169 Wis. 75 | Wis. | 1919
It will be seen from the foregoing statement of facts that as to some of the defendants the only proof of the state as to either offense charged in the information rested solely upon an alleged conspiracy on the part of all the defendants to encompass the assault charged. It was proper to show, if it could, that the manner in which each defendant became ah accessory before the fact was through a conspiracy entered into before the shooting took place at the third meeting. If such conspiracy was established, then it became a matter of secondary importance just what part each defendant topk in carrying it out. If, on the other hand, the conspiracy, was not established, and if there was no concert of action agreed upon or understood before the assault began at the third meeting, then it is of the utmost importance to determine just what each defendant said and did at the time of the assault, since he could be held only as an active participant therein.
It appears clearly enough that most of the defendants were angry at Guliani and his party. Whether it was because he spoke about the war and the citizen’s duty to the state, or whether it was because he was not a Catholic and spoke slightingly about that religion, is not clear. Probably because of both, but perhaps chiefly for the latter reason. It is also clear that the defendants or some of them entertained the thought of disturbing the meeting, but the execution of that thought would be only a misdemeanor, and those joining in it could not be held for the crime charged unless the jury found that its execution would probably lead to an assault with intent to murder. This question the court refused to submit to the jury though in various forms requested to do so.
In addition to the paucity of proof showing a conspiracy to commit the offense charged, there is considerable undisputed evidence that the assault as made was the independent and spontaneous act of a few of the defendants, precipitated
This naturally leads us to an examination of the testimony as to what part, if any, each defendant took in the assault. The substance of such testimony has been set out in the statement of facts and it is unnecessary to repeat it here. From it we conclude and determine that there is no evidence whatever that Pasquale Nardini and Angelo Pantaleoni took any part at any time in any assault whatsoever, and that as to them the judgment is reversed, with directions to discharge them from further custody.
It is quite probable that Peter Bianchi, Daniel Belucci, and Louis Serafini were not present at the assault. But be that as it may, it is quite certain that as to them and as to Mary
As to the defendants Gavina Dmurra and Bartolo Testolin we conclude the evidence is of a character which would, with the conspiracy issue out, warrant the jury, under proper instructions, to find them guilty as charged; or to find them guilty of an assault with intent to do great bodily harm; or to find them guilty of a simple assault; or to acquit them. Since, for reasons hereinafter to be stated, error intervened prejudicially affecting their conviction, the judgment as to them is reversed and the case remanded for a new trial.
There is credible evidence that the defendants Vincent Fratesi and Amedeo Lilli were armed with revolvers and that they used the same during the assault. .This evidence, if believed, and we must assume the jury did believe it, warrants their conviction in spite of any lack of conspiracy, unless other prejudicial error intervened to affect the verdict based upon such evidence. For the reasons hereafter stated we conclude that as to them no prejudicial error affects the verdict, and as to them the judgment is affirmed.
We have thus briefly and early indicated the result reached to the end that our further inquiries may be directed to only such assignments of error as affect the convicted defendants or those awarded a new trial.
The clerk of the municipal court of Milwaukee county is ex officio clerk of the district court of Milwaukee county and he was authorized to issue the warrants under which the defendants were arrested. The district court act expressly so provides. Laws 1899, ch. 218, sec. 9; Milwaukee County Laws, sec. 1347. Nor was it necessary that the record show that the complainant was orally examined under oath by the magistrate issuing the warrant. A sworn complaint in writing sufficiently, satisfies the calls of sec. 4776, Stats. State ex rel. De Puy v. Evans, 88 Wis. 255, 60 N. W. 433. So, too, an information may be filed for an offense different from that charged in the complaint. Sec. 4653, Stats.
All the defendants except Peter Bianchi requested a change
Officer Templin was examined on the preliminary examination of defendants Vincent Fratesi, Amedeo Lilli, and Peter Bianchi. Officer Weiler was examined at the preliminary examination of defendants Adolph Fratesi, Louis Serafini, Daniel Belucci, Gavina Denurra, Pasquale Nardini, Mary Nardini, Angelo Pantaleoni, and Bartolo Testolin. Templin and Weiler were killed in the bomb explosion and a transcript of their testimony was offered in evidence by the state. Upon objection made by the defendants the court ruled as to Templin’s testimony taken at the preliminary examination of Vincent Fratesi, Amedeo Lilli, and Peter Bianchi, “I shall receive the testimony so, far as Vincent Fratesi, Amedeo Lilli, and Peter Bianchi are concerned.” When
On September 12th the defendants Peter Bianchi, Vincent Fratesi, Amedeo Lilli, Angelo Pantaleoni, Pasquale Nardini, and Adolph Fratesi were taken to the office of the district attorney, were sworn and examined by him, and their testimony reduced to writing. At the trial such testimony was offered and received in evidence over the objection of the defendants, presumably on the ground that -it was voluntarily given. In our criminal jurisprudence there is no room for such procedure. Voluntary confessions and statements made by a defendant may be used against him upon his trial, but that does not contemplate or include a sworn examination by the district attorney. There is no authority for such examination. While the administration of the oath was in fact but an idle ceremony, it by no means follows that the
To the defendants the examination no doubt assumed the form and sanctity of a judicial proceeding. The oath administered required them to tell the truth. It will not lie in the mouth of even a prosecuting officer, much less of a court, to say that an oath carries with it no sanction. While good ethics and morals require the truth to be told upon all occasions, the necessity for so doing is in law regarded as accentuated by the administration of the oath. The sworn witness is under a species of extra-moral duress to tell the truth. When that fact is coupled with the fact of the illegality of the proceeding, it will be readily perceived that the testimony given by them falls neither under the head of what is ordinarily understood to be a voluntary statement or confession, nor under that of testimony taken in a lawful judicial inquiry. In a criminal case a defendant cannot be compelled to testify. When he does it is his voluntary act, and his statements so made are regarded to be voluntary and therefore admissible in evidence against him. Here the testimony given was not voluntary. This court recognizes the doctrine that a statement may be voluntary though not vol
It is idle to discuss whether they worked prejudice as to those of the defendants that are discharged. But since Vincent Fratesi and Amedeo Lilli are held under the conviction, it becomes necessary to determine whether their statements erroneously received in evidence materially affected the verdict as to them. We deem it unnecessary to give even a synopsis of their statements. It is sufficient to say that they relate almost wholly to their connection with the hall or circle at 300 Bishop avenue and with their belief or disbelief in anarchy. They both contain disclaimers of any knowledge of or connection with any conspiracy whatever, and denials of the fact that they took any part in the assault at the third meeting. It is therefore evident that their statements bear upon the subject of a conspiracy and not upon the assault. At least no damaging fact as to the assault is contained in either statement.
As before indicated, the evidence against these two defendants as active participants in the deadly assault is quite clear and satisfactory and supports the verdict. That being so, it becomes quite immaterial whether or not they were anarchists and whether or not they joined a conspiracy as charged. The result we reach is that as to these two defendants the verdict would probably not have been different had their statements been excluded. Hence their admission was not prejudicial error as to them.
The only explanation that can be given to the fact that all the defendants were convicted of the crime charged in the first count of the information and that all received the same sentence of twenty-five years in the state prison is that the jury found a conspiracy to commit such offense existed before they came to the third meeting and that the trial judge took the same view or he would not have made their sentence
By the Court. — As to the defendants Vincent Fratesi and Amedeo Lilli the judgment is affirmed. As to the defendants Gavina Denurra and Bartolo Testolin the judgment is reversed, and the cause remanded for a new trial. The warden of the state prison will deliver them into the custody of the sheriff of Milwaukee county, who will hold them in custody until further order of the court. As to the defendants Pasquale Nardini, Angelo Pantaleoni, Peter Bianchi, Daniel Belucci, Louis Serafim, Adolph Fratesi, and Mary Nardini the judgment is reversed, and the cause is remanded with directions to discharge them from further custody. The warden of the state prison will deliver them into the custody of the sheriff o.f Milwaukee county, who will hold them in custody until discharged pursuant to this direction.