On Motion to Remand.
Defendants were prosecuted under an indictment for murder; Prank Guagliardo, having been found guilty as charged, was sentenced to death, and loriando Guagliardo, having been found “guilty without capital punishment,” was sentenced to imprisonment at hard labor for life. They have both appealed. The transcript contains many bills of exception reserved by their counsel during the progress .of the. trial, comparatively few of which are insisted upon in this court. All of the testimony taken on the trial was reduced to writing, made part of the bills and of the statements per curiam thereto attached, and has been copied in the transcript. Por the purposes of a motion to remand, filed on behalf of defendants, as also
The defendants are father and son; the father (loriando Guagliardo) having been about 66 years of age at the time of the murder, and the son a few months past the age of 17, though weighing 275 pounds, and a powerful youth. The father is an illiterate Italian; the son a native of this state, with an incomplete common school education; the name “Jordano” has been adopted by the family, instead of Guagliardo, because of the difficulty experienced by the people with whom they came in contact in pronouncing and spelling the name last mentioned, which, however, they continue to use in business transactions of a more formal character. At some time prior to the homicide here in question the elder Guagliardo and his wife and daughter were keeping a small retail grocery on premises owned by them in Gretna, but, concluding to retire from that business, had rented the premises to Charles Cortimiglia, a native of this state, who, with his wife, Rosie Cor-timiglia, took over the business. Thereafter the Guagliardos decided to resume their business, and requested the Cortimiglias to vacate their premises, which request was followed by an action for and their ejection, under a judgment of court, the severance of friendly relations, the acquisition by the Cor-timiglias of a place of their own, and the establishment of their business in the immediate neighborhood. The Cortimiglias were young people (the wife being about 21 years of age in 1919), and were the parents of a little girl, aged about 21 months, who slept with them in a room adjoining their store, and who, notwithstanding the coolness between the families, continued to be a visitor at the home and store of the Guagliardos. On the morning of 'Sunday, March 9, 1919, the Cortimiglias were found in their bed with their skulls crushed, or split; the child being dead, the mother totally unconscious, but breathing, and the father barely able to indicate that he desired his brother-in-law to be sent for.' The mother and father were at once removed to the Charity Hospital, and after an inquest the child was buried. The cases of the patients sent to the hospital were regarded by the surgeons as hopeless, but they were given the benefit of immediate operations (craniotomy), and eventually recovered ; Mrs. Cortimiglia having been discharged and having left the hospital not earlier than the 27th and not later than the 29th of March. There is conflict in the testimony as to her capacity, up to that time, to recall the circumstances under which she received her injury, but there is testimony to the effect that she made statements conflicting with each other as to the person by whom the injury was inflicted; and it is undisputed that upon the basis of one of the statements thus attributed to her the Guagliardos were arrested prior to the time at which she was discharged from the hospital, and upon May 5th following they were indicted for the murder of the child. Upon the trial of the case Mrs. Cortimiglia was the only witness who directly connected the defendants with the crime. She testified that she was awakened in the night by certain noises; that she saw the defendants in her room; that the younger seized her hands and held them; that the elder went out and brought in an ax; that he gave it to the younger one, who struck the child, then in her arms, three blows on the head with it; that he then struck her upon the head with it and she became unconscious; that her husband continued to sleep and that she made no effort to awaken him by screaming or otherwise; and she gave some other details. The verdict of conviction was brought in by the unanimous concurrence of
“I saw the Jordanos every day of my life and frequently spoke to them. I did not recognize them, either by their faces, figures, or voices as the men who killed my baby; but I said it was the Jordanos when I was on the witness staled because everybody kept saying to me that it was them, and because I remembered that the Jordanos had a fuss with my husband when we first moved to Second and Jefferson street in Gretna. I cannot sleep at night, and I have a headache all the time; and I do not want these people punished because of me, and therefore I have come to the Times-Picayune to make this statement .so that they can publish it to the world, and so that any wrong that I may have done with my testimony will-now be righted. I am going to the Gretna jail to-morrow and tell them that I did not know, and do not know, who killed my baby. St. Joseph came to me last night and said, ‘Rosie, you cannot die with that boy’s life and that old man’s liberty on your conscience.’ ”
[1] The Attorney General, through his able assistant, calls attention to the fact that the instrument above quoted is unverified, and that it is framed in language not likely to have been used by Mrs. Cortimiglia; and though he does not deny that the statement therein contained has been made by her, or that the subscribing witnesses are reputable persons, he doubts whether, if called upon so to do, she would verify it by her oath. Our law confers upon this court no authority to hear evidence in appealed cases; and in criminal cases confines its jurisdiction to “questions of law alone.” Const, art. 85. It is quite evident, too, that if the court could exceed the limit thus imposed upon its jurisdiction, and should entertain an application to remand a criminal case upon fhe suggestion that a witness upon whose testimony a conviction was based has repudiated, or desires to repudiate, such testimony, it would establish a precedent which, if followed, would lead to far-reaching consequences and most seriously interfere with the proper administration of criminal justice. -The facts set out in the motion to remand can be laid before the board of pardons and the Govern- or, who are vested with authority and provided with facilities for inquiring into and acting upon such matters; and, as this court is not so equipped, the motion is denied.