Mendolia v. State
| Decision Date | 27 July 1951 |
| Parties | , 192 Tenn. 656 MENDOLIA et al. v. STATE. |
| Court | Tennessee Supreme Court |
Jack Norman, Nashville, Joseph Lustfield and Michael H. Brodkin, Chicago, Ill., for appellants.
Nat Tipton, Asst. Atty. Gen., for the State.
The plaintiffs in error, who will be later referred to as the defendants, have appealed from a conviction of robbery, and accessory before the fact to the crime of robbery.
The defendants were at the May Term of the criminal court of Davidson County indicted by the grand jury in a three count indictment. The first count charged the defendants, Mendolia and Panczko, with the crime of highway robbery of one Jacob Davis on March 1, 1950. The second count charged the defendant, Walter Jedynak, with being an accessory before the fact to the robbery. The third count charged the defendant, Walter Jedynak, with being an accessory after the fact to the robbery.
The jury returned a general verdict of guilty as charged in the indictment and fixed their punishment at 15 years in the State penitentiary.
The trial judge, after considering the defendants' numerous grounds for a new trial, overruled it and granted an appeal to this Court.
The assignments of error are (1) the evidence preponderates against the verdict of guilty as to Walter Jedynak upon the charge of being an accessory before the fact and in favor of his innocence; (2) the evidence preponderates against the verdict of guilty as to the defendants, Mendolia and Panczko, upon the charge of highway robbery and in favor of their innocence; (3) the trial judge erred in permitting the District Attorney General to ask the prosecutor, Jacob Davis, in the presence of the jury if he did not identify the defendants from photographs shown him after the alleged robbery, etc.; (4) the trial judge erred in overruling the defendants' motion for a mistrial, and in sustaining the State's motion to strike the same, the ground of the defendants' motion being based upon the contention that Jacob Davis had not testified before the grand jury and that defendants were deceived by the recitation on the indictment that the said Davis had been sworn and examined before the said grand jury; (5) the court erred in refusing to act upon the plea in abatement duly filed on behalf of each of the defendants; (6) the court erred in charging the jury as follows: '* * * There must be shown to your satisfaction, beyond a reasonable doubt by the State of Tennessee that the defendants, Guy Mendolia, alias Nick Alvino, alias, T. Alvino, and Paul Panczko, alias John Bell, alias P. Bell, feloniously and forcibly took from the person and from the immediate presence of Jacob Davis personal property of some value by violence and by putting the said Jacob Davis in fear * * *'; (7) the court erred in giving 'undue prominence' to the theory of the State; (8) the court erred in failing and neglecting to charge the theory of the defendants; (9) the court erred in charging the jury as to the effect to be given the defendants' plea of 'not guilty'; (10) the court erred in failing to instruct the jury that they could 'convict all of the defendants or acquit all of them, or convict one and acquit two, or convict two and acquit one'; (11) the court erred in accepting a general verdict; (12) it was error for the court to permit testimony wherein 'the State sought to prove aliases on the part of the defendants'.
It conclusively appears from the testimony that the three defendants, who resided in Chicago, Illinois, appeared in Nashville on February 27, 1950. The prosecuting witness, Jacob Davis, who was a salesman of diamonds, arrived by plane on the same day. The defendants registered at the Hermitage Hotel, all occupying the same room in said hotel, while Davis registered at the Andrew Jackson Hotel. The prosecutor Davis called upon a number of diamond merchants in the City of Nashville on the following day, which was February 28, 1950. He had planned to leave for Memphis by plane on March 1, but due to a strike he decided to take the night train for that city.
Since the defendants did not offer any testimony in their behalf there is no explanation or reason for their presence in Nashville at this time, nor does it appear why they were so closely associated, all three occupying the same room at the hotel. The State insists, of course, that they were here by prearranged plan to rob Davis of the diamonds which he had in his possession. In the light of their movements while in Nashville this contention is not unreasonable. The robbery occurred on the evening of March 1, 1950, between 9:00 and 10:00 o'clock P. M.
The defendants registered at the hotel under assumed names on February 27. They checked out on the morning of the 28th. The record is silent as to their actions on that day. It does appear, however, that about 8:30 on that night the defendants, Mendolia and Panczko, came to a garage near the Hermitage Hotel in an automobile that was registered in the name of Mendolia's brother. They made inquiries of the night man as to whether or not he had in his garage a car bearing Pennsylvania license belonging to Jacob Davis (Davis resided in Pittsburgh, Pennsylvania). They seemed unwilling to accept the word of the attendant, but shortly thereafter they again registered at the Hermitage Hotel, the three occupying the same room they had on the previous night.
On March 1 long distance calls were placed from two booths in the Hermitage Hotel paystation, one to Mendolia's place in Chicago and the other to the number of Jacob Davis' home in the City of Pittsburgh. These calls were made during the morning of March 1. About 11:30 an attache of the Hermitage Hotel observed Panczko and Jedynak get a roll of quarters from the cashier and go into the telephone booths. There can hardly be any doubt but that these men were making these calls to Davis' home to determine if he was actually in Nashville.
About 9:00 o'clock on the night of March 1, the three defendants left their room in the Hermitage Hotel. This was only a matter of a few minutes before the robbery, which occurred about 150 feet from the Union Street entrance to the hotel. A bell boy testified he offered to carry their bags to their car, which was parked somewhere near this entrance, but they refused. The last he saw of them they were proceeding across Union Street. About this time the prosecuting witness Davis was in the act of leaving the Andrew Jackson Hotel (less than a half block from the Hermitage Hotel) in a taxicab for the railroad station. He had in his possession a brief case containing diamonds valued at approximately $100,000. When his taxicab had reached a point a short distance from the Hermitage Hotel on Capitol Boulevard the defendants, Mendolia and Panczko, drove along beside the taxicab and waved the taxi driver to stop, which he did, thinking they were tourists and wanted some directions. The two defendants were driving a Ford car which had been stolen from a parking place on Capitol Boulevard.
When the two cars came to a stop Mendolia jumped out of the Ford with a pistol in his hand, opened the rear door of the cab and demanded of Davis the brief case. Davis grabbed hold of Mendolia's hand to prevent him from killing him and a shot was fired, but without an injury to anyone. During this encounter Panczko, who was driving the Ford car, urged Mondolia to 'shoot the bastard'.
The cab driver, Hurd, identified Panczko as the driver of the Ford car, and Davis was positive in his identification of Mendolia. The two men abandoned the Ford on 13th Avenue between Church and Grundy Streets. The prosecutor's brief case was later found in the Harpeth River several miles west of Nashville on the road to Memphis, Tennessee. The theory of the State is that Jedynak, the third defendant, was waiting near by in Mendolia's brother's car while the robbery was being perpetrated and that he later picked up Mendolia and Panczko, when they abandoned the Ford automobile.
The guilt of Mendolia and Panczko of highway robbery appears beyond a question of doubt. While the guilt of Jedynak as an accessory before the fact rests upon circumstantial evidence, we think the evidence is sufficient to sustain the verdict of the jury. He came to Nashville with Mendolia and Panczko and all registered under assumed names; all occupied the same room at the hotel; he was active in making the...
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