State v. Merlo
| Decision Date | 01 July 1919 |
| Citation | 182 P. 153,92 Or. 678 |
| Parties | STATE v. MERLO. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Washington County; Geo. R. Bagley, Judge.
On motion for rehearing. Reversed and remanded.
For former opinion, see 173 P. 317.
Rosa Reghitto Merlo shot and killed her husband, Joseph Merlo, on October 4, 1915. She was convicted of manslaughter upon an indictment charging her with murder in the second degree; and she appealed from the judgment pronounced by the court.
Joseph Merlo came from Italy to this country in March, 1907, and on June 29th following he and the defendant, Rosa Reghitto, who is also an Italian, were married. At the time of the marriage she was about 30 years of age. She says that prior to the wedding he told her that he was 42 years of age, but she claims that she afterwards ascertained that he was much older. He had four children, by a previous marriage, living in Italy. Joseph sent for his children, and they came to this country in 1909, and made their home with their father and stepmother. Subsequently two of the daughters married and became established in homes of their own. Mary Guiso and Letizia Partipillo are the married daughters. Louisa Merlo is the third daughter, and Louie Merlo is the son; these two children continued to live with their father and stepmother until the date of the homicide. Two children were born to the defendant and her husband. David Reghitto is the father of Rosa Merlo. Pietro Debenedetti, who for the sake of brevity will be called Pete, was an employé of the Merlos.
The defendant and her husband were truck farmers; and they lived upon a tract of several acres of land, which was owned by the defendant and is located near a railway station called Santa Rosa. David Reghitto lived near Beaverton, a town about 2 1/2 or 3 miles distant from Santa Rosa.
Joseph Merlo took a wagonload of vegetables to Portland and disposed of them during the morning of October 4, 1915. The defendant went to Portland that morning on the train, and arrived there "a little after 9." She says that soon after her arrival she met her husband, and that, upon noticing that she looked pale and sick, "he suggested that they go to Garbarino's and take something, and you will feel better"; and that they did go to Garbarino's where she took some fernet bitters. David Reghitto also went to Portland on the train on the morning of October 4th and arrived there about 11 a. m. At about 1:20 p. m. the defendant in company with her father boarded an Oregon electric car in Portland, and reached Beaverton about 1:42 p m. They then went to David Reghitto's home, where according to the testimony of the defendant and her father she drank only a part of a glass of wine. At 4:07 p. m. the defendant boarded a car at Beaverton, and arrived at Santa Rosa five or seven minutes afterwards.
Joseph Merlo reached home about 1 p. m. Three hunters came to the Merlo place early that morning, and they were eating their lunch when Merlo arrived home with his wagon. Each of these hunters testified that Merlo was intoxicated when he returned home. The defendant says that when she came from the depot Louisa said that she thought that her father "has got some drink," and that "when he came home from Portland he was quarreling mad." However, Louisa denies making this statement, and asserts that her father was not under the influence of liquor. Pete likewise says that the decedent was sober when he came home.
In its case in chief, the state called Letizia Partipillo, Mary Guiso, Louisa, and Louie, the four children of the decedent Pete, and three other witnesses, who testified about frequent quarrels between the defendant and her husband, and that the quarrels were always brought on by the defendant. When asked what they quarreled about, Louie Merlo stated: "Every time Rosie drank there was quarrels." A number of witnesses swore that on various occasions they heard the defendant threaten to kill the decedent. Some of these threats mentioned by the witnesses were made in the presence of the decedent, while others were not made in his presence.
The defendant, in her case in chief, presented one witness, who told about the defendant and decedent coming to the witness's office in Portland, and that during an ensuing quarrel between the defendant and her husband the latter "got awful mad at her," and he picked up a heavy cuspidor "and wanted to hit her with it." Another witness testified that on Easter Sunday in 1915 he heard the decedent call the defendant a prostitute. Three other witnesses narrated instances calculated to indicate that the decedent was jealous, and that he was an aggressive participant in the quarrels with his wife. Evidence in behalf of the defendant is to the effect that upon three occasions the defendant left her husband and talked about procuring a divorce. On one of these occasions she returned to him only upon his86 promise to do better. The defendant said that three days after their marriage she and her husband quarreled; that he was jealous, cranky, and mean; that he called her "all kinds of dirty names"; that he threatened to kill her many times; that he attempted to kill her 4 years before the homicide; and that she was afraid of him. In addition to what the defendant said about the representation made by her husband concerning his age, she stated that before their marriage he "told me he leave lots of money in the old country and property; and next he said when I get married I don't get anything."
Louisa Merlo testified that when her father came into the house after returning from Portland on October 4th, she prepared a meal for him, and that after eating "he went up stairs to bed." According to the testimony of the defendant, when she reached the house she met and talked with Louisa, and then went up stairs and changed her clothes. Her husband was lying on the bed asleep, but awakened while she was changing her clothes. She testified that he then asked her what time it was, and that when she told him that "it was about half past 4" and that she had just come home, he accused her of "looking around all day with your friend in Portland," applied an opprobrious name to her, tried to catch her, and "he said, 'To-day I am going to fix you."' The defendant says that she ran down stairs and out through the back door into the yard. According to the version given by the defendant, both Louisa and Louie were in the yard, and endeavored to aid their father by attempting to catch the defendant, and that she picked up a stick and kept off the children. The defendant says that Louisa soon went "down" to the cabbage patch where Pete was working, and Louie went either to the barn or to the tomato house. Louie claims that he was in the tomato house all the time, and did not witness or participate in the quarrel. Louisa says that while on her way from the tomato house to the cabbage patch with some boxes for Pete, and when at a point some little distance from the house, she saw her father and the defendant outside of the house and heard the defendant say: "If anybody comes near me I hit them on the head." Louisa insists that she went on down to the cabbage patch, and that she neither participated in the quarrel nor even saw or heard any more of it than as already stated. The defendant contends that after Louisa had gone to the cabbage patch, and after Louie had gone to the barn or to the tomato house the decedent said: "Today I want to get rid of you and your father and mother and every Reghitto that is born the same place that I am." The defendant says she then started to run down to the cabbage patch where Pete and Louisa were, but her husband soon caught her, and "he threw me on the porch like an old shoe." The defendant claims that she then fled through the back door, and after locking it ran up stairs and took refuge in her bedroom, and locked the only door to that room. The defendant contends that her husband entered the house through a window, came up stairs, broke open the bedroom door, and that in order to defend her own life she shot him. The decedent was shot four times; twice in one arm and twice in the body. As we read the record, it is admitted by all that Louisa and Pete were in the cabbage patch when the shots were fired. Louie insists that he was in the tomato house when he heard the shots. The defendant says, however, that he was at, but outside, the house, and was attempting to persuade his father not to break into the bedroom. Upon hearing the shots Louisa and Pete ran to the house, and Louie says that he likewise ran to the house; and they all stated that when they reached the house they found Joseph Merlo lying on the floor in the bedroom.
S. B. Huston, of Portland, and Harry T. Bagley, of Hillsboro (Huston & Huston, of Portland, and Harry T. Bagley, of Hillsboro, on the briefs), for appellant.
E. B. Tongue, Dist. Atty., of Hillsboro, for the State.
HARRIS, J. (after stating the facts as above).
When presenting its case in chief the state called Luigi Beggi as one of its witnesses. After having explained that he had been acquainted with and had worked for Rosa and Joseph Merlo, and that "they used to quarrel" he was asked, "Do you know what they quarreled about?" and his answer was, "No." The witness was next asked, "Who seemed to start the quarrel?" and he answered thus, "Well, I don't know; they started it together; I don't know." Subsequent questions asked by the district attorney and answers given by the witness were as follows:
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