Veneziano v. State

297 N.W. 920, 139 Neb. 526, 1941 Neb. LEXIS 98

• Court: Nebraska Supreme Court
• Decided: May 9, 1941
• Docket: No. 30963
• Status: Published

Opinions

Messmore, J.

The information charged the defendant with murder iii the first degree substantially in the form as set forth in Nichols v. State, 109 Neb. 335, 191 N. W. 333, which has been followed from its inception to and including the case of Chadek v. State, 138 Neb. 626, 294 N. W. 384, wherein the form of information was reaffirmed. Defendant was convicted of murder in the second degree and sentenced to 10 years in the penitentiary. As plaintiff in error he brings the record of his trial and conviction to this court for review.

Plaintiff in error (hereinafter referred to as defendant) first contends that the information is insufficient in law, in that it fails to charge the crime of murder in the first degree and lacks a sufficient allegation of intent to commit murder in the first degree. The argument in support of such contention has been carefully reviewed. We conclude that, in view of the decisions of this court dealing with the same subject-matter, such argument is without merit. This court has determined adversely to the defendant on such question in Nichols v. State, supra; Phegley v. State, 113 Neb. 138, 202 N. W. 419; Ringer v. State, 114 Neb. , 207 N. W. 928; Pembrook v. State, 117 Neb. 759, 222 N. W. 956; Sherman v. State, 118 Neb. 84, 223 N. W. 645; Bourne v. State, 118 Neb. 862, 226 N. W. 784; Trosper v. State, 128 Neb. 165, 258 N. W. 62; Chadek v. State, supra.

In McKenzie v. State, 113 Neb. 576, 204 N. W. 60, this court held: “When an information alleges all the facts or elements necessary to constitute the offense described in the statute and intended to be punished, it is sufficient.” Followed in Chadek v. State, supra.

The information in the instant case does not violate due process of law and equal protection of the law as guaranteed by the federal Constitution. In re Robertson, 156 U. S. 183, 15 S. Ct. 324; Bergemann v. Backer, 157 U. S. 655, 15 S. Ct. 727; Caldwell v. Texas, 137 U. S. 692, 11 S. Ct. 224; Chadek v. State, supra. In the Chadek case it was held: “The sufficiency of an information charging an offense under the law of a state (murder in the second degree) is not a federal question.” The information in the instant case is sufficient in. form to charge the offense of murder in the first and second degree.

Defendant next contends that it was error on the part of the trial court not to submit the crime of manslaughter to the jury. This question arises over the sufficiency of the evidence to disclose whether or not there was a sudden quarrel. From the record it is apparent that defendant’s theory is that he was attacked; that from the nature of the attack he had reason to believe, and did believe, there was a design to take his life or do him great bodily injury; that he was justified in killing his victim to prevent loss of his own life, or the infliction of great bodily harm upon him; that is, he killed Tony Tarascio in lawful defense of his own person.

Manslaughter is the unlawful killing of another without malice, either upon a sudden quarrel, or unintentionally, while the slayer is in the commission of an unlawful act. Comp. St. 1929, sec. 28-403.

The record discloses: The defendant, a man 25 years of age, weighing about 130 pounds, was engaged, with Tony Tarascio, in the trucking business for about three months. Both had gone together on the trips, with the exception of the last two, when defendant gave as his reason for not going that Tony carried a gun. The moneys collected from the enterprise and accounts thereof were kept at the home of defendant’s mother, who apparently financed the partnership. The defendant was to handle the money and pay the bills. Tony had not accounted for moneys collected on the last two trips. The defendant went alone to Tony’s home, failed to find him, and later that evening, September 1, 1939, at 9:25, defendant, accompanied by three men, returned to the Tarascio home, defendant’s purpose being to collect some money which he and Tony owed an employee. When they arrived, Tony was near his truck.

Mrs. Tarascio testified: On the evening her husband was killed, he came home from Milwaukee about 6:30; defendant had been there and inquired about him, but he was not at home; Tony returned, about 9:25, with his truck; she was standing by the truck, telling him how it should be parked, when defendant and three others came in a car. The defendant and Simon, an employee, jumped out of the car; at this time her husband “was standing by the fender.” Defendant asked him something, saying “Take this,” and shot at him. He first shot at her, the gun clicked, and he then shot at her husband. When about 10 feet from Tony, defendant said: “Talk now;” she ran and stood in front of her husband and told the defendant not to shoot him; defendant ordered her to move, threatened her, and called her a name. After the defendant shot, he ran away, leaving Simon to help her move her husband’s body to the sidewalk, which they did and took from his pockets a handkerchief, spectacle case, billfold, a comb and keys, but not a gun. A sister of Mrs. Tarascio saw the shooting, but heard no conversation between the defendant and Tony. She testified that at the time Tony was standing by the front fender of the truck, with his right hand in the hip pocket of his overalls; that she heard defendant say: “Let’s go, boys, I got him.”

One witness, who accompanied defendant to the Tarascio home, testified: Tony was east of the truck, leaning on it. Defendant said: “Let me see the bills,” and Tony said: “Come in the house.” Defendant turned and said: “Now, say something,” and stepped toward Tony. The gun clicked the first time, the defendant shot into the ground and then shot Tony. This witness did not see Tony make any motion toward producing a gun and he saw no other gun at the time. After the shooting the defendant ran. Tony’s father-in-law testified that he was home on the evening of the shooting', sitting in front of his house, with his family, Tony’s wife and another daughter; he saw defendant and Simon come and heard an argument, and then “heard one shot quick, and the other two” shots immediately thereafter, and he heard defendant say: “Let’s go.” Defendant then ran away.

The inspector of detectives testified: Defendant came to the station after 12 o’clock on the same night and they had a conversation about the shooting, in which defendant stated, in substance, that he was in partnership with Tony Tarascio, who had hired A1 Simon to go with him on different trips. Defendant asked Simon to go- with him to Tony’s home and have Tony account for some business. After arriving at the Tarascio home, defendant asked Tony to explain about the trip and expenses incident thereto, how much money he had, and to go to his, defendant’s, home and check over the books. Tony said he would not go there, but for them to come to his home; one thing led to another and “they got talking pretty loud, so that Tony straightened up from the fender, on which he had been leaning, with his right hand in his pocket.” The defendant thought he was going to shoot, so he shot first. The shot did not go off, so he fired two more shots; then ran. Defendant said he had purchased a small blue steel gun from a colored man for' the sum of $2.

Defendant’s version of what happened is, in substance: As soon as he got out of the car he asked Tony if he had any trouble on the last trip; Tony said “No;” defendant went back of the truck and kicked the tires; he had worried about them because he had just paid $258 for them. He came back and said: “A1 Simon wants some money; how about figuring up and paying him off.” Tony said: “We will figure at my house from now on.” Defendant said: “What do you mean?” Tony replied: “From now on I take care of all of the money and all of the bills.” Defendant said: “That is not according to the agreement.” One word followed another, and Tony started cursing and said something about breaking defendant’s neck, put his hand in his right rear pocket. Defendant further testified he knew that his gun had an empty cylinder; that he shot once in order to stop Tony from pulling out a gun, and told him: “Don’t take your hand out of your pocket.” He had told him the same thing a short time before; he did not aim at him. After he shot, he stood there and saw Tony’s hand “slide down in his pocket” and heard his wife screaming. Defendant was backing up all the time. He saw Tony fall and ran away. He further testified that Mrs. Tarascio was not near her husband at the time; that when he was examining the tires he saw her down in front of the house; that he did not go to the house to shoot the deceased, but shot him to save his own life. Defendant’s gun was not registered, as provided by city ordinance. He denied that he said: “Now, say something,” or “Let’s go, boys, I got him.” He further testified that the reputation of Tony Tarascio in the community “for being a violent, dangerous man” was bad; that Tony never “completely” got his hand out of his pocket and was four or five feet from him at the time of the shooting.

The witness Simon testified: He went with defendant to the Tarascio home to get some money -due him. When they arrived, Tony, who was 29 years of age and weighed about 200 pounds, was near the front of the truck. The defendant said: “Tony, I want to talk to you.” The witness then related the conversation about the books and money, as heretofore set out; that Tony “started yelling pretty loud about expenses” and told defendant he “would break his neck.” Witness saw that Tony had his hand in the right rear pocket of his overalls, and “it went down in his pocket further;” defendant and Tony talked about five or six minutes. Witness then told about helping to remove the body and taking from the right rear pocket a “twenty-two automatic gun.” Simon and other witnesses testified that Tony was a dangerous man and carried a gun, and that his reputation in the community was bad.

The foregoing constitutes the evidence upon which defendant contends the court should have submitted to the jury the crime of manslaughter.

We conclude that the evidence is insufficient to disclose a sudden quarrel, or in any manner to meet the statutory conception of manslaughter. The defendant purchased the gun the day before the killing and from the time he bought it had carried it, loaded, in his pocket. Two witnesses who accompanied defendant and Simon to the Tarascio home testified that Tony did not change his position of leaning on the truck and did not remove his hand from the right rear pocket of his overalls during the entire episode. The defendant was not in immediate danger; his gun clicked once without firing; he fired one shot into the ground, and the third shot killed the victim, while he still had his hand in his pocket. No motion was made by the deceased to get a gun. No threats were made by him. He did not strike at the defendant, or go toward him as if to attack him. There was some controversy over the books, money and business, but not out of the ordinary. The evidence discloses the shooting was unprovoked. Some question arose, and the evidence is in conflict, as to whether or not the deceased had a gun. Simon told the police that, when he and Mrs. Tarascio removed articles from deceased’s pockets, they found a gun. One time he said it was a revolver; then said it was an automatic, and, when challenged by the widow, he said he might have mistaken the spectacle case for a gun. Deceased never displayed a gun at the time, nor said anything to warrant any one in believing- that he had a gun. Some contention is made that deceased said he would break defendant’s neck, but he surely made no effort to make the threat good, assuming it was made.

We are met with the argument: “It is the duty of the trial judge, particularly, in criminal actions, to instruct the jury as to the rules of law governing the disposition of the cause, whether he is requested to do so or not; and if a charge to a jury, by omission to instruct on certain points, in effect withdraws from their consideration an essential issue of the case, it is erroneous.” Young v. State, 74 Neb. 346, 104 N. W. 867.

The inference to be drawn from the voluntary use of a deadly weapon upon a vital part of another is entirely for the jury, and whether the defendant acted with malice is a question of fact for the jury, to be determined like any other question of fact, from all of the facts and circumstances shown by the evidence. This is true when the facts and circumstances surrounding the killing are fully testified to by eyewitnesses, as in the instant case. Davis v. State, 51 Neb. 301, 70 N. W. 984.

Under the evidence, it is obvious that, if we give to it a proper legal construction and application, the defendant was guilty of murder in at least the .second degree, or he was entitled to an acquittal, because he acted in defense of his life. It was the theory of the prosecution that the crime was either murder in the first degree or murder in the second degree; the evidence tended to establish such theory, and the ingredients of the offense of second degree murder are present. The defense was that the defendant lawfully killed the deceased in order to save his own life. This was the issue submitted to the jury by the instructions of the trial court. No instruction, defining manslaughter, was requested at the time, and it is apparent from the. evidence that such an instruction would have been inappropriate. The court is only required in instructions to state the law applicable to the facts proved and those which the evidence tends to prove. Clark v. State, 79 Neb. 473, 113 N. W. 211, on rehearing, 79 Neb. 482, 113 N. W. 804; Kennison v. State, 83 Neb. 391, 119 N. W. 768; Williams v. State, 103 , 174 N. W. 302; Braunie v. State, 105 Neb. 355, 180 N. W. 567; Simmons v. State, 111 Neb. 644, 197 N. W. 398; Wever v. State, 121 Neb. 816, 238 N. W. 736.

Other assignments of error are without merit. For the reasons given in this opinion, the judgment and sentence of the trial court are

Affirmed.