Tortomasi v. State

• Decision Date: 04 April 1939
• Docket Number: 6 Div. 137.
• Citation: 189 So. 901,28 Ala.App. 499
• Parties: TORTOMASI v. STATE.
• Court: Alabama Court of Appeals

189 So. 901

28 Ala.App. 499

TORTOMASI v. STATE.

6 Div. 137.

Court of Appeals of Alabama

April 4, 1939

Rehearing Denied May 2, 1939.

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Charlie Tortomasi was convicted of manslaughter in the first degree and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Tortomasi v. State (6 Div. 520) 189 So. 905.

Beddow Ray & Jones, of Birmingham, for appellant.

A. A Carmichael, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.

BRICKEN Presiding Judge.

The undisputed evidence in this case tended to show that this appellant, defendant below, killed the deceased named in the indictment, by shooting him with a pistol. Further, that the killing occurred about 2 o'clock on the night of September 1, 1936, at a filling station in the City of Birmingham, Jefferson County, Alabama.

The State contended, and offered evidence tending to sustain this contention, that the killing was perpetrated without legal excuse or justification; and in this connection insisted that it affirmatively appeared from the evidence that the killing of Nasser by appellant was committed in an unlawful and revengeful manner. That, the defendant sought out, and for several days hunted the deceased for the purpose of taking his life, and when he found Nasser he shot him and that at that time the defendant was not in peril.

On the trial the defendant pleaded justification under the right of self defense, and contended he went into the filling station, at the time stated, where the deceased was shot, for the purpose of arresting him, and that he had a lawful right to arrest the deceased, and that before he was able to arrest deceased that deceased committed the overt act of trying to get his pistol out of his car, making it necessary for defendant to shoot him in order to protect his own life.

It is clearly deducible from all the evidence in this case that the killing aforesaid grew out of the fact that two or three nights before the homicide a truck loaded with about 300 cases of beer was hijacked and stolen near the City of Birmingham, and that this appellant and his associates, Milazzo and Simonetti, were of the opinion that the deceased Nasser was the person who had committed the act.

We deem it advisable, in order to make clear the respective insistences of the State, and the appellant, to quote from the "Statement of Facts" contained in the briefs of the Attorney General, and also from the briefs, of counsel, for appellant.

In this connection we first quote the following from briefs of the Attorney General:

"Charlie Tortomasi, the appellant in this cause, was charged by indictment in the Circuit Court of Jefferson County with the first degree murder of Joe Nasser. The defendant was tried by jury which found him guilty of manslaughter in the first degree and fixed his punishment at ten years imprisonment in the penitentiary. It is from this verdict and the judgment thereon that the defendant now takes this appeal.

"Statement of Facts

"The evidence introduced on behalf of the State tended to show that the defendant, together with Frank Simonetti and N. J. Milazzo, was engaged in the business of transporting beer and whiskey. That one of their trucks had been hijacked, and that the defendant, Simonetti and Milazzo, believing that Joe Nasser was implicated in the hijacking, set out with the avowed purpose of 'getting' Joe Nasser. That in the early morning hours of September 1st this trio spotted Joe Nasser in a filling station located on the corner of Tenth Avenue and Twentieth Street South in the City of Birmingham. That at this time Simonetti and Milazzo were riding in one car and Tortomasi in a second car. That the two cars pulled up to the filling station, that Tortomasi got out of the car in which he was riding, got into the back seat of the car in which Milazzo and Simonetti were traveling, and using the back door for a shield fired at Nasser, inflicting a fatal wound. The entire case built up by the State tended to show a conspiracy on the part of Simonetti, Milazzo and Tortomasi to kill Joe Nasser to avenge the alleged hijacking.

"The testimony introduced on behalf of the defendant was to the effect that Nasser had been identified as the hijacker and that the three operators of the beer-running racket set out to find him to hold him for the police. That when the occupants of the two cars spotted Nasser they pulled into the filling station with the alleged purpose of detaining him until such time as the police came, and that they were carrying their weapons because they knew the general reputation Nasser had for being a violent, turbulent and bloodthirsty individual. That the fatal shot was fired by Tortomasi because Nasser had reached into the glove pocket of his automobile and had come out with a pistol pointing it at Tortomassi."

From the "Statement of Facts" contained in brief of counsel for appellant we quote the following:

"On the night of the 28th day of August, 1936, near midnight or the early morning hours of the 29th day of August, a blue Chevrolet ton and a half truck, loaded with three hundred cases of Champagne Velvet Beer, near Baker's Dairy, on the Birmingham-Leeds Highway, approximately three and a half miles from the City of Birmingham, in charge of Natch Milazzo, was robbed. * * *

"Within a very short period of time the said Milazzo reported to his employers, Charlie Tortomasi and Frank Simonetti, who are the owners of said truck, all that had transpired in connection with said robbery and felonious assault. * * *

"The deceased, the said Nasser, was unknown to Milazzo, but was known by sight to Tortomasi, and intimately known by employes of the sheriff's office and Police Department, and all parties participating in said conference who knew the said Nasser, agreed that one of the individuals implicated in the robbery from his description and that of the automobile used, was none other than Joe Nasser.

"Thereupon demand was made by Tortomasi and Milazzo that Nasser and his three companions be arrested immediately. Said officers declined to make an arrest or attempt to do so until the identity of Nasser was positively established.

"Substantially all of the day of the first of September, from daylight until late in the afternoon, was given over to a search for Nasser, his automobile, or a man filling the description of that given by Milazzo was apprehended, and also a search for the truck was made throughout a greater portion of the day. * * *

"On the morning of the first day of September, 1936, at 1:30 o'clock, A. M., Charlie Tortomasi and a man named A. M. Walters, were proceeding along 20th Street near the intersection of 10th Avenue traveling in a southerly direction in a 1935 Chevrolet Coach. Immediately behind said vehicle, traveling in the same direction, were Natch Milazzo and Frank Simonetti. They were riding in a Ford Coach. * * At the time all of said individuals were headed toward their

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