#### The People *of*the State of New York, Respondent, *v.*Thomas Barnes, Appellant.

Murder — evidence examined and held sufficient to sustain verdict of conviction — deliberation as element of crime of murder — exception to rulings admitting evidence reviewed and overruled.

1. Evidence upon the trial of a defendant indicted for the crime of murder in the first degree examined and held sufficient to sustain a verdict convicting the defendant of the crime charged.

3. The law does not prescribe any particular length of time as necessary for the deliberation which is an element of the crime of murder in the first degree. It is only essential that it shall be long enough for the perpetrator to decide between not doing and doing the act, and when the question has been properly left to the jury their conclusion will not be disturbed unless it was against the evidence or against the weight of evidence, or without evidence to support it.

*783. Where, upon the cross-examination of a witness for the prosecution, it was shown that the person who was killed had been imprisoned in a United States penitentiary for breaking into a post office, it was proper to permit the prosecution to show that such imprisonment had been terminated by his pardon.

4 It is to be presumed, as a general rule, that an instruction to a jury, that testimony is immaterial and of no probative force and should not be considered by them, will efface all prejudice, if any prejudice has resulted from such testimony.

6. Exceptions by defendant to the admission of évidence for the prosecution examined and held that the admission of such evidence was either within the sound discretion of the trial judge or harmless, or cured by instructions to the jury to disregard it as immaterial and of no probative force.

(Argued March 16, 1911;

decided April 25, 1911.)

Appeal from a judgment of the Kings County Court rendered April 25, 1910, at a Trial Term, upon a verdict convicting the defendant of the crime of murder in the first degree.

The facts, so far as material, are stated in the opinion.

*Edward J. Reilly*and *Frank G. Milligan*for appellant.

The verdict of the jury to the effect that the defendant premeditated and designed the death of Leonard was not established beyond reasonable doubt. *(People*v. Fitzgerald, 156 N. Y. 253; *People*v. *Kelly,*11 App. Div. 495; *People*v. Harris, 136 N. Y. 423; *People*v. *Ledwon,*153 N. Y. 10; *People*v. *Owens,*148 N. Y. 648; *People*v. *Gluck,*188 N. Y. 167; *People*v. *Mangone,*29 Hun, 259; *People*v. *Raffo,*,180 N. Y. 434; *Stokes*v. *People,*53 N. Y. 164; *People*v. *Beckwith,*103 N. Y. 360, *People*v. *Conroy,*97 N. Y. 62.) The court erred in admitting testimony on the trial of the action which ' seriously prejudiced the defendant’s case. *(People*v. *Sharp,*107 N. Y. 427; *People*v. *De Garmo,*179 N. Y. 130; *People*v. *Gibbs,*93 N. Y. 470; *People*v. *Schulman,*80 N. Y. 376; *People*v. *Bean,*67 N. Y. S. R. 36; *Stokes*v. *People,*63 N. Y. 164; *Coleman*v. *People,*52 N. Y. 82; *79
      *People*v. *Greenwald,*108 N. Y. 302; *People*v. *Molineux,*168 N. Y. 261; *Mitchell*v. *Costa,*11 Hun, 118.) The admission in evidence of the pardon from the president of the United States to the deceased was grave error and calls for the reversal of the judgment. *(People*v. *Schlesler,*196 N. Y. 476.) It was error to admit in evidence the testimony of Catherine and Willie Kane. *(People*v. *Greenwald,*196 N. Y. 296; *People*v. *Fitzgerald,*156 N. Y. 253; *People*v. *Bennett,*49 N. Y. 137; *People*v. *Owens,*148 N. Y. 648; *People*v. *Sutherland,*154 N. Y. 345; *People*v. *Disner,*192 N. Y. 80; *People*v. *Smith,*172 N. Y. 234; *People*v. *Corey,*148 N. Y. 476; *People*v. *Koerner,*154 N. Y. 355; *People*v. *Wood,*126 N. Y. 249.)

*John F. Clarke, District Attorney,*for respondent.

There was no error in the admission of evidence. *(Reed*v. *State,*65 Ark. 475; *Hunicut*v. *State,*18 Tex. App. 498; *Cox*v. *Cox,*26 Penn. St. 375; *Spaulding*v. *Saxon,*6 Watts [Penn.], 338.)

Willard Bartlett, J.

At about two o’clock on the morning .of February 22, 1910, in the basement of the house No. 266 South Fourth street, in the borough of Brooklyn, John T. Leonard was killed by a pistol shot fired from a revolver in the hands of the defendant Thomas Barnes. Of this fact there is no question.. The case is devoid of any doubt either as to the fact of the killing or the identity of the slayer. The defense was justifiable homicide. The defendant denied premeditation or deliberation and gave an account of the occurrence which, if true, would have warranted the jury in finding that he was attacked and fired upon by Leonard in the first instance and only returned the fire, with fatal effect, when it appeared to be necessary in order to preserve his own life. The jury refused to believe his testimony to this effect, however, and declared him guilty of murder *80in the first degree. His counsel upon this appeal insist that there is no evidence in the record to sustain a conviction of this grade of felonious homicide, and argue that in any event the charge should have been reduced to manslaughter in the first degree before the case was submitted to the jury.

This is really the gravest question in the case, as there is no readily discernible motive for the crime and the defendant denies any acquaintance with the deceased . previous to the killing. A careful study of the record, however, has convinced me that there is a view of the facts which furnishes ample support for the verdict.

Both the defendant and the deceased were men of .criminal antecedents. The defendant had served terms of imprisonment in the Albany penitentiary and on Blackwell’s island; and the deceased had been convicted of conspiracy and breaking into a post office in North Carolina and sentenced to imprisonment in the United States penitentiary at Atlanta, from which he was released by pardon in December, 1909. Leonard then came to Brooklyn, and he and his wife were keeping a lodging house for men at 266 South Fourth street when the homicide was committed.

Mrs. Leonard was the chief witness for the prosecution. • She testified that she first saw the defendant two weeks before the shooting in the room of one of her lodgers named Goldie. She went to the room to change the bed, according to her custom. Her husband was in the hall, fixing a lock on the door of the next room and he told her there was company in there and he did not think she could go in. She went in, nevertheless, but finding too many persons there, told Goldie so, whereupon he said it was all right, he would do the work to-morrow morning himself. At this time the defendant was in Goldie’s room, and Goldie himself, and a man named Wilson and two other men who were strangers to Mrs. Leonard. This testimony is important as bearing upon *81the defendant’s knowledge of Leonard previous to the homicide. If true, it shows that the defendant was where he could have seen him and probably did see him two weeks before. The defendant, on the other hand, denies ever having made any such visit to Goldie’s room at all.

The next time that Mrs. Leonard saw the defendant was on the evening of the 21st of January, 1910, between half-past seven and eight o’clock, when he called at the house and asked for Mrs. Leonard. She heard him and stepping forward in the hall said she was Mrs. Leonard, whereupon he asked her whether Mr. Leonard was at home. She said no but she expected him at eight o’clock. The defendant then inquired whether “any of the boys” were at home: Mrs. Leonard said: “Which of them?” He responded: “Is Goldie in?” and just then a lodger named Anderson called out: “Hello, friend!” from upstairs and the defendant went up to one of the floors above. Mrs. Leonard asked: “Who will I say wants to see him ? ” when Mr. Leonard came home and the defendant answered: “Tell him Arthur. He will know who it is.” She did not actually see the defendant come down and leave the house but she knew that three or four of the men went out between nine and ten o’clock.

Leonard and his wife roomed in the basement, their bedroom being in the front of the house and their kitchen in the rear. According to Mrs. Leonard’s testimony her husband came home at eleven o’clock, went up to Anderson’s room to find out who had been there to see him and then came downstairs and they both retired at about fifteen minutes after midnight. She was awakened shortly before two o’clock by somebody knocking at the front basement door, the door of the room in which they slept. This was followed by knocking at the kitchen door in the rear, whereupon Mrs. Leonard called out asking who was there. There was no response to her inquiry but further knocking followed at the front door again. *82Meantime Mrs. Leonard had aroused her sleeping husband who in turn asked who was there when the voice of Anderson was heard in the hall saying: “¡Never mind, Jack, 1 will see you in the morning.” Leonard responded: “ It is all right, I want to see you any way,” and putting on some of his clothes went into the kitchen, lit the gas there, unbolted the kitchen door leading out into the hall and had just about entered the hall when his wife fieard four shots fired in rapid succession. Her husband jumped back into the kitchen and exclaimed: “Oh, Mary, I’m struck; I’m done for, ” and fell to the floor mortally wounded and unconscious. Mrs. Leonard was about to seek help, but was prevented from going out into the hall by the noise of breaking glass in the front basement door, which subsequently proved to be due to the efforts of the defendant to escape in that way. She got out of the house by the basement window and called for help to a man whom she saw on the sidewalk a short distance from the gate. She then saw the defendant on the front stoop coming down the steps and pointed him out as the man who had shot her husband. In company with this man whom she thus addressed and some other bystanders she followed the defendant out to the Williamsburg Bridge plaza, where he. was arrested by an officer, who brought him back to the place where Leonard lay dying. The deceased was about breathing his last, but the defendant when taken into his presence said nothing. Mrs. Leonard testified that although her husband had carried a revolver prior to his imprisonment at Atlanta, he was not armed after that, and did not have a pistol on the night of the homicide. The defendant resisted arrest by striking the officer on the cheek with the butt-end of his revolver so severely as to draw blood. His person was searched and there were found upon him eighteen cartridges in a bag, a flashlight dark lantern, a coil of fuse and a quantity of percussion caps, such as are used for setting off a blast. When questioned at the station house concerning the *83homicide, he said to the sergeant in charge: “What are you trying to do, kid me ? ” The cartridges found upon him were of the same calibre as his pistol (38), and five empty' shells of the same calibre were picked up in the hallway on the parlor floor of the Leonard house where the defendant is supposed to have opened his revolver and ejected them immediately after the shooting.

The defense of justifiable homicide rests wholly upon the testimony of the defendant himself. He denied that he had ever visited the premises Ho. 266 South Fourth street before the evening preceding the shooting. He said he came to go there at the suggestion of Goldie, whom he had met a short time previously when they were both inmates of the same ward in a hospital in Hew York. “I could get a room there for a reasonable price,” he said, “a couple of dollars or two and a half, and if I wanted a girl I might get a girl thére. It was a neighborhood of that kind.” His testimony agreed with that of Mrs. Leonard as to his calling at the house on the evening of the 21st of February and asking for Mr. Leonard, but he said that he inquired for Goldie after being told that Mr. Leonard was not in. Thereupon Anderson, whom the defendant swore he had never seen before, looked over the head of the stairs and called out, “Hello,” and the defendant went up to the first floor where he was standing. He told Anderson that he had been in the hospital and was “all in;” that Goldie told him he could get a room there; that .there were a couple of women downstairs, one of whom said she was Mrs. Leonard, but he did not care about giving her his money until he saw the proprietor who ran the house, Leonard, and he would give him the money to get his room. Anderson told him that he expected Goldie right back, whereupon the defendant went to Goldie’s room and waited there an hour or so talking with Anderson, who mentioned a mutual acquaintance — a woman who kept a saloon in Montreal. He then proposed to Anderson to go *84out and have a drink and they went together to a liquor saloon on the same block where they met Goldie and another man, Wilson, to whom the defendant was introduced. They stayed there until it was time to close the place and they were put out. In the street Goldie and Wilson went off with two girls, Goldie saying that he would make a night of it and telling the defendant to go down and sleep in his room. The defendant then returned to the Leonard house with Anderson. According to his testimony they were all “ pretty drunk.” He told Anderson that if he went up and slept in Goldie’s room Goldie might come back in the night and sleep on the floor and said he- would go down and see “this fellow,” meaning Leonard. Going down into the basement he tripped and fell and “woke up at the bottom, ” to quote his language. As he was picking himself up Anderson called out: “You are waking the whole God damned house up. Get back and go to bed.” The defendant heard Leonard’s voice and Anderson said: “Never mind, Jack, it is all right. I will see you to-morrow,” and smarted upstairs. Leonard came out into the hall which was either dark or very dimly lighted. The defendant started to explain to him about getting the room, mentioning Goldie; I quote his testimony from this point: “He says, ‘ Goldie sent you over here *%*’ He says, ‘You bum, get out of here,’ and he made a pass at me and struck me here in the side of the head. I came back with another pass, and he kicked me in the private and I went down. I fell to the floor, and I says, ‘You rotten son-of-a-bitch,’ and he faced back towards the door and he says, ‘ I will give you one second to get out of here,’ and I was in the condition on that floor that I couldn’t get out of there, and being strapped up and I got a large rupture, and I couldn’t get up off that floor, and the next thing I heard, bang, and I reached around my back pocket and I pulled my gun and I let go. Why did I shoot my revolver ? Why, it was his life or *85mine. That is why I shot my revolver, and 1 would do it now if I were in the same position. That is why I done it.”

The theory of the prosecution was that the defendant and certain criminal associates of his in the borough of Manhattan were inspired with animosity toward Leonard because they feared him as an informer. The district attorney denominated these criminals “ yeggmen,” which it seems is a term applied to post-office and bank robbers. Leonard had recently been pardoned by the president after conviction of a crime of the character committed by “yeggmen,” and his associates might well fear revelations made by him to. the officers of' the government. This feeling may not have gone so far as to result in a determination to kill him, but it might naturally have created a sentiment of hostility on the part of the defendant. If the testimony of Mrs. Leonard was true — and the jury must have accepted it as true — her husband did nothing’ on the occasion of the homicide which could possibly have warranted the defendant in supposing that Leonard meant to harm him or could harm him, still less do any act which would endanger his life. Even if the defendant had little previous knowledge or information concerning Leonard and was not actuated by any fear that he might turn state’s evidence, the jury might well have thought that the defendant, enrag’ed by the language which Leonard used and having him completely within his power in the obscurity of the basement hall, then and there resolved to kill him. The law does not prescribe any particular length of time as necessary for the deliberation which is an element of the crime of murder in the first degree. It is only essential that it shall be long enough for the perpetrator to decide between not doing and doing the.act. *(People*v. *Boggiano,*179 N. Y.*267.)*It cannot be held as matter of law that the time was insufficient in this case. That question was properly left to the jury. I cannot say that their conclusion was *86against the evidence or against the weight of evidence or that it was without evidence to support it.

There are forty-three exceptions in the record, most of which are obviously so untenable as not to require any discussion. A few of them, however, require notice. To understand these it is necessary to mention some facts to which reference has not yet been made.

The evidence left no doubt that the defendant had fired five shots, and special pains were taken by the prosecution to prove the location from which these shots must have been fired, as well as the direction of the shots, and to find the five bullets. Five shells fitting the defendant’s pistol had been found in the upper hallway near the hat rack, but prior to the 28th of March only four bullets had been discovered. The case originally came on for trial on March 25, 1910, but was adjourned on the application of counsel for the defendant until the 18th of April, 1910, when the trial began. On the 28th of March the district attorney caused further search to be made for another bullet in the hall of the basement of the Leonard house and the fifth bullet was discovered. The search was made with great care by a surveyor, a police captain and an expert photographer. At this time there were no traces of any bullet holes in the walls of the basement hall, nor were any other bullets found. A week later counsel for the defense requested the same photographer to visit the premises with him, and he pointed out to the photographer two bullet holes in the wall opposite the kitchen door which the other evidence conclusively shows were not there on the 28th of March. Subsequently on examining the boards containing these new bullet holes two 32-calibre bullets were found, one of them in the coal bin. There is no reasonable doubt "that these bullets had been fired into the wall subsequent to the homicide. The house had been unoccupied after the 14th of March. The lessee was one John Oavanagh, a New York liquor saloon keeper, under whom Leonard occupied the premises. *87His partner in business was a man who is denominated Chi-Jack in the record, and Cavanagh testified that he had seen the counsel for the defendant talking to this partner of his in the middle of March or thereabouts. While expressly exonerating the counsel for the defendant from any charge or suggestion of complicity in the scheme, the theory of the district attorney was that some of the friends of the defendant in Manhattan had caused these two shots to be fired from a 32-calibre revolver in the basement of No. 266 South Fourth street subsequent to the murder for the purpose of lending credibility to the plea of self-defense. It is to be noted that no reference is made to these bullets in the argument of defendant’s counsel. It hás been necessary to mention this incident in order to show the admissibility of certain evidence which was received over objection and exception in behalf of the defendant. Catherine Kane, a girl of seventeen, who lived with her parents next door to the Leonard house, and Willie Kane, her younger brother, testified in substance that after the Leonard house had become vacant and on the night of the 31st of March between ten and eleven o’clock they heard a report in the house next door which sounded as if something had fallen over, so that they wondered if the ceiling was falling down in their own home. Their parents were out at the time, but they told them about this crashing noise when they came home and subsequently reported it to the police captain of the precinct. This evidence was plainly relevant, as the noise might have been made by the firing of a pistol and the testimony of these witnesses thus tended to show an attempt to fabricate a defense. It is argued that in any event such testimony was only proper upon rebuttal, but I think that it was within the discretion of the trial judge to allow the prosecution to anticipate any defense which might be based upon the finding of the 32-calibre bullets and to account for their presence in the premises as a part of the principal case for the People.

*88The only other exceptions of any consequence may be disposed of briefly. Upon the cross-examination of Mrs. Leonard objections by the prosecution to a series of questions intended to show that the deceased carried firearms were sustained and the defendant duly excepted. At that time there had been no suggestion, nor was the district attorney aware that the defendant would rely upon self-defense as a justification for the shooting. After it became apparent that this was to be the defense the district attorney recalled Mrs. Leonard to the stand, withdrew the objections that he had previously made and consented to any questions being asked along that line. This action, I think, deprived the exceptions of any force, as it afforded counsel for the defendant the fullest possible opportunity to ask the questions which had been ruled out. . No error was committed in receiving in evidence the pardon of Leonard. Upon the cross-examination of Mrs. Leonard the defense had proved the fact of her husband’s imprisonment at Atlanta, and under these circumstances it was entirely proper for the prosecution to show how that imprisonment was terminated. Exception was also taken to the testimony of a post-office inspector and a detective in reference to their business relations with Leonard, and his connection with the investigation of post-office burglaries. Nothing material or damaging to the defendant was elicited on the examination of either of these witnesses but in any event if error was committed in receiving their testimony it clearly was cured by the action of the court in striking it from the record and directing the jury to eliminate it entirely from consideration, “as though it had not been presented at all.” It is to be presumed, as a general rule, that an instruction to a jury that testimony is immaterial and of no probative force and should not be considered by them, will efface all prejudice, if any prejudice has resulted from such testimony. *(State*v. *Fortin,*106 Maine, 382.)

Some of the reasons which may well have led the jury to *89reject the plea of self-defense readily suggest themselves to the mind. In the first place, the only voice which Mrs. Leonard, and, therefore, presumably Leonard himself, recognized in the hall before Leonard went out was the voice of Anderson, a lodger in the house, with whom Leonard’s relations appear to have been entirely friendly. Even if he had a pistol on the premises there was nothing in the circumstances to arouse any apprehension of danger or to lead him to arm himself before going out. In the second place, it is to be noted that Leonard was shot in the back. When this fatal shot was fired it is perfectly certain that the deceased was in the act of flight from his assailant. This is not the usual attitude of a man who is trying to kill another. Finally, the defendant when arrested, instead of saying anything about an assault upon himself as a justification for his act, violently resisted arrest and made an assault upon the officer. These facts, taken together, weigh strongly against the story of the defendant.

There is nothing in the law or the facts of this case which would justify us in interfering with the verdict. It is true that no adequate motive for the crime is plainly discernible, but if satisfactory proof of motive were essential to uphold a conviction of murder many wicked criminals would escape the punishment which they deserve. I think it is our duty to affirm this judgment.

Cullen, Oh. J., Vann, Werner, Hiscock and Chase, JJ., concur; Haight, J., absent.

Judgment of conviction affirmed.