State v. Cusumano
| Citation | 372 S.W.2d 860 |
| Decision Date | 11 November 1963 |
| Docket Number | No. 49876,No. 1,49876,1 |
| Parties | STATE of Missouri, Respondent, v. Vito CUSUMANO, Appellant |
| Court | United States State Supreme Court of Missouri |
O'Hanlon & Daly, Robert J. O'Hanlon, Richard L. Daly, St. Louis, for appellant.
Thomas F. Eagleton, Atty. Gen., Jefferson City, William L. Hungate, Sp. Asst. Atty. Gen., Troy, for respondent.
Defendant was convicted of perjury and sentenced to two years' imprisonment. Secs. 557.010, 557.020 () Defendant has appealed and contends the court erred in refusing to sustain his motion for a directed verdict at the close of the entire case.
The indictment charged defendant with falsely swearing: 'That he, Vito Cusumano, saw Edward Brown, the deceased, display and exhibit a .32 caliber automatic pistol in the presence of Joseph Costello in the Tic Toc Club located at 421 DeBaliviere, St. Louis, Missouri, on February 10, 1962, shortly prior to 4:00 P.M. and that he, Vito Cusumano, at this same aforementioned time and place heard one shot fired, then saw Joseph Costello on the floor with Edward Brown, the deceased, lying on top of Joseph Costello, when he then heard more shots, whereas, in truth and in fact, Edward Brown, the deceased, did not have any kind of a weapon in his hands and there were no shots fired while Edward Brown, the deceased, was lying on the floor on top of Joseph Costello; but on the contrary, Vito Cusumano did not see Edward Brown, the deceased, display and exhibit a .32 caliber automatic pistol in the presence of Joseph Costello in the Tic Toc Club located at 421 DeBaliviere, St. Louis, Missouri, on February 10, 1962, shortly prior to 4:00 P.M., and Vito Cusumano did not hear any shots fired when he saw Joseph Costello lying on the floor with Edward Brown, the deceased, lying on top of Joseph Costello.'
Defendant's alleged perjured testimony was given before a grand jury investigating the killing of Edward Brown by Joseph Costello at the Tic Toc Club operated by Brown. Costello was indicted for second degree murder but died before being brought to trial. The killing resulted from an altercation between Brown and Costello over an arrangement they were making for Costello's taxicabs to bring persons to Brown's establishment for which Brown was to pay Costello one thousand dollars. Brown had paid three hundred and was to pay the rest by Friday, February 9, 1962. It had not been paid and Costello drove to Brown's Club on Saturday afternoon, February 10th, to see about it. Costello took with him his niece Valerie Pilcher, Mel Soles (who worked for Costello) and Mrs. Thyra McGinty, an employee of Brown, who was to get her pay for the week at that time. Before going to the Club, Soles and Mrs. McGinty had gone to the airport where Costello met Valerie, after which they went to a restaurant and then to the office of Costello's taxicab company. While there Costello called defendant to find out whether Brown had given defendant the money due Costello and then took an automatic pistol out of a desk drawer and put it in his pocket. (It was identified as the .32 caliber pistol used to shoot Brown.) When they reached the Club, Brown was there alone but defendant came in soon, having followed them in his car. Mrs. McGinty and Valerie went to the dressing room to look at costumes. Soon afterward Mrs. McGinty heard 'something, sounded like a chair hit the floor' and Soles came running back and said: 'You girls have to get our of here, there is going to be trouble.' She heard Costello say: 'If we can't settle it one way, there is always another way to settle it.' As Mrs. McGinty ran in front of the bar, she saw Brown on top of Costello backed up against an overturned table leaning against the wall. Costello yelled for somebody to get him off of him and defendant pulled Brown off.
Mrs. McGinty further testified:
On cross-examination, Mrs. McGinty testified that she heard no shots before she saw the men in the corner by the table, or on the table. She said defendant pulled Brown 'all the way to the cigarette machine'; that she saw Costello 'stumble out, like, and pick up that gun'; that at the time, Brown was 'away back here (indicating)'; and that after getting the pistol Costello shot four times. She further testified:
A model representation of the Tic Toc Club room was used in connection with the testimony at the trial with the witnesses indicating positions on this model. Neither Soles nor Miss Pilcher testified at the trial. It was stated by defendant's counsel at the oral argument herein that they refused to testify. Defendant's testimony at the trial, as to the shooting, was substantially the same as that given before the grand jury.
Defendant relies on the rule that perjury must be proved by the testimony of two witnesses or one witness and strong corroborating circumstances, citing State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 325. (See also statement of the rule in State v. McGee, 341 Mo. 151, 106 S.W.2d 480, 482, 111 A.L.R. 821.) There were two charges of perjury in the indictment and as defendant says the state had to prove one of the following: '(1) that Vito Cusumano did not see Edward Brown, the deceased, display and exhibit a .32 caliber automatic pistol in the presence of Joseph Costello etc.; (2) that Vito Cusumano did not hear any shots fired when he saw Joseph Costello lying on the floor with Edward Brown, the deceased, lying on top of Costello.'
It is true, as defendant contends, that the state had no witness who saw the parties at the beginning of the altercation and could say that Brown did not have a pistol in his hand prior to the time when Mrs. McGinty saw them struggling on the floor (or against an overturned table) with Brown on top of Costello. It was also shown by several state's witnesses that Costello had been shot in the left forearm, the bullet going through and out without striking a bone. There is no explanation in the evidence as to how or when Costello was shot. Four .32 caliber shell casings were found in the room by the police who were soon there making a thorough investigation; also a clip with one live shell in it was found there. Four bullets were accounted for, three taken from Brown's body and one that went through the north wall 18 inches above the floor and was found in an adjoining building. Two automatic pistols owned by Brown were found in the Club by the police, one of larger and one of smaller caliber than Costello's pistol. The .32 caliber shells could not be used in them and both were fully loaded. One was found in a locked cabinet and the other on a shelf behind the bar covered with cobwebs and dirt. Thus, while the state had no direct testimony of anyone, who saw the beginning of the altercation, that Brown did not have a pistol in his hand before Mrs. McGinty saw them struggling in the corner, there was strong circumstantial evidence to show he did not. No pistol that had been fired was found, and no shell casings from any pistol, except Costello's pistol, were found. However, Costello was shot through the left forearm and certainly the evidence does not indicate he shot himself; but of course he could have been shot in a struggle over the pistol before Mrs. McGinty came into the room. Nevertheless, according to the state's evidence the pistol was on the floor, out of the possession of either of the men, when Mrs. McGinty first saw it at the Club. She said Costello picked his pistol off the floor when defendant pulled Brown off so it is evident that Costello did not have control of it all the time. Even if no other pistol was involved, it is left uncertain as to whether or not Brown might have had possession of this one at some time. Therefore, we must hold that the state did not make a sufficient showing by direct contradictory testimony of any witness for submission of the issue of perjury of defendant in stating that he saw Brown have a pistol in his hand before Mrs. McGinty came into the room.
However, as to whether the shots that killed Brown were fired while Costello and Brown were on the floor with Brown on top of Costello, as defendant testified before the grand jury, or whether they were fired after defendant had pulled Brown off of Costello and Costello had picked his pistol off the floor as Mrs. McGinty testified, there is a clear and complete...
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