People v. Salimone

• Citation: 251 N.W. 594,265 Mich. 486
• Decision Date: 19 December 1933
• Docket Number: No. 122.,122.
• Parties: PEOPLE v. SALIMONE et al.
• Court: Supreme Court of Michigan

265 Mich. 486

251 N.W. 594

PEOPLE

v.SALIMONE et al.

No. 122.

Supreme Court of Michigan.

Dec. 19, 1933.

Appeal from Circuit Court, Wayne County; De Witt H. Merriam, Judge.

Frank Salimone and Nick Dellabonda, alias Diamond Bill, were convicted of first degree murder, and they appeal. Defendant first named died pending appeal.

Reversed, and new trial ordered.

Argued before the Entire Bench.

SHARPE, J., dissenting.Anthony Maiullo, of Detroit (Maurice H. McMahon and Stuart W. Hill, both of Detroit, of counsel), for appellants.

Patrick H. O'Brien, Atty. Gen., and Harry S. Toy, Pros. Atty., and Frank G. Schemanske, William D. Brusstar, and Edmund E. Shepherd, Asst. Pros. Attys., all of Detroit, for the People.

POTTER, Justice.

Defendant Dellabonda, convicted of first degree murder of Claude Lanstra June 1, 1930, in Grosse Pointe township, Wayne county, appeals, claiming the trial court should have granted a motion to quash the information, errors in the introduction of testimony, the charge of the court to the jury, and in failure to charge the jury as requested.

June 1, 1930, about 2:30 a. m. two patrolmen of the Grosse Pointe Park police force were shot and killed. One Frank Salimone and appellant were charged therewith, and on trial convicted. The examining magistrate, finding the offense to have been committed, and reasonable cause to believe the accused guilty thereof, bound defendants over to the circuit court for trial, where an information charging them with murder was filed July 16, 1930, whereupon defendants moved to quash the information because of the insufficiency of the evidence before the examining magistrate and the failure of such evidence to establish cause to believe defendants guilty of the offense. A motion for a separate trial of each defendant was made. Notice of alibi was filed by defendant Salimone. Both the motion to quash and the motion for separate trials were denied. November 19, 1931, the case came on for trial in the circuit court before a jury, and December 21, 1931, a verdict of guilty of murder in the first degree was returned. January 7, 1932, a motion for a new trial was made, and later additional affidavits in support thereof were filed. January 14, 1932, both defendants were sentenced to be confined in the Michigan State Prison at Jackson for the term of their natural lives. February 10, 1932, motion for a new trial was denied, and application for leave to appeal filed March 2, 1932. Defendant Salimone is now dead.

1. To authorize the examining magistrate to bind appellant over for trial there must have been good reason to believe appellant guilty of the crime charged. Some cases hold a prima facie case against the accused must be made out. This court has not defined what constitutes probable cause, leaving each case to be determined upon its facts. Bouvier defines probable cause as ‘A reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that a person accused is guilty of the offense with which he is charged.’ Bouvier's Law Dict. (Rawle's 3d Ed.) p. 2728.

At the time of the examination of appellant there was proof the two policemen had been murdered. There was testimony by Arnold, the fisherman, appellant was at the river bank on the night in question when the automobiles of rumrunners were chased by federal officers; that appellant then had a gun which he pulled from his belt and showed to Arnold, saying, ‘I guess this is ready for action,’ after which he ran across the field with the gun in his hand. After the shooting it appeared appellant was away for some time or secreted. The car which the people claimed was used at the time of the killing belonged to Samuel Ricca. It appeared to have been shot at. A number of empty brass pistol shells were found on the floor of the car. The deceased was killed by a .45 caliber pistol bullet. There was other testimony tending to connect appellant with the case. Primarily the question of probable cause is for the consideration of and determination by the examining magistrate. This court may not agree with the findings of such magistrate, but it has no right to substitute its judgment for his except in case of a clear abuse of discretion. We cannot say there was an abuse of discretion on the part of the examining magistrate, and decline to hold the erroneously bound appellant over for trial.

2. It is claimed the court erred in not excluding the testimony of Hugh Anderson that while on the street prior to the shooting some one said, ‘There they come.’ Anderson had testified he and other witnesses for the people and other persons not definitely identified were, prior to the shooting, standing on the street near where it subsequently occurred; that Robert Collier and James Carlozzi drove up in a Chrysler coupé; that Collier asked if we saw any cars coming up from the river and asked what they looked like, and we told him. The statement some one said ‘There they are’ was not made in the presence of appellant, nor was it called to his knowledge. The witness testified Carlozzi turned to Collier and said, ‘That is Frank driving.’ All this testimony was objected to for defendants as incompetent conversation between third persons not in the presence of defendants, and, when the witness testified some one unknown said ‘There they are,’ counsel for defendant moved to strike out such testimony. It is not shown to have been made by either Collier or Carlozzi. This testimony was clearly within the exclusionary rule of res inter alios acta, elucidated and applied in Detroit & Milwaukee Railroad Co. v. Van Steinburg, 17 Mich. 99, where a witness testified against objection as to what some unidentified party said, and this court said: ‘When the witness, S. H. Coon was on the stand, he was asked the question, which I think entirely proper, ‘Was your attention at the time called to the fact, whether or not the train came in without sounding the bell or whistle?’ To which his reply was: ‘It was talked of at the time, that the train came in without ringing the bell.’ And, in reply to a similar question, George W. Coon says: ‘My attention was called to it; I heard some one say it was not rung.’ Each of these replies was objected to, and in each case it is evident that the witness, instead of confining himself to a proper answer to the question, was allowed to bring before the jury the statements of persons, who were not only not sworn, but whose names, even, were not known. It was impossible that such statements should be without influence upon the jury; especially, as what these unknown persons are reported to have said had a tendency to support a portion of the sworn testimony against another portion upon a disputed point. And, as this testimony from the Coons was incompetent and inadmissible for any purpose, I do not think the error committed in admitting it was cured by the instruction of the judge to the jury, that they ought not to consider it as proof of a substantive fact, as it was only proper as showing that the attention of witnesses was called to the ringing, or not ringing of the bell.'

Though this testimony was improperly admitted and should have been excluded, the people contend its reception was not prejudicial. That depends upon the use made of it. What use was made of this testimony? The acting prosecuting attorney in his opening argument said: ‘They described to you how this Chrysler car drove up, and they described to you how the Chrysler car was parked. They told you that Carlozzi and Collier were there. They were not men, members of the jury, that were interested in whether Carlozzi was dead or alive. They were not men who were interested in whether Collier was dead or alive. They were not men who were interested in whether or not Mangiaponi was dead or alive. They were not interested in whether or not Tupancey was dead or alive. They were interested, if you please, ladies and gentlemen, I submit, in telling you the truth as they saw it there. Didn't they describe to you how those men were there on the sidewalk? How the inquiries were made by Collier and Carlozzi as to what they had seen, as to whether they had seen a Federal car, or as to whether they had seen cars come up from Jefferson Avenue or below Jefferson Avenue from the river. They described to you how Collier says, ‘strick around, you are going to see some excitement.’ I wonder what they had in mind. They described to you how one of these men was there. And one of them exclaimed as this Cadillac coupe drove up there, ‘This is the follow car.”

In the people's argument this seemingly unimportant remark improperly admitted, attributed to no one, is made the connecting link between appellant and the shooting; it being claimed Dellabonda was at the river front armed with a .45 caliber pistol, that Frank was defendant Salimone, that Salimone was driving one car, and the follow car was coming up from the river. Not only was the testimony incompetent, but it was misquoted to the jury by the acting prosecuting attorney and as used was prejudicial.

3. The people claimed both Salimone and Dellabonda were engaged in a conspiracy to violate the United States Tariff Act, the United States Prohibition Act, and the Prohibition Act of the state of Michigan; that this conspiracy was of such a nature that it contemplated homicide if necessary; that in pursuance of such conspiracy respondents and others were armed with revolvers and pistols; that ‘Bob’ Collier was at the time the acting head of the rumrunning conspiracy. Harold Ernst testified, against objection of defendants that it was immaterial and hearsay, that he was one of the parties standing on the sidewalk near where the shooting occurred just prior thereto when Collier and Carlozzie drove up in the Chrysler coupé, and that Collier came up and asked him how he was and said to him, ‘Stick around, you will see some fun.’ He says he did not...