Petro v. United States

• Decision Date: 12 February 1954
• Docket Number: No. 11870,11871.,11870
• Citation: 210 F.2d 49
• Parties: PETRO v. UNITED STATES. SANZO v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

210 F.2d 49 (1954)

PETRO v. UNITED STATES.

SANZO v. UNITED STATES.

Nos. 11870, 11871.

United States Court of Appeals, Sixth Circuit.

February 12, 1954.

Edward C. Stanton, Cleveland, Ohio, for appellant, Julius Petro M. A. Picciano, Cleveland, Ohio, for appellant, Joseph J. Sanzo.

John J. Kane, Jr., U. S. Atty., Frank E. Steel, Asst. U. S. Atty., Cleveland, Ohio, for appellee.

Before SIMONS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.

ALLEN, Circuit Judge.

Appellants were jointly indicted for the crime of armed bank robbery in violation of Title 18, U.S.C., § 2113(a) and (d), it being charged that on August 14, 1952, by force, violence and intimidation they took from the presence and person of Charles J. Foley, branch manager and assistant treasurer of Union Savings and Trust Company, in Warren, Ohio, the sum of $71,000, the property of Union Savings and Trust Company. Both appellants were found guilty by a jury and were sentenced by the court.

Numerous assignments of error have been raised in the briefs, some of which, while considered, we do not discuss because no objection or exception was taken at the trial, Baldwin v. United States, 9 Cir., 72 F.2d 810, 812, or because no prejudice was shown. The principal contentions relate to the charge of the District Court on the question of identification, the denial of motion for acquittal, the use of a certain exhibit in evidence, and the admission of claimed hearsay testimony.

On the date charged, at about 9:40 a. m., Charles J. Foley, who was transporting $71,000 in currency from the main office of the Union Savings and Trust Company in Warren, Ohio, to a branch bank in the northeast section of Warren, was stopped by a car which cut in front of him. Two men wearing burlap hoods left the automobile. One of the robbers broke the right window of Foley's car with a sawed-off shotgun. The second robber stood at Foley's left side and brandished a revolver. Foley opened the left door and the robber lifted out the money bag. Several persons saw the robbery and identified the car as a gray Oldsmobile. The license number was identified as T-966-D. The robbers proceeded north on Kenilworth, east on Montclair, crossed Roselawn and turned right on Oak Knoll Avenue, running through two traffic stops without pausing. At about 9:50 a. m. Carter Alden, a college student, and his mother, Mrs. Addie Alden, were proceeding north on Oak Knoll Avenue, Carter Alden driving. They saw the gray Oldsmobile turn on Oak Knoll Avenue far to the left of the center of the street. The men in the car had discarded their burlap hoods. Both Mrs. Alden and her son observed the three occupants of the car. On the same night they were shown eight or ten pictures by an agent of the FBI. Carter Alden picked out the photograph of appellant Petro and Mrs. Alden picked out the photographs of appellants Sanzo and Petro. The next day the Aldens were taken, together with Mr. Foley, to the police line-up in Cleveland, where Carter Alden identified Julius Petro, and Mrs. Alden identified both Sanzo and Petro as being in the robbery car. At the trial both Mrs. Alden and her son repeated their positive identifications.

Mrs. Alden's testimony was observant and specific. She described the man sitting next to the driver of the Oldsmobile as follows: "Well, his features were rather small. He had dark hair and his eyes were starey and I noted particularly that his chin was rather small. He wasn't a full-faced man." While it is true that she was asked by the FBI agent if she could pick out any of the men in the photographs "as resembling the men who had passed in the car," she picked out Petro and Sanzo in the line-up at the police station in Cleveland and positively identified them in the courtroom at the trial.

In this state of the record the court commented to the jury that the witness, Mrs. Alden, had "identified the man seated next to the driver as the defendant Sanzo," that in the line-up she "picked out Sanzo as the man seated next to the driver on August 14th," and that "Both of these witnesses identified Petro and Sanzo as the men they had seen on August 14th in the Oldsmobile car on Oak Knoll Road." This statement is attacked as unfair, prejudicing the jury, taking from the jury their right to decide the facts and constituting reversible error. We think the record completely answers this contention. Both appellants were identified by Mrs. Alden and Petro was identified by her son. The trial court twice cautioned the jury to the effect that, if it found itself in disagreement with the statements made by the court as to the testimony of the witnesses or its general effect, the jury was to rely upon its own recollection and disregard the court's comment. The judge had a right to comment upon the testimony and to state that certain propositions were established by the evidence, if such was the case, so long as the charge was judicial and dispassionate and so long as the ultimate questions of fact were left to the unhampered judgment of the jury, as was the case here. Zottarelli v. United States, 6 Cir., 20 F.2d 794, 799; Myres v. United States, 8 Cir., 174 F.2d 329, 338; Graham v. United States, 231 U.S. 474, 480, 34 S.Ct. 148, 58 L.Ed. 319. Neither appellant made objection or exception to the court's statement as to identification.

The denial of the motion for acquittal was also proper and the verdict was amply supported by the evidence. Sanzo did not testify. It was shown that both Petro and Sanzo had been in the vicinity of the bank between July 1, 1953, and about a week before the robbery. On at least twelve to fifteen occasions during that time the appellants were observed walking up and down near the bank.

Moreover, each of the appellants was definitely linked with the robbery, it being shown that each of them had in his possession some of the stolen money. The serial numbers of the new money which formed part of the $71,000 were immediately circularized to the banks. The Bank of Ohio in Cleveland, Ohio, on September 22, 1952, received thirty-one $5 bills of the corresponding serial numbers. The deposit of these bills in the bank was made by Henry Prijatel, who had received them from Gene Gattozzi. In September, 1952, Joseph Sanzo borrowed $500 from Gattozzi and paid it back with cash in $5, $10, and $20 bills, which Gattozzi put into his personal cash box. Prijatel, the brother-in-law of Gattozzi, loaned Gattozzi $850, and about the middle of September, 1952, Gattozzi, in order to pay Prijatel, told him to take the money from the cigar box upstairs. This was done, part of the money...