People v. Barnes

• Decision Date: 25 April 1911
• Citation: 95 N.E. 15,202 N.Y. 77
• Parties: PEOPLE v. BARNES.
• Court: New York Court of Appeals Court of Appeals

202 N.Y. 77

95 N.E. 15

PEOPLE

v.BARNES.

Court of Appeals of New York.

April 25, 1911.

Appeal from Kings County Court.

Thomas Barnes appeals from a judgment on a verdict of guilty of murder in the first degree. Affirmed.Edward J. Reilly, for appellant.

John F. Clarke, Dist. Atty., for the People.

WILLARD BARTLETT, J.

At about 2 o'clock on the morning of February 22, 1910, in the basement of the house No. 266 South Fourth street, in the borough of Brooklyn, John T. Leonard was killed by a pistol shot fired from a revolver in the hands of the defendant, Thomas Barnes. Of this fact there is no question. The case is devoid of any doubt, either as to the fact of the killing or the identity of the slayer. The defense was justifiable homicide. The defendant denied premeditation or deliberation, and gave an account of the occurrence which, if true, would have warranted the jury in finding that he was attacked and fired upon by Leonard in the first instance, and only returned the fire, with fatal effect, when it appeared to be necessary, in order to preserve his own life. The jury refused to believe his testimony to this effect, however, and declared him guilty of murder in the first degree. His counsel upon this appeal insist that there is no evidence in the record to sustain a conviction of this grade of felonious homicide, and argue that in any event the charge should have been reduced to manslaughter in the first degree, before the case was submitted to the jury.

This is really the gravest question in the case, as there is no readily discernible motive for the crime, and the defendant denies any acquaintance with the deceased previous to the killing. A careful study of the record, however, has convinced me that there is a view of the facts which furnishes ample support for the verdict.

Both the defendant and the deceased were men of criminal antecedents. The defendant had served terms of imprisonment in the Albany penitentiary and on Blackwell's Island; and the deceased has been convicted of conspiracy and breaking into a post office in North Carolina, and sentenced to imprisonment in the United States penitentiary at Atlanta, from which he was released by pardon in December, 1909. Leonard then came to Brooklyn, and he and his wife were keeping a lodging house for men at 266 South Fourth street when the homicide was committed.

Mrs. Leonard was the chief witness for the prosecution. She testified that she first saw the defendant two weeks before the shooting in the room of one of her lodgers named Goldie. She went to the room to change the bed, according to her custom. Her husband was in the hall, fixing a lock on the door of the next room, and he told her there was company in there, and he did not think she could go in. She went in, nevertheless, but finding too many persons there told Goldie so, whereupon he said it was all right; he would do the work to-morrow morning himself. At this time the defendant was in Goldie's room, and Goldie himself, and a man named Wilson, and two other men who were strangers to Mrs. Leonard. This testimony is important as bearing upon the defendant's knowledge of Leonard previous to the homicide. If true, it shows that the defendant was where he could have seen him and probably did see him two weeks before. The defendant, on the other hand, denies ever having made any such visit to Goldie's room at all.

The next time that Mrs. Leonard saw the defendant was on the evening of the 21st of January, 1910, between 7:30 and 8 o'clock, when he called at the house and asked for Mrs. Leonard. She heard him, and stepping forward in the hall said she was Mrs . Leonard, whereupon he asked her whether Mr. Leonard was at home. She said, ‘No,’ but she expected him at 8 o'clock. The defendant then inquired whether ‘any of the boys' were at home. Mrs. Leonard said: ‘Which of them? He responded: ‘Is Goldie in?’ and just then a lodger named Anderson called out, ‘Hello, friend!’ from upstairs, and the defendant went up to one of the floors above. Mrs. Leonard asked, ‘Who will I say wants to see him?’ when Mr. Leonard came home, and the defendant answered, ‘Tell him Arthur. He will know who it is.’ She did not actually see the defendant come down and leave the house, but she knew that three or four of the men went out between 9 and 10 o'clock.

Leonard and his wife roomed in the basement; their bedroom being in the front of the house and their kitchen in the rear. According to Mrs. Leonard's testimony, her husband came home at 11 o'clock, went up to Anderson's room to find out who had been there to see him, and then came downstairs, and they both retired at about 15 minutes after midnight. She was awakened shortly before 2 o'clock by somebody knocking at the front basement door, the door of the room in which they slept. This was followed by knocking at the kitchen door in the rear, whereupon Mrs. Leonard called out, asking who was there. There was no response to her inquiry, but further knocking followed at the front door again. Meantime Mrs. Leonard had aroused her sleeping husband, who in turn asked who was there, when the voice of Anderson was heard in the hall, saying, ‘Never mind, Jack, I will see you in the morning.’ Leonard responded, ‘It is all right; I want to see you any way,’-and putting on some of his clothes went into the kitchen, lit the gas there, unbolted the kitchen door leading out into the hall, and had just about entered the hall when his wife heard four shots fired in rapid succession. Her husband jumped back into the kitchen, and exclaimed: ‘Oh Mary, I'm struck; I'm done for’-and fell to the floor mortally wounded and unconscious. Mrs . Leonard was about to seek help, but was prevented from going out into the hall by the noise of breaking glass in the front basement door, which subsequently proved to be due to the efforts of the defendant to escape in that way. She got out of the house by the basement window, and called for help to a man whom she saw on the sidewalk a short distance from the gate. She then saw the defendant on the front stoop, coming down the steps, and pointed him out as the man who had shot her husband. In company with this man whom she thus addressed and some other bystanders, she followed the defendant out to the Williamsburg Bridge plaza, where he was arrested by an officer, who brought him back to the place where Leonard lay dying. The deceased was about breathing his last; but the defendant when taken into his presence said nothing. Mrs. Leonard testified that, although her husband had carried a revolver prior to his imprisonment at Atlanta, he was not armed after that, and did not have a pistol on the night of the homicide. The defendant resisted arrest by striking the officer on the cheek with the butt end of his revolver so severely as to draw blood. His person was searched, and there were found upon him 18 cartridges in a bag, a flashlight dark lantern, a coil of fuse, and a quantity of percussion caps, such as are used for setting off a blast. When questioned at the station house concerning the homicide, he said to the sergeant in charge, ‘What are you trying to do, kid me?’ The cartridges found upon him were of the same caliber as his pistol (38), and five empty shells of the same caliber were picked up in the hallway on the parlor floor of the Leonard house, where the defendant is supposed to have opened his revolver and ejected them immediately after the shooting.

The defense of justifiable homicide rests wholly upon the testimony of the defendant himself. He denied that he had ever visited the premises No. 266 South Fourth street before the evening preceding the shooting. He said he came to go there at the suggestion of Goldie, whom he had met a short time previously, when they were both inmates of the same ward in a hospital in New York. ‘I could get a room there for a reasonable price,’ he said, ‘a couple of dollars or two and a half; and if I wanted a girl I might get a girl there. It was a neighborhood of that kind.’ His testimony agreed with that of Mrs. Leonard as to his calling at the house on the evening of the 21st of February and asking for Mr. Leonard; but he said that he inquired for Goldie after being told that Mr. Leonard was not in . Thereupon Anderson, whom the defendant swore he had never seen before, looked over the head of the stairs and called out, ‘Hello,’ and the defendant went up to the first floor, where he was standing. He told Anderson that he had been in the hospital and was ‘all in’; that Goldie told him he could get a room there; that there were a couple of women downstairs, one of whom said she was Mrs. Leonard, but he did not care about giving her his money until he saw the proprietor who ran the house (Leonard), and he would give him the money to get his room. Anderson told him that he expected Goldie right back, whereupon the defendant went to Goldie's room and waited there an hour or so, talking with Anderson, who mentioned a mutual acquaintance-a woman who kept a saloon in Montreal. He then proposed to Anderson to go out and have a drink, and they went together to a liquor saloon in the same block, where they met Goldie and another man, Wilson, to whom the defendant was introduced. They stayed there until it was time to close the place, and they were put out. In the street Goldie and Wilson went off with two girls; Goldie saying that he would make a night of it, and telling the defendant to go down and sleep in his room. The...