People v. Urso, 17074

• Decision Date: 12 April 1954
• Docket Number: No. 17074,17074
• Citation: 269 P.2d 709,129 Colo. 292
• Parties: PEOPLE v. URSO.
• Court: Colorado Supreme Court

Page 709

269 P.2d 709

129 Colo. 292

PEOPLE v. URSO.

No. 17074.

Supreme Court of Colorado, En Banc.

April 12, 1954.

Rehearing Denied May 10, 1954.

Duke W. Dunbar, Atty. Gen., Bert M. Keating, Max D. Melville, Sp. Asst. Atty. Gen., for the People.

Dickerson, Morrissey, Zarlengo & Dwyer, Denver, for defendant in error.

HOLLAND, Justice.

On the 21st day of February 1952, Phillip Urso, H. M. Davidson and Marvin Roy Pratt were charged jointly with aggravated robbery in a criminal information filed in the district court in the City and County of Denver. The record shows that on February 27, 1952, Urso, on arraignment, entered a plea of not guilty. We assume that there was a severance, because trial was had on February 27, 1953 as to Urso alone; and we further assume that Urso, in the meantime, was at liberty under bond, as were the other two codefendants as shown by the record.

At the trial Davidson, in the words of the trial court, 'had turned state's evidence,' and in the words of the Attorney General in his brief before us, 'the sole witness implicating Urso was Davidson.' In the belief that Davidson's testimony was so contradictory and inconsistent as to be wholly unworthy of belief by anyone, the trial court at the close of the People's case, granted a motion for directed verdict. The Attorney General, as is provided, prosecutes this writ of error for determination of a question of law, and the sole problem involved is: Did the trial court, under the facts in this case, invade the province of the jury? The Attorney General presents this question quite succinctly in the following words: 'May a judge direct an acquittal as a matter of law because he does not believe the testimony of an essential witness manifestly sufficient to convict if believed, although there has been no contradiction or inconsistency within that testimony, but merely impeachment of the witness by out of court contradictions?'

To fully evaluate this situation before us, it is not necessary to minutely detail all of the testimony in the case, it being sufficient only to point up the highlights thereof. At this point it is well to remember that at the trial there was no testimony of any kind which would implicate defendant Urso, other than the testimony of Davidson, an ex-convict. In passing we might say the briefs reveal that the other accomplice, Pratt, while out on bond and in California, met head on with the authorities in another crime and was killed prior to the date of this trial.

Davidson and Pratt, with force, robbed Elderman on the night in question. Elderman had known Urso, defendant in error here, for seven or eight years prior to the time of the trial; had talked to him on many prior occasions; and had been to his place of business. Elderman also had known Davidson for a number of years. Davidson had been convicted of assault to murder and served a penitentiary sentence therefor; later he was convicted of robbery, and he served fifty-nine months of a seven to ten-year sentence. Elderman had constantly worn a large diamond ring for twelve or fourteen years. At about 11:00 o'clock on the night of February 14, 1952, Elderman received a telephone call at his apartment advising him that his place of business was on fire and he had better get there as quickly as possible. Elderman testified that he did not recognize the voice on the telephone. His car was parked on the street in front of the apartment and he immediately made for the car and when he reached it, Pratt held a gun on him and said, 'This is a stickup. Get in there. Give me the keys.' Elderman got in the car and Pratt followed him and sat behind the wheel. Davidson, also armed with a gun, entered the front of the car from the other side. In searching Elderman they discovered that he was not wearing the diamond ring, but they took his wallet, containing about $179 in cash, and then compelled Elderman to return with them to his apartment where they then obtained the ring. Shortly thereafter Pratt and Davidson were apprehended and after seven days of frequent questioning by the police, Davidson signed a statement implicating defendant Urso as the mastermind in the crime. Later, Davidson and Pratt were released on bond, but before trial Pratt was killed while attempting a bank robbery in California. Attorney Fred Pferdesteller was Pratt's attorney. On March 5, 1952, Davidson and one Route visited the attorney's office and Davidson and Mr. Pferdesteller were not known to each other. Davidson said he wanted to make an affidavit and those present were Davidson, Pferdesteller, Vondy, his law partner, and a stenographer. Davidson made a statement, which was reduced to writing, signed by him, and notarized. The testimony shows that Davidson read the statement and said that everything contained therein was true and initialed each page thereof. This statement completely exonerated defendant Urso, and the statement shows, 'the only reason that I signed the statement in which ...