Commonwealth v. Teregno

Braley, J. The indictment having charged in three counts and the jury having found, that Raffaele Cammerota was feloniously killed by the defendant Teregno, who has been convicted of murder in the first degree, and the defendant Maria Cammerota, wife of the decedent who has been convicted of manslaughter, the case is before this court on exceptions taken by Teregno, which will be considered in the order of presentation. While the indictment does not charge that an axe was used as the lethal weapon, yet evidence that an axe had been found at the place of the homicide on which “there was a hair and . . . white substance," was admissible, as well as the evidence showing the appearance of the decedent’s body on the following day, and the condition of the premises as observed by the witnesses. It , was not too remote in time, and the environment as portrayed would enable the jury to understand and properly to apply the subsequent evidence descriptive of the means used, and the manner whereby the homicide was accomplished. Commonwealth v. Powers, 123 Mass. 244. Commonwealth v. Holmes, 157 Mass. 233. Laplante v. Warren Cotton Mills, 165 Mass. 487. The defendants were tried jointly aqd the confession of each, not having been improperly obtained, was admissible under the instructions of the judge, that the jury were to consider the admissions as affecting only the party making them. Commonwealth v. Storti, 177 Mass. 339. Commonwealth v. Killion, 194 [59] Mass. 153. Commonwealth v. Richmond, 207 Mass. 240. Commonwealth v. Borasky, 214 Mass. 313. Nor can we hold that the evidence of Civitella Cammerota, daughter of the decedent and of Maria, was improperly admitted. It is true she was only seven years of age, yet, the presiding judge after a preliminary examination having found that she was a competent witness, no error of law is shown. Commonwealth v. Marshall, 211 Mass. 86, 90, and cases there collected. The questions asked by the district attorney in cross-examinatian of Teregno who voluntarily became a witness in his own behalf, to the admission of which he excepted, assumed that illicit relations had existed between him and Mrs. Cammerota. But the entries in the defendant’s “sort of diary,” as well as other evidence already before the jury, left, if believed, no doubt of the fact, and the questions which in substance were, “Aren’t you man enough to take the blame for your relations with Maria yourself,” were permissible within the discretion of the trial judge. It is sufficient that the legal rights of the defendant do not appear to have been invaded. Commonwealth v. Johnson, 188 Mass. 382. Jennings v. Rooney, 183 Mass. 577, 579. The defendant’s request that a verdict of not guilty should be ordered was denied rightly. If there was some evidence that a blow from a blunt instrument possibly might have caused death, there was plenary proof of the allegations of the indictment. The jury moreover were expressly instructed, that if they were not satisfied beyond a reasonable doubt that the decedent was killed by the use of a revolver and a knife, or of a revolver alone, the defendant should be acquitted. The remaining error at the trial urged is, that counsel for Mrs. Cammerota in his closing argument to the jury having referred to the defendant as a “slacker,” meaning “a man who refuses to fight when our homes are at stake has no right to get the benefit of our country,” the court after the defendant’s counsel has objected “ to his argument on that point, ” merely said, “ He may proceed. ” But without intimating whether the jury should have been instructed to disregard the argument, it is sufficient to say that no exception having been taken, the question is not presented by the record. The defendant’s exceptions to the denial of his motion for a [60] new trial because the verdict was against the evidence and the weight of the evidence and the law as given to the jury by the court, and the existence of irregularities during the trial which engendered prejudice and prevented substantial justice, must-fail. The granting or denial of the motion was wholly discretionary. Garrity v. Higgins, 177 Mass. 414. Capron v. Anness, 136 Mass. 271. Lopes v. Connolly, 210 Mass. 487. Commonwealth v. Russ, 232 Mass. 58, 82. We have fully examined and considered all the questions raised by the record, and finding no error of law the exceptions must be overruled. So ordered%