Marcus v. United States

• Decision Date: 09 November 1936
• Docket Number: No. 6505,6508.,6505
• Citation: 86 F.2d 854,66 App. DC 298
• Parties: MARCUS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

66 App. DC 298, 86 F.2d 854 (1936)

MARCUS et al. v. UNITED STATES.

Nos. 6505, 6508.

United States Court of Appeals for the District of Columbia.

Decided November 9, 1936.

John H. Wilson and Albert Lyman, both of Washington, D. C., for appellants.

Leslie C. Garnett and Irvin Goldstein, both of Washington, D. C., for the United States.

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

MARTIN, Chief Justice.

An appeal from a conviction and sentence in a first degree murder case.

The appellants Willett Marcus and John Homer Cummings were convicted of murder in the first degree upon an indictment charging that on January 4, 1935, in the District of Columbia they deliberately and with premeditated malice, while perpetrating, or attempting to perpetrate, the offense of robbery, did shoot and kill one Joseph R. Wushnak. The defendants pleaded not guilty and trial was had resulting in the conviction of both defendants. Sentence was imposed upon them, and this appeal was then taken. It appears that on January 4, 1935, and for some time prior thereto, Joseph R. Wushnak was employed by a provision company in the city of Washington, D. C., to sell and deliver meats and provisions to its customers. And that at about 7 o'clock p. m., January 4, aforesaid, Wushnak, accompanied by an assistant named Frank was engaged in delivering meats by means of a truck to various stores within the District; that soon after 7 o'clock p. m. of that day Wushnak and Frank in the course of their duties arrived at the corner of Tenth and B streets, N. E. in the city of Washington and parked their truck on the northeast corner of the street crossing. Wushnak then went into a store at one corner of the street operated by one Katz and Frank went to a store on another corner operated by one Cullen; Frank returned to the truck and obtained some meat which he took to Cullen's store. Wushnak then returned to the truck from Katz' store for the purpose of obtaining meat and when he returned to the store he was suffering from a gunshot wound freshly inflicted upon his body. Wushnak was removed to the hospital where he died on January 8th, following, as a result of the wound. No one saw the actual firing of the shot which caused Wushnak's death but the report of the pistol was heard by Frank at Cullen's store and by Katz at the store which Wushnak had just left and to which he returned immediately after the shooting. An investigation was immediately begun by police officials aided by the finding of a hat which had been dropped in the truck by the assailant, and on January 11th the appellants, Marcus and Cummings were taken into custody, charged with the crime. Their indictment and trial followed.

At the trial the government, among other things, offered in evidence certain statements signed by defendant Marcus relating to the crime, reading in part as follows:

"I have been knowing John Cummings for about a month * * * The next thing I was down at 709 H St. NW working and I took sick there the Saturday before New Year 1935. John Cummings came over to my house at 607 A St. SE., to see me and then the following Friday John Cummings came back to see me in the morning and then he came back that evening. He asked me if I would go over to northeast Washington with him and I told him I would and before we left the house John Cummings asked me if I had his automatic pistol and I told him I did have it. He had previously left this automatic with me at my house. We leaves the house and when we gets down by Casualty Hospital, two white fellows were following us and we gets near 10th Street NE, and John Cummings says to me, `There is the man now, give me the pistol', and John asked me if the pistol was loaded, and I told him it was like he gave it to me. Then I heard John Cummings clicking the gun a couple of times. Then the man to whom John was referring to got out of a tall red meat truck and was in the store and we stood there and then walked across the street and John Cummings disappeared somewhere and I didn't see him for about two or three minutes. When the man came out of the store I saw John Cummings following this man across the street. Then this man got in the truck at the front part of it. Johnny walks behind this man and gets in the truck behind the man. I ran over to the back of the truck and I heard this man say to John Cummings, `You G D Black S O A B' and then I heard a shot and then I ran down 10th Street and turned west on C street, that is left on C Street and then we got a cab near Casualty Hospital and I told the cab driver to carry us to 6th and A Streets SE., and I got out there at 6th and A Streets SE., and while I was running something was burning me in the chest and while I was running along I told John Cummings that I thought he had shot me and then he asked me if I could make it and I told him yes. This burning in my chest happened while I was running from the truck to the taxicab. I got out of the cab at 6th and A Streets SE. and I started home and went in the house where I live at 607 A Street SE. That is the house where I was rooming at that time and now I am living at 1226 Minnesota Ave. NE.

"* * * I didn't see John Cummings any more for about three or four days and then he came in and there was a paper already at the house and I had it and I read an article in the paper about this hold-up that Jimmy and I had pulled and the article stated that the hold-up men had taken about $100.00 or something like that. It didn't say anything about the man being dead at that time. I asked Johnny who got the $100.00 and John said that he didn't get it. I stayed in the bed on account of my cold. * * * That is all, only after I was arrested I was questioned about an automatic pistol and then I carried the officer to the kitchen at 1226 Minnesota Ave. NE., where I got this automatic pistol from the second drawer of an old bureau and turned it over to the officer. That is all of it. * * *

"Q. Who did the gun belong to? A. As far as I knew, it belonged to John Cummings.

"Q. Did John tell you where he got the gun? A. No, sir.

"Q. Would you know that gun if you was to see it again? A. Yes, sir.

"Q. I am now showing you a .32 caliber Savage automatic pistol No. 193132 and ask you if this is the gun you turned over to John Cummings near 10th and B Streets NE., last Friday night January 4, 1935? A. Yes, sir; that is the gun.

"Q. When did John Cummings leave this gun with you previous to the hold-up and shooting at 10th and B Streets NE., January 4, 1935? A. I kept it until he asked me for it January 4, 1935, while going down B street NE.

"Q. Who suggested holding up and robbing the meatman at 10th and B Streets NE? A. John Cummings and I agreed to it. * * *

"Q. What conversation took place between you and John Cummings after the shot and after you and John Cummings left the truck? A. I asked John Cummings if he shot that meatman and John Cummings said he believed he did but he didn't know for sure.

"Q. Did you ask John Cummings why he shot the meatman? A. No, sir."

The government also offered in evidence a statement signed by defendant Cummings which contained among others the following statements: "About a month ago, I met Willett Marcus, colored, at a gas station at 8th and H Streets N. W. I met him through Trice, who works at that gas station. * * * After we met, me and Marcus talked it over as to how we could make some easy money. During our conversation I told Marcus that I had a gun. * * * Later on I went over to Willett's house at 607 A Street S. E., and we talked over a job. Willett told me that he needed $22.00. Then he told me about the meatman after I had told him about the meatman first. This talk about the meatman went on with me and Willett Friday morning, January 4, 1935, and Willett Marcus tole me to be back about 6 o'clock P. M., January 4, 1935, and we would get him or get something. I came to Willett's house at 607 A Street S. E., about six P. M., January 4, 1935, and Willett was there. We killed a little time around there and about 6:30 P. M. we left the house there and Willett had the gun when we left the house. We walked around two or three blocks, heading for 10th and B Streets N. E. * * * Willett and I were going up B Street, between 9th and 10th Streets N. E. and we noticed this meatman's truck parked at the northwest corner of 10th and B Streets N. E. Willett asked me if I was going to stick him up or if he was going to stick him up, and I told Marcus if he didn't want to, to give me the gun. Willett then gives me the gun and I asked him if it was loaded and he said he reckoned it was and I snapped the slide back one time and I threw the shell up in a barrel of the gun. Then Willett Marcus and I went up to the corner of 10th and B Streets N. E., and then we talked it over as to how we were going to get him. We decided that we were going to get the meatman when he came to the truck and while waiting for him to come to the truck we saw another little white fellow come from a store on another corner and get in the truck and get some meat and go back to another store across the street. I kept up B Street, towards 11th Street N. E., and Willett turned at 10th Street N. E. I stopped up there waiting for the man to come out and Willett came up to B Street between 10th and 11th Streets N. E., where I was at. Willett told me there were two of them on the truck and I told him I saw the other fellow. Then the both of us decided to get the meatman just as soon as he went back to the truck and while we were standing there the meatman came out of the store and went over and got in his truck and I went right behind him and the meatman was in the truck with his back to me. Well, I told him to stand where he is; at that time I had the gun in my hand. It was a narrow truck and he could hardly turn around, and he commenced backing up, and I backed up, and when he turned around he hit me...