State v. Albanes

83 A. 548, 109 Me. 199, 1912 Me. LEXIS 72

• Court: Supreme Judicial Court of Maine
• Decided: June 6, 1912
• Status: Published

Opinions

Cornish, J.

At the October Term 1911, of the Supreme Judicial Court for the county of Oxford, the respondent was found guilty of the murder of his wife, Rosina Albanes on'May n,' 1911. He thereupon filed a motion for new trial which was denied by the presiding Justice and an appeal from this decision was taken to this court under R. S., Ch. 135, Sec. 27. Various exceptions were also reserved. We will consider the appeal first.

Appeal.

The single question before this court on this branch of the case is whether in view of all the testimony “the jury were warranted in believing beyond a reasonable dou'bt and therefore in finding, that the defendant was guilty of the crime charged against him.” State v. Lambert, 97 Maine, 51.

In this State degrees of murder have been abolished and the crime as now defined by R. S., ch. 119, sec. 1, is the unlawful killing of a human being with malice aforethought either express or implied.

A careful study of the occurrences which were either uncontroverted or which, from the evidence, the jury were warranted in believing took place, not only justified' but demanded the verdict rendered. In fact a verdict for a less crime would have been a miscarriage of justice. The respondent was a man of mature years, a native of Italy, who had been in this country since 1887, and in this State about twenty years, ten of which were spent in- Lewiston and ten in Rumford. His domestic relations had been unpleasant for several months because of his wife’s alleged relations with one Nicola Balistiri, and the respondent had brought a libel for divorce against her on the ground of adultery, returnable at the May Term 1911 of the Supreme Judicial Court for Oxford county. On the nth day of May a hearing was had in the court, then being held in Rum-ford, on the wife’s motion for a continuance of the case to the October term, the motion being strenuously resisted by the husband. The presiding Justice granted the continuance. This was between 12.30 and 1 P. M. When the decision was announced the respondent’s expression was noted. His face was “pallid and colorless.” He went directly to hi-s house, where his wife still lived, and ate dinner, his wife and a boarder being at the table. When the dinner was finished the boarder withdrew but the respondent remained. The wife was removing the dishes from the table and as he described it to the officer, she threw up her head, laughed, and said “I told you I would beat you, I could get my case put over to October.” He told her to keep still but she continued to laugh at him, whereupon he drew a revolver and fired three shots, each of which took effect in her body as she faced him. She fell upon the floor and he left the house, sought an officer, and was placed in the police station at his -own request. If malice in law can 'be implied from the intentional doing of a wrongful act or of an injury to another without legal justification or excuse, the implication exists here in full force.

But the State’s case did not stop here. There was reliable evidence of express malice. On May 8, the attorney for the wife in the divorce proceedings met the respondent in the banking room of the Rumford Falls Trust Co. where the respondent signed and gave to the attorney a check for the amount due for attorney’s fees and separate support pending the libel, as decreed by a Justice of this court at a prior hearing, and then repeated a most significant threat which he had previously made to his wife. The attorney’s testimony is as follows: “While we were there he said to me, T have told my wife what I should do if she put the case over.’ I replied to him that she had told me what he had said, that he said he would kill her; ‘but’ I says, ‘Joe you won’t do that.’ He says, T shall kill her if the case is put over.’ ” Here then we find a threat made first to the wife herself and then to her attorney, a threat which was carried into fatal execution three days later within an hour after the case was “put over” by order of the presiding Justice.

All the requirements of murder have been met, premeditation, malice and the killing.

But the defendant seeks to reduce the crime to manslaughter by injecting into the wife’s remarks which preceded the shooting, the assertion that the baby in the cradle did not belong to him but to Nicola, and that this remark coupled with some letters in his possession showing their guilty relations, released the clutch on his mental machinery and caused him to fire the fatal shots in the heat of provoked passion. What his wife actually said was a question of fact for the jury to decide, and they were warranted in taking the State’s view. The evidence comes on the one side from the officer to whom the respondent made his statement soon after the homicide, and on the other from the respondent himself when on the stand. The officer testified that he never heard of the taunt in regard to the paternity of the child until he heard it in court. The repondent’s testimony on this point lacks probability. It would hardly seem reasonable that the wife who was contesting the divorce should admit the charge on which it was based; while the testimony of the officer is perfectly consistent with what had been the immediate subject of contention between the respondent and his wife, viz, the postponement of the trial of the libel. So far as the letters were concerned, the respondent admits that they had been in his possession since the previous September or October and had at least been partially translated to him before the full translation a few days prior to the shooting. Of their purport he must have been fully aware, and there could have 'been no sudden shock brought on by the news of his wife’s infidelity that swept away his reason, because in the libel for divorce which he had signed and brought on the third day of April, the sole cause alleged was adultery. The respondent therefore for a long time prior to the nth of May, had believed his wife to be unfaithful and was attempting to divorce her on that ground. If his testimony of her statement to him was true it revealed little that was new to him. .But the probabilities are strongly against 'its ever being made.

Without discussing the evidence further it is the opinion of the court that the jury were warranted in finding that a husband who, armed with a revolver, fired three shots at his defenceless wife with no more provocation than is here revealed, and especially after twice making threats to kill her if the divorce case were continued, who turned and left her lying upon the floor in the blood that was pouring from her wounds, without attempting to ascertain whether she were living or dead, or to call a physician to her assistance, (although she lived three hours and regained consciousness before her death), but sought his own safety in delivering himself up to the officers, who never afterwards manifested the slightest remorse or even regret at his deed but rather continued to cherish his hatred towards her, for though a man of some property, when asked by the undertaker on the next day after the homicide when he wanted her buried,, answered “tonight,” and when asked in what price casket, told the undertaker to bury her in a pine box if he could not get a casket for ten dollars, is, according to the laws of Maine, guilty of murder and nothing less.

Exceptions.

Although several other exceptions were taken only three were pressed in argument, viz:

i. The exclusion of certain evidence of John Zacolli, offered by the respondent as to what conversation he had with the deceased on the day before the shooting and when objected to by the State, the counsel for the respondent stated the object of the testimony as follows: “I wish to show what she had to say about Joe Bill’s manner.” The ruling was correct. The evidence offered was merely hearsay and clearly inadmissible. In this connection the counsel challenged the ruling of the court, that on the question of admissibility of evidence charging the deceased with adultery, “they must be confined to acts occurring within one, two, three or four days prior to the homicide.” No specific evidence was offered on this point and ruled upon, and had the same been offered it would properly have been excluded unléss knowledge of the facts could have been brought home to the respondent by other evidence. The mere facts were not admissible per se. Knowledge of them by the respondent would have been, but the record is silent as to any offer to connect such facts with the respondent.

Moreover the exclusion was harmless in any event because the record shows that the respondent had been informed of his wife’s relations with Nicola long before and on that information had brought his libel for divorce. Harmless error if such there was, should not be permitted to overturn a just verdict.

2. The second exception is based upon the exclusion of certain evidence offered by the respondent tending to show his good character. The respondent had raised this question as he had a legal right to do and had been permitted to introduce the testimony of two of the leading citizens of Rumforcl who had known him during the preceding ten years that he had lived in that town. The respondent then offered the testimony of two other witnesses who lived in Lewiston, to testify as to his reputation while in that city during a period from ten to twenty years prior to the trial.

In other words the respondent was permitted to introduce evidence of his general reputation for peaceableness in the community in which he then lived and had lived for a period of ten years, but evidence of his reputation in another community which he had left ten years before was excluded. There was no error in this ruling. The inquiry under ordinary circumstances is confined to the place of residence at the time of trial provided the residence there has been of sufficient length for a reputation to have been acquired. This is especially true where the evidence so offered is not controverted by the other side. If a person has lived but a short time in a community it might be proper and even necessary to go to his former home in order to establish his reputation. But that is not this case. Rumford- had been the respondent’s home for ten years, his reputation was well established and under these circumstances to go back to a prior home was too remote both in time and place. Moreover it is well settled that whether the evidence, offered tc show a person’s reputation, is irrelevant because too remote in time or the community is too distant in space, is a preliminary question to be determined by the presiding Justice in his discretion, and his ruling on this point will not be disturbed unless the discretion has been grossly abused. And further, the court has the power to impose a reasonable limitation upon the number of witnesses who shall -be permitted to testify on the issue of character.

These are all familiar principles of evidence. 3 Ency. Ev. p. 30-32; Cyc. Vol. 16, p. 1276 et seq.; State v. Potts, 78 Iowa, 756, 5 L. R. A., 814, and they were carefully observed in this case. The respondent had the benefit before the jury, of the evidence of two of his neighbors who had known him in Rumford for the past ten years, and their statements were not attacked by the State. Certainly he was not prejudiced because the inquiry was not extended further and two other witnesses who had known him at a remote time and in a somewhat distant place were not permitted simply to corroborate them. Their evidence at most was merely cumulative.

3. The third exception rests upon the admission of the evidence of one Voter, an undertaker and a witness for the State, as to a conversation which took place the next day after the homicide and which has already been referred to. The testimony is as follows: A. I went to the lock-up to. ask him what he wanted done with the remains of his wife.

Q. What did he say?

A. I asked him when he wanted her buried. He says “tonight.” I told him I couldn’t do it on such short notice as that. ... I asked him what price of casket he wanted. He said, “Put her in a ten-dollar one.” I told him I had never seen one like that; we didn’t have any at that price. He says, “If you haven’t got -one,, telephone for one.” I says, “I don’t know where you can get a casket for that price.” • He says, “Then put her in a pine box.” '

In his charge the presiding Justice instructed the jury to disregard this testimony, but this caution was unnecessary, because the evidence was admissible as bearing upon the question of express malice, tending to show the attitude of mind at the time of shooting, its weight, of course, being for the jury. This conversation took place twenty-four hours after the shooting. The respondent had had time to repent, if the deed had been done in the heat of passion. But his words indicated neither regret nor remorse but continued hatred.

Upon the question of express malice his heartless replies were clearly admissible. Wilkinson v. Drew, 75 Maine, 360; Spear v. Sweeney, 88 Wis. 545, 60 N. W., 1060; Lewis v. State, 29 Tex. App., 201, 15 S. W., 642; Duncan v. Commonwealth, (Tex.) 12 S. W., 672.

A. careful study of the whole record fails to reveal any error on the part of court or jury and therefore the entry must be,

Appeal dismissed.

Motion for new trial denied.

Exceptions overruled.

Judgment for the State.