JOSEPHINE LISITANO AUGUST 8, 1949.-Committed to the Committee of the Whole House and ordered to be printed Mr. LANE, from the Committee on the Judiciary, submitted the following REPORT [To accompany H. R. 1485) The Committee on the Judiciary, to whom was referred the bill (H. R. 1485) for the relief of Joseph ne Lisitano, having considered the same, report favorably thereon without amendment and recommend that the bill do pass. The purpose of the proposed legislation is to pay the sum of $5,000 to Josephine Lisitano, of Boston, Mass., in full settlement of all claims against the United States for the death of her husband, Charles Lisitano, resulting from wounds inflicted upon him by a bullet fired from a service pistol by an enlisted member of the naval forces of the United States at Braintree, Mass., on April 20, 1944. STATEMENT OF FACTS It appears that Howard J. Smith, of the United States Naval Reserve, had been attached to the U. S. S. LST-1007. On April 19, 1944, he was granted liberty to expire on April 20, 1944. Smith returned to the ship and, after repeated attempts, obtained possession of a .45-caliber Colt automatic pistol and three clips, then left the ship. One of the clips was empty and the other two contained seven cartridges each. Charles Lisitano, a civilian taxicab driver, was found sitting behind the steering wheel of a taxicab near the lawn of 1010 Washington Street, Braintree, Mass., on April 20, 1944. He had a gunshot wound in his head and died shortly thereafter. Two 45-caliber clips were found near the cab, one of which was empty and the other held seven cartridges. In the cab a spent bullet and an empty .45-caliber cartridge case were found. Approximately 2 miles from the place where the said Charles Lisitano was found, Howard J. Smith was discovered lying on a railroad embankment near the Hancock Street railroad bridge, Braintree, Mass. He was alive but had a bullet wound in his head and numerous abrasions on his body. died the same day. He The When found, Smith was nude except for his shoes and socks. rest of his clothing and the Colt automatic pistol with a clip he had taken from the ship were lying on the ground nearby. The automatic pistol was in a cocked position, four cartridges were in the clip, and one in the chamber. The circumstances surrounding the death of Howard J. Smith, Naval Reserve, were investigated by an officer appointed for the purpose by the commandant of the First Naval District. The following excerpts from the findings are pertinent to the subject matter of the bill, viz: That Smith had been shot through the head and despite extensive medical treatment and the additional services of a neurosurgeon, he died at 9:50 p. m., April 20. That an autopsy was conducted by the medical examiner for Norfolk County, Commonwealth of Massachusetts, which disclosed that Smith died from a gunshot injury in the head and that a fatal shot was fired with the muzzle of the weapon in contact with the scalp at a point above and anterior to the right ear. That comparison by ballistic experts shows that the gun found beside Smith was the gun that fired the shot that killed one Charles Lisitano, taxicab driver, in his taxi on or near the lawn of 1010 Washington Street, Braintree, Mass., several hours before Smith was found a distance of approximately 2 miles away; also found on the lawn of 1010 Washington Street were two clips for a .45-caliber automatic pistol. That there is no evidence indicating that Smith was in the Lisitano taxicab, nor has any evidence been disclosed to show how Smith arrived at the scene of his own shooting. That there is some evidence in the chemical analysis of the intestinal contents indicating that Lisitano and Smith had partaken of similar food at the last meal, but no evidence was disclosed to show where this food had been eaten. That Howard Joseph Smith, late gunner's mate third class, United States Naval Reserve, was serving on active duty at the time of his death. Therefore, your committee is of the opinion that Mr. Lisitano came to his death at the hands of this enlisted member of the naval forces, and recommends favorable consideration to the bill. Hon. EARL C. MICHENER, NAVY DEPARTMENT, OFFICE OF THE JUDGE ADVOCATE GENERAL, Chairman of the Committee on the Judiciary, House of Representatives. DEAR MR. MICHENER: The bill (H. R. 4178) for the relief of Josephine Lisitano was referred by your committee to the Department of the Navy with a request for a report thereon. The purpose of the bill is to authorize and direct the Secretary of the Treasury to pay to Josephine Lisitano of Boston, Mass., the sum of $5,000 in full settlement of all claims against the United States for the death and conscious suffering of her husband, Charles Lisitano, resulting from wounds inflicted upon the said Charles Lisitano, deceased, by a bullet fired from a service pistol by an enlisted member of the naval forces of the United States at Braintree, Mass., on April 20. 1944. The bill H. R. 4178 of the Eightieth Congress is identical in substance to the bill S. 358 previously introduced in the Seventy-ninth Congress for the relief of Mrs. Josephine Lisitano. The Department of the Navy, under date of March 8. 1945, submitted to the chairman of the Committee on Claims of the United States Senate a report upon the facts and an opinion concerning the merits of the bil S. 358. The bill failed of enactment in the Seventy-ninth Congress. A copy of the report made on March 8, 1945, to the Senate Committee on Claims is enclosed herewith for the information of your committee. No pertinent information additional to that contained in the enclosed report has come to the attention of the Department of the Navy since the conclusion of its initial investigation. On the basis of a complete review of the file in this case, the Department of the Navy adheres to its previous position with respect to legislation for the relief of Mrs. Josephine Lisitano, and is therefore opposed to the enactment of the bill H. R. 4178. The Department of the Navy has been advised by the Bureau of the Zudget that there is no objection to the submission of this report to the Congress. For the Secretary of the Navy. G. L. RUSSELL, Rear Admiral, United States Navy, NAVY DEPARTMENT, Hon. ALLEN J. ELLENDER, OFFICE OF THE JUDGE ADVOCATE GENERAL, Chairman of the Committee on Claims, MY DEAR MR. CHAIRMAN: The bill (S. 358) for the relief of Mrs. Josephine Lisitano was referred to the Navy Department by your committee with request for the opinion of the Navy Department as to its merits. The purpose of the proposed legislation is to pay "to Mrs. Josephine Lisitano, of Boston, Massachusetts, the sum of $5,000, in full satisfaction of her claim against the United States for compensation for the death of her husband, Charles Lisitano, who died on April 20, 1944, as a result of a gunshot wound inflicted by Howard J. Smith, a member of the United States Naval Reserve." It appears from the records of the Navy Department that the said Howard J. Smith, late gunner's mate third class, United States Naval Reserve, had been attached to the U. S. S. LST-1007. On April 19, 1944, he was granted liberty at 1630 to expire 0730 on April 20, 1944. Smith returned to the ship at about 0245 on April 20, 1944, and at about 0315, after repeated attempts, obtained possession of a .45-caliber Colt automatic pistol and three clips, without permission from proper authority, and then left the ship. One of the clips was empty and the other two contained seven car tridges each. At about 0345 on April 20, 1944, one Charles Lisitano, a civilian taxicab driver, was found sitting behind the steering wheel of a taxicab near the lawn of 1010 Washington Street, Braintree, Mass. He had a gunshot wound in his head and died shortly thereafter as a result of this wound. Two .45-caliber clips were found near the cab, one of which was empty and the other held seven cartridges. In the cab a spent bullet and an empty .45-caliber cartridge case were found. At about 0815 and approximately 2 miles from the place where the said Charles Lisitano was found, Howard J. Smith was discovered lying on a railroad embankment near the Hancock Street railroad bridge, Braintree, Mass. He was alive but had a bullet wound in his head and numerous abrasions on his body. He died at 2150 that day. When found, Smith was nude except for his shoes and socks. The rest of his clothing and the Colt automatic pistol with a clip he had taken from the ship were lying on the ground nearby. The automatic pistol was in a cocked position, four cartridges were in the clip, and one in the chamber. No powder burns were found in the wound of the cab driver but the wound of Smith showed powder burns. The circumstances surrounding the death of Howard J. Smith, late gunner's mate, third class, USNR, were investigated by an offcer appointed for the purpose by the commandant of the First Naval District. Copies of the finding of facts and opinion of said investigating officer are attached as exhibit 1. The following excerpts from the finding are pertinent to the subject matter of the bill, viz: "That Smith had been shot through the head and despite extensive medical treatment and the additional services of a neurosurgeon, he died at 9:50 p. m. April 20. H. Repts., 81-1, vol. 5-94 "That an autopsy was conducted by the medical examiner for Norfolk County, Commonwealth of Massachusetts, which disclosed that Smith died from a gunshot injury in the head and that a fatal shot was fired with the muzzle of the weapon in contact with the scalp at a point above and anterior to the right ear. "That comparison by ballistic experts shows that the gun found beside Smith was the gun that fired the shot that killed one Charles Lisitano, taxicab driver, in his taxi on or near the lawn of 1010 Washington Street, Braintree, Mass., several hours before Smith was found a distance of approximately 2 miles away; also found on the lawn of 1010 Washington Street were two clips for a .45-caliber automatic pistol. "That there is no evidence indicating that Smith was in the Lisitano taxicab, nor has any evidence been disclosed to show how Smith arrived at the scene of his own shooting. "That there is some evidence in the chemical analysis of the intestinal contents indicating that Lisitano and Smith had partaken of similar food at the last meal, but no evidence was disclosed to show where this food had been eaten. "That Howard Joseph Smith, late gunner's mate third class, United States Naval Reserve, was serving on active duty at the time of his death." There is also attached as exhibit 2 copy of inquest by a special justice of the District Court of East Norfolk, Commonwealth of Massachusetts, finding that "Charles Lisitano came to his death at said Braintree on the 20th day of April in the year of our Lord 1944, in consequence of a gunshot wound in the head inflicted by Howard J. Smith." On receipt of S. 358, an inquiry was instigated for the purpose of determining the financial status of the claimant. In a letter of February 3, 1945, copy attached as exhibit 3, claimant's attorney, Mr. Fernand A. Boudreau, reports that at the time of his death Charles Lisitano was survived by his widow, 23 years of age, and a daughter born January 26, 1943, both of whom were entirely dependent on the decedent for their support and livelihood. For some time prior to his death the decedent's earnings as a taxicab driver averaged 240 to $45 per week. He left no estate whatever. The proceeds of a life insurance policy, except for several hundred dollars, were expended in defraying funeral expenses. Claimant's attorney further reports that Mrs. Lisitano is, so far as is known, in good physical condition and manages to earn a moderate income by selling novelties in the neighborhood of her home. Due to partial incapacity of her mother and the care required to be given to her small child and her own lack of skill, her earning power is limited. The income that she can earn, together with the social-security benefit payment of $25.45 per month for herself and child, is reported to be her only income. The attorney states that claimant informs him that her total resources at the time of the report amounted to $100. The evidence before the Navy Department does not affirmatively show that Howard J. Smith, late gunner's mate, third class, USNR, was in the taxicab operated by Charles Lisitano. Regardless of the determination on this point, the record shows that Smith at the time was on authorized liberty and not in the performance of any official duty. Under such circumstances it is not considered that the responsibility for the death of Charles Lisitano may be imputed to the United States. The cost of the proposed legislation is $5,000. In view of the foregoing, the Navy Department recommends against the enactment of the bill S. 358. The Navy Department has been advised by the Bureau of the Budget that there would be no objection to the submission of this recommendation to the Congress. Sincerely yours, H. STRUVE HENSEL, Acting. After full and mature deliberation, the investigating officer finds as follows. FINDING OF FACTS 1. That Howard Joseph Smith, late gunner's mate third class, United States Naval Reserve, was pronounced dead at 9:50 p. m., April 20, 1944, by the investigating officer at the Weymouth Hospital. Weymouth, Mass. 2. That Howard Joseph Smith, late gunner's mate third class, United States Naval Reserve, was attached to the U. S. S. LST-1007; that he was granted liberty at 4:30 p. m., April 19, 1944, to expire at 7:30 a. m. April 20, 1944. 3. That at 4:30 p. m., April 19, Smith left the U. S. S. LST-1007 on authorized liberty; that he returned to the ship at about 2:45 a. m., April 20; that he was in a belligerent mood and that there was some indication that he had had intoxicating beverages; that at about 3:15 a. m., after repeated attempts, he secured a .45caliber Colt automatic gun, property of the ship, under false pretenses and without authority, and left the ship shortly thereafter, with the gun. 4. That Smith was picked up by the police at about 8:40 a. m., April 20, off the road near the Hancock Street railroad bridge, Braintree, Mass., and brought to the Weymouth Hospital by the Braintree police ambulance, where he remained in the custody of the police until the time of his death. 5. That Smith at the time he was found was completely disrobed except for his shoes and socks; all clothing was within 10 feet of him, and near him was a cocked .45-caliber automatic pistol. 6. That Smith has been shot through the head and despite extensive medical treatment and the additional services of a neurosurgeon, he died at 9:50 p. m. April 20. 7. That an autopsy was conducted by the Medical Examiner for Norfolk County, Commonwealth of Massachusetts, which disclosed that Smith died from a gunshot injury in the head and that a fatal shot was fired with the muzzle of the weapon in contact with the scalp at a point above and anterior to the right ear. 8. That comparison by ballistic experts shows that the gun found beside Smith was the gun that fired the shot that killed one Charles Lisitano, taxicab driver, in his taxi on or near the lawn of 1010 Washington Street, Braintree, Mass., several hours before Smith was found a distance of approximately 2 miles away; also found on the lawn of 1010 Washington Street were two clips for a .45-caliber automatic pistol. 9. That within 15 feet of the spot where Smith was found, an empty shell from a .45-caliber pistol was picked up and was identified as coming from the gun found alongside Smith. 10. That there is no evidence indicating that Smith was in the Lisitano taxicab nor has any evidence been disclosed to show how Smith arrived at the scene of his own shooting. 11. That there is some evidence in the chemical analysis of the intestinal contents indicating that Lisitano and Smith had partaken of similar food at the last meal, but no evidence was disclosed to show where this food had been eaten. 12. That his threats of revenge made by Smith for the loss of his money; his actions in attempting to acquire a firearm and his going ashore after getting the gun, suggest that a motive existed for the shooting. 13. That Howard Joseph Smith, late gunner's mate third class, United States Naval Reserve, was serving on active duty at the time of his death. OPINION The investigating officer from a view of the body and from the evidence before him, identified the body as that of Howard Joseph Smith, late gunner's mate third class, United States Naval Reserve, and is of the opinion that Howard Joseph Smith, late gunner's mate third class, United States Naval Reserve, died at the Weymouth Hospital at 9:50 p. m. on April 20, 1944, as a result of selfinflicted gunshot injury of the head; that his death occurred not in the line of duty and was the result of his own misconduct. COMMONWEALTH OF MASSACHUSETTS, Norfolk County ss: At an inquest duly holden before the District Court of East Norfolk on the 1st day of June in the year of our Lord 1944, in accordance with the provisions of chapter 24 of the Revised Laws of said Commonwealth, to inquire into the cause and manner of the death of Charles Lisitano, whose dead body has been found lying in Braintree within the judicial district of said court: The presiding judge of said court, having been duly notified of the death of the said Charles Lisitano and of the circumstances attending the same by Dr. Robert R. Ryan, one of the medical examiners of said county of Norfolk, after hearing the testimony relating to the cause and manner of said death, finds that the said Charles Lisitano came to his death at said Braintree on the 20th day of April in the year of our Lord 1944, in consequence of a gunshot wound in the head inflicted by Howard J. Smith. STEWART B. MCLEOD. Special Justice, District Court of East Norfolk. |