People v. Barone

On the 11th of July, 1898, the defendant, Gruiseppe Antonio Barone, was jointly indicted with Rosina

The theory of the prosecution was that the defendant, on learning that his wife had been guilty of adultery with Forestino, with deliberation and premeditation took his life,in pursuance of a conspiracy formed between himself and the other defendants. The theory of the defendant was that, while he killed Forestino in the manner charged in the indictment, the act was done without deliberation or premeditation, upon the impulse of the moment and in self-defense. The issue of primary importance, therefore, was whether the homicide was committed with deliberation and premeditation.

Rosina Barone is the wife of the defendant and an aunt of the wife of his co-defendant, Vincenzo Muscarello. The defendant was born in Sicily in 1861, was married there in 1886, and in 1891 he came to America and located in the city of Buffalo. His wife, formerly of good repute, came here later, with their three children. Prior to the homicide his reputation, as given by his employers and others, was that of an honest, industrious and peaceable citizen. . At the time of

The deceased, was a small man, five feet two inches in height, about thirty years of age, of less physical strength than the defendant and had been in this country over five years before his death. He had resided for three years at No. 42 Fly street, Buffalo, a house occupied by many Italian families, in which the defendant and his wife also resided for twenty months. During this period Forestino became criminally intimate-with Mrs. Barone, but the defendant did not know it at the time, although it was generally accepted as a fact by the acquaintances of all concerned. In the fall of 1897 he contracted a venereal disease from his wife, which she had caught from Forestino, and thereupon he charged her with infidelity, but she stated that she caught it from a man who overcame her by violence. She did not make this statement until it became necessary to present some excuse to her husband. Whether he believed it is open to doubt for he promptly sent her and their three children back to Italy, sold his housekeeping effects at auction and went to boarding with his brother. This was in October, 1897, and on the 22nd of March, 1898, she returned to her husband, who was apparently expecting her, as he had secured and furnished rooms at No. 11 Olga place, where they went to living together. This house was in a Polish section of the city and quite remote from the Fly street house, which was in the Italian quarter. During the absence of his wife in Italy, according to his statement, the defendant received two or three letters from her asking him to take her back and stating that the children were dying of hunger, but he answered the first only, refusing to take her back because she had disgraced him. The letters were not produced and he swore they had been destroyed. While she was gone he asked Forestino to fix a clock for him, and the relations of the two men were apparently friendly until the time of the homicide. When she returned, as he says, she asked him to forgive her, stating that she had been taken advantage of through no fault of herself, and he did for

Mrs. Barone occasionally returned to the Fly street house for the purpose, as claimed by the People, of seeing Forestino, who still resided there, but, as claimed by the defense, in order to see her old acquaintances. She was there a week before the homicide and saw Forestino, and three days later she saw him there again and had a talk with him, during which, as evidence was given tending to show, she invited him to visit her, stating that the air was good and he had better come out there. The defense claims the invitation was general, to all her old aquaintances, and not to Forestino in particular, and this view has some support in the evidence. The testimony relating to what was said upon the subject, even as given by each witness, was somewhat contradictory, but it appears satisfactorily that Mrs. Barone furnished Forestino a piece of paper or card and that he made a memorandum and put it in a little book in his pocket. After his death a memorandum was found in a pocket book on his body in the following form: “ Clinton st. Olga pi. 1ST. 11.” “ Clinton st.” doubtless refers to one of two street car lines which could be taken to reach Olga place, but the cars on the William street line ran a little nearer and more frequently than those on Clinton street. Mrs. Barone says that she used to take the William street line to go to Olga place, and that she did not know where Clinton street was or the number of her house at Olga place. She could not read or write and kept the card to show when she asked a policeman what car to take in order to go home. She denied that she invited Forestino to her house, but admitted laying this card down on the table for Mrs. Mazzia, in his presence, and that he took it up and wrote the address on a piece of paper. She saw him again, for the third time during the same week, only two days before the homicide, as hereinafter stated.

The same evening Muscarello arranged with one Salvatore Battaglia for the loan of a horse and wagon, saying that he wanted to use them the next morning at five or six o’clock to take a cross to the cemetery, where he had recently buried a child. It was finally agreed that Muscarello should have the horse and wagon at between eight and nine o’clock the following morning, which was Sunday, June 19th, the day before the homicide, but he did not go for them, giving as an excuse that it looked as if it was going to rain. It did rain during the night and was cloudy in the morning. About ten or eleven o’clock he asked Salvatore if he could have the horse and wagon on some day during the following week, but his request was refused, as Salvatore said he needed the horse for himself on week days in his business of huckstering. Muscarello’s statement as to the purpose for which he wanted the horse and wagon was corroborated by several witnesses. He told various persons that the reason he did not take thé cross on Sunday was that he felt unwell, having drank too much Saturday night. His wife swore that when he came home Sunday morning he was intoxicated, ate no breakfast, went out at ten, complained of not feeling well and did not return until late. Other witnesses swore to substantially the same facts. He went to work at the usual hour on Monday morning, worked almost all day, and ceased earlier than usual at the suggestion of his employer. He had lost a child on the 13th of June, and, shortly before he arranged for the horse and wagon, had purchased a stone for its grave, and had hired a marblecutter to cut an inscription upon, it, so that it could be taken to the cemetery on the Sunday in question.

On Sunday morning, at about ten o’clock, the defendant,

Sunday evening Forestino, the deceased, agreed to do some work for a man on Monday morning, but he did not do it, leaving word as he left home at about eight o’clock that he would do it later in the day. Shortly after, he met an acquaintance, who asked him to put a faucet into a wine barrel, but he said he could not do it then as he had a little job elsewhere. About half-past eight he asked a policeman, on duty in the vicinity of Olga place, to be directed to Ho. 11, and at the same time showed him the address in a memorandum book. The officer did. so, and Forestino went in that direction. He soon reached the house, which was occupied by five families, Mrs. Martin living on the first floor front, and the defendant and his family on the second floor front. As Forestino approached the house Mrs. Martin saw him look up toward the windows of the defendant and smile, but she

From five to fifteen minutes after Forestino went upstairs and entered the defendant’s room, something was heard to fall heavily on the floor, as if a human body had fallen, and immediately after a human voice was heard crying out, followed by the cry of a child, which ceased at once. Mrs. Martin, who was in a room directly under those occupied by the defendant, and the landlady, who was directly at the rear of his rooms, on hearing the noise, ran to his door and heard a loud groaning inside. They heard no noise of any struggle in the room before the heavy fall and the cries. They tried the door, but found it fastened. They called to the defendant and his wife to open the door, but there was no response and the door was not opened. All the noise in the defendant’s room suddenly ceased, except there was a faint thumping or kicking, as if feet were working on the floor. After the lapse of a little time, footsteps and sounds of scrubbing the floor were heard in the room, and soon Mrs. Barone and the defendant, with his sleeves rolled up almost to the shoulders, were seen washing out some clothes in a sink in the hallway in front of his door, and after that wet clothes were observed hanging on his doorknob. Hot long after, Mrs. Barone came down stairs into the yard, walked back and forth a number of times, and then left, taking the youngest child with her, the other children having been away all the time. She stayed .away all

The defendant left the house between eleven and twelve in the forenoon, went to a store on Seneca street, purchased a large trunk, and about a quarter past twelve carried it home. This trunk was in all respects like the one in which the body of Forestino was subsequently found. In the afternoon the defendant was seen at the same sink washing out a tub. Part of tlpe floor in the defendant’s room looked as if it had been recently scrubbed, the walls were freshly washed in places, and red spots were found on different parts of the floor, which, on scientific examination, proved to be blood. The same afternoon the defendant, without help, dragged a number of the railroad ties, which he had left in the street, into the yard and piled them up.

Toward night the defendant requested Muscarello to see Salvatore Battaglia and get a horse and wagon. Muscarello saw Salvatore and asked him for a horse and wagon to use that evening, saying that he wanted to take a cross to the cemetery and also to move a stove and a machine. Salvatore went with him to the barn, where the wagon was, and Muscarello, on noticing that it was not a covered wagon, asked for one with a top, but Salvatore' told him that he hadn’t any. Muscarello said, “ Why, I saw your brother have one the other day and I was pleased with the appearance of it.” Salvatore answered, “ That belongs to Manzella.” Muscarello said he didn’t care for the wagon, but at once went to Manzella and tried- to borrow a wagon from him without a horse, offering to deposit $10 to pay for any damage that might be done to it. This was a covered wagon, but Manzella refused to let him have it. He then returned with a brother of Salvatore, named Orazzio, to Salvatore’s barn and tried again to get a wagon from him. Orazzio soon went away and Muscarello told Salvatore that he wanted to confide in him, and that if he would come with him there was a hundred dollars to be divided between them, adding that a trunk was to be moved from one house to another. When asked what was in the trunk, after

While they were thus driving, as Salvatore testified, he asked the defendant to tell him the truth as to what was in the trunk, and he refused at first, but after some urging said, “ Don’t tell any one; I had a misfortune and killed a man and put him in the trunk.” Salvatore said: “If you have done this you have been a butcher to do so barbarous a murder.” For a short time both were silent, but soon the defendant said: “ Tell me, Salvatore, if your wife was in bed and asleep and there comes another man and goes to sleep with your wife and gives her a sickness or a disease, what would you do?” Salvatore replied: If this was the motive for the homicide Barone had done wrong; that he would take the wife out, give her a couple of kicks and turn her out; “ that there were other women,” and then asked if that was what Muscarello wanted the wagon for on Sunday, “ that you were to kill the man,” and the defendant said it was for this that he wanted to get the wagon. He also said his wife had written him if he would send her the money to come from Italy she would write and tell him who had given her the disease, adding, “ and for this I kill him ; ” that he sent his wife to seek Forestino on Sunday and had sent her more than once for that purpose; that he was hidden in the house in another room, and when Forestino came in his wife shut the door, and while they were talking together he came out and stabbed him ; that he went in front of him, and holding the knife behind his back, said, “ Hello, what are you doing here ? ” and stabbed him, while his wife held his arms or hands behind him ; that after he had fallen his wife held his legs to keep him from kicking and that he himself

The next morning the trunk, partly submerged, was found floating in the canal. It contained the dismembered body of Forestino, a child’s dress which belonged to one of the defendant’s children, a loaded revolver, which fitted a case after-wards found in Forestino’s room, a long-bladed bread knife, a saw, a-purse with a little money in it, and a cheap memorandum or pocket book containing the address of the Olga street house. The legs had been severed from the body at the knee with a knife, and the head, at the neck, Avith a knife and saw. The principal wound on the body, apparently inflicted with a long-bladed knife, was on the right side of the anterior wall of the chest, an inch and a half below the collar bone, penetrating through the right lung to the wind pipe behind. The track of the wound was six or seven inches long and its general course was nearly parallel to the collar bone, the inner end being near the middle of the body. It was sufficient to cause death at once. Hear this wound was a small puncture, half an inch long, and about that in depth, which did not enter the cavity of the chest. On the right shoulder in front there was a bluish spot, apparently a bruise, which, in the opinion of the physicans, Avas inflicted before death. There was also a scratch on the right side of the chest, which, according to their judgment, might have been made either before or after death. At numerous points about the face, especially on the left side, the skin was discolored, and its superficial layer more or less torn off. The body was fully dressed with coat, pants, vest and shirt, but there was no knife cut -through the shirt, which was ripped from the neck down some distance. There was no sign of disease about the body.

The defendant and his wife were sworn, and while they varied in their statements, their story in substance was that .Forestino entered the room without knocking, and the defendant, who was sitting at the window, asked him to sit down. Forestino said he did not come to sit down, and Mrs. Barone, who had been sitting at the table, said, why do you come here to disturb me again. The defendant says it then occurred to him for the first time that Forestino was the man who seduced his wife, and he said, “ You miserable man, you are the one who disturbed me in my house before,” whereupon Forestino replied, “ Yes, you cuckold,” and drew a revolver. The defendant sprang for him, snatched the revolver from his hand and “ took it onto the bed, or carried it over to the bed” of his child. Mrs. Barone grabbed Forestino by the arms and said, “ For pity’s sake go away,” but he refused, saying, “ No, before I will go from here I want to kill you and your husband.” The defendant also tried to make Forestino go out, but" he escaped from them both, rushed to the bed, got the revolver, and as he. turned and was about to shoot, the

To continue the story of the defendant and his wife, Forestino, as the knife was pulled out, made an outcry, fell forward on his face and blood spurted on the wall and covered the floor. The defendant threw away the knife and fell with Forestino and the kettle of boiling water fell on Forestino’s head at the same time. “ All the blood that he had flew out,” and he lived but two or three minutes. Within fifteen minutes the floor was cleaned and Mrs. Barone took the child and went away. The defendant bought the trunk, hired Salvatore Battaglia and his horse, returned to the house and tried to put the body in the trunk without cutting it up, but could not do it. He locked the door, went out and sat in the shade for half an hour, procured some pieces of iron and returned to the house. With the same knife he cut off the legs from the body at the knee, cut the neck to the bone, then used the saw, and the head fell into a tub. He packed the different parts in the trunk, put with them the articles already mentioned and locked it.

The rest of his story does not differ materially from that told by Salvatore Battaglia, except that he denied making any confession on the way back from the canal. He admitted that he made many untrue statements to the district attorney and the police upon his arrest, and among others, that he wrote to his wife in Italy that he would send for her if she would tell him who gave her the disease, but that she did not tell him until she came back. On the trial the defendant and his wife both swore that she never told him.

The great mass of testimony, to much of which we can make no allusion, given mostly by Italian witnesses, is difficult

Confessions are to be received with caution, owing to the danger of mistake, but the danger of error in this respect in the case before us is less than the danger of error from Salvatore’s possible untruthfulness. If he told the truth, the defendant admitted that he sent his wife to get Forestino to go to the house, laid in wait for him and killed him when he came. This statement is corroborated by the fact that Forestino did go to the house, where he had never.been before, and went to the defendant’s rooms at a time when he was ordinarily away at work. The defendant admits substantially all that Salvatore swore to except the confession and the attempt of defendant to buy a horse of him on Sunday afternoon. He also admits telling the district attorney that he wrote his wife he would send for her if she would tell him who gave her the disease, but insisted that it was not true. The children were away when Forestino came, which was unusual, although it had happened before, and the neighbor’s child was sent away, which had never happened before, so far as the evi

On the other hand, the defendant insists that satisfactory evidence of preparation for the crime is wanting; that the preponderance of evidence shows that the wagon was not engaged by Muscarello on account of the murder, but for a lawful purpose; that he would not have asked to take it at half-past five Sunday morning for the purpose alleged, because that would have been too early; that the character of Salvar tore Battaglia, who had been in prison in Italy, is bad, his evidence unreliable, and that it would be unsafe to found a conviction of murder in the first degree upon it; that it is improbable that the defendant would confess to Battaglia and make no effort to excuse or defend his conduct; that his story is extraordinary and incredible; that defendant had a revolver, which was found in his trunk when he was arrested, and if he had intended beforehand to kill Forestino, it is probable that lie would have had it ready to use; that the use of the bread

It must be admitted that the theory that the wagon was engaged by Muscarello for a lawful purpose has strong sup.port, although he may have resorted to it as a pretext to cover up his real purpose. If Salvatore is to be believed when he said that the defendant tried to buy a horse and wagon of him on Sunday afternoon, it points strongly toward preparation. So, if his story is true, the probability is strong that Mrs. Barone, at the request of her husband, invited Forestino to come to her house on the morning of the homicide. That story is corroborated to some extent by the admission of the defendant to the district attorney, and by the evidence that she had the opportunity to invite him, and he came, although he had never been there before. It may have been a coincidence that he came when the defendant was at home; although at an hour when he would usually be at work, and an accident that he smiled when he looked up at the window. The fact that the older children had been left at the house of a relative over night may or may not have been in preparation for the crime. Their presence in those limited apartments would have been an impediment to murder if one was designed, yet they had been left away before, but sending the neighbor’s child from the room shortly before the homicide had never happened before. The case is involved in some obscurity, and, unfortunately, we encounter the same

We will not prolong our review of the facts, for enough has been said to show that there was sufficient evidence of deliberation and premeditation to send the case to the jury, and that their verdict should not be set aside as against the weight of evidence. They saw Salvatore Battaglia and the other witnesses when they were upon the stand, looked into their faces, observed their manner when testifying, and were prepared to decide who told the truth and who did not. We do not have the advantage of seeing and hearing the witnesses, and must, ordinarily and almost of necessity, leave all questions of credibility undisturbed, as they were settled by the jury, unless we have a well-grounded belief that justice requires a new trial.

Upon examining the exceptions, the most serious that we find is the refusal of the court to allow the defendant to ask Dr. Park, on cross-examination, whether the marks of violence upon the body of Forestino indicated a struggle.

Dr. Park was called by the People and testified that he made an autopsy on the body of the deceased. After describing the wounds, he was asked by the district attorney what conclusions he arrived at as to the cause of death, and, reading from a memorandum, he stated his conclusions upon that subject, and then asked, “ Do you want about the circumstances % ” and the district attorney replied, “Yes, sir.” After saying several things not now important, he stated as a part of his answer to the question calling for the circumstances : “ This wound may have been inflicted while the victim was either in an upright or prone position. There are not the ordinary evidences of a struggle having taken place.” This was not objected to, and no motion was made to strike it out. After stating one or two other things the direct examination of the doctor closed and the court adjourned until the next, day. Seven days later he was cross-examined for the first time, and, after again describing the external appearance of the body and the wounds, was asked by the defendant’s

It was of vital importance to the defendant to show that a struggle took place before the homicide, as it had a direct bearing upon the question of deliberation and premeditation. Mrs. Martin and the landlady had sworn that they heard no noise of a struggle during the interval which elapsed between the time when Forestino entered the room and the heavy fall upon the floor. The defendant and his wife, who testified after the ruling in question, said that there was a struggle, and stated the circumstances in great detail. The two wounds, the bruise, the discoloration and the torn clothing would be some evidence to an ordinary observer that there might have been a struggle. The question whether there was a struggle or not was in the case, and as it was determined one way or the other by the jury it was bound to have an important effect upon their verdict. Upon the record, after this ruling had been made, the statement of Dr. Park that the ordinary evidences of a struggle were wanting, stood unmodified. It was an important statement from an important witness, who stood high in the community for his skill and integrity, and we must assume that it had weight with the jury. The fact that it may have been an inference on the part of the learned doctor would not be apt to lessen its persuasive force with the jury. It went far toward practically taking the question as to a struggle out of the case. We shall not pause to.consider whether it was responsive or not, further than to remark that it was called forth by a very general question, but shall treat it as evidence which came out during the examination of the district attorney and remained on the record as evidence for the consideration of the jury, without comment or action on

There was no opportunity to object, for the question which brought out the doctor’s statement was competent, and a motion to strike out would have been denied according to the usual rule. (Platner v. Platner, 78 N. Y. 90 ; Pontius v. People, 82 N. Y. 339 , 347; Holmes v. Moffat, 120 N. Y. 159 .) An instruction to disregard would have been a doubtful remedy, as the jury could not forget the inference drawn from actual observation of the body by a man of experience and learning, and it made the way easy for them to draw the same inference.

We think, under the circumstances of this case, the defendant was not obliged to resort to a motion to strike out or to a request to instruct, and that he could cross-examine, if he preferred, as the district attorney did not, himself, move to strike the evidence out. The prosecution could not set the witness going by a general question, let his answer stand and prevent cross-examination by claiming it was not responsive. The ruling fairly comes within the principle announced in the late case of People v. Buchanan ( 145 N. Y. 1 , 24), where it was held that a witness may be re-examined, by the party calling him, upon all topics on which he has been cross-examined, and this, although the cross-examination was as to facts not admissible in evidence. In deciding that case Judge G-ray said: “ I understand the rule to be that a witness may be re-examined by the party calling him upon all topics on which he has been cross-examined, for the purpose of explaining any new facts which came out; but the re-examination must be confined to the subject-matter of the cross-examination. He may he questioned to show the meaning of his expressions, or of his motive in using them. (1 Starkie on Evid. *208;

One exception to the-charge requires discussion. Referring to the testimony of Salvatore Battaglia, the trial judge said : “ In examining this man’s testimony we must bear in mind that somebody told Battaglia how this killing occurred; someone has told him how he was stabbed in the room because he could not divine it; he did not guess it out, and he, himself, tells you that it was through the voluntary confession of the defendant, himself, in substantially this language.” The judge thereupon stated the substance of Battaglia’s testimony in relation to the alleged confession of the defendant, and proceeded as follows: “ That is the testimony of Salvatore Battaglia. This testimony is criticized by the defendant. It is claimed by the defense that he is interested in throwing the responsibility for this crime upon the shoulders of defendant and screening himself from it. Row, whatever there is of this claim, it is for you tó determine. Salvatore Battaglia is not charged with murder in this case; he is chargeable, if with anything,

The counsel for the defendant excepted to that portion of the charge “ that some one has told Salvatore Battaglia how the killing of Forestino occurred, and that he did not guess it out.” The trial judge thereupon remarked, “ Well, I make this statement in connection with the claim of the district attorney; he claims that somebody has told him these facts.” It is to be observed that the remarks of the court, challenged by the exception, were neither taken back nor modified. The judge simply said that he made the statement in connection with the claim of the district attorney to the same effect. .It was in substance a repetition of the statement with the addition that the district attorney made a similar claim.

The learned judge, in the hurry of an extemporaneous address, inadvertently fell into error when he said that somebody told Battaglia how the killing occurred, and that somebody told him how he was stabbed in the room, because he could not “ divine it ” or “ guess it out.” He asserted this as a fact, not as a claim, and when it was followed by the statement that Battaglia, himself, said the defendant had told him, it might well have been regarded by the jury as an intimation that the court believed Battaglia’s evidence. The statement of the court excluded the possibility that Battaglia had manufactured the confession out of whole cloth, as the defendant claimed. The defendant either made a confession to Battaglia or he did not. If he did, it was a vital fact. If he did not, the story told by Battaglia was the invention of some one, presumptively of himself. If it was an invention, it is not important who invented it, for Battaglia knew that the defendant had not told it to him. The jury had the right to find it was a fabrication, yet the court told them in substance that

There are other exceptions in the case, but we do not think it necessary to discuss them. For the reasons already given we reverse the judgment and order a new trial.

All concur (Gray, J., on ground that the ruling on cross-examination of Dr. Park was erroneous), except Haight, J., not voting.

Judgment reversed, etc.