People v. Leonardo

• Citation: 199 N.Y. 432,92 N.E. 1060
• Parties: PEOPLE v. LEONARDO.
• Decision Date: 15 November 1910
• Court: New York Court of Appeals

199 N.Y. 432

92 N.E. 1060

PEOPLE

v.LEONARDO.

Court of Appeals of New York.

Nov. 15, 1910.

Appeal from Supreme Court, Trial Term, Albany County.

Vincenzo Leonardo was convicted of murder in the first degree, and he appeals. Affirmed.

See, also, 92 N. E. 1095.

John H. Gleason, for appellant.

Rollin A. Sanford, Dist. Atty., for the People.

CHASE, J.

The defendant was jointly indicted with Dominico Ferrara and charged with the crime of murder in the first degree, committed, October 2, 1909, by stabbing George E. Phelps and inflicting upon him such wounds as to result in his death. Ferrara was separately tried and found guilty. An appeal was taken from the judgment of conviction, and this court has affirmed his conviction, and the opinion in connection therewith will be handed down with the opinion in this case. We refer to the opinion in that case (People v. Ferrara, 199 N. Y. 414, 92 N. E. 1054) for a description of the building occupied by the defendant and of what was found in it after the homicide; also to the evidence mentioned therein so far as it was given by the surgeon who made the autopsy upon Phelps, the defendant's barkeeper, the man who was passing the saloon at the time of the homicide, and the car inspector, all of whom were sworn on this trial and testified substantially the same as they severally testified on the trial of Ferrara. The theory of the prosecution on this trial is not changed from the theory as stated in the opinion in that case.

The defendant in this case admits, as we will state in greater detail herein, that he was present in the storeroom when the crime was committed; but he testified that he is wholly innocent of any crime in connection with the occurrences, and he further testified that the crime was actually committed by Ferrara.

The proceeds of the lodgings had not been sufficient to give to the defendant and his parents the money required or needed by them. It appears that the defendant pawned his watch and chain on the previous July 3d, and with the amount received purchased a pair of shoes. On July 9th he pawned for his mother a watch, two chains, and several rings, upon which he received $40 and gave it to her. On September 7th he pawned a ring of his and also a watch left by a lodger, upon which he received $2.75. No part of the property was ever redeemed. On September 27th his mother wrote him from Oswego, where she was at that time, as follows: ‘I have received a letter from your father in which he tells me that you have not even a cent. I will send the money and when I will send you the money I want the jewelry sent.’ No money was received by him from his mother, and he testified that when about to go in business on October 1st he had about $20. A brewery obtained for him a liquor tax certificate, became responsible for the bond, and put in the bar and floor fixtures and did the plumbing work, and trusted him for it. The defendant put in some glasses and other things, and obtained 30 days' crdedit for their payment. He had to pay $10.80 to have the gas meter put in. The brewery furnished him the beer, and he purchased the liquors and cigars on credit. He testified that he had $95 toward the rent on Friday, but how he obtained it does not appear. He says the receipts of the bar Friday night were $12. On Saturday he had to pay the landlord $113. He says he expected a bill that day from the brewery, and that he then had a bill to pay for liquors of $18. The prosecution contends that the defendant's financial necessities led him to commit the crime.

The prosecution, among others, called as a witness a young man who worked for the defendant. He testified that he was in the barroom Saturday afternoon when Phelps came in, and at that time there was no one there except the defendant and his father; that the defendant sent him away on an errand; that he returned in 20 or 25 minutes; that there was no one in the barroom, and he went into the sitting room; that the defendant's father was in the sitting room, and he asked him where Vincent was, and he replied that he didn't know; that he sat down but got up and started upstairs; that he got as far as the hall and saw the defendant standing in the doorway of the storeroom; that the door was about half open, and he heard some one counting money; that he asked the defendant what was the matter; that he replied, ‘Nothing’; and that he then went back to the sitting room. He further testified: ‘I didn't have any more time to get back where his father was and sit down on a chair until Vincent's father jumped up and said, ‘Fight,’ and he went out through the saloon, and I followed him and got as far as the end of the bar. Then Phelps staggered out into the hallway; and when he staggered out in the hallway why Jim Hines came in with a pail for a pint of beer. I seen Phelps, he was all covered with blood, and Vince had hold of him. He had hold of his coat tail and had him up here (ind.) along in the back. Phelps was in front. His coat was ripped clear up the back. They were right in the doorway of the poolroom when I first saw them. Phelps started out in the hallway and he put his arm-we had a little office there-like that, to pull himself up, and then he reached over and got hold of the side of the door, the saloon door that comes out of the hallway into the saloon, and he reached over and got hold of it and pulled himself up. I heard him hollder, ‘Murder!’ and he said, ‘Don't kill me and I will give you the money.’ * * * They came right across the hallway into the saloon and right out through the saloon and right out to the Broadway door. Jim Hines went out right ahead of him. That is, we all went out besides Phelps. Phelps went out right after Jim Hines ran out. Vincent went as far as the Broadway door, and he let loose of him, and he went back. The Broadway door was open. Vincent went back into the poolroom and through the poolroom and around where that blind stairway is. I heard the water running in there. He had blood on his face and his hands. I didn't have any conversation with Vincent after that, only there was an Italian next door and I heard her asking something of him. I don't know what she asked him. They talked in Italian. When this lady talked to him, he turned around to me and said, ‘You don't know nothing about it?’ I said, ‘No.” He also testified that he did not hear the defendant say anything during the occurrences related.

Hines, the man referred to by the defendant's employé mentioned, testified that he came into the barroom about half past 2; that he saw Phelps coming out of the storeroom; that defendant was holding him; that Phelps was hollering, ‘Murder’; that Phelps went out of the door, and the defendant went back in the kitchen and gave him (the witness) a shove up against the bar and said, ‘Get out of the way’; and that he was frightened and ran out.

A young man who had been a lodger at the defendant's house and was familiar with the rooms went in them a short time after the homicide, and he testified that he saw a knife with a blade about five inches long lying in the west end of the hall in a little space under the stairs. He further testified that he was at the police station when the defendant was there, and that he saw the defendant puting a knife holder down inside his trousers, and that a short time after when the defendant walked down to the desk at the station the knife holder dropped out of his trousers upon the floor and was picked up by one of the officers.

At the police station the defendant said that he was alone in the room with Phelps and had paid him the rent money when a fellow ran in through the hall from the street and grabbed the money and stabbed Phelps and ran out through the hall again into the street. He further testified that he did not know the man and had never seen him before.

Officer Church, who at the time of the homicide was on duty in that part of the city including the corner of Broadway and Madison avenue, testified that he was at the defendant's saloon at 2 o'clock on Saturday to see why his license was not framed and in the window where it could be seen. It appears that the errand upon which the defendant's employé was sent about 2 o'clock was to get a frame into which to put the license. The officer mentioned further testified that he arrived at the saloon after the homicide about 15 minutes to 3; that he found Phelps covered with blood leaning against a building across the street from the saloon; that he talked with him; and that Phelps said, ‘The young man that run the place was the only one in the room with him,’ and witness asked him if he (the young man) stabbed him, and Phelps said: ‘It must have been him. He was the only one in the room.’

The defendant's counsel cross-examined such officer at length, and in answer to questions the officer testified that Phelps said, ‘They got his watch, his money, and his bills and his hat.’ And he further testified that he went with Phelps in the ambulance to the hospital, and that on the way to the hospital he questioned Phelps further, but did not get any other reply. In answer to further questions by the defendant's counsel, it appears that at the hospital Phelps made a statement in the presence of the physicians and nurses which was taken in writing by one of the physicians. One of the attending physicians at the hospital testified that he heard the statements made by Phelps and transcribed them on a regular sheet to be filed as a part of the hospital records. The statement so transcribed is as follows: ‘Patient was counting money in 228 Broadway in a room off bar; was hit in head. Doesn't know who hit him. Says only one man who was in the room was the young man who runs the place; young man, smooth face; thinks he has no mustache. He (Phelps) pulled a knife out of his neck and dropped it; when next he remembers the young fellow had him by the coat and was trying to drag him by the coat. He says he got out...