State v. Romeo

• Decision Date: 03 September 1912
• Docket Number: 2353
• Citation: 128 P. 530,42 Utah 46
• Court: Utah Supreme Court
• Parties: STATE v. ROMEO et al

128 P. 530

42 Utah 46

STATE v. ROMEO et al

No. 2353

Supreme Court of Utah

September 3, 1912

Rehearing Denied December 17, 1912.

APPEAL from District Court, Seventh District; Hon. A. H Christensen, Judge.

Frank Romeo and two others were convicted of murder in the first degree. They appeal.

AFFIRMED.

W. H Frye, C. C. McWhinney and Booth, Lee, Badger, Rick & Parke for appellants.

A. R. Barnes, Attorney-General, E. V. Higgins, and Geo. C. Buckle, Assistant Attorneys-General, for the State.

STRAUP, J. FRICK, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

The three defendants were jointly charged with first-degree murder, the homicide of Albert Jenkins at Sunnyside, on the 5th day of February, 1911. Corier was first tried, found guilty, and sentenced to life imprisonment in the state prison. Thereafter Romeo and Zaffy were tried together. Both were convicted and sentenced to suffer death. Both appeal.

The questions for review relate to the admission of certain testimony, the court's refusal to charge as requested by the defendants, and portions of the charge. We shall refer only to so much of the evidence as is necessary to properly review them.

Corier was a baker at Sunnyside. At that place Jenkins, the deceased, and one Bentley conducted a gambling business. Romeo and Zaffy were in Salt Lake City out of employment. A countryman of theirs informed them that work could probably be procured at Sunnyside, and wrote to Corier about it. Corier sent tickets to Salt Lake for the defendants' transportation to Sunnyside. They arrived there on the evening of the 3d of February, and were met at the train by Corier. He gave them supper, and money for a night's lodging. The next day Corier quit his employment, and was paid off. On the morning of the 4th Romeo and Zaffy visited and drank at saloons, and later went to coke ovens at Sunnyside. There, in the afternoon, they were joined by Corier. They remained there until late at night, and drank much whisky. In the early morning of the 5th, between 12:30 and 1 o'clock, the deceased was robbed and killed as he and Bentley were on their way home from their place of business. Bentley, a witness for the state, testified that he and Jenkins left the saloon, where they conducted a gambling business, at about 12:30 o'clock a. m. to go to Bentley's house, about a hundred yards away, and followed a path or trial leading from the saloon to the house. Jenkins in his coat pocket carried a sack containing $ 282 in silver. He also had $ 130 in gold in a purse. He carried a black handled double-action revolver in his waistband. As they approached a toilet along the path, three men, two of whom at least had guns, suddenly stepped out from behind the toilet and fired, first at Jenkins, and then at Bentley. Bentley ran and fell to the ground "as if I was hit, and laid there with my back toward Jenkins. I heard their footsteps shuffling around and their mutterings as they advanced on Jenkins. I heard ten or more shots. I heard Jenkins say, 'Take the money, but don't murder me. Here is the money, take it; don't murder me.' Then the shots ceased for a little while, about time enough to get the money, and then there were three or four more shots fired. As I lay there and thought they were all gone, and as I was ready to get up, I heard footsteps coming behind me, and I laid there like I was dead. He (the person coming up) took hold of me with one hand and with the other fired a shot and struck me here (indicating about the abdomen), and it went through my coat and clothing." The bullet was deflected by striking a book in his pocket and abraded the skin about the abdomen. The bullet was later found in his clothes. After the assailants had departed Jenkins called for help. Bentley and others assisted him to the house. He had one gunshot wound in the arm and one "in the region of the naval," which caused his death two or three hours later. He also had a deep and rather long wound or cut in the neck made by a sharp instrument. His clothing bore bullet marks and cuts. There were several fresh bullet marks in the toilet, and some in a house along the path. Bentley was unable to identify either of the defendants.

Another witness, attracted by the shooting, heard the deceased cry out, "Take the money, but don't murder me." He saw two men run from the place where the shooting occurred, and shortly thereafter a third. He recognized the third as the defendant Corier. A slight snow, two or three inches, had fallen earlier in the night. Three distinct foot tracks were discovered about the toilet and its vicinity. They were traced from there to the railroad track and across the country in the direction the assailants went. The tracks, beyond dispute and all doubt, were those of the three defendants. The assailants were pursued by officers and a posse. Zaffy and Corier were apprehended and arrested the next day about twenty miles from Sunnyside; Romeo the day after still farther away, at Green River. Romeo had in his possession a loaded white handled revolver, eight additional cartridges, a razor with blood on it, and a sack containing $ 85.50 in silver. The sack was identified as that carried by Jenkins and taken from him. Zaffy had $ 4.50 or $ 5.50, and Corier about $ 35 or $ 37. Neither Corier nor Zaffy had weapons when they were arrested. Each of the defendants freely and voluntarily made statements to the officers and others as to their connection with the transaction. Zaffy told them that he met Romeo in Salt Lake about two weeks before they went to Sunnyside. They were out of work, and Romeo proposed that they go to Sunnyside. Romeo told him he would furnish tickets if he would go with him. A few days later they received tickets and went to Helper, and then to Sunnyside, where they were met at the train by Corier. He gave them supper and Romeo five dollars to pay for their lodging and breakfast. The next morning Zaffy and Romeo visited saloons, and had several drinks. They then went over in the brush near the coke ovens, and remained there until in the afternoon, when they were joined by Corier, who brought with him two bottles of whisky. They remained there drinking the whisky until about eight o'clock in the evening. They then went to the Italian saloon, where Romeo bought a half gallon of whisky. They took it, and "went up to the cedars," and remained there until late at night, drinking whisky. While drinking in the brush near the ovens, "they made up this plan to hold up two gamblers that was over there at that saloon where they had drank that morning." Zaffy did not want to go, but was afraid of Romeo, who, he said, was "a black-hand man." Romeo and Corier gave him more whisky, and he got pretty drunk. The three men went over where the gamblers lived, and hid in the water-closet. The two men came along there, and they all ran out and there was lots of shooting. He had no gun and did no shooting. He saw the two men do a little shooting, but saw no money and no gun, except he saw "Romeo have a white handled gun sticking in his belt as they were running through the cedars after the shooting." He said he was so drunk when the shooting occurred that he did not clearly remember what all took place, and that he was not able to help himself. He fell down, and his companions helped him up to get away. The three remained together until they reached Cedar Station. There they were pursued and shot at by officers. They separated, Zaffy and Corier remaining together, continuing their flight until their arrest.

Romeo told the officers and others that Zaffy and Corier had not treated him right, and he, too, wanted to make a statement. He told them about getting the tickets and going to Sunnyside, meeting Corier, drinking whisky, substantially as related by Zaffy; that while he and Zaffy were in the brush near the ovens Corier "came over with some whisky, and that they drank, and that Corier proposed that they hold up them two gamblers, that they had all kinds of money, and that he told Corier that he did not want to do that, and that Corier then gave him more whisky, and that he got a little drunk, and Corier handed him the gun that was taken from him at Green River, and that Corier had an automatic gun. They went to the station saloon, bought more whisky, drank most of it, and then all three went up the path behind the water-closet and waited for these two men to come from the saloon, and, when they came along, all three rushed out, and that Corier did the shooting, but that he, Romeo, did not shoot; that Corier took the sack of money from Jenkins, and carried it until they got near Cedar Station. There they divided the money, Corier giving Romeo four twenty dollars in silver and Zaffy four twenty dollars in silver. Corier putting his share in his pocket, and giving the sack to Romeo to carry his."

Corier's version of the affair as told the officers is this: Romeo and Zaffy came to his bakeshop. He gave them something to eat and gave Romeo five dollars to pay for their lodging at the Italian hotel. Corier intended to leave Sunnyside on the 4th and go to Salt Lake, there to work at his trade, and for that reason quit his employment at Sunnyside. That "he started to catch the train, and on his way met Romeo and Zaffy at the coke ovens. They told him that they were going to hold up Jenkins and get all his money, and insisted on his staying with them. He told them that he did not desire to make his money that way, and then they drank, and he got pretty drunk, and he was afraid to separate from them, especially from Romeo, who was a 'blackhand man,' a bad man. That night they waited behind the buildings and the closet, and, when Jenkins came along he, Corier, was too drunk to go out, but Romeo went out,...