Smaldone v. People

• Decision Date: 19 December 1938
• Docket Number: 14231.
• Citation: 103 Colo. 498,88 P.2d 103
• Parties: SMALDONE et al. v. PEOPLE.
• Court: Colorado Supreme Court

88 P.2d 103

103 Colo. 498

SMALDONE et al. v. PEOPLE.

No. 14231.

Supreme Court of Colorado, En Banc.

December 19, 1938

Rehearing Denied March 13, 1939.

Error to District Court, City and County of Denver; Henry A. Hicks Judge.

Clyde Smaldone, Eugene Smaldone, and O. E. Stephens were convicted of assault with intent to kill and murder, and conspiracy to kill and murder, and they bring error.

Affirmed.

HILLIARD OTTO BOCK, and FRANCIS E. BOUCK, JJ., dissenting.

Ralph L. Carr, Jean S. Breitenstein, and John H Shippey, all of Denver, for plaintiff in error Ova Elijah Stephens.

Ralph J. Cummings and Arthur R. Morrison, both of Denver, for plaintiffs in error Clyde and Dugene Smaldone.

Byron G. Rogers, Atty. Gen., and Reid Williams, Asst. Atty. Gen., for the People.

YOUNG Justice.

The plaintiffs in error are three of the four defendants in a criminal action instituted in the district court of the City and County of Denver. For convenience they will be collectively designated as they there appeared. They were found guilty by a jury on each of two counts of an information charging an assault with intent to kill and murder, and a conspiracy to kill and murder, Leo Barnes. Sentences were imposed on the verdicts, and to reverse the judgment they present the case here by writ of error.

The defendants charged were Clyde Smaldone, Eugene Smaldone, alias Checkers Smaldone; Ova Elijah Stephens, alias Charles Stephens, alias Charles Belmont; Edward A. O'Hara, alias Edward A. O'Hare, alias Allen Edward Doring, alias Homer Ward, alias Edward Oliver O'Hare, alias Baldy; John Doe and Richard Roe. The court directed a verdict of not guilty as to defendant O'Hara. The others, excluding John Doe and Richard Roe, were each found guilty on both counts of the information.

The record and bill of exceptions are of considerable length, containing more than 1,600 folios. A statement of the evidence at some length and in detail is necessary to an understanding of the rrrors assigned and the legal propositions involved.

On December 8, 1936, at about 7 p. m., Leo Barnes entered his car and stepped on the starter. An explosion followed, shown by expert evidence to have been produced by dynamite, which wrecked the car and seriously injured Barnes. At the time his car stood at the curb on Grant street in front of Barnes' apartment. The explosion was of such severity that claim logically could not be made and in fact there was no contention that it was caused for any purpose other than to effect the death of Barnes. One witness, Mrs. Jack Gilmore, whose car was parked at the curb behind the Barnes car, testified that on this date, a little before 7 p. m., she saw two men, whose car was double parked alongside the Barnes car, standing by and working at something inside of the car. One of these she identified as the defendant Eugene Smaldone. She further testified that a Daniels and Fisher delivery truck was being pushed by two men south along Grant street at the same time and she was corroborated in this statement by a driver for the Daniels and Fisher Stores Company, who said his truck was stalled there at about that time and that he had to push it around a double parked car. She waited until the men drove away, and then pulled out from the curb, drove a few blocks on an errand, returned and found that the explosion had occurred in the interim and that the Barnes car was on fire. About 6:10 p. m. officer Williams saw Clyde Smaldone coming out of a telephone booth in a drug store located at 10th street and Broadway, which is about three blocks from 10th and Grant streets where the explosion occurred. Clyde Smaldone, after his arrest, admitted being at the drug store explaining that he was on his way to Pueblo and had stopped to phone to his wife. He said he learned next day that he was wanted by the Denver officers and phoned them from Pueblo that he would return.

Leo Barnes was a professional gambler and by his own admissions had a most unsavory record, including two criminal convictions, one for a violation of the Dyer Act, 18 U.S. C.A. § 408, in Chicago and one for highway robbery in Kentucky. He testified that he had been the manager of the dining room for defendant Stephens at Blakeland Inn, a gambling resort in Douglas county, and that he had a five per cent interest in that enterprise. He testified also that Stephens was indebted to him at the time of the explosion in the sum of $7,000, and another witness testified that he had seen Stephens give Barnes money at various times after Blakeland was closed, on one occasion money to buy an aeroplane. Blakeland Inn had been closed in June of 1936 by the authorities and Stephens, his nephew Harrison Stephens and Barnes were enjoined from further operation of such a place in Douglas county. Before the place was closed it is in evidence that Stephens had taken out of the venture $350,000. Prior to the closing of Blakeland Inn Stephens had embarked on another enterprise in Denver known as Mammoth Skating Rink and had leased Blakeland to Jerry La Sasso and Tommy Abdoe who operated it for a time after which, the rink proving to be a losing proposition, Stephens again took over Blakeland which he operated nights, La Sasso and Abdoe continuing to run it during the day. The Smaldones worked for La Sasso and Abdoe, and some nights for Stephens. Stephens testified that a few months after Blakeland was closed Barnes came to him and asked him if he, Stephens, would go in with him in another gambling enterprise if he could find a suitable location and that he agreed to do so if he, Barnes, could find such a place; that a little later Barnes returned and said he had rented Mrs. Luco's place situated on the same property as Blakeland; that he told Barnes that being under an injunction not to operate in that locality he did not want to go down there; that Barnes then went to La Sasso who came to him to find out what he thought of the proposition and that he told him it might be all right. Stephens further testified that after this incident Barnes talked with him several times about opening at Mrs. Luco's place, called the Cottonwood Ranch, but said nothing about him, Stephens, going into it until after he, Barnes, had opened it and the place had been closed by the officers; that on December 4th, after Cottonwood Ranch had been closed by the authorities and while it was still closed Barnes again came to see him at the Brown Palace Hotel about reopening it. He said Barnes offered him 33 1/3% of the proceeds if he would join him, but that he did not want to go in because he did not think they could run it. Barnes' version of this conversation, which the jury was at liberty to believe, and which we may assume did believe, was that he asked Stephens if he had any objection to him reopening Cottonwood Ranch and that Stephens said he had none if he was 'cut in,' so Barnes offered him 20 per cent; that Stephens demanded 33 1/3 per cent and told him if he went into it alone he would not live a week. This was Friday and Barnes proceeded with his preparations to reopen the place alone. It has a significant bearing on the question of Barnes' apprehension of danger that immediately after this conversation Barnes in company with a well known attorney went to the police station to obtain permission to carry a gun, as he admitted at the trial, he had carried a gun before and he did so after this time. In fact two guns were found in his car after the explosion.

All the time Barnes was operating Cottonwood Ranch he had the safe and some of the office equipment which Stephens had used in operating Blakeland Inn. Stephens said he let him take the safe and gave him the key to Blakeland so that he might get what he wanted.

November 9, 1936, Cottonwood Ranch was robbed by seven men, two of whom were identified by witness Michael as Eugene and Clyde Smaldone, and the safe containing $1,600 was taken. Eugene Smaldone was arrested and questioned concerning the robbery, and Stephens at the time of the conversation in the Brown Palace Hotel on December 4th knew that there had been an attempt to implicate the Smaldones in the robbery.

Stephens testified that on the afternoon of December 8th he was at the restaurant conducted by the father of Eugene and Clyde Smaldone to see him concerning the sale of an ice box he Stephens, owned in Colorado Springs and he at that time measured the space it was to fill to see if it was sufficient. There he saw Clyde and Eugene and their younger brother. They agreed on a price of $50 for the ice box. Stephens testified further that about six o'clock in the evening of December 8th, pursuant to a previous engagement, Alma Bazemore, a former employee at Blakeland, came to his room at the Brown Palace Hotel; that they had a dinner engagement and that his chauffeur, Vincent Millan, was present; that he, Stephens, and the girl played casino until a telephone call came through for Stephens. On this occurrence the testimony of Alma Bazemore is to the effect that the telephone call came in about 7:45; that Stephens left immediately after the call; that she was in the room continuously from her arrival until she was arrested by the police about twenty minutes after Stephens left and that no other telephone call was received. Stephens' testimony is that Clyde Smaldone had told him in the afternoon that he would call him in the evening to see if he, Stephens, was going to Colorado Springs and if he would bring the ice box back with him, and that he Clyde, had promised to have the money; that when the call came he thought it was Clyde speaking and said: 'All right Clyde, I will come over and see you,' and hung up. That he then took a yellow cab, notwithstanding his own chauffeur was in the room and his...