State v. Ferranto, 18916.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtDAY
Citation112 Ohio St. 667,148 N.E. 362
Docket NumberNo. 18916.,18916.
Decision Date19 May 1925

112 Ohio St. 667
148 N.E. 362


No. 18916.

Supreme Court of Ohio.

May 19, 1925.

Error to Court of Appeals, Cuyahoga County.

Cosmo Ferranto pleaded guilty to murder, and was found guilty of murder in the first degree by the court. Judgment was reversed by the Court of Appeals, and the cause remanded for a new trial, and the State brings error. Reversed.-[By Editorial Staff.]

The defendant in error, Cosmo Ferranto, was indicted by the grand jury of Cuyahoga county for the offense of murder in the first degree, charged with killing one Ernest Ferritto, purposely and of deliberate and premeditated malice, on January 16, 1919. Ferranto was not apprehended for some time, but about four years later he was arrested in Providence, R. I., said to have been living there under an assumed name, brought back to Cleveland, and, having been duly arraigned, entered a plea of not guilty, and was placed on trial before a petit jury in the common pleas court of Cuyahoga county, on November 5, 1923. The trial lasted until Monday, November 12, when, at the conclusion of all the evidence in the case, both sides had rested, and, the state having completed its opening argument, the defendant, in open court, by and with the advice of his counsel, and upon full inquiry and explanation by the trial judge, withdrew his former plea of not guilty and entered a plea of guilty of general homicide, which plea was accepted by the court, and the court, proceeding to determine the degree of the crime and pronounce sentence accordingly, determined that Ferranto was guilty of murder in the first degree, finding nothing to warrant a recommendation of mercy.

The journal entry of the Court of Appeals discloses that--

‘The judgment of the said common pleas court is reversed for error of the court in discharging the jury and accepting a plea of guilty in the manner that it was done, and in finding the defendant guilty of murder in the first degree without hearing testimony after the plea was entered. No other error appearing in the record, this case is remanded to said court of common pleas for further proceedings.’

In view of the fact that this reversal involves, among other things, the alleged abuse of discretion by the court of common pleas, it is necessary to advert to the evidence in the case and the facts as shown by the record upon which the trial court based its judgment.

On the day in question, January 16, 1919, the defendant, who had been a boarder in the Ferritto family, came home from his work as a laborer with a plumber, having been assisting upon a job on Quincy avenue, near 105th street, not far from Colonial Court, where the Ferritto family lived. At about noon, or shortly thereafter, he appeared at the Ferritto residence dressed in working clothes, and, finding the children at home on their noon recess from school, Ferranto gave the daughter, a school child, 5 cents, to go to school, and told two of the boys to go outside and get a stone and a nail and he would help them fix a flag. Mrs. Ferritto and Ernest Ferritto, the decedent, a child of tender years, were the only ones left in the basement room, generally used as a kitchen by the Ferrittos. Mrs. Ferritto claims to have been engaged in mending clothes when the defendant, Ferranto, approached her and made known his desire to have improper relations with her. Mrs. Ferritto testifies that the defendant swore at her and persisted in his demands, that a struggle ensued, and that he knocked her down, and that in the struggle, Mrs. Ferritto having been thrown to the floor several times, the defendant, Ferranto, drew a knife and began to stab her, and the small child, Ernest Ferritto, who seems to have come to his mother's side during the altercation; the wounds inflicted upon Ernest Ferritto proving fatal. Mrs. Ferritto, covered with blood as a result of the many wounds upon her, continued the unequal struggle, calling for help, and the defendant, Ferranto, being unable to accomplish his purpose, and doubtless fearing apprehension, fled from the room, locking the door on the outside. The two boys who were outside were stabbed by him in his flight and a neighbor, Paul Polatino, seeing Mrs. Ferritto covered with blood, came to the scene of the homicide, and, being told the direction in which Ferranto had fied, pursued him for a short distance; Ferranto, waving his bloody knife, warned him, when the neighbor Paul Polatino came within 60 or 65 feet, and said:

‘What are you going to do? Do you want to catch me? If you catch me, you see what I got in my hand? I will do the same to you what I did to the lady and the kid.’

The defendant escaped, and, after having gone to Toledo, found his way to Providence, R. I., where he is said to have lived under an assumed name until apprehended. The mother, Mrs. Camelia Ferritto, the two boys, Dominic and Tony, were taken to the hospital and remained for some time, recovering from the wounds. The child, Ernest Ferritto, was also taken to the hospital and died shortly thereafter, as a result of the wounds inflicted on the day in question by Ferranto, in the county of Cuyahoga and the state of Ohio.

Upon the trial, the defendant took the stand in his own behalf and testified, in substance, that he had some wine stored in the Ferritto house, and that upon his return from work he found Mrs. Ferritto taking wine from the barrel and putting it into a bottle. The defendant claims to have protested with Mrs. Ferritto for taking his wine, and that an altercation ensued in which Mrs. Ferritto struck the defendant over the eye with a bottle, that this blow stunned him, and that his memory of what transpired after that is very vague, and that he does not remember anything except, in a general way-his fleeing and sleeping that night in a park and making his way to Toledo, where he had treated the wound which he claims to have sustained on his forehead, and from thence he went East.

The trial had progressed several days. The testimony on behalf of the state was concluded, and the defendant was on the stand testifying in his own behalf when, on Friday, November 5, court adjourned until Monday morning at 9:15 o'clock; the adjournment taking place about 3 o'clock in the afternoon, we are informed by counsel. Upon the incoming of court of Monday morning, the examination of the defendant was continued, and two witnesses were called by the defendant, who testified to the good character of the accused, and a third who testified to the fact of having seen Mrs. Ferritto drink wine on some occasion.

The defendant having no other witnesses in attendance, the court declined to longer delay the trial, admonishing counsel that they had had since Friday afternoon at 3:30 to secure the attendance of such witnesses as they might desire, and that, no subpoenas having been served, the court had no power to issue a capias, and ordered the trial to proceed.

Thereupon Mr. Williams delivered the state's opening argument to the jury.

Court and counsel confer.

‘Court: Ladies and gentlemen of the jury, a proposition of law is about to be given to the court. It is a matter that does not concern the jury and perhaps what goes on between court and counsel should not be heard in your presence. I want you to adjourn to your jury rooms for a short period of time until you are again sent for. Bear in mind the usual admonition.’

Thereupon, at 11 a. m., the jury retired from the courtroom.

‘Defendant's Plea.

‘Mr. Costello: At this time, your honor, we plead the defendant guilty, under the statute-I think it is 13692-to general homicide, after having talked to the defendant.

‘Court: You have talked to him, and does he understand the nature of the charge and the responsibility of a plea of that kind, and that it is then placed in the hands of the court to determine the degree of the crime?

‘Mr. Costello (to interpreter): Explain that to him.

‘Court: Mr. Interpreter, you tell this defendant, Cosmo Ferranto, that his lawyer in open court confesses his guilt to homicide as charged in this indictment, and ask him if that is his confession, and if he stands by that confession made by his attorney in open court, and if it is his confession.

‘The Interpreter: He does, he says.

‘Court: Does he fully realize the punishment that is carried into effect after an open confession in court of homicide?

‘The Interpreter: He is satisfied, your honor.

‘Court: And does he understand that the case is now taken from the jury, and that the court determines what his punishment is to be?

‘The Interpreter: He is satisfied with what you do.

‘Court: He fully realizes, does he?

‘The Interpreter: He says, ‘Yes.’

‘Court: You say to him then that, after he has pleaded guilty to murder as charged in this indictment, that the court finds him guilty, after having heard all of this evidence and having had plenty of time ot make up my mind, that the court finds no chance of a recommendation of mercy, and the court finds him guilty of murder in the first degree.

‘Mr. Costello: Exception.

‘The Interpreter: I leave it to you, he says.

‘Court: And I shall pass sentence on you on Saturday morning, November 17, 1923, at 9:30 a. m.

‘The Interpreter: All right, he says.

‘Court: Call the jury.’

Thereupon at 11:05 a. m. the jury was recalled to the courtroom.

‘Court: Ladies and gentlemen of the jury, in your absence, and the court thought it was proper for you to be excused, for fear that this defendant might want to change his plea after he had offered his confession in open court, and you might have had to continue with this case, but at this time counsel for this defendant, after fully advising this defendant of his rights, and after the court has fully advised him of his rights, has openly confessed in court to his guilt of murder as charged in this indictment. It will therefore relieve you of any further responsibility in this case. The court has accepted that plea, and so has the state and the prosecutor. The court has...

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