Holmes v. United States

• Decision Date: 01 March 1926
• Docket Number: No. 4337.,4337.
• Citation: 56 App. DC 183,11 F.2d 569
• Parties: HOLMES v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

56 App. DC 183, 11 F.2d 569 (1926)

HOLMES v. UNITED STATES.

No. 4337.

Court of Appeals of District of Columbia.

Submitted January 5, 1926.

Decided March 1, 1926.

J. A. O'Shea, of Washington, D. C., for appellant.

Peyton Gordon and Raymond Neudecker, both of Washington, D. C., for the United States.

Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and GRAHAM, Presiding Judge of the United States Court of Customs Appeals.

GRAHAM, Acting Associate Justice.

The defendant, James T. Holmes, was convicted of murder in the second degree, in the Supreme Court, November 15, 1924. From the judgment of the court, imposing a sentence of life imprisonment, he has appealed to this court. The facts as shown by the record are substantially these:

On the morning of August 28, 1924, at about the hour of 4 o'clock, the appellant, James A. Gross, Harry William Freeman, and a young woman by the name of Helen Jackson met at Seventh and S Streets N. W. The appellant, at that time, was driving a large touring car, which was equipped with a smoke screen. Shortly thereafter these four people, Helen Jackson and the defendant riding in the front seat of the automobile, and Gross and Freeman in the back seat, started out upon a hunt for whisky. After going to several places unsuccessfully, they finally went to a place on P street, between First and Third Streets N. W., where Freeman went into an alley and returned with a pint of whisky. At this time the machine was parked by the curb, not far from North Capitol street. While so parked, with some of the party on the sidewalk and some in the car, they drank the contents of this bottle, and then all reentered the car and started east to turn into North Capitol street. As they turned this corner, a member of the metropolitan police force of the District of Columbia, Raymond Leisinger, who was, at that time, in full uniform, attempted to step on the running board of the car for some purpose not disclosed. He missed his hold and seized something upon the back of the automobile, and when first seen by witnesses was clinging to the back of the car in the place where the spare tire is usually carried, with his hands upon the bumper.

Robert E. Mateer was, at this time, delivering bread, and was in front of 1426 North Capitol street, about four doors from the corner of North Capitol and P streets. He saw Officer Leisinger attempting to get on the automobile of the defendant. About 60 feet south of the intersection of P street and North Capitol there was an arc light, and as the car went south under this light the witness Mateer saw the policeman sitting on the back of the car. He saw no lights upon the car, but a short time thereafter heard three shots fired in the direction where the car had disappeared. At the time the witness first saw the car, he testified it was traveling about 14 or 15 miles an hour, but that it picked up speed just after going under the are light before mentioned, and was going about 40 miles an hour before it reached O street, 175 feet south of there.

John Joseph White was a milk driver, and was at about the corner of North Capitol and M streets when the car passed him. He heard the officer on the back of the car shout, "Stop that!" and immediately thereafter there was a blur of smoke emitted from the back of the car, which covered the officer and concealed him from view. He could see no lights on the car.

A police officer by the name of Clarence E. Ladow was at the intersection of North Capitol street and New York avenue. He saw a large black touring car pass at a great rate of speed, and just as it passed him heard some one shout "Stop them!" He then noticed a policeman on the back of the car, with his coat open and his cap on the back of his head. At that time he states the car was traveling 40 to 50 miles an hour, but he could observe a girl in the front seat, whom he thought to be white, because of her light color. Witness expressed the belief that there were no lights upon the car, except a pink dashlight in front. Shortly after the car passed him, he heard three shots down the street, and observed the blur of smoke emitted from the car, as related by the witness White. He afterwards found the body of the deceased at North Capitol and I streets, in the middle of the street, dead. He picked up the officer's revolver, black jack, flash light, and cap from the street. There were five empty chambers in the revolver.

A witness, James Hill, Jr., saw the car pass, noticed that it had no lights, and saw the police officer on the back of the car as he passed, firing his revolver into the air. Another witness, George E. Terrell, also saw the car pass, and noticed the smoke screen behind it.

Helen C. Jackson, one of the occupants of the car, was called as a witness by the government. She stated that, as the machine turned the corner of North Capitol and P streets, "this policeman started to jump on the running board," and missed it, and jumped on the rear end; that he jumped on the bumper; that the appellant started driving fast immediately thereafter; that Freeman looked out of the back of the car and said, "Somebody is on;" that the appellant thereupon asked, "Is he riding on a motorcycle or bicycle?" to which Freeman replied, "No, he is on the car;" that Holmes continued to drive fast, and the policeman then began shooting; that thereupon the appellant wanted to know who was shooting, and, after being told by Freeman that the policeman was shooting, said, "I will fix him," and turned on his smoke screen. Soon afterward he asked whether the officer was still on the car, and, being told by Freeman that he was, said, "Well, here, take this," and thereupon took a loaded revolver from over the windshield and handed it to Freeman, who thereupon rose and fired through the back of the seat in the direction of the policeman three times; that thereafter the appellant asked if he was still on the car. Being told by Freeman that he was not, the appellant drove at a fast rate of speed in a circuitous route to Fourteenth and V streets to a public garage, where the appellant put his car upstairs. Thereafter the party called a taxicab and went to Seventh and S streets, where the witness resided. She also testified that thereafter the defendant and Freeman endeavored to persuade her to leave town, immediately after having read in the papers of the death of Officer Leisinger.

After placing the car in the garage above mentioned, the appellant and Freeman procured a key to a private garage on Kingman Place in the northeast portion of the city, to which they at once thereafter removed the automobile. Soon afterward a member of the police force located the automobile driven by the appellant in this garage, found three holes in the back of the car, which are alleged to have been made by bullets, and discovered a 45-caliber revolver and 13 cartridges under a mattress on the second floor of the garage, which is identified by witnesses for the prosecution to be the same kind of a revolver as that from which the bullet was fired which ended the life of the deceased. At the time the car was found, a blanket was thrown over that portion of it where the bullet holes appeared. It was also shown that deceased came to his death as the result of a gunshot wound caused by a 45-caliber bullet.

In his own behalf the appellant testified that, after he had turned south on North Capitol street, and had gone some little distance, somebody in the car said, "I thought somebody tried to jump on the car;" that he looked back and saw no one; that he traveled at 12 to 15 miles an hour down to New York avenue, and did not at any time turn on his smoke screen; that, when they got down to M and Pierce streets, some one shot. Freeman told him, on inquiry, "Somebody shot on the rear of the car." One or two more shots were fired, and as they turned into I street another shot sounded. He then remembered he had a gun, got it, and handed it to Freeman, saying, "Take this, and protect us." He did not own the gun, and did not know how it got in its place over the windshield, but he had seen it there; that he did not know there was a policeman on the back of the car until the next morning; that all the lights were on his car, and he had not turned them off.

Freeman testified, as to the affray, that, after the car had turned south into North Capitol street, he felt the right-hand side of the car sink, and looked out to see what had happened; just then a shot sounded, and he tried to lie down upon the floor, but was prevented by the presence of Gross; that appellant asked, "What is that?" and when he replied that some one was on the back shooting, appellant asked who it was, to which he answered that he did not know, "It is a person;" that appellant then handed him a gun and said, "Take this, and don't let him kill us;" that he was scared and nervous, and after three more shots were fired, and just as they turned into I street, he began firing through the back right-hand side of the car; that no one in the car used the word "policeman" in his presence.

Gross testified that, as they were going down P street, somebody, whom he "could not conscientiously swear" was a policeman, jumped on the side of the car, but he could get but a "small view" of him, as the policeman jumped "right-handed"; "you could only see the right side of him." Witness felt the weight of the person as he jumped on the car, and then looked and could see no one. As they crossed New York avenue, Freeman looked through the back of the car, and said, "Some one is on the car." Then a shot was fired and witness got down in the bottom of the car. As they went down the street, three more shots were fired, and as they turned into I street Freeman said, "If the man keeps on shooting in here like he is, I am going to take this and knock him off there with it." Then the officer fired again, and Freeman fired three shots. He also stated that,...