People v. Cellura, 93.

• Citation: 288 Mich. 54,284 N.W. 643
• Decision Date: 09 March 1939
• Docket Number: No. 93.,93.
• Parties: PEOPLE v. CELLURA.
• Court: Supreme Court of Michigan

288 Mich. 54

284 N.W. 643

PEOPLE

v.CELLURA.

No. 93.

Supreme Court of Michigan.

March 9, 1939.

Leo Cellura was convicted of murder in the first degree, and he appeals.

Affirmed.Appeal from Recorder's Court of Detroit; Arthur E. Gordon, judge.

Argued before the Entire Bench.

George A. Kelly and Edward H. Kennedy, both of Detroit, for appellant.

Thomas Read, Atty. Gen., and Duncan C. McCrea, Pros. Atty., and William L. Brunner, John A. Ricca, and Nicholas J. Wagener, Asst. Pros. Attys., all of Detroit, for the People.

McALLISTER, Justice.

Leo Cellura was indicted jointly with Theodore Pizzino and Angelo Livecchi for the murder of William Cannon on July 3, 1930. Pizzino and Livecchi were arrested, tried and convicted on June 27, 1931. Cellura escaped from the scene of the crime, concealed himself and remained a fugitive from justice for nearly six years, until June 28, 1936, when he surrendered to the police. On June 4, 1937, he was convicted by a jury of the crime of murder in the first degree, from which conviction he appeals.

For some years prior to the repeal of the prohibition laws, Leo Cellura had engaged in the transportation of illicit liquors from Canada across the Detroit river to Ecorse. At various times, he had been the part-owner of a night club, restaurant and cabaret, engaged in the unlawful sale of liquor in Detroit and Hamtramck. After prohibition and prior to the day of the homicides, he continued as an operator of a night club and a gambling establishment.

On July 3, 1930, about five o'clock in the afternoon, as Cellura was approaching the entrance of the LaSalle hotel in Detroit, an automobile had drawn up to the curb in front of the hotel entrance. Cellura approached the automobile, and after an exchange of words, drew a gun from his pocket and shot several times through the window at the three occupants of the car. Cannon and a man named Collins, sitting in the front seat with him, were killed. Mike Stitzel who was sitting in the back seat was shot several times, but was later removed to a hospital where he eventually recovered from the gunshot wounds.

Cannon and Collins were criminals. They had a long record of arrests for armed robbery; but they were discharged without trial. Eleven years before, Cannon had served a penitentiary sentence for the crime of breaking and entering in the night-time. They made a business of extortion. Stitzel was their accomplice. Their principal practice seems to have been to send Stitzel out to entrap moral degenerates into incriminating situations; and then for Cannon and Collins to appear wearing badges of police officers and to extort money from them-to ‘shake them down’-by threats of arrest. They had agents in various towns who would communicate with them by telephone whenever any new victims were available.

Cellura lived in the underworld. Among his associates were shady characters and criminals. His friends, engaged in illegal and criminal ventures, were often, themselves, the victims of kidnapping and extortion by other criminals. One of his partners in the liquor business had been murdered. Cellura always went armed, having secured a legal permit to carry a pistol for protection against highway-men, kidnappers and killers.

On the trial he testified in his own defense. He had been told, he said, on numerous occasions by various persons, several days before the killings, that there were two men looking for him. He claimed that he had been advised by the superintendent of police of the city of Detroit, among others, that there was a plot on the part of certain criminals to abduct him-or in the argot of the underworld, ‘to take him for a ride.’ On the day before the killings, he claims to have been told by a doorman that there were two men looking for him and that they had a car with a license plate from the state of Illinois. It is the claim of defendant Cellura, that as he was approaching the LaSalle hotel, he was being followed by three men; that they turned and got into a parked automobile with an Illinois license plate; that they then called to him to come over; that in answer to their call, he approached the car and was asked to get inside. He says that he told them that if they wanted to see him they could do so in his room in the hotel. He then claims that one of the men referred to him by a vile name, and told the other to ‘cover’ him while he forced Cellura into the car; that the two men, Cannon and Collins, sitting in the front seat, were armed; that they reached for their pockets where they carried their guns; whereupon defendant, who had approached the car with his right hand in his pocket and believing that they were about to shoot or kidnap him, drew a pistol and fired several times into the car, in self-defense.

Defendant testified that he then escaped from the scene of the killings, and that, on the advice of counsel, he did not surrender for six years. His previous counsel testified in support of this statement, to the effect that after the killings, he was consulted by Cellura; and that he had subsequently discussed the case with the superintendent of police and the prosecuting attorney; that he felt that Cellura could not secure a fair trial at the time, because of public hysteria existing as the result of the killing of Jerry Buckley, who had been murdered in the lobby of the same hotel shortly after the killing of Cannon and Collins; and because of other gangster killings; and that his discussions with the police and the prosecutor were concerned with the circumstances under which Cellura would surrender.

The People claim that the defendant was not in fear of his life; that he did not kill in self-defense, and that he is guilty of premeditated, cold-blooded murder.

Error is assigned on the refusal of the court to permit defendant to introduce evidence of the alleged acts of deceased and his so-called accomplices which bore directly upon their intentions toward defendant. It is claimed that defendant had the right to show certain conversations and statements to prove a plan on the part of deceased to extort money from him, or to abduct and kidnap him. It is admitted that defendant had no knowledge of such plans or conversations; but it is contended that they are part of the res gestae, and that they are competent as proving conspiracy, and tending to show which party was the aggressor at the time the homicides occurred.

The claimed error arose on the ruling of the court as to what the deceased, Cannon, had told Collins about a certain incident in Florida. Stitzel, a hostile witness for the people, on cross-examination by defendant's counsel, stated that Cannon on the day of the homicides had said that he ‘was in a hole, that he needed $5000; that he was in trouble * * * in Miami, Florida.’

Upon further questioning as to what Cannon said about the $5000, the prosecuting attorney objected on the ground that it was hearsay. At this time Cellura had not testified on his claim of self-defense. The court ruled that the statement and conversations of Cannon were incompetent, and in passing upon the question said: ‘The Court: It would be excluded until some other situation arises that might possibly make it competent. I say it is not competent now. That will leave the door open in case it becomes competent.’

At this point, the prosecuting attorney interjected the following statement: ‘If after their defendant takes the stand, it in any way becomes competent, after any other defense witness takes the stand, in case that may be competent, this witness is in Detroit and can be produced again.’

‘The Court: That is what I had in mind * * * We will go ahead until Cellura takes the stand and offers something in his own defense.’

Cellura afterward testified in his own defense, but no further offer of proof of the statements or conversations of Cannon was made, after defendant's testimony.

In a homicide case, the accused may prove the existence of a conspiracy to kill or assault him as part of the res gestae, when there is an issue of self-defense. Such a conspiracy, although unknown to defendant at the time of the homicide, would bear upon the question of who was the aggressor. Underhill Criminal Evidence, 3rd Ed. 726; Wilson v. People, 94 Ill. 299.

The court, however, did not rule that the defendant could not introduce such evidence, but left the door open to present such testimony after proof of self-defense was offered. If there were no issue of self-defense, such evidence would be incompetent. In the natural order of proof, therefore, proof of such conversations and statements showing a conspiracy, would follow defendant's claim of self-defense. The ruling of the court as to the order of proof, cannot, therefore, be urged as reversible error. People v. Walters, 223 Mich. 676, 194 N.W. 538; 3 Comp.Laws 1929, § 17322.

Notwithstanding this limitation on the introduction of such evidence, the trial court permitted Stitzel to testify, with regard to the Florida incident, that Cannon had told Collins that he had been arrested there for blackmail; that he needed $5000 to get clear of the case, and that ‘if them dagoes think they are tough, well, I will show them how tough I am.’ All of such testimony, to the advantage of defendant, might have been excluded under the ruling made by the court.

It is further claimed that the court erred in excluding from evidence threats of deceased and his companions which were not communicated to defendant. It is contended that threats, even though uncommunicated, are properly admissible as bearing on who the aggressor was; and such is the rule. Brownell v. People, 38 Mich. 732;People v. Cook, 39 Mich. 236, 237,33 Am.Rep. 380;People v. Harris, 95 Mich. 87, 54 N.W. 648;People v. Palmer, 96 Mich. 580, 55 N.W. 994; 30C.J. 230. But the court only limited the exclusion of such evidence until after defendant had offered proof of self-defense; and such offer of defendant was thereafter apparently abandoned.

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