People v. Barone

Decision Date09 January 1900
Citation55 N.E. 1083,161 N.Y. 451
PartiesPEOPLE v. BARONE.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, trial term Erie county.

Guiseppe Antonio Barone was convicted of murder in the first degree, and from an order denying his motion for a new trial he appeals. Reversed.

Eugene M. Bartlett, for appellant.

Thomas Penney and Frederick Haller, for the People.

VANN, J.

On the 11th of July, 1898, the defendant, Guiseppe Antonio Barone, was jointly indicted with Rosina Barone, his wife, and one Vincenzo Muscarello, for the murder of Phillipo Forestino on the 20th of June, 1898, at the city of Buffalo. The indictment contains two counts, by the first of which the defendants were charged with inflicting certain mortal wounds upon said Forestino by means of a knife ‘willfully, feloniously, and from a deliberate and premeditated design to effect’ his death. The second count charged them with the same act, committed ‘with force and arms, * * * willfully, feloniously, and of their malice aforethought.’ The accused persons demanded separate trials, and on the 3d of October, 1898, the indictment was moved against Guiseppe Antonio Barone, henceforth called the defendant.’ More than 60 witnesses were called for the people, and nearly as many for the defendant, including himself and his wife, and on the 22d of October, 1898, the jury rendered a verdict of murder in the first degree. A motion for a new trial was made, argued, and denied, and judgment of death was pronounced against the defendant on the 2d of November, 1898. From that judgment this appeal was taken.

The theory of the prosecution was that the defendant, on learning that his wife had been guilty of adultery with Forestino, with deliberation and premeditation took his life, in pursuance of a conspiracy formed between himself and the other defendants. The theory of the defendant was that, while he killed Forestino in the manner charged in the indictment, the act was done without deliberation or premeditation, upon the impulse of the moment, and in self-defense. The issue of primary importance, therefore, was whether the homicide was committed with deliberation and premeditation.

Rosina Barone is the wife of the defendant, and an aunt of the wife of his co-defendant, Vincenzo Muscarello. The defendant was born in Sicily in 1861, was married there in 1886, and in 1891 he came to America and located in the city of Buffalo. His wife, formerly of good repute, came here later, with their three children. Prior to the homicide his reputation, as given by his employers and others, was that of an honest, industrious, and peaceable citizen. At the time of his arrest he had worked continuously for one employer a period of 6 years and 3 months. The deceased was a small man, 5 feet 2 inches in height, about 30 years of age, of less physical strength than the defendant, and had been in this country over 5 years before his death. He had resided for three years at No. 42 Fly street, Buffalo,-a house occupied by many Italian families, in which the defendant and his wife also resided for 20 months. During this period Forestino became criminally intimate with Mrs. Barone, but the defendant did not know it at the time, although it was generally accepted as a fact by the acquaintances of all concerned. In the fall of 1897 he contracted a venereal disease from his wife, which she had caught from Forestino, and thereupon he charged her with infidelity, but she stated that she caught it from a man who overcame her by violence. She did not make this statement until it became necessary to present some excuse to her husband. Whether he believed it is open to doubt, for he promptly sent her and their three children back to Italy, sold his housekeeping effects at auction, and went to boarding with his brother. This was in October, 1897, and on the 22d of March, 1898, she returned to her husband, who was apparently expecting her, as he had secured and furnished rooms at No. 11 Olga place, where they went to living together. This house was in a Polish section of the city, and quite remote from the Fly street house, which was in the Italian quarter. During the absence of his wife in Italy, according to his statement, the defendant received two or three letters from her asking him to take her back, and stating that the children were dying of hunger; but he answered the first only, refusing to take her back because she had disgraced him. The letters were not produced, and he swore they had been destroyed. While she was gone he asked Forestino to fix a clock for him, and the relations of the two men were apparently friendly until the time of the homicide. When she returned, as he says, she asked him to forgive her, stating that she had been taken advantage of through no fault of herself, and he did forgiveher on account of the children. He insists that up to the time of the homicide he had no suspicion that Forestino had been intimate with her. The reason assigned by him for taking rooms at Olga place was that he did not wish to live again among the Italians, who knew of his disgrace. Mrs. Barone occasionally returned to the Fly street house,-for the purpose, as claimed by the people, of seeing Forestino, who still resided there, but, as claimed by the defense, in order to see her old acquaintances. She was there a week before the homicide, and saw Forestino, and three days later she saw him there again, and had a talk with him, during which, as evidence was given tending to show, she invited him to visit her; stating that the air was good, and he had better come out there. The defense claims the invitation was general, to all her old acquaintances, and not to Forestino in particular; and this view has some support in the evidence. The testimony relating to what was said upon the subject, even as given by each witness, was somewhat contradictory; but it appears satisfactorily that Mrs. Barone furnished Forestino a piece of paper or card, and that he made a memorandum, and put it in a little book in his picket. After his death, a memorandum was found in a pocketbook on his body in the following form: ‘Clinton St., Olga Pl., N. 11.’ ‘Clinton St.’ doubtless refers to one of two street-car lines which could be taken to reach Olga place, but the cars on the William street line ran a little nearer and more frequently than those on Clinton street. Mrs. Barone says that she used to take the William street line to go to Olga place, and that she did not know where Clinton street was, or the number of her house at Olga place. She could not read or write, and kept the card to show when she asked a policeman what car to take in order to go home. She denied that she invited Forestino to her house, but admitted laying this card down on the table for Mrs. Mazzia, in his presence, and that he took it up and wrote the address on a piece of paper. She saw him again, for the third time during the same week, only two days before the homicide, as hereinafter stated.

On Saturday evening, the second day before the homicide, the defendant borrowed a wheelbarrow, and moved a lot of old railroad ties, which he had procured for fuel two days before, about three blocks, to Olga place, and unloaded them in front of the house, where they remained until Monday morning. The ties were heavy, and it took him about two hours to move them. The same evening Muscarello arranged with one Salvatore Battaglia for the loan of a horse and wagon; saying that he wanted to use them the next morning, at 5 or 6 o'clock, to take a cross to the cemetery, where he had recently buried a child. It was finally agreed that Muscarello should have the horse and wagon at between 8 and 9 o'clock the following morning, which was Sunday, June 19th, the day before the homicide; but he did not go for them, giving as an excuse that it looked as if it was going to rain. It did rain during the night, and was cloudy in the morning. About 10 or 11 o'clock he asked Salvatore if he could have the horse and wagon on some day during the following week; but his request was refused, as Salvatore said he needed the horse for himself on week days in his business of huckstering. Muscarello's statement as to the purpose for which he wanted the horse and wagon was corroborated by several witnesses. He told various persons that the reason he did not take the cross on Sunday was that he felt unwell, having drank too much Saturday night. His wife swore that when he came home Sunday morning he was intoxicated, ate no breakfast, went out at 10, complained of not feeling well, and did not return until late. Other witnesses swore to substantially the same facts. He went to work at the usual hour on Monday morning, worked almost all day, and ceased earlier than usual at the suggestion of his employer. He had lost a child on the 13th of June, and, shortly before he arranged for the horse and wagon, had purchased a stone for its grave, and had hired a marble cutter to cut an inscription upon it, so that it could be taken to the cemetery on the Sunday in question. On Sunday morning, at about 10 o'clock, the defendant, with his wife and three children, aged, respectively, 9, 6, and 2 years, left their home at Olga place, and later in the day were seen upon the street in the vicinity of the Fly street house. Mrs. Barone went to that house at 1 o'clock, remained 4 or 5 hours, and during this time saw Forestino. While she was there the defendant went to Salvatore Battaglia, and tried to purchase a horse and wagon; saying that he was tired of working, and wanted to go into the huckstering business. Salvatore offered to sell, but the defendant was unwilling to pay the price asked. Salvatore swore to this, but the defendant denied it. The defendant waited in the vicinity for several hours while his wife was in the Fly street house, and when she left he promptly met her. They went to the place where they had left the children, took them to the house of a relative,...

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2 cases
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    ...have rebutted the inference to be drawn from the cross-examination. People v. Buchanan, 145 N. Y. 1, 24,39 N. E. 846; Same v. Barone, 161 N. Y. 451, 471,55 N. E. 1083. The exclusion of Julian's explanation of very damaging evidence is presumed to have resulted in such injury to the defendan......

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