People v. Rodawald

• Citation: 70 N.E. 1,177 N.Y. 408
• Parties: PEOPLE v. RODAWALD.
• Decision Date: 16 February 1904
• Court: New York Court of Appeals

177 N.Y. 408

70 N.E. 1

PEOPLE

v.RODAWALD.

Court of Appeals of New York.

Feb. 16, 1904.

Appeal from Supreme Court, Trial Term, Cattaraugus County.

William Rodawald was convicted of murder in the first degree, and he appeals. Affirmed.

Parker, C. J., and Martin and O'Brien, JJ., dissenting.

Thomas H. Dowd, for appellant.

George W. Cole, Dist. Atty., for the People.

VANN, J.

The homicide which is the subject of this appeal was committed in April, 1903. The defendant was indicted in May, convicted in June, and appealed to this court in July of the same year. The appeal was argued in January, 1904.

In the outskirts of the village of West Salamanca, Cattaraugus county, there is a public highway known as ‘South Street,’ running from Broad street, on the south bank of the Allegheny river, southerly to the Pennsylvania Railroad, a distance of 1,070 feet. On that street the homicide in question occurred, and on that street the deceased, the accused, and all the witnesses of the tragedy resided. On the west side, about 200 feet north of the railroad, the defendant lived, with his family, consisting of his wife and 3 children, Mary, Robert, and William, aged, respectively, 15, 13, and 12 years. Mrs. Keating, a widow with 6 children, ranging in age from 3 to 13 years, resided on the east side of the street, about 700 feet south of Broad street. Davis, a colored man, and his wife, also lived on the east side of the street, a few feet south of Mrs. Keating, and nearly opposite the defendant. No one else lived on that street, or within 1,000 feet of the scene of the homicide.

The defendant was born in Germany, and at the time of the fatal event was 49 years of age, and had lived in this country since 1889. He was in the German army for 3 years, and had worked as a bricklayer in Germany, and as a laborer in this country. A short time before he left Germany he was arrested for fighting during a strike, and after a trial was imprisoned for 9 months. After coming to this country he was arrested upon a peace warrant, but gave bail and was discharged. He was a temperate, industrious man, and was never charged with any other crime until the present accusation was brought against him. About 1887, during a strike in the brickyard where he was employed, he was struck on the head with a spade, and so seriously injured that he could not work at any employment which required him to bend over. For a while after that he sometimes fainted, on other occasions grew dizzy, and ever since he has been troubled with sick headache occasionally-oftener in warm weather than in cold. Except as stated, his health was good. He was somewhat excitable, and, under excitement, spoke and acted in a strange way.

The deceased, Jesse Frederick Bayer, was born in Amsterdam, N. Y., and was about 25 years old at the time of his death. He does not appear to have had a fixed place of abode for long at a time. He had been a circus performer, and he lived on the Indian reservation in Cattaraugus county for a while prior to the spring of 1902, when he enlisted in the United States navy. Why he was discharged does not appear, but in less than a year he returned to the reservation, and eight days before his death began to board with Mrs. Keating. During this period he worked in a bicycle factory in Salamanca, a little more than a mile from his boarding house. These two men had never met, but the defendant knew who Bayer was, and that he had been in State's Prison.

For several years prior to the homicide the defendant had been accustomed to get from the side of the railroad old posts and ties to use as fuel, and he claimed that this privilege had been given him by the section boss. Mrs. Keating also claimed the same privilege by permission from the same person, but he had no right to give the material away. On the day before the homicide, Mrs. Keating had drawn one load of old fence posts to her premises, and, with the help of her little boy, had piled up some more on the south side of the track, in the vicinity of the South street crossing; intending to draw them at her convenience. On the day of the homicide, Mrs. Rodawald had taken away some of the posts, but the defendant did not know it. At this time the defendant was working in a tannery at Salamanca, more than a mile from where he resided. On the 7th of April, 1903, after working during the day as usual, he stopped at 10 minutes of 6, and reached home between half past 6 and a quarter of 7. He at once put down his dinner pail, threw off his coat, called his two boys to bring the wheelbarrow, and started to get some posts; there being but four left at that time. They loaded the posts on the barrow, and wheeled them to the crossing, where it was necessary to unload in order to get over the rails; and the defendant, taking one of the posts on his shoulder, started for his house. On his way he passed by Davis, who was working in his garden. Davis said to him: ‘You are getting some wood,’ and the defendant answered: ‘Yes; I am getting some wood. Why don't you go and get some?’ Davis replied: ‘I don't want any. That widow says it is her wood, and I don't want any of it.’ The defendant said: ‘It is just as much yours as it is hers. Why don't you go and get some?’ But Davis said he would not get any. Mrs. Keating saw him carrying the post, and called to him, saying: ‘Mr. Rodawald, I wish you would please leave that wood alone. It was given to me.’ He shouted: ‘To hell mit you! Anybody can take this wood.’ As she stepped back into her house, Bayer came out, and went up to the railroad, where the rest of the posts were. Davis came out in the road and said: ‘I wouldn't take her wood. She is a poor woman. I wouldn't take her wood.’ But the defendant did not stop. After throwing down the fence post by his wood pile, he returned to the little boys, who in the meantime had run the wheelbarrow across the railroad tracks. Two of the posts were again loaded, and the defendant took the third and carried it to his house. The boys wheeled the loaded barrow a short distance, and stopped in a vacant lot a few feet west of the street, and about 125 feet from the defendant's house. At about this time, Bayer said to the defendant: ‘Now, mister, you oughtn't to take that wood from that woman. She is a widow woman, and you are a man, and you can get wood better than she can.’ Shaking his fist, the defendant said: ‘To hell mit you! To hell mit you! Go on mit you! Anybody can take this wood.’ On his way back to the wheelbarrow, after he had thrown the second post on the woodpile, the defendant saw Bayer throw the remaining posts off on the ground, and, shouting to his wife, said, ‘Go get my gun, get my revolver,’ but she did not go. He also said, ‘Shoot ‘em, kill ‘em,’ and was ‘shaking mad and swearing.’ He ran into his house by the back door, and came out with a revolver and a double-barreled shotgun. The revolver, of 32 caliber, could be cocked and discharged by a single pull on the trigger. It contained five ball cartridges, and both barrels of the shotgun were loaded, but it does not appear that the hammer of either barrel was cocked. As he came out of his house, he held the gun ‘up in the attitude of shooting.’ Mrs. Keating shouted to Bayer: ‘Come away, Jesse. If you don't he will shoot you.’ Davis said to the defendant: ‘Put down that gun. You are not going to shoot nobody here. There is nobody done anything to you. You put it down.’ The defendant said: ‘I will shoot 'em all. I will kill 'em’-and kept on going fast toward Bayer, who had gone from the wheelbarrow into the street, and was advancing rapidly toward the defendant. As the defendant spoke, he lowered his gun, shifted it to his left hand, drew the revolver from his hip pocket, and said, as one of the witnesses stated, ‘I will shoot you, you son of a _____.’ Bayer threw up both hands and said: ‘Don't shoot. Please don't shoot.’ But the defendant fired at close range. Bayer staggered back two or three steps from the highway, fell to the ground, and died ‘without a word or a groan.’ As the revolver went off, Bayer ‘ducked his head.’ The place where he fell was 17 feet from the nearest part of the foundation of an old building that had been burned, 25 feet from the wheelbarrow, and 101 feet from the front door of the defendant's house. Davis rushed up and said to the defendant, ‘You have killed this man,’ and called him a cowardly murderer. The defendant walked around the head of the deceased, and said, according to the statement of one witness, ‘If he no dead, me shoot him again,’ No other witness mentioned this fact. The defendant gave the shotgun to one of his sons, wheeled the two posts to his house, put away his revolver, put on his coat, and started for Salamanca. On his way he said to some witnesses for the prosecution that they need not arrest him, for he was going to arrest himself. He went to the office of a deputy sheriff, told him that he had shot a man, and in response to questions, said that the man was dead, that he shot him in the shoulder, and that he did not see him have a weapon of any kind or a knife. When asked what he shot him for, he said that it was over some wood that he got from the railroad company; that Bayer had pushed his wife away from the wheelbarrow, and shoved his little boys around; and that a man who would not take care of his wife and children was not much of a man. He was excited; spoke fast and in broken English.

These are the facts as the Jury might have found them from the testimony of Mrs. Keating and her daughter Pearl, 11 years old, Mr. and Mrs. Davis, and the deputy sheriff, all of whom were called by the people, and all except the officer saw the homicide. They did not all testify to all of these facts, as some apparently observed acts that escaped the attention of others. There was some difference in their statements, especially in regard to what was said and when it was said, but as to what was done at the...