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Another witness was called by the defendant


In this Criminal case, herein Appellant has been convicted of murder, effected while engaged in the commission of a felony. Appellant was indicted together with another individual, and it is alleged that the defendants, each aiding and assisting the other, committed the crime.

A Queens County Criminal lawyer said that the gun crime was committed in June 1935. At about 1 o’clock in the morning six persons were in a Tavern in Winfield, Queens County. The owner was standing behind the bar at the end farthest from the entrance. Sitting on a stool at the bar was a patron. At a table at the right of the bar as one entered, the deceased sat with three other persons. The deceased faced the door of the tavern, had his back to the door and was facing the owner faced the bar, and another had his back to the door.

Three men entered the tavern, drew guns, and said, ‘Stick them up.’ The victim turned in his chair, saw a gun in the hand of one and made a lunge for it. He seized the hand of the gunman. The gun was discharged and a bullet passed through his buttocks. Two other shots were fired, although it does not appear which one of the gunmen fired these shots. The victim fell to the floor. He was struck by a bullet, and died as a result of it. The three men escaped. They were on the premises only a little over a minute.

Thereafter, Appellant and three other men were apprehended by the police while riding together in an automobile. The codefendant was one of the passengers. Another passenger was a man. When arrested, appellant gave a false name.

Of the five men present with deceased on the night of the shooting, only two could identify the defendant-appellant. All were produced upon the trial. The witness did not see what happened. He did not hear the gunmen enter. He said that he was drunk and saw nothing. The co-accused was identified as one of the assailants, but could not identify the appellant. The witness identified appellant as the man with whom he had the encounter. The proprietor, likewise made a positive identification of appellant.

The two witnesses who, at the trial, pointed out appellant as the man who entered with the gun were positive in their identification, but in their description of the clothes he wore, etc., they were at variance. Appellant argues that in view of this, the identification was so doubtful, contradictory, and improbable that criminal justice requires a reversal and a new trial.

As no witnesses were called by appellant, the sole question was the question of identification. The witness was seated at a table near the door when the gunmen came in. He heard the words, ‘Stick them up.’ He turned slightly in his chair and saw a man with a gun. The man was looking directly at the proprietor of the restaurant, who was standing behind the bar. He made a lurch toward that gunman in an attempt to get his gun. The man with the gun was only six or eight feet away from him. He testified positively that that man was the criminal appellant. He said that he only saw one of the men, meaning that his attention was fastened upon that one man. He had previously identified him at the jail.

On his cross-examination he volunteered the statement, ‘I will never forget his face.’ He testified that he was in full view; that he looked him in the eye, and that he looked at his face; that he was talking to him face to face. It is true that this witness described his wearing apparel and some minor details contradictory to the description given by other witnesses. The whole affair transpired in a very short space of time. Under the conditions it is not surprising that the various witnesses contradicted each other as to minor details. It is hard to see how there could be a more positive identification than that afforded by the evidence of this witness.

Another witness was called by the criminal defendant. He testified that he lived across the street from the restaurant; that he saw an automobile stop in front of the restaurant and three men get out and go in; that he heard three shots and then saw three men back out of the door; that at the time he was within ten feet of them, and he testified that neither of the defendants was there. He said that he had a good view of the three gunmen because of the light from the sign in front of the restaurant.

The proprietor of the restaurant was called in rebuttal and testified that at the time of the holdup there was no light in front of the restaurant; that the light there at the time of the trial was placed there after the murder. The detective, who had a conversation with the witness on the night of the murder, was called on rebuttal. Under the circumstances, the jury would have had the right to disregard the evidence of the witness.

The question then is whether under this state of the record the evidence to the effect that suicide was committed constituted such error as to require a reversal of the judgment. The court did not believe it does. Undoubtedly the people had the right, and in fact it was the duty of the district attorney, to account for the absence of the third gunman. It was perfectly proper to show that he was dead. When the appellant was arrested, he and the codefendant were in an automobile together. The appellant gave a false name. The fact that the three were together in the automobile, operating it in violation of law under a license issued in the name of another person, would have suggested to the jury that he was one of the three criminal gunmen. In addition to that, one of the witnesses testified that he went to the morgue and looked at the remains and was able to say that co-defendant was one of the three gunmen. Of course the argument that the evidence of suicide carried the implication that he was guilty of participating in the holdup remains, but in our judgment it is not of sufficient weight to justify a reversal.

Criminal cases should be handled by diligent and skilled lawyers. This is because, penalty of imprisonment is imposed in some crimes depending on its gravity and what the law provides. We have Queens County Criminal attorneys who will handle your case and represent you in courts. In case a death was a result of using guns, you can also consult our Queens County Gun Crimes. We will help you attain justice in prosecuting the assailants.

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