State v. Dallao

• Decision Date: 26 April 1937
• Docket Number: 34192
• Citation: 175 So. 4,187 La. 392
• Court: Louisiana Supreme Court
• Parties: STATE v. DALLAO et al

175 So. 4

187 La. 392

STATE v. DALLAO et al

No. 34192

Supreme Court of Louisiana

April 26, 1937

Rehearing Denied May 24, 1937 [Copyrighted Material Omitted]

Appeal from Criminal District Court, Parish of Orleans; William J O'Hara, Judge.

Anthony Dallao, Joseph Ugarte and Owen Cauche, were convicted of murder, and they appeal.

Affirmed.

Gaston L. Porterie, Atty. Gen., James O'Connor, Asst. Atty. Gen., Charles A. Byrne, Dist. Atty., and Conrad A. Meyer and Herbert W. Christenberry, Asst. Dist. Attys., all of New Orleans, for the State.

Warren Doyle, of New Orleans, for appellant Anthony Dallao.

Gill & Simon, G. Wray Gill, Warren M. Simon, and Joseph H. Baynard, all of New Orleans, for appellant Joseph Ugarte.

Richard A. Dowling, Joseph Rosenberg, and Cyril F. Dumaine, all of New Orleans, for appellant Owen Cauche.

OPINION

ROGERS, Justice.

Pierre N. Rizan was murdered on December 31, 1930, and on July 7, 1936, Joseph Ugarte, Owen Cauche, Anthony Dallao, and Joseph Oliver were indicted for the crime. A severance was granted Oliver and he was used as a state witness on the trial of the other indictees.

All the defendants filed motions to quash the array and the venire, to quash the indictment, for a bill of particulars, and for a continuance. In addition, Ugarte pleaded to the jurisdiction of the court and Cauche asked for oyer of certain documents alleged to be in possession of the local police department. The trial judge overruled the motions and pleas and on July 22, 1936, the defendants were placed on trial. On July 28, 1936, the jury returned an unqualified verdict of guilty against all the defendants, and on October 19, 1936, after their motions for a new trial were overruled, they were sentenced to death. From their conviction and sentences, defendants have appealed to this court.

In the course of the trial, various rulings of the trial judge were excepted to by the defendants. Some of the exceptions were reserved by the defendants individually and some of them were reserved by the defendants jointly.

Article 501 of the Code of Criminal Procedure reserves to the defendants tried jointly in a criminal proceeding the bills of exception taken by all the defendants indiscriminately. And by agreement of counsel, supplementary to the provisions of the codal article, it was stipulated that a bill of exception reserved by any defendant would enure to the benefit of his codefendants.

We shall discuss first the legal propositions common to all the defendants and, secondly, the legal propositions applicable only to a particular defendant, without specific reference to the bills of exception. But before entering upon the discussion, we think it proper to state briefly the facts which the evidence introduced by the state tended to establish, in order that the legal propositions involved may be easily understood. They are as follows, viz.:

In the latter part of the month of December, 1930, the three defendants Joseph Ugarte, Owen Cauche, and Anthony Dallao, together with Joseph Oliver, James Kavanaugh, George Dallao, and Claude Cefalu, entered into a conspiracy to rob the branch bank of the Whitney National Bank, situated at the corner of Piety and Dauphine streets, in the city of New Orleans. Their agreement, which was made at No. 541 St. Mary street, the combined place of business and home of Anthony Dallao, was that the robbery should take place between 10:45 and 10:50 o'clock on the morning of December 31, 1930. At this meeting Anthony Dallao in response to an inquiry stated that he would furnish the guns and the automobile required by the conspirators to accomplish their purpose. At the same meeting it was also agreed among the conspirators that they would assemble at the same place on the night preceding the day on which the bank was to be robbed in order to arrange the details of their proposed crime.

The conspirators met at the appointed place and time and agreed upon their plan of action. They discussed the question of hoods, raincoats, and weapons, which were produced by Anthony Dallao. Three of the conspirators left the premises for the purpose of stealing an automobile to be used by the robbers in fleeing from the bank. On their return they advised their coconspirators that they had been successful in their mission and had "planted" the stolen car in a convenient spot near the bank ready for the next day. On the same night Anthony Dallao drove his coconspirators, except George Dallao, in his own car to the scene of the proposed crime, to view the bank and to survey the neighborhood, so as to devise an easy approach to the bank and a quick flight therefrom after the robbery. It was then agreed among the conspirators that the bandit car would be parked in front of the bank against traffic at the corner of Dauphine and Piety streets, in order that the driver would have a clear view of all traffic moving on the intersecting streets. After viewing the bank and inspecting the neighborhood, the conspirators returned to the home and place of business of Anthony Dallao, where they remained during the night. Before retiring, Anthony Dallao and George Dallao left in the former's car to steal an automobile to be used in robbing the bank on the following morning. Anthony Dallao returned alone with the stolen car, which he parked in his garage.

The next morning the conspirators arose about 8 o'clock and were furnished with coffee and drinks by Anthony and George Dallao. Thereafter they went through the rear of the premises and yard into the garage of Anthony Dallao, where the stolen automobile had been parked over night. Anthony Dallao and his brother George Dallao placed in the bandit car a sugar sack containing pistols and a sawed-off shotgun, as well as the hoods and slickers to be used by the bandits. Ugarte, Cauche, Oliver, Kavanaugh, Cefalu, and George Dallao then got into the car and Anthony Dallao opened the door of his garage so as to permit the driver of the car to back it out into the street. Anthony Dallao did not get into the the car, but remained at his place of business, No. 541 St. Mary street.

The bandit car was immediately driven to the bank at Piety and Dauphine streets, where it was parked against the traffic moving on Dauphine street. With the exception of the driver, all the occupants covered with hoods and slickers got out of the car. Cefalu carried the sawed-off shotgun and each of the other bandits was armed with a pistol. The driver was left in the car, with a pistol on the seat beside him.

On entering the bank, the bandits shouted, "Stick 'em up." Pierre Rizan, the bank's watchman, made a move in their direction, and he was promptly shot down and killed by a load of buckshot discharged from the sawed-off shotgun in the hands of Cefalu. A young man named Gilbert J. Dietrich, a customer in the bank, grappled with one of the bandits, and Cefalu fired a load of buckshot into his back, killing him instantly. Alfred Brownson, one of the bank's tellers, was shot in the chest and dangerously wounded by one of the bandits and Charles Dietrich, father of Gilbert J. Dietrich, who was also in the bank, was shot in the hand and slightly wounded by another bandit. One or more of the bandits entered the teller's cage next to the cage occupied by Brownson, gathered up the money in the cage and put it in a pillowslip which the conspirators had brought with them for that purpose. When the money was secured, all the bandits retired and re-entered the automobile. They drove directly from the scene of the murder and robbery to No. 541 St. Mary street. Anthony Dallao opened the door of his garage to permit the re-entry of the automobile and then closed the door after the car was safely inside. He also assisted in removing the guns and slickers from the car. The conspirators, including Anthony Dallao, repaired to the upper part of the premises, where the money stolen from the bank, $ 3,160.80, was counted and divided among them, Anthony Dallao sharing equally with the others in the division of the loot. The conspirators then disbanded, each going his separate way.

A few hours after the alarm was given, the police arrested Cefalu, Cauche, and Ugarte. Cefalu and Cauche were arrested while engaged in conversation in the toilet of Lipnick's garage on Frenchman street. A few moments after his arrest, Cauche broke from the police and fled, in his flight throwing something under a pile of trash. On examination this proved to be $ 485 in currency, approximately one-seventh of the amount stolen from the bank, the denominations of the bills corresponding with the denominations of the stolen money. Cauche later explained to the police that Cefalu had just given him the money, and he, having heard of the robbery, did not wish to be arrested with that amount on his person. James Kavanaugh, George Dallao, and Anthony Dallao were also arrested in connection with the crime.

The stolen car used by the bandits was the property of Gerald Pratt. At about 10 o'clock on the night of the robbery it was found by the police in front of the premises No. 939 St. Mary street. In the automobile, when found, were two white hoods with eye-holes and one black hood with goggles cut therein, as well as several loaded shotgun shells, and a yellow tan slicker. On January 2, 1931, which was two days after the commission of the crime, the police recovered the shotgun and pistols used by the bandits at the premises of Anthony Dallao, No. 541 St. Mary street. The weapons were contained in a sugar sack. Immediately after the murder and robbery, the police found exploded and unexploded shotgun shells, lead pellets and parts of a copper bullet jacket on the floor of the bank. The shells were duplicates of three unexploded shells...