State v. Albanes

• Decision Date: 06 June 1912
• Citation: 83 A. 548,109 Me. 199
• Parties: STATE v. ALBANES.
• Court: Maine Supreme Court

83 A. 548

109 Me. 199

STATE

v. ALBANES.

Supreme Judicial Court of Maine.

June 6, 1912.

Haley, J., dissenting.

Appeal and Exceptions from Supreme Judicial Court, Oxford County.

Ignazie Albanes, alias Joe Bill, was convicted of homicide, and he appeals, moves for a new trial, and brings exceptions. Appeal dismissed. Motion and exceptions overruled.

The defendant was indicted for the murder of his wife, Rosie Albanes, and a verdict of "guilty as charged in the indictment" was returned by the jury. The defendant then filed a general motion for a new trial, which was denied by the presiding justice. The defendant then appealed to the law court under Rev. St. c. 135, § 27, which provides that: "If a motion for new trial in any case in which a person has been convicted of any offense for which the punishment is imprisonment for life, is denied by the justice before whom the same is heard, the respondent may appeal from said decision to the next law term; and the concurrence of but three justices shall be necessary to grant such motion." The defendant also took various exceptions.

Mem.—It will be noted that under Rev. St. c. 135, § 27, that the concurrence of only three of the eight justices who constitute the Supreme Judicial Court is necessary to grant a motion for a new trial in a case where a "person has been convicted of any offense for which the punishment is imprisonment for life."

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, KING, BIRD, and HALEY, JJ.

William R. Pattengall, of Waterville, Atty. Gen., and Ralph T. Parker, of Rumford, Co. Atty., for the State.

McGillicuddy & Morey, of Lewiston, for defendant.

CORNISH, J. At the October term, 1911, of the Supreme Judicial Court for the county of Oxford, the respondent was found guilty of the murder of his wife, Rosina Albanes, on May 11, 1911. He thereupon filed a motion for new trial, which was de-hied by the Presiding Justice, and an appeal from this decision was taken to this court under R. S. c. 135, § 27. Various exceptions were also reserved. We will consider the appeal first.

Appeal.

The single question before this court on this branch of the case is whether in view of all the testimony "the jury were warranted in believing beyond a reasonable doubt and therefore in finding that the defendant was guilty of the crime charged against him." State v. Lambert, 97 Me. 51, 53 Atl. 879.

In this state degrees of murder have been abolished, and the crime, as now defined by R. S. c. 119, § 1, is the unlawful killing of a human being with malice aforethought, either express or implied.

A careful study of the occurrences which were either uncontroverted or which, from the evidence, the jury were warranted in believing took place, not only justified, but demanded, the verdict rendered. In fact, a verdict for a less crime would have been a miscarriage of justice. The respondent was a man of mature years, a native of Italy, who had been in this country since 1887, and in this state about 20 years, 10 of which were spent in Lewiston and 10 in Kumford. His domestic relations had been unpleasant for several months because of his wife's alleged relations with one Nicola Balistiri, and the respondent had brought a libel for divorce against her on the ground of adultery, returnable at the May term, 1911, of the Supreme Judicial Court for Oxford county. On the 11th day of May a hearing was had in the court, then being held in Rumford, on the wife's motion for a continuance of the case to the October term, the motion being strenuously resisted by the husband. The presiding justice granted the continuance. This was between 12:30 and 1 p. m. When the decision was announced, the respondent's expression was noted. His face was "pallid and colorless." He went directly to his house, where his wife still lived and ate dinner, his wife and a boarder being at the table. When the dinner was finished, the boarder withdrew, but the respondent remained. The wife was removing the dishes from the table, and, as he described it to the officer, she threw up her head, laughed, and said: "I told you I would beat you. I could get my case put over to October." He told her to keep still, but she continued to laugh at him, whereupon he drew a revolver and fired three shots, each of which took effect in her body as she faced him. She fell upon the floor and he left the house, sought an officer, and was placed in the police station at his own request. If malice in law can be implied from the intentional doing of a wrongful act or of an injury to another without legal justification or excuse, the implication exists here in full force.

But the state's case did not stop here. There was reliable evidence of express malice. On May 8th the attorney for the wife in the divorce proceedings met the respondent in the banking room of the Rumford Palls Trust Company, where the respondent signed and gave to the attorney a check for the amount due for attorney's fees and separate support pending the libel, as decreed by a justice of this court at a prior hearing, and then repeated a most significant threat which he had previously made to his wife. The attorney's testimony is as follows: "While we were there he said to me, T have told my wife what I should do if she put the case over.' I replied to him that she had told me what he had said—that he had said he would kill her; 'but,' I says, 'Joe you won't do that.' He says, 'I shall kill her if the case is put over.'" Here then we find a threat made first to the wife herself and then to her attorney, a threat which was carried into fatal execution three days later within an hour after the case was "put over" by order of the Presiding Justice.

All the requirements of murder have been met—premeditation, malice, and the killing.

But the defendant seeks to reduce the crime to manslaughter by injecting into the wife's remarks which preceded the shooting the assertion that the baby in the cradle did not belong to him, but to Nicola, and that this remark, coupled with some letters in his possession showing their guilty relations, released the clutch on his mental machinery causing him to fire the fatal shots in the heat of provoked passion. What his wife actually said was a question of fact for the jury to decide, and they were warranted in taking the state's view. The evidence comes on the one side from the officer to whom the respondent made his statement soon after the homicide, and on the other from the respondent himself when on the stand. The officer testified that he never heard of the taunt in regard to the paternity of the child until he heard it in court. The respondent's testimony on this point lacks probability. It would hardly seem reasonable that the wife who was contesting the divorce should admit the charge on which it was based; while the testimony of the officer is perfectly consistent with what had been the immediate subject of contention between the respondent and his wife, viz., the postponement of the trial of the libel. So far as the letters were concerned, the respondent admits that they had been in his possession since the previous September or October, and had at least been partially translated to him before the full translation a few days prior to the shooting. Of their purport he must have been fully aware, and there could have been no sudden shock of his wife's infidelity that swept away his reason, because in the libel for divorce which he had signed and brought on the third day of April the sole cause alleged was adultery. The respondent therefore for a long time prior to the 11th of May had believed his wife to be unfaithful, and was attempting to divorce her on that ground. If his testimony of her statement to him was true, it revealed little that was new to him. But the probabilities are strongly against its ever being made.

Without discussing the evidence further, it is the opinion of the court that the jury were warranted in finding that a husband who, armed with a revolver, fired three shots at his defenseless wife with no more provocation than is here revealed, and especially after twice making threats to kill her if the divorce case were continued, who turned and left her lying upon the floor in the blood that was pouring from her wounds, without attempting to ascertain whether she were living or dead, or to call a physician to her assistance (although she lived three hours and regained consciousness before her death), but sought his own safety in delivering himself up to the officers, who never afterwards manifested the slightest remorse or even regret at his deed, but rather continued to cherish his hatred towards her, for, though a man of some property, when asked by the undertaker on the next day after the homicide when he wanted her buried, answered, "To-night," and, when asked in what price casket, told the undertaker to bury her in a pine box if he could not get a casket for $10, is, according to the laws of Maine, guilty of murder, and nothing less.

Exceptions.

Although several other exceptions were taken, only three were pressed in argument, viz.:

1. The exclusion of certain evidence of John Zacolli, offered by the respondent as to what conversation he had with the deceased on the day before the shooting, and when objected to by the state, the counsel for the respondent stated the object of the testimony as follows: "I wish to show what she had to say about Joe Bill's manner." The ruling was correct. The evidence offered was merely hearsay, and clearly inadmissible. In this connection the counsel challenged the ruling of the court, that, on the question of admissibility of evidence charging the deceased with adultery, "they must be confined to acts occurring within one, two, three, or four days prior to the homicide." No specific evidence was offered on this point and ruled upon, and, had the same been offered, it would properly have been excluded, unless knowledge of the facts could...