Harris v. United States, 6067.

• Decision Date: 14 May 1934
• Docket Number: No. 6067.,6067.
• Citation: 71 F.2d 532,63 App. DC 232
• Parties: HARRIS v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

63 App. DC 232, 71 F.2d 532 (1934)

HARRIS v. UNITED STATES.

No. 6067.

Court of Appeals of the District of Columbia.

Argued March 5, 1934.

Decided May 14, 1934.

Rehearing Denied June 11, 1934.

Harry T. Whelan, Neil Burkinshaw, and William B. O'Connell, all of Washington, D. C., for appellant.

Leslie C. Garnett, U. S. Atty., and Julian I. Richards, Asst. U. S. Atty., both of Washington, D. C.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

MARTIN, Chief Justice.

The appellant, Charles Harris, together with one Harry Davis, was indicted in the Supreme Court of the District of Columbia charged with the murder of Milton White Henry. Davis was not apprehended. The appellant pleaded not guilty and went to trial. The jury returned a verdict of guilty of murder in the first degree. Judgment and sentence were pronounced by the court upon the verdict, whereupon the present appeal was taken.

The record contains all of the evidence introduced in the trial and we have examined it with careful attention.

It appears from the evidence that on the morning of April 21, 1932, at about 6 o'clock, when it was fully daylight, Milton White Henry was driving alone in a Chevrolet roadster, with the top down, proceeding west on Meridian street N. W., in Washington, D. C. As he came to the corner of Brown and Meridian streets he turned north upon Brown street toward the apartment building known as "Oaklawn Terrace," in which he was a tenant. This course would take him up Brown street and past its intersection with Oak street. After proceeding about fifty feet along Brown street his car was stopped by a milk wagon standing in front of an apartment house located on the northeast corner of Brown and Meridian streets. The driver of the milk wagon had entered the building to serve some customers. At this point there were automobiles parked upon each side of Brown street, which is a very narrow street, and Henry's car could not proceed northward because of the milk wagon and the parked cars. He consequently was compelled to slow up and come to a stop. At that moment a large Hudson sedan bearing a New Jersey license occupied by two men drove into Brown street from Meridian street directly behind Henry's car, and a man jumped out of it carrying a sawed-off shotgun in his hand. The man rapidly approached Henry's car from the rear, somewhat to the left, and fired five shots into Henry's body as he sat at the wheel of his car, killing him instantly. The Hudson car, whose motor had been continuously running, then backed down Brown street so as to turn east on Meridian street, and the man who had fired the shots hurriedly got into the car. As he approached the Hudson car he called to the driver, "Keep moving," and as he stepped on the running board he said, "Step on it." The car was backed some distance on Brown street and turned into Meridian street and immediately disappeared, going east on Meridian street. The car was found abandoned on a street in Washington a few hours after the homicide, and was identified by witnesses. The car in which Henry sat drifted slowly into the rear of the milk wagon and there stopped with its motor still running. Henry's lifeless body, terribly mangled by the slugs which entered it, was found slumped upon the driver's seat of his car with his right hand under his body clutching a so-called "Banker's Special" revolver, with a short barrel. Henry had not fired a shot, and it is plain that he was taken entirely unawares by his assailant, and was unconscious of the danger threatening him.

Brown street at this point is flanked by two-story residences standing flush with the sidewalk, except for the apartment house above mentioned. These residences, as well as the lower floor of the apartment house, were occupied by tenants, who were alarmed by the reports of the shooting and who saw the assailant making his escape. A pedestrian upon the sidewalk immediately next to the car also saw the assailant as he was hurrying to the Hudson car.

As to the facts and circumstances attending the homicide itself there is no dispute. The sole question in the case relates to the identification of the defendant as the assailant. The defendant himself did not testify as a witness at the trial, but submitted the testimony of other witnesses in support of an alibi tending to prove that defendant was in the city of New York all of the time during April 20, and April 21, 1932.

Upon a review of the evidence we are convinced that it fully sustains the verdict of the jury.

The government produced as a witness, Carrel F. Rhodes, a member of the bar employed as an attorney of the Federal Trade Commission, who lived at this time in a house immediately opposite to and facing the place of the homicide, and about fifty to sixty feet distant from it. The witness testified in substance that he heard the firing of the five shots and looked out of his window; that he saw a man cross the street at a point about fifty or sixty feet from where he was, and at a point about forty feet from the intersection of Meridian and Brown streets; that this man was going south on Brown street and crossed from the west to the east side of the street, and south on the east side of the street; that the man carried a sawed-off shot gun in his left hand hanging down his left side; that he saw the Hudson automobile, and as the man approached it he called out, "Keep moving"; that the car was in front of the witness' apartment in the middle of the street resting on Brown street; that it turned to head down Meridian street to go east and as the man approached the car and stepped on the running board he said, "Step on it"; that the car shot over on the sidewalk and disappeared down Meridian street going east; that he had a good look at the man and heard his voice distinctly; and he identified the defendant as the man.

The government witness James F. Hughes testified in substance that he was a driver for a laundry; that his route covered the vicinity in question; that on April 20, 1932 the day before the homicide, he was traveling in his truck on Brown street in the course of his employment and saw the automobile which had been identified as that driven by the man committing the crime parked on Brown street at the corner of Oak street, facing south on Brown street; that this was about 1 o'clock; that he saw two men in the car at that time; that after he saw the car in that place, he went into the Oaklawn Terrace, made his deliveries, and then came out; that he again saw the car occupied by the two men parked in about the same place at the corner; that he then went about his deliveries and came back there later on his second trip at about 2:30 or 3 o'clock, and approached Brown street coming by way of Meridian street; that he saw the same car then parked facing east...