looked at...