160 Wis. 161 | Wis. | 1915
' The plaintiff in error (hereinafter called the defendant) was convicted of murder in the first degree on January 6, 1914. The verdict was rendered on April 11, 1914. A motion for a new trial was denied by the court, and on May 11, 1914, the court sentenced the defendant to imprisonment for life in the state prison. The defendant prosecutes a writ of error to review the judgment of conviction.
It appears that the defendant and the deceased are Italians; they were husband and wife and had been married fifteen years; they had no children; three children of defendant’s deceased sister resided with them, named and of the ages, respectively, Kosie De Gratiano nine years, Nofrio seven years, and Yincenzia four years. The deceased owned a homestead at 374 Cass street in the city of Milwaukee, and he and defendant occupied the upper part of it. The lower part of the house was occupied by a family named Foti. The members of the Foti family were the husband' Angelo, the wife Mary, their children, a brother, and a cousin.
During the evening of January 5, 1914, at about 1 o’clock, the deceased, the defendant, and the three children living with them visited the cousin of the defendant, Dominick Nuncio, and wife, where they spent the evening, and while there they drank some beer. The deceased, the defendant, and children returned home at about 9 :30 o’clock. The first information of Musso’s death came to Isador Aiello, who lived in a house at the same number, but situated on a part of the lot nearer the street and in front of the Musso house and in which Nofrio-Aiello conducted a bakery. At about ten minutes past 12 o’clock in the night the defendant came to his place and told him Musso was dead. He went with her to the Musso rooms and saw Joseph Musso lying in bed dead. He felt of his body and found it was a little warm. The de
Dr. McGovern made examinations of Musso’s body on January 6th, Jth, and 10th at the morgue and he and Dr. Young made an autopsy. They testified in effect that the deceased was a man of about the height of five feet four inches and estimated his weight at 140 pounds. They found cyanosis of the skin of the face, neck, and ears; the face and neck were covered with a great many abrasions; there were small abrasions on the right frontal eminence, on the nose, nose tip; eleven abrasions on the left side of the face above the lower margin of the chin, a large one on the side of the chin below
Counsel for the defendant contend that the evidence is wholly insufficient to sustain the jury’s finding that deceased came to his death by strangulation and that strangulation and suffocation were produced by some one other than the de
It is strenuously argued that the proof wholly fails to show that the defendant is the person guilty of having committed the homicide. This claim rests mainly on the ground that the court erred in concluding that the evidentiary facts and circumstances, aside from the evidence of the child Rosie, justify the inference of defendant’s guilt. Rosie testified that the defendant is her aunt and the deceased is her uncle. She relates the facts of the family’s visit to Nuccio’s, their return home and retiring for the night. She states that she heard defendant and her- uncle quarrel over money and that defendant choked deceased, and that lie thereafter retired to his bedroom and went to bed. She made statements to the effect that defendant removed deceased’s shirt and burned it; that defendant changed the bed sheets, and that defendant put her skirt with blood spots on it into the bag found by the
The defendant had been somewhat sickly, weighing about 110 pounds. She had no marks nor abrasions on her person after the alleged homicide. She testified to the effect that she and Musso had no trouble of any kind; that no other person came to their rooms that night before his death. Her various narratives of the" details as to what took place in the house that night, what Musso and she did, her explanations of what underwear he wore the night of his death and after, her destruction of the old underwear, and many of the details need not be repeated here. An examination of them shows that they vary in material parts at different times. It appears that when others came to the Musso home the defendant related these circumstances to them. Among others
Considering the case from the viewpoint of the trial court, was he justified in ruling that the facts and circumstances of the case, established by evidence other than that of Rosie, warranted the inference of defendant’s guilt? We are persuaded that this conclusion of the court is well sustained by the record. In the foregoing statement we have given the salient features of the evidence. It appears from defendant’s declaration and otherwise that deceased arrived home at about 11:30 o’clock; that she met him at the door and locked it after he had entered; that no other human being aside from herself and the children were in the house; that within the succeeding forty-five minutes after his return home he had expired; that when she gave the alarm of his death to the neighbors, one of whom immediately came to Musso’s rooms, his body was found in an orderly position in bed and so cooled that upon touching it he found it was somewhat warm. The evidence also warranted the inference that the accused had secreted the skirt she wore during the evening, having human blood spots on it; that she had destroyed a part of deceased’s underwear which he had on during the day and probably in the night, and that the part remaining thereof had human blood spots on it. Defendant’s various statements and explanations of decedent’s actions after his return home at 11:30 o’clock and of her conduct from that time to the time she states she found him dead are pregnant with suggestions that they are not based on truth. The details of what occurred in the house and her conduct in relation thereto are characterized as improbable under the conditions testified to
It is argued that it was impossible for defendant, a woman who is somewhat frail in physique and light in weight, to have overcome the resistance the decedent must have exerted in defense of his life when ássailed by her as charged. We are not- persuaded of the correctness of this claim. It is not a matter of common knowledge that in such an encounter it is physically impossible for a woman like defendant to accomplish the act charged; and we must keep in mind that there is ample evidence to show that the deceased was intoxicated when he returned home, which naturally tended to lessen his abilities of self-defense against an assault by defendant. Under the conditions shown this was a question for the jury, and their conclusion against the accused is amply sustained by the evidence. When the jury found that the decedent had been feloniously killed, they were justified in their conviction that defendant was guilty of the killing.
We have examined the exception to the admission of the evidence of Drs. McGovern and Young and also the exception to the action of the court in proceeding to fine the witness D. Nuccio for a contempt in the presence of the jury, and conclude that the rulings and proceedings were not prejudicial and erroneous. The exceptions must be held not well taken.
It is urged that the court committed prejudicial error in denying the application to open the case and permit the defendant to introduce evidence to rebut the testimony of Dr. McGovern to the effect that he was present and assisted in photographing the body of Joseph Musso. - It appears that
It is further urged that the court erred in denying defendant’s motion to grant a new trial on the ground of newly discovered evidence. The affidavits of Drs. Becker, Beffel, and Koeppel were submitted on this motion. They show what steps the doctors took to examine the body of Joseph Musso after trial on April 23 d. There were also submitted on this motion the affidavits of the witnesses who claim to have been present when the decedent’s body was photographed denying Dr. McGovern’s presence, the affidavits of persons and a letter of Rosie’s tending to impeach her statements, and the affidavit of defendant’s counsel setting forth their diligence and their inability to produce the newly discovered evidence on the trial.
We need not consider the points as to the impeachment of Dr. McGovern and of the child Rosie for the reason, heretofore adverted to, that had such evidence been submitted to the jury the record does not indicate that a different verdict would have been found. The facts disclosed by the examination of Musso’s body by Drs. Becker, Beffel, and Koeppel do not present a ground for a new trial. The opinion of these experts is not of sufficient weight to warrant this court in overruling the trial court in denying a new trial, nor do the facts showing what diligence was exercised establish that the omission of such examination before trial is excused. It must
By the Court. — The judgment is affirmed.