State Of West Va. v. Zannino, 9888
| Decision Date | 04 March 1947 |
| Docket Number | No. 9888,9888 |
| Citation | 129 W.Va. 775 |
| Parties | State Of West Virginia v. Albert James Zannino |
| Court | West Virginia Supreme Court |
1. Homicide
State of West Virginia v. Cain, 20 W. Va. 679, Syl. Pt. 7.
2. Appeal and Error
In a criminal case it is reversible error to give an instruction on behalf of the State which there is no evidence to sustain.
Error to Circuit Court of Harrison County.
Albert James Zannino was convicted of voluntary manslaughter, and he brings error.
Reversed.
Wyatt & Randolph, for plaintiff in error.
Ira J. Partlow, Attorney General, Ralph M. Hiner, Assistant Attorney General, and Eston B. Stephenson, Assistant Attorney General, for defendant in error.
Albert James Zannino, then aged twenty-two, was indicted in the Criminal Court of Harrison County for the murder of his father, J. F. Zannino, on the evening of August 15, 1945, by shooting him in the left chest with a double barrel shotgun at close range. To a sentence of from one to five years for voluntary manslaughter, after the Circuit Court of Harrison County had refused a writ of error, this writ of error was granted.
The specific assignments of error are based upon the giving of State's instructions one to six inclusive, and State's instruction number eleven and the re-reading to the jury, at its request, of State's instruction number eleven after the jury had retired to consider of its verdict. With the exception of the assignment based upon the refusal of the trial judge to set aside the verdict of the jury and grant the accused a new trial, the remaining assignments of error are phrased in general language that this Court cannot reduce to the required certainty.
The Zannino family lived in a section of Clarksburg known as Kelly's Hill, which seems to have been, in large measure, an Italian neighborhood. The home, store, and butchershop of J. F. Zannino, the victim, apparently were in the same building at 117 Kelly Street, the dwelling occupying part of the ground floor and all of the second story. The testimony is not clear in its description of the building, but apparently the entrance to the dwelling was from a front porch and into one end of a narrow hallway extending back the depth of the building and having a door to the left as you entered leading into an undescribed room and another door, also at the left, at the rear of the hall leading into a combined sitting and dining room connected with the kitchen that had a doorway onto the back porch. The stairway to the second story seems to have faced the front of the hall with its foot about midway back. No passageway into the store from the dwelling is described although there is testimony concerning occurrences that took place in the store by witnesses apparently then located in the dwelling. However, since there is no question of relative locations raised in this record, we believe the lack of clarity in that regard deserves only comment.
The shooting and occurrences immediately leading up to it are admitted by the accused in a voluntary written statement made the next day and introduced in evidence by a member of the Clarksburg police department, the contention of the plaintiff in error being that the shooting was done in self defense. The statement of the accused, the testimony of the then coroner, of the officers who were summoned to the Zannino home the night of the shooting, together with that of a photographer who introduced three pictures of the victim's body, comprise the State's case. No testimony was offered in rebuttal.
In the written statement of the accused, which is the State's only evidence of the actual occurrence, after describing previous occurrences when his father had slashed at him with a pocket knife, cutting his clothing; had struck him with a piece of two by four, causing him to lose several teeth; and had thrown a hatchet at him, the accused states that he was awakened on August 15, V. J. Day, at about five o'clock in the morning by whistles, and that on dressing and coming downstairs he saw his father, who told him that he was going out to buy chickens and would drop him at the slaughterhouse. The statement does not say so, but it otherwise appears that the father did drive the accused to the Stout slaughterhouse on Brushy Fork, a few miles outside the city, where Albert stayed helping to kill and prepare meat until just before ten o'clock that night. He didn't see his father again until about five-thirty that afternoon, when he came to the slaughterhouse. He says that his father obviously had been drinking and that he then stated that he was going to "finish everybody" and intended to throw Albert's sister out of the window when he got home that night because she had not opened the store that day. Albert says that his father had two jugs of wine in his car and that he drove about two miles to a neighbor's house and there spent two hours, returning to the slaughterhouse, asking him, Albert, if he were then ready to go home. Albert told him that he was not because they had not finished killing cattle and salting the hides. Albert states that it was his purpose to spend the night with his friend Virgil Woofter. However, his father said that he would help salt the hides and that then they would go home, asking Albert if he wanted a drink, which Albert declined.
They left the slaughterhouse about five minutes to ten o'clock, taking one of their fellow workmen to his home and then going to their own. Albert states that he knew nothing about a disagreement that had occurred between his father and the rest of the family that day and that when they reached the house the others were sitting around the dining room table and said nothing when they entered. His father then went to the store after bread and, returning, poured for himself a glass of wine from the jug and cut a piece of ham, asking Albert if he wanted a sandwich. Albert declined. His mother then asked Albert if he wanted a cup of coffee and he told her no. His father then turned to his sister Stella, and asked her if she had closed the garden gate. Receiving an affirmative reply, he went into the garden for the purpose of investigating. Coming back he repeated his inquiry and being told again that she had closed the gate, he slapped her so hard that she fell against the wall. Seeing that his father was preparing to strike Stella again, Albert stepped between them and told his sister to go to bed. He then went to the kitchen where his mother was washing her hands. His father must have followed because Albert says that he "heard him bang on mother" and that upon his interfering his father told him to get out of the house "right now". His father then said "get out or I will kill you" and started out the hall door stating "I am going to finish all of you." Albert then started to go upstairs to get his clothes and leave. His mother asked him not to do so, stating that his father had whipped them all that day. Albert then looked into the store where his father had gone and saw him there sharpening a knife and loading a high power rifle with five cartridges. Albert then went into the house and went upstairs where he told his mother what he had seen his fathe...
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