People v. Carlton

• Decision Date: 08 October 1889
• Citation: 115 N.Y. 618,22 N.E. 257
• Parties: PEOPLE v. CARLTON.
• Court: New York Court of Appeals Court of Appeals

115 N.Y. 618

22 N.E. 257

PEOPLE

v.CARLTON.

Court of Appeals of New York.

Oct. 8, 1889.

Appeal from court of general sessions, New York county.

Wm. F. Howe, for appellant.

John W. Goff, Asst. Dist. Atty., for the People.

RUGER, C. J.

The defendant was convicted of the crime of murder in the first degree, by the court of general sessions of New York, and he appeals from the judgment entered thereon to this court, under the recent statute regulating appeals in capital cases. Chapter 493, Laws 1887. In such cases the record upon which the appeal is heard in the appellate court is made up by the clerk, and the papers composing it are specifically pointed out by the statute. Theoretically, this record constitutes a bill of exceptions, and, as it is prepared upon the request of the appellant, it is properly called his bill of exceptions. The record in this case is, in form, a compliance with the requirements of the statute, and is not obnoxious to the criticism made upon it by the defendant's counsel,-that it is not a bill of exceptions made by the defendant. No question was made upon the trial but that the deceased was killed by a pistol shot, or but that the defendant fired the pistol with the intention of shooting the deceased. The defense, on the merits, was that the shooting was done in self-defense. The proof tended to show that the defendant was a man of idle and dissolute habits, about 27 years of age, who left home on the evening of October 28, 1888, to attend a wedding; taking with him a self-cocking revolver containing five chambers, all loaded. About midnight he left the marriage festivities, and, strolling into Third avenue, met two of his associates, with whom, from that time until about 5 o'clock on Sunday morning, he was engaged in visiting and patronizing various drinking saloons in that neighborhood. They finally arrived at Tucker's, a saloon on the corner of Thirty-Third street and Third avenue. Here they met one Roesler, a stranger, and, for some undisclosed reason, seemed to think him a favorable subject to annoy and impose upon. They demanded that he should treat them, and, upon his refusal, took his umbrella from him, and refused to return it to him on request. Roesler, finally obtaining it, left the saloon, with the intention of going to his place of residence, which was within a few doors of the saloon, on the same street. The defendant and his companions followed him out, and had further controversy with him on the street, snatching his umbrella from him, and evading his efforts to retake it. The deceased, who was an officer dressed in a policeman's uniform, came up, and commanded the defendant and his companions to give up the umbrella to Roesler, and to go home. They apparently obeyed the command, and departed, going down Third avenue. Roesler went down Thirty-third street to his home, and, while unlocking his door, heard some one say, ‘Here, Charlie, I want to speak to you.’ He turned around, discovered the defendant and his companions behind him, and was immediately struck a violent blow in the face by the accused. Roesler thereupon commenced and continued to halloa, ‘Murder!’ ‘Watch!’ ‘Police!’ and the defendant and his companions fled up the street towards Third avenue. On the corner of the street and avenue they were met by the deceased, and he held out his arms with the apparent intention of stopping them. The defendant's associates dodged away from the officer, and, running across the street, excaped. The defendant, however, advanced until he was within two or three feet of the deceased, and drew his pistol, and stood on his defense. He promptly fired four shots therefrom in rapid succession, each shot taking effect upon the officer, two of them being probably fatal. After the second shot, some one was heard to exclaim, ‘I will kill you.’ The officer was then sinking to the earth, apparently from exhaustion occasioned by the wounds inflicted upon him. After the third shot, the defendant backed away from the officer to the center of the street, and, while in the act of retiring, fired a fourth time at the prostrate officer. The noise of the shooting attracted other officers to the place, and the defendant was surrounded and arrested within 200 feet from the place of the homicide, having thrown his pistol into the middle of the street, where it was found immediately thereafter by one of the officers. The defendant, who was sworn in his own behalf, stated that the officer advanced towards him with an upraised club, and struck him, saying, at the same time, ‘I will kill you;’ and he, fearing that he was in danger of being killed, or suffering great bodily injury, shot the deceased in self-defense. This version of the transaction conflicted with the testimony of the eye-witnesses to the affray, and is not supported by the probabilities...