The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1915-04-29
CREDIT FOR TINE IN JAIL
Judge Belden In Denying New Trial
in the Case Insists That Aulozzi Had
Every Consideration and That There
Was No Error in the Trial of Case.

luigi Aulozzi, the Italian who shot
and killed John Luss, Somers farmer,
on his farm on the 18th day of last Oc-
tober and who was convicted of the
crime of manslaughter in the second
degree at the present term of the cir
cult court, was sentenced to a term of
six years and six months in the state s
prison by Judge Belden this morning.
The extreme penalty under the statute
is seven years of penal servitude and
Judge Belden announced that he had
taken into consideration in the sentenc-
ing Of Aulozzi, the fact that he had
served six months in the county Jail
while awaiting trial. This would give
him the limit penalty under the charge
on which he was convicted.
Before imposing the formal sentence
Judge Belden denied motions of the at
torneys for the defendant in arrest of
Judgment and for new trial. In deny
ing these motions Judge Belden said:
The state Of the evidence in this
case is such that it may not be disputed
that the defendant intended to kill the
farmer Luss. The only questions to be
determined were, was the killing justi-
fable, and if not, then of what degree
of homicide should the defendant be
convicted.
The court submitted for the consider
alton of the jury murder in the first
and second degrees, manslaughter in
the first and second degrees and justi-
fable homicide. The jury found the
defendant guilty Of manslaughter in
the second degree under Section 4351
Of the Statutes, reading: Any person
who shall unnecessarily kill another
either while resisting an attempt by
such person to commit any felony or to
do any other unlawful act, or after such
attempt shall have failed, shall be
deemed guilty of manslaughter in the
second degree
The defendant testified that because
he did not want to shoot man in the
back he stepped around and shot the
farmer from the front. While this is
not necessarily conclusive Of that pre-
meditation which establishes murder in
the first degree, and of course is to be
considered together with all the other
evidence in the case, it is very signifi-
cant and with all the other evidence
fully justifes the verdict returned. In
deed, it is altogether probable that had
the jury returned a verdict for one of
the higher degrees of homicide submit
ted. such verdict would not have been
disturbed. So ALSO, the evidence is
such that had the jury believed and so
interpreted and applied it under the in
structions given by the court, verdict
of Unsuitable homicide might have been
warranted. That feature Of the case
was fully and most earnestly argued to
the jury by counsel for the defendant
The jury was fully and correctly in
structed by the court concerning justi-
fable homicide, and concerning the sew
eral degrees of homicide submitted for
its consideration. The jury was par
ticularly cautioned to view the matter,
so far as the defence of justifable hom-
icide was concerned, from the defend
ant IS point of view at the time of the
killing and not from the point of view
Of the jury at the time of the trial
The jury has passed upon the case, has
adiudged the homicide not justifable
and, in the absence of error prejudicial
to the defendant, that determination is
final.
The defendants counsel contends
that manslaughter in the third degree
should have been submitted under Sec
ton 1854 of the Statutes, the distin-
gushing characteristic of which is that
the act in question was committed IN
the heat Of passion. This degree of
homicide was not submitted to the jury
because the court considered that,
should the jury conclude the homicide
was not justifable, the degrees of hom-
icide submitted for the consideration
of the jury fully covered the homicide
in question and afforded full latitude
for properly concluding the case and for
properly StINllS JUN tAO uSLCuucn0
and the state. The court was then and
now is Of the opinion that this is not a
heat of passion case. One committing
homicide upon apprehension of a de-
sign on the part of the person killed to
commit felony or to do some great
personal injury and having reasonable
cause for believing that there is immi-
nent danger of such design being ac
complished, would hardly be likely to
act with that thought or deliberation
with which the defendant acted.
Whether the killing was necessary,
which would have constituted it JUST
fable, or unnecessary, justifying con-
viction of second degree manslaughter,
if not higher degree of homicide, was
for the jury. The jury found that the
homicide was not justifable and as was
its sole privilege and function, selected
from among the several degrees of hon.