State v. Petralia

• Decision Date: 28 August 1950
• Docket Number: No. 7406,7406
• Citation: 221 P.2d 873,118 Utah 171
• Parties: STATE, v. PETRALIA.
• Court: Utah Supreme Court

Page 873

221 P.2d 873

118 Utah 171

STATE, v. PETRALIA.

No. 7406.

Supreme Court of Utah.

Aug. 28, 1950.

Arthur Woolley, Ogden, for appellant.

Clinton D. Vernon, Attorney General, Quentin L. R. Alston, Assistant Attorney General, for respondent.

McDONOUGH, Justice.

Defendant was charged with robbery and convicted of grand larceny, and he appeals. The information and bill of particulars specifically charged stealing and taking from the immediate presence of two named men the sum of approximately $27,300, by means of force and fear, on or about June 25, 1948, at a place known as 'The Club' in Ogden.

Tony Salerno, an admitted accomplice in the crime, worked at 'The Club' for some years prior to entering military service. He had known defendant for over 20 years. Salerno knew that the Pappas brothers, George and Harry, who operated The Club, kept on hand at certain times large sums of money to cash checks of railroad employees and employees of other firms. Salerno testified that he made a trip to California with a girl friend in the spring of 1948. While there he visited the defendant and they discussed the possibilities of raising money by robbery or theft at The Club. Salerno informed defendant of the manner in which the money was handled and kept at The Club. Defendant agreed to discuss the matter further on coming to Ogden. After reaching Ogden, Salerno had an altercation with his girl friend, was arrested and lodged in the city jail.

Prior to June 15, 1948, when Salerno was released on bond, Petralia (defendant) came to Ogden and brought fruit and cigarettes to Salerno in jail, and on such occasion interviewed him in jail as to a plan of robbery. On his release, Salerno redeemed a gun from pledge and turned the same over to defendant on June 17th. By prearrangement, defendant left Ogden and returned about June 23rd, bringing with him two men from California to assist in the proposed robbery. Defendant suggested that Salerno hang around The Club on June 24th, which was the day before a payday at certain firms nearby, to make sure that substantial sums of money were brought there, and to ascertain where the funds were kept. On June 24th, George Pappas brought $12,000 from the bank, to supplement other funds at such beer tavern. Salerno stayed around most of the evening and talked with one of the Pappas brothers. He stayed after the place was closed, and left with Harry Pappas who was on duty that evening. Two night men were left at The Club when Pappas left. Those two cleaned up the place at night and during the early morning hours, checked on the draught beer equipment, and watched the place.

Salerno was acquainted with both of the night men, and they had frequently permitted him to enter the place after hours with friends to gamble. About 2:30 or 3:00 a.m. Salerno knocked on the front door of The Club, and when asked why he wanted to get in at that hour stated that he and his friend (who was one of the alleged robbers) wanted to use the toilet, and entrance was granted. The attendant who admitted these two men then went about his work, and Salerno proceeded toward the rear of the premises, indicating to the gunman who accompanied him, where the money was kept. These two ostensibly went into one of the toilet rooms, but actually Salerno went to the back door and released the night-latch and thereby unlocked the door. He then went into the toilet room and flushed a toilet, and the two men went toward the front where they induced one of the night men to give them each a bottle of beer. Salerno indicated to the gunman the position of the money drawer while drinking the beer. They then left by way of the front door, and reported to defendant a short distance away. The defendant, Salerno and the two gunmen then drove in defendant's car to a place somewhat closer to 'The Club'. Defendant remained in the car, Salerno led the gunmen to the rear door where the gunmen who wore overalls, loaded their guns and put on masks. The two gunmen then entered by way of the rear door which Salerno had unlocked a few minutes previously.

The gunmen took the night-men by surprise, held their guns on them and tied them up hurriedly with binding twine and placed adhesive tape over their mouths. They then went to the money drawer, pried it open with some instrument, and removed the money box and the contents. One of the night-men saw one of the gunmen carry something out in a bartender's apron. After they carried the money away, which the Pappas brothers claimed to amount to $27,300, the gunmen and Salerno joined defendant, who took over the money. Salerno said he needed some then, and was given $93. It was agreed that it would be unwise to have these men remain together, and that they were to meet at some subsequent time in California and divide the money so stolen.

When one of the night-men saw the gunmen leave, he worked to free himself, and he found the other one free by the time he reached him. One of them went upstairs to a hotel telephone and called one of the Pappas brothers. The police were notified and responded in several minutes. Shortly thereafter Salerno was arrested and charged with robbery. At the end of seven days he confessed having participated in it and he implicated defendant, but stated that he was unable to identify the two gunmen.

Following the date Salerno confessed, George Pappas called defendant Petralia on the telephone at Bell, California, and asked for reimbursement. Several additional calls were made, and subsequently Pappas went to Los Angeles and interviewed defendant personally. Defendant did not deny that he had conversations over the telephone nor that Pappas visited him. He did strenuously deny that Pappas was promised or given any money. Pappas testified that defendant said that the amount taken in the robbery did not exceed $17,000 and that he had already divided the money, but finally agreed that he would pay a total of $10,000 to call off the prosecution. According to Pappas, defendant delivered $6,000 in currency in a shoebox just as Pappas left Los Angeles. When the balance of $4,000 was not sent, Pappas went to the police.

Defendant denied that he participated in the robbery or aided or abetted its commission. He denied that he was in Ogden at the time the crime was committed. Some of his witnesses testified to seeing him in Bell, California, the day prior to the crime and on the day of the Commission of the offense as well as on the day subsequent. The cross examination of these witnesses doubtless created some doubt in the minds of the jurors as to the accuracy of the recollection of the particular dates. It was disclosed that both defendant and Salerno were ex-convicts.

The alleged reversible errors specified by appellant may be summarized as follows: (1) Failure to grant a new trial or to direct a verdict for defendant in the first instance, by reason of lack of sufficient corroboration of the testimony of an admitted accomplice. (2) Refusal to exclude certain exhibits and certain testimony offered by the state. (3) Errors in the charge to the jury. (4) Prejudicial error in contempt proceedings.

Appellant contends that the court should have granted a new trial or should have directed a verdict for defendant instead of submitting the case to the jury, by reason of insufficient evidence of corroboration of the testimony of an admitted accomplice. The argument of appellant disregards a considerable portion of the record. Sec. 105-32-18, U.C.A. 1943 specifies: 'A conviction shall not be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself and without the aid of the testimony of the accomplice tends to connect the defendant with the commission of the offense; and the corroboration shall not be sufficient, if it merely shows the commission of the offense or the circumstances thereof.'

Salerno testified to the plans for the robbery in detail, and also as to the manner of its commission. The statute requires that the corroboration must be of such a character that it 'tends to connect the defendant with the commission of the offense.' The statute does not require that the corroboration shall be sufficient to prove each and every element of the offense beyond a reasonable doubt....