Defendant, Michael Moretti, a Chicago police officer attached for duty with the office of the State’s Attorney of Cook County, was convicted in the criminal court of said county of the murder of 15-year-old Arthur Camino who, together with Edward Salvi, 21 years old, lost his life in a shooting that occurred during the early morning hours of August 24, 1951. The first grand jury to consider the charge against defendant
The bizarre events which culminated in the death of Camino and the judgment against defendant are centered around the loss and recovery by defendant of a .32 caliber gun. Inasmuch as many persons were involved and because the cause has been exhaustively presented and defended, the result has been a voluminous and extremely complex record, much of which must be detailed to meet the errors assigned here.
Turning first to the testimony of the People’s witnesses concerning the events which led to the loss of defendant’s gun, the record discloses that on the night of August 23, 1951, about 10:30 P.M., defendant appeared in civilian clothes at a Chicago tavern known as Tito’s Hacienda. He was accompanied by Eduardo Duran and Alphonse Toribio, with whom defendant admittedly had a slight acquaintance. After several drinks were served, (and defendant denies that he had any or that he is a drinking man,) defendant inquired about one of the owners of the tavern who was absent, and then left with his two companions. The three men returned to Tito’s approximately one hour later, and present upon their return were Frank Navarro, one of the owners, Joseph Soria, the bartender, George and Simon Diaz, patrons, and several other patrons, both men and women. According to the persons named, defendant intruded upon several of those present and comported himself generally in a loud and aggressive manner until Navarro remonstrated with him over his use of obscene language in the presence of the women. Immediately after this occurred defendant made some inquiry of George Diaz relative to his status in the tavern, and terminated the conversation by striking Diaz with his fist. At this Simon Diaz jumped to his brother’s assistance and struck defendant, who then either ran or was pushed out the front door. The Diaz brothers followed and there ensued a fight in the street during which defendant was pummeled until he became either dazed or unconscious and fell to the
: ' Defendant’s version of the events just related was 'materially different. He prefaced his testimony by stating ■that he was on furlough on August 23, that just prior thereto he had engaged in a conversation with his superior in the State’s Attorney’s office, and that he was in the area of Tito’s on the night in question on official business as a result of such conversation. In the same vein, he stated that in the course of his police work he had been given the description of a man named “George” and that it was in connection with this information that he had gone to Tito’s. Concerning the events of the evening in question defendant related that he had chanced upon Toribio and Duran in a tavern across the street from Tito’s and that when he crossed over to the latter place, (and by his version he was in Tito’s only on the one occasion that night,) Toribio followed him. When he arrived at Tito’s ■he ordered coffee, stood at the bar looking around and, upon seeing Toribio enter, inquired of him if “George” was there. Defendant then heard someone shout: “George is my brother,” and was immediately struck on the head from behind. He testified that in the seconds which followed he heard someone say: “It’s that copper again;” that Toribio, reputedly a bouncer for the tavern, attacked him with fists and a bar stool; that he became unconscious and remembered nothing until later in the Maxwell Street police station at which time he discovered his money, his "wallet, and a .32 caliber gun he had been carrying in his hip pocket, Were missing.
The next persons to enter into the sequence of events were Maurice Castillo, later a witness for the Péople, and Edward Salvi, who was to become a victim of the shooting that occurred four hours later. These two young men were
Meanwhile, back at Tito’s defendant recovered consciousness and, according to Navarro to whom Castillo had shown the gun, said he would be willing to forget the whole incident if his gun was returned. Defendant denied making such a statement. Shortly thereafter police officers, whom both Navarro and Alejandre claimed to have called, arrived at the scene and, at defendant’s insistence, took Navarro to the Maxwell Street police station. There the defendant identified himself as a police officer, reported the loss of his gun and other personal effects, and told the officer assigned to investigate the case, that he “was making an investigation and some fellows jumped him and took his gun.” Thereafter, defendant called his superior, chief investigator Gherscovich, informed him of what had occurred, and. arranged for Navarro to. be taken , to the
Upon defendant’s return to the Maxwell Street police station it developed that the lost gun belonged to one of his two brothers, Salvatore or Vincent Moretti, who were Chicago Park District policemen and both of whom came to the station. One was wearing a gun belt and holster and had with him a .38 caliber revolver which the defendant took, saying he wanted to have it in case he had to go out with the Maxwell Street police to continue the investigation of the lost gun. It appears too that the police closed Tito’s Hacienda, removed its license from the premises and stationed an officer there when it developed that the front door would not lock. In addition the bartender, Soria, was jailed and, when testifying, stated that he was arrested by Eisner and “one of the Morettis.”
While the above events were occurring, word was apparently obtained in the vicinity of Tito’s that Castillo had thrown the gun in one of the vacant lots on Blue Island Avenue, because search parties of 15 to 30 people, including residents of the neighborhood and police officers from the Maxwell Street station, were searching for it in the weeds in various vacant lots along the avenue. One person
When the search for the gun first began, Toribio and Alejandre drove to the vicinity of Castillo’s home and finding Castillo, Salvi and Monaco there, brought the first two named back to Blue Island Avenue to join in the search for the gun while Monaco remained in Castillo’s car near the latter’s home. Castillo took his dog with him and, by his version, when the dog became lost during the search, he persuaded Valtierra to drive him and Salvi back to the Castillo home so he could get his own car and conduct a search for the animal. Upon their arrival, Salvi got into the Castillo car with Monaco, while Castillo remained in the car driven by Valtierra. In his testimony, Castillo stated that he then directed the two to return to the lot to look for the gun. It should perhaps be interjected at this point that it is the theory of the defense that Castillo and Salvi were anxious to recover the gun in order to prevent it from falling into police hands with their fingerprints on it, but the testimony of Castillo and other frequenters of the area was that the purpose of the prolonged search was to find the gun and thus relieve Tito’s tavern of some of the legal consequences of the affray there.
Salvi and Monaco followed the car containing Castillo and Valtierra but lost it in traffic. Salvi then drove to the vicinity of Tito’s where Monaco made an inquiry for Castillo. Upon being advised that Castillo was not there, Salvi drove to the Maxwell Street station where Monaco entered and had a conversation with the desk sergeant. Following this they drove to Tito’s and conversed with the policeman
Returning now to defendant at the Maxwell Street station, it appears that his brothers left and that he remained at the station in the company of Eisner and Gherscovich. until approximately 3 :oo A.M. when, at defendant’s request, he was driven to and left at an Athletic Club known as the S.A.C. at Taylor and Miller Streets. This club is 1080 feet from the vacant lot in which Salvi and Camino . were left searching and where the killing occurred shortly thereafter. After arriving at the club, defendant called his brothers again and requested them to bring him clean-clothes as he did not wish to go home and frighten his family with the torn and bloody clothes he had on. Pursu- ■ ant to his request, the two brothers previously referred to, accompanied by Lawrence Moretti, a third brother who was a court bailiff, drove to the club and brought clothes into which the defendant changed. The defendant testified that his brothers then drove away and left him, but it is the People’s contention that such testimony is completely rebutted by the accounts given by eyewitnesses and ear-witnesses to the events which occurred within minutes after the brothers were admittedly assembled at the athletic club.
The versions of the shooting testified to by defendant and Monaco are in complete conflict in all material particulars. Thus, as the parties have done in their briefs,we shall detail them separately.
The only other eye-witness to the shooting was Leonard Monaco, a 21-year-old unemployed laborer, who, as previously related, went to the lot with Salvi at 3:3o A-.M. to continue the search for the missing gun. His version of the shooting was as follows: Just as Arthur Gamino was crossing the lot, Monaco, who was stamping in the weeds there, stepped on a gun which he picked up and handed to Salvi. It turned out to be the .32 caliber gun which Castillo had taken from defendant and thrown away. As he handed the gun to Salvi someone shouted: “Stop, or we’ll shoot, its the police.” Monaco turned around and saw five or six men, some of whom were armed and had gun belts on, approaching from the direction of Blue Island Avenue. One of the men took the gun from Salvi and another shouted: “Grab that fellow,” meaning Gamino. When this was accomplished the men searched the three youths then put them into the back seat of Castillo’s car. Gamino sat on the right of the seat, Salvi in the middle, and Monaco on the left. The men remained outside the car talking and arguing and someone said: “Who is going to take them to the station?” Defendant said he would do so, whereupon one of the other men said: “Promise me you won’t hit the boys,” and defendant replied that he would not. Some of the conversation at this time was in Italian, which the Moretti brothers admittedly could speak, and which Monaco could not understand.
After the conversation, four or five of the men walked
Defendant then leaned back into the car in the leaning position previously described. At the time Salvi was in front, back of the wheel, Monaco was in the left rear corner, and Gamino in the right rear corner. In succession, defendant pointed his gun at each of the three and asked for their names, ages and addresses. After Gamino, the last to be questioned, had responded, defendant ..asked: “How did you kids know the gun was in the lot?” looking at Salvi as he did so. Without waiting for an answer defendant shouted: “Take that,” and started shooting. He shot Salvi first, then turned his gun on Monaco who was sitting immediately behind Salvi. Monaco ducked down, trying to get out of the way, and realized after he got down that he was shot because of blood running down his face. As he was going down, defendant was firing at Gamino and, although Monaco was cross-examined ex- '
Officers who came to the scene of the shooting found the dead bodies of Salvi and Gamino in the car and subse- - quent medical examination disclosed that a bullet had passed completely through Salvi’s head, the point of entry being just in front of the right ear and the point of emergence-being a point beneath the left ear and the angle of the jawbone. Gamino’s fatal wound was caused by a .32 caliber bullet which entered his body in the left chest, to the left of the breastbone, and proceeded on a slight left to right course. It was found in the body just beneath the angle of the right shoulder blade. Gamino also received two through-and-through wounds in the back, just beneath the skin, from bullets which entered from the left side and emerged through the right side. Monaco received wounds from" one bullet which penetrated his left cheek, his lip and a finger, and from another which passed through his hand. Subsequent tests showed the presence of alcohol in ' the blood of Gamino and Salvi and although medical witnesses were of the opinion that it was not sufficient to in- - tbxicate either decedent, a doctor testifying for the defense ; was of the -opinion that in some cases the amounts of alcohol found could cause "early stages of lessened inhibi- • tions-and emotional instability.
Another auditory witness to testify for the prosecution was Alex Valadez, 18 years old, who lived on Blue Island Avenue across the street from the vacant lot. He told of returning home from work at 3:15 A.M. and of being attracted by the sound of screeching auto tires shortly thereafter. Following this he heard a shot, then, after an estimated interval of 15 seconds, heard a series of shots which he counted up to five. Upon looking out a window he saw a man coming from the lot with a gun in his hand and heard something like: “Call the police.” The witness remained at the window 25 to 30 minutes, saw the police, arrive, and then went to the lot where he observed two
It appears that the Maxwell Street station received reports both of the shooting and of Monaco’s appearance at Tito’s in a wounded condition at approximately the same time. One car, bearing officer John McGough and his partner, was dispatched to Tito’s and another, with Sergeant Patrick Mclnerney and officer Michael Buczek, to Blue Island and Cabrini. En route to Tito’s, McGough saw defendant at Blue Island and Polk and was told by him: “I got my gun back, I had to shoot him, it is over in the vacant lot.” McGough then told defendant that another car would answer his call and drove on to Tito’s only to be told that the wounded man there had been taken to a hospital. When the squad car containing Sergeant Mclnerney and Buczek arrived at Blue Island and Polk Streets, defendant approached the sergeant and said: “Sarge, I shot three fellows and they are in that parking lot there and here are the guns I shot them with.” The guns were .38 and .32 caliber revolvers and Mclnerney found that all six bullets in each had been fired. The men then started to the car with Buczek leading the way and when the latter, who had a flashlight, reported there were two men in the car, defendant stated he wanted to go to Bridewell Hospital. Mclnerney, seeing blood on defendant’s shirt and underwear, thought he was shot too and so sent him to the hospital. The officers above referred to, and others, remained
Returning to Monaco, the record discloses that the officer on duty at Tito’s caused him to be taken to a private hospital where he was treated for his wounds. About 5 :oo A.M., Captain Patrick J. Groarle, commanding officer of the Maxwell Street station, came to the hospital and obtained from Monaco a verbal account of the shooting in which he had been wounded. Groarlc’s testimony at the trial reflects that the account then given by Monaco, immediately after the shooting, coincided in all material respects with the testimony he gave at the trial several months later. After learning what had occurred Groark took Monaco to the station where defendant and James A. Brown, the latter an assistant State’s Attorney, were also, present. Brown did not then question Monaco because of his mouth wound but, later in the day, obtained a written statement from him. In the days that followed, Monaco, who was kept in protective custody, testified at the coroner’s inquest, at a bail bond hearing, and at the defendant’s trials, and it is to be gathered from this record that he consistently gave the account of the shooting previously related. Additionally, he was called upon to view Lawrence Moretti, Salvatore Moretti, Vincent Moretti, Anthony Gherscovich and Edward Eisner, but was unable to say whether or not they were the persons he reported seeing with the defendant in the lot just prior to the shooting.
When Monaco was searched at the police station, he had on his person three white tablets and three yellow capsules. Upon analysis a police chemist found the tablets
. Despite persistent inquiries by investigating officials, defendant made no statement concerning the affray until some eighty-four hours after its occurrence and because of such fact his physical condition, both before and after the shooting, was brought to focus before the jury. The ■ defense sought to establish that defendant suffered amnesia as the result of a brain concussion received in the fight and was neither physically nor mentally able to answer questions of make a statement during the time in question. The .prosecution, pointing to the apparent normal manner in which defendant conducted himself in reporting and seeking to investigate the fight, contends that the amnesia was one of convenience which did not occur until after defendant learned there was a surviving eyewitness to the shooting. With regard to such issue, police officers who were with defendant and talked to him immediately following the fight at Tito’s, stated that, while he showed outward signs of having been in a fight, his mental condition was good and he answered questions coherently and- distinctly. Defendant himself testified that his physical condition was , good after the fight and that while he might have had--' slight pains, that he gave no thought to medical attention.’ '• Of similar purport was defendant’s testimony that he felt - all right and physically capable of making an arrest when he took leave of his brothers at the athletic club immediately ■ prior to the shooting. However, when Brown, the assistant State’s- Attorney, .solicited defendant for a statement at: 5 rod- A.M., while: the, principál witnesses, .were :both at the
From the station defendant was taken to St. Anthony’s-Hospital and, although Brown visited him in the morning, afternoon and evening of the same day, no statement was given, it appearing that defendant was still being examined by doctors at the time of the first visit, that he pleaded he was not in physical condition to talk at the time of the second, and that he was sleeping and could not be aroused when the third visit was made. The morning of the following day, Saturday, August 25, Brown and other officials again sought to question defendant but his only responses were that he did not remember, that his “mind” was hurting him, that he felt sick, and that he would make a statement when he felt better. The medical diagnosis of defendant’s condition while at St. Anthony’s Hospital was that he was suffering from a cerebral concussion and the attending physician expressed his opinion at the trial that defendant was not in a fit physical or mental condition to make a statement on the morning of August 24, when Brown paid his first visit. Upon being questioned as to whether the defendant suffered amnesia, the doctor stated such a condition could follow a concussion, but failed to expressly state an opinion that such a result had occurred in defendant’s case. The witness also stated that defendant was treated with morphine to ease his pain and explained that, in certain individuals, the drug could have the effect of impairing the functions of memory. At the same time, however, the doctor stated that defendant had answered all questions put to him coherently, though slowly, and was of the opinion that defendant was physically able to make a statement on Saturday morning, August 25.
It next appears that defendant departed from St. Anthony’s Hospital, of his own free will and under his own
At the trial a number of witnesses testified to defendant’s excellent record as a police officer, and to his general reputation for veracity, sobriety, peacefulness and law-abidance.
The first contention of the defendant to which we shall direct our consideration is that the verdict of the jury is “against the weight of the evidence.” As a basis for such claim it is urged that the evidence does not establish beyond a reasonable doubt that defendant fired the shot which killed Gamino. In the alternative it is argued that the evidence discloses that the shooting of Gamino was done in self-defense. The question of how the victim’s death occurred, together with the question of whether it occurred under circumstances justifying the application of
In the present case the jury accepted the evidence presented by the prosecution as being the true version of the shooting and in so doing rejected the claim of self-defense and the theory that it was Salvi, rather than defendant, who fired the shot fatal to Gamino. The jury’s choice
Defendant’s chief argument under this point is that there is reasonable and well-founded doubt in the evidence as to whether he or Salvi fired the shot which killed
More important, however, we are of the opinion that the theory advanced and the reasonable doubt claimed are
On consideration of all the evidence pertinent to defendant’s present contentions, we conclude that both his
Adverting to decisions of this court which hold that where the evidence is close the record must be free from substantial error, (People v. Etzel,
In reply to the charge that evidence of Salvi’s alleged narcotic addiction was erroneously excluded, the People first contend that the point was not preserved for review because defendant made no offer to prove what officer Quinn would have said if permitted to answer the questions propounded on the subject. From the state of the record, however, it is our judgment that such objection is met by Creighton v. Elgin,
Counsel for the People next argue that evidence of Salvi’s addiction was inadmissible when unaccompanied by evidence that Salvi was a dangerous and violent person when under the influence of narcotics, and by proof that he was under such influence at the time of the shooting. In reply the defense urges that it is a matter of common knowledge “that a narcotic addict, whether under the influence of narcotics or not, is far more likely to commit a crime of violence than he would be if he were not such an addict.” As presented, therefore, defendant’s argument infers that evidence of drug addiction, past or present, is, without more, admissible in a homicide action for the purpose of determining the aggressor.
Although we have found no precise authority upon the question as presented, analogies are at hand to guide us to a solution. In State v. Williams,
Applying the principles of evidence adhered to in the cited cases, we are of the opinion that the proffered evidence of Salvi’s alleged addiction was both irrelevant and incompetent when unaccompanied by any proof, or offer of proof, that he was still an addict at the time of the homicide fourteen months later, that he was dangerous and violent as a consequence of his addiction, that he was dangerous and violent when under the influence of narcotic drugs, or that he was under their influence at the time the homicide occurred. Even assuming that Salvi’s addiction continued until the time of the homicide, we have found no authority, legal or medical, and none has been brought to our attention, which substantiates defendant’s claim that the behavior patterns of addicts, with reference to violence and crime, are so predictable as to be matters of common knowledge and thus forestall the need for their
Defendant also makes the claim that evidence of Salvi’s alleged addiction was admissible to show a motive for resisting arrest, particularly since our Criminal Code (Ill. Rev. Stat. 1953, chap. 38, pars. 192.29-192.32) subjects unregistered users of narcotics to arrest and imprisonment. Although such argument loses much of its force when it is considered that the registration statute did not go into effect until almost two years after the homicide, it is sufficient to point out that the proffered evidence was incompetent for such purpose in the absence of proof that Salvi was an addict at the time defendant sought to arrest him.
The action of the trial court in refusing to permit officer Quinn to testify as to Salvi’s reputation for being a violent and turbulent person, who would be more likely to resist than to submit to arrest, is also urged to have been erroneous. Although much is said in the briefs of both parties on the question of whether or not defendant was the assailant, thus rendering admissible evidence of the vicious disposition of the victim, (See: Cannon v. People,
The next assignment of error is that the court erroneously excluded evidence that Salvi was under the influence of alcohol at the time of the affray. We find, however, (and defendant’s argument under this point admits the fact,) that the court did permit a medical witness to testify that alcohol was found in Salvi’s blood and to express the opinion that while the amount found would not create any functional body disturbance in an individual of Salvi’s physical characteristics, it would, in a hypothetical person who had been reared in a certain society, cause a lessening of inhibitions. As the assignment of error is framed, therefore, it is refuted by the record. It is true, as counsel for the People have pointed out in meeting this claim, that the court sustained an objection to a question which inquired about the effect of the amount of alcohol found on the inhibitions of one addicted to the use of
Although not in terms included in the assignments of error, defendant has extended his argument under the foregoing points to include a claim that the trial court erroneously excluded evidence that the fingerprints of Salvi and Castillo were on file in the Federal Bureau of Investigation. Such evidence, it is urged, reflected upon Salvi’s character and motive for resisting arrest and served to discredit Castillo’s story that the search for the gun was made in order to return it, and thus prevent the closing of Tito’s tavern. The portion of the record upon which defendant’s claim is predicated shows that during the cross-examination of Castillo, a witness for the People, the court sustained an objection to the following question: “And both your fingerprints and those of Salvi are on file at the B. of I. aren’t they?” On the basis of established principles of evidence, we conclude that the court committed no error in sustaining the objection.
By a second group of alleged errors, defendant contends the court erred in excluding evidence (1) that Monaco was an epileptic; (2) that he was lavishly entertained by the State while in protective custody before the trial; and (3) evidence of statements Monaco made on radio interviews.
No argument, either as to law or fact, is presented in support of the third point, thus we may deem the error waived. People v. Johnson,
With regard to the second contention made, the defendant brought out, through cross-examination of Monaco, that the witness was unemployed and that he had been living in a first rate hotel, together with a detail of eight police guards, for about three months prior to the trial,
We now come to the first contention under this assignment of error, namely, that the court erred in excluding evidence that Monaco was an epileptic. As we interpret the pertinent portions of the record and the brief argument advanced, it is the defendant’s contention that evidence of Monaco’s affliction should have been admitted to test both his competency to testify and his ability to remember the events of the shooting. With regard to the first claim, this court pointed, out in People v. Enright,
The next error assigned by defendant is embodied in the claim that the court wrongfully excluded expert testimony that the bullets which killed Gamino could not have been fired by defendant. Aside from the fact that the questions proposed to be put to the experts assumed many facts not within the range of the evidence, it is held that if the subject is not one requiring peculiar skill and knowledge but is within the range of ordinary intelligence and observation, opinion evidence is not admissible. (Hellyer v. People,
The prosecution introduced into evidence, without objection, a transcript of defendant’s testimony before the grand jury and was permitted to read to the jury most of it, save the part where defendant claimed he was on a narcotics investigation. Although the record clearly shows defendant was given access to- the same transcript, it is now urged that the court erred in refusing defendant’s motion that the prosecution be required to produce a full and complete record of the grand jury proceedings, as well as all extrajudicial statements made by any and all witnesses in the case. Defendant has cited no authority in support of his argument “that when privileged or secret
The refusal of the court to give a jury instruction tendered by defendant is also assigned as error. This instruction was as follows: “You have no right to consider any other charge than that contained in the Indictment. The defendant is required only to meet the charge which is set forth in this Indictment and it is your duty to fairly and impartially consider the evidence relating thereto.” It is asserted that without this instruction a jury might find that even if defendant did not kill Camino, he killed Salvi and wounded Monaco and therefore deserved to go to prison. We find, however, that given instruction No. 10, advised the jury that it was incumbent upon the prosecution to prove beyond a reasonable doubt every material allegation of the crime of murder charged against defendant by the indictment, such material allegations being (1) that defendant, with malice aforethought, assulted Camino with a revolver; (2) that, with malice aforethought, defendant discharged bullets into the body of Camino inflicting mortal wounds; (3) that Camino died as the result of such wounds; and (4) that Camino was in the peace of the People at the time of the assault. The instruction concluded with the injunction that if the prosecution failed to prove any of said allegations, it was the duty of the jury to find defendant not guilty. It is thus to be seen the jury was fully instructed that its consideration was
Although the court granted the defense great latitude in the voir dire examination of veniremen, it refused to permit defendant’s counsel to inquire whether they had read a series of articles and editorials in a specific Chicago newspaper. It is here asserted that this restriction was an abuse of discretion which seriously prejudiced defendant’s right to trial by jury. The rule was laid down in Donovan v. People,
The defendant next makes the blanket claim that the cumulative effect of numerous other allegedly erroneous rulings of the court was such as to surcharge the trial with an atmosphere of hostility against him. We have thoroughly examined the scattered and isolated events of the trial upon which this assignment of error is based and find nothing to sustain it. When the entire record is considered it demonstrates the trial was conducted with the utmost caution and fairness, and that the presiding judge was actively conscious of his duty to prevent prejudice or bias in the minds of the jury.
As a final assignment of error, defendant contends all the excluded evidence hereinbefore discussed was competent and admissible on the matter of the penalty to be imposed upon him should he be convicted. He refers, in his argument, only to the testimony that he was in Tito’s on a narcotics investigation, saying that if the jury knew he was on such a “hazardous mission” it is not likely they would have imposed a life sentence. No argument or authority is presented, however, to show how any of the excluded evidence was material and relevant upon the question of penalty. It is stated in Nowacryk v. People,
We conclude that defendant has had a fair trial, free from prejudicial error, and that the verdict of the jury is supported by sufficient credible evidence. We are not, therefore, warranted in interfering with the judgment of the trial court and the same will be affirmed.
Judgment affirmed.