Petition for A Writ of Certiorari — Petrelli v. United States

Saas . ele ia

i ee AUG 3 1942 |

; PEATLES ELMORE CROPLEY

. OL Lwex

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1942.

ANTHONY JOSEPH PETRILLI, 4

Petitioner,

‘ ee va:

UNITED STATES OF AMERICA,

Respondent. |

PETITION FOR WRIT OF CERTIORARI

and

BRIEF IN SUPPORT THEREOF.

BRYAN PURTEET,

705 Olive Street,

St. Louis, Missouri,

Attorney for Petitioner.

St. Louis Law Parintine Co., 415 North Bighth Street. CH ntral 4477.

SUBJECT INDEX.

Page

PETITION FOR WRIT OF CERTIORARI.......... 1-8

MIE SiG LN so yr kacn che eden FEMS UU ee an ods 1

ee SO ions soon ky ca we so ava bo tee 2

NE a ie se oie ence dna e nied canine es we 3

Petitioner not shown in automobile.............. 3-4

Petitioner not identified as being one of robbers.. 4

PS Wi oh ks Bie bed kbd 5G 4 RbvéeRene nee ee owe 4

Se ee TINE 6 68.0.8 bos a ap oF Whoa pete eg 5

SS SO SI WEE iiss he eco wiceveacneus 6

BRIEF IN SUPPORT OF PETITION............... 9-27

MEN oe ni cau c ci kien eh ads v baa be heswuess> 9

I. gehts win bad aus damedddibeoanesess 9

I Or OS aaa bea hvakaavakosnenus<eeen 9

cE eer errr ony Pree ey errs rere 10

BEI aie NRK ea as 4 ive SIRE R ess 12

I. The petitioner did not receive a fair trial.... 12

(a) Unfair to read aliases to jury and not

Ceuie TT ose nca sone nth Va shawk ones 12

(b) Unfair to call petitioner gangster....... 14

II. Evidence is insufficient .................00- 15

(a) The Circuit Court misstated the evidence 15

(b) The Circuit Court considered matters out-

hee We WA Sk Coe ae 15

(c) The Cireuit Court decision misconstrued

CORDED 0555.6 FR Rosine HER Cx cess 16

(d) Corpus delicti properly defined......... 16

(e) Circumstantial evidence in case did not

exclude every reasonable hypothesis of

CUMIN cs onc ae oe la kei chs Nan bene 17

Tit, Fees eB SRE So i eas seek k san 804s een 19

(a) No proof in particularity of that which

was alleged with particularity.......... 20

ii

IV. Proof failed to show possession in petitioner.. 24

V. No proper proof of market value of jewelry

I Sea Shake saws a abee ted cay ade 23

VI. Court erroneously charged jury that evidence

showed petitioner in possession of stolen

MON cen ck i yas cm asi ceesseseivns cance. 23

VII. The Court’s sentence is void ............... 25

(a) When Court charges jury as if defendant

were accessory after the fact, sentence

may be only half of maximum.......... 26

VIII. Cireuit Court of Appeals’ decision failed to

consider all assignments of error..........-. 26

(a) It is the duty of the Supreme Court to

correct the errors of the Circuit Court of

Appeals and give full review to entire

er acacet ens Oe bescee dele 27

NS oa cated eee nese nk Fp sn caw esas nn tcaes 27

Table of Cases Cited.

Brady v. U. S., 24 F. (2nd) 399......---..eee eee es 10, 18

D’Allessandro v. U. S., 90 F. (2nd) 640........... 6, 10, 138

Forte v. U. S., 94 F. (2nd) 286.............02eeee- 10, 16

Husten v. U. S., 95 Fed. (2nd) 440.........--0++-0 23

Isbell v. U. S., 227 F. 788....... sce cece creer ceeeees 10, 19

Kutler v. U. S., 79 F. (2nd) 440..........0 eee eee eeee 7, 21

Pearlman v. U. S., 10 F. (2nd) 460.........-.++++- 10, 16

U.S. v. Howard, 3 Summ. 12, 14, 15.........+---. 7, 10, 20

U.S. v. Salowitz, 99 F. (2nd) 714.........+-0+-05- 6, 10, 12

Van Gorder v. U.S., 21 F. (2nd) 989........+---+65- 10, 18

Willsman v. U. S., 286 F. 582..........-0005- 10, 11, 22, 24

Statutes Cited.

Judicial Code, Sec. 240 (a), as amended by Act of Feb.

13, 1925 (U.S. C. A., Title 28, | Area 4,9

18 U.S. C. A., Section 415....... ce cece cece ener ee eee 2, 26

18 U.S. C. A., Section 551..... 6. eee reece reece eens 11, 26

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1942,

ANTHONY JOSEPH PETRILLI, ‘

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent. |

PETITION FOR WRIT OF CERTIORARI.

To the Honorable, the Chief Justice and Associate Justices

of the Supreme Court of the United States:

Your petitioner prays that a writ of certiorari issue to

review the judgment of the United States Circuit Court of

Appeals of the Eighth Circuit, entered in the above cause

on July 8, 1942, affirming the judgment and conviction of

the United States District Court for the Eastern Division

of the Eastern Judicial District in the City of St. Louis,

State of Missouri, convicting petitioner of violation of 18

U.S. C. A., Section 415, 53 Stat. 1178.

SUMMARY.

This is a criminal case commenced in the United States

District Court for the Eastern Division of the Eastern

Judicial District of Missouri by a one-count indictment

(R. 5-9) returned by grand jury and filed in court on the

23rd day of June, 1941.

Your petitioner was tried on November 12, 1941, and

verdict of the jury was guilty. The Court on the 13th day

of November, 1941, sentenced petitioner to ten years im-

——

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prisonment. Petitioner appealed to the United States Cir-

cuit Court of Appeals for the Eighth Circuit, which Court,

on July 8, 1942, affirmed the decision of the lower court

(which opinion is not yet reported, but printed at R. 103-

110).

STATUTE INVOLVED.

18 U.S. C. A., Section 415:

“Whoever shall transport or cause to be transported

in interstate or foreign commerce any goods, wares,

or merchandise, securities, or money, of the value of

$5,000 or more theretofore stolen, feloniously con-

verted, or taken feloniously by fraud or with intent

to steal or purloin, knowing the same to have been so

stolen, feloniously converted, or taken, or whoever

with unlawful or fraudulent intent shall transport or

cause to be transported in interstate or foreign com-

merce any falsely made, forged, altered, or counter-

feited securities, knowing the same to have been

falsely made, forged, altered, or counterfeited, or who-

ever with unlawful or fraudulent intent shall trans-

port, or cause to be transported in interstate or for-

eign commerce, any bed piece, bed plate, roll, plate,

die, seal, stone, type, or other tool, implement, or thing

used or fitted to be used in falsely making, forging,

altering, or counterfeiting any security, or any part

thereof, shall be punished by a fine of not more than

$10,000 or by imprisonment for not more than ten

years, or both: Provided, That the provisions of this

section shall not apply to any falsely made, forged,

altered, counterfeited, or spurious representation of

(1) an ‘obligation or other security of the United

States,’ as defined in section 261 of this title or (2) an

obligation, bond, certificate, security, treasury note,

bill, promise to pay or bank note, issued by any

‘foreign government’ as defined in section 288 of this

title, or by a bank or corporation of any foreign coun-

try. May 22, 1934, c. 333, Section 3, 48 Stat. 794, as

amended Aug. 3, 1939, ¢. 413, $1, 53 Stat. 1178.”’

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STATEMENT OF THE CASE.

At 8:30 o’clock a. m. on February 7, 1940, Thomas

Slifkin, a jewelry salesman, left the Adolphus Hotel at

Dallas, in the State of Texas, and drove in his auto-

mobile past the Town of Garland, Texas, when a car

(not the one described in the evidence) approached and

pushed him off the road. One man was waving a gun at

him. Slifkin testified (R. 19) he did not have the least

idea who the men in the car were. Slifkin saw two men.

They commanded him to turn his head and get in the back

of his own car where he was caused to lie on the floor

covered up under some coats. The two men talked to him

about the jewelry, code mark, price, etc., and drove with

him in his car for several hours, releasing him at 2:15

o’clock p. m. thirty-five miles west of Texarkana, Ar-

kansas, in the State of Texas (R. 21).

At 5:30 o’clock a. m. on February 8, 1940, two Mis-

souri State Highway Patrolmen were sitting in an auto-

mobile near the intersection of Lindbergh road and High-

way No. 66 (which is just outside and west of the city

limits of the City of St. Louis, Missouri) when a Ford

car bearing Minnesota state licenses passed, eastbound

toward St. Louis. It was misty and freezing (R. 44). The

patrolmen testified that the Ford was traveling between

60 and 65 miles per hour; that they gave chase; that the

Ford increased its speed to about 85 miles per hour; that

there were two men in the front seat of the car and one

in the rear seat; that the Ford hit a concrete abutment

which held up an intersection sign at U. S. Highway No. 66

and Laclede Station road and turned over on its left side;

that they were more than fifty yards from the Ford when

it turned over; that they found two men in the overturned

car; that they found petitioner ‘‘in front of a filling station

located on the north side of the highway about twenty-

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five yards from the scene of the accident’ (R. 35-6, 43-4-5),

Neither patrolman knew who was in the Ford at the time

they gave chase and before it turned over (R. 41-2).

Neither patrolman would say that they ever saw petitioner

in the Ford. The two occupants of the wrecked Ford and

petitioner were placed in an ambulance and the driver

thereof was directed to take them to a hospital. The

wrecked Ford car was towed a block away to Horst Auto

Station, where the patrolmen found a large leather satchel

in the rear seat containing jewelry. There was no definite

or particular description of the jewelry given by the wit-

ness. At record page 37 one patrolman said: ‘‘It had

several rings in it. There were several individual ring

boxes containing rings.’? At record page 45 the other

patrolman described the jewelry as ‘rings and settings

for ladies’ and men’s rings. There were brooches in there

and pins.’? Neither patrolman produced any of the

jewelry nor a list thereof.

The prosecution made no effort to show where the

wrecked car came from or that it ever crossed any state

line; that petitioner was ever in the State of Texas, or that

the wrecked automobile was ever outside Missouri or be-

yond the limits of St. Louis County, Missouri.

Slifkin testified (R. 19) that he did not know who took

the jewelry; that he had not seen the petitioner in the

State of Texas.

JURISDICTION.

The jurisdiction of this court is invoked under Section

940 (a) of the Judicial Code as amended by the Act of

February 13, 1925 (U.S. C. A., Title 28, Section 347).

OO

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THE QUESTIONS PRESENTED.

1. Petitioner did not receive a fair and impartial trial

because the indictment contained twenty-eight aliases

which were read to the jury, Government counsel assuring

the Court that he would prove the aliases. The Govern-

ment closed without proving a single one of the aliases.

Government counsel in his closing argument to the jury

called the petitioner a ‘‘gangster.’’

2. The evidence is insufficient to sustain conviction.

3. There was a variance between the allegations and

the proof. The indictment describes sixty-one items of

jewelry in particularity, but the Government offered no

proof in particularity.

4. The proof failed to show that petitioner possessed the

alleged stolen property.

5. There was no proof that the jewelry found in St.

Louis County had a fair market value of $5,000 in Texas.

6. The Court erroneously charged that the evidence

showed that the defendant was in possession of the jew-

elry.

7. The sentence pronounced by the Court is void.

8. The decision of the Circuit Court of Appeals incor-

rectly states the evidence and contains statements not

supported by the record.

9. The Circuit Court of Appeals refused to pass upon

all the points raised in petitioner’s appeal.

pee ee

REASONS FOR GRANTING APPLICATION FOR WRIT.

1.

The decision of the Circuit Court of Appeals regarding

the matter of aliases is in conflict with the decision of the

Third Cireuit Court of Appeals in the case of D’Allessandro

vy. United States, decided June 10, 1937, 90 F. (2nd) 640,

wherein the Court said:

‘‘None the less, the string of aliases may be so ar-

ranged as to carry the implication that the defendant

belongs to the so-called criminal class and thus half

convict him as soon as the indictment is disclosed to

the jury.”’

In the case at bar the Assistant United States Attorney

opened the proseeution by reading the indictment and the

aliases. Counsel for petitioner objected and warned the

Court that, unless the aliases were proved, petitioner

would move for a dismissal. The Assistant United States

Attorney said, ‘‘We are going to prove these aliases’’

(R. 15). None of the aliases were proved.

In the Seventh Circuit, in the case of United States v.

Salowitz, decided October 19, 1938, 99 F. (2nd) 714, the

Court said:

‘‘Of course, if a person has used names other than

his right name, as the record discloses was the case so

far as appellant is concerned, and the government

proved such aliases, there can be no legitimate com-

plaint. Otherwise, it is not difficult to see how a

defendant might be prejudiced before a jury.’’

In the case at bar it is seen that the Government delib-

erately set the trial in an atmosphere of prejudice with a

backdrop of passion in order to sway the jury, then fanned

the flames of passion and prejudice by shouting, in the

closing argument, that the defendant was a gangster,

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‘*the purpose of that statute, and you men know what

the purpose was, is to stop gangsters, like these men

here, who are robbing men on the highway and trans-

porting the property taken * * *.”’

These tactics deprived the petitioner of a fair and im-

partial trial as guaranteed by the Constitution.

2.

The decision of the Circuit Court of Appeals in sanction-

ing such unfair trial tactics so far departs from the ac-

cepted and usual course of judicial proceedings as to call

for an exercise of this Court’s power of supervision.

3.

The decision of the Circuit Court of Appeals in refusing

to pass upon all of the errors assigned and briefed by peti-

tioner constitutes a violation of the Fifth Amendment in

that it deprives petitioner of his liberty without due proc-

ess of law.

4,

The Circuit Court of Appeals’ decision as to the Gov-

ernment’s failure to prove in particularity that which was

alleged in particularity is contrary to the ruling of this

Court in United States v. Howard, 3 Summ. 12, 14, 15,

and in conflict with the case of Kutler v. United States, 79

F, (2nd) 440, 3rd Circuit. The indictment alleging sixty-

one items in particularity, it was encumbent upon the

Government to prove these item by item with particularity

and not by generalizations, as it did (R. 24, 25).

FT A TN EEE RO GRE SL IE LOE RES ERE RS EE TE, I RRL

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5.

It is the duty of the Circuit Court of Appeals to state

the facts accurately (see account of misstatement, page

15 of supporting brief). It also is the duty of the Circuit

Court to pass on all assignments of error it refused (R.

107), pass on assignments 3 (R. 96), 4 (R. 97-98), 5 and 6

(R. 99), 6 and 7 (R. 106). The Circuit Court having so

failed, it is the duty of this Court to review these assign-

ments in order to determine if petitioner had a fair trial.

Wherefore, your petitioner respectfully prays that this

petition for a writ of certiorari to review the judgment of

the Circuit Court of Appeals herein be granted.

BRYAN PURTEERT,

Attorney for Petitioner.

Dated St. Louis, Mo., July 31, 1942.

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