USA > New York > Kings County > Brooklyn > The civil, political, professional and ecclesiastical history, and commercial and industrial record of the county of Kings and the city of Brooklyn, N. Y., from 1683 to 1884, Volume II > Part 154
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76 | Part 77 | Part 78 | Part 79 | Part 80 | Part 81 | Part 82 | Part 83 | Part 84 | Part 85 | Part 86 | Part 87 | Part 88 | Part 89 | Part 90 | Part 91 | Part 92 | Part 93 | Part 94 | Part 95 | Part 96 | Part 97 | Part 98 | Part 99 | Part 100 | Part 101 | Part 102 | Part 103 | Part 104 | Part 105 | Part 106 | Part 107 | Part 108 | Part 109 | Part 110 | Part 111 | Part 112 | Part 113 | Part 114 | Part 115 | Part 116 | Part 117 | Part 118 | Part 119 | Part 120 | Part 121 | Part 122 | Part 123 | Part 124 | Part 125 | Part 126 | Part 127 | Part 128 | Part 129 | Part 130 | Part 131 | Part 132 | Part 133 | Part 134 | Part 135 | Part 136 | Part 137 | Part 138 | Part 139 | Part 140 | Part 141 | Part 142 | Part 143 | Part 144 | Part 145 | Part 146 | Part 147 | Part 148 | Part 149 | Part 150 | Part 151 | Part 152 | Part 153 | Part 154 | Part 155 | Part 156 | Part 157 | Part 158 | Part 159 | Part 160 | Part 161 | Part 162 | Part 163 | Part 164 | Part 165 | Part 166 | Part 167 | Part 168 | Part 169 | Part 170 | Part 171 | Part 172 | Part 173 | Part 174 | Part 175 | Part 176 | Part 177 | Part 178 | Part 179 | Part 180 | Part 181 | Part 182 | Part 183 | Part 184 | Part 185 | Part 186 | Part 187 | Part 188
At the Evans House, which is not far from the City Park, the thras man attracted much attention on the night of the murder ; Ortero hy his refined and gentlemanly bearing and noble form, hia companions by their rough appearance. Persons at the Evana Honse readily recognized the body of Ortero as that of tha interesting stranger whose appearance had attracted their attention the night before, and his companions with whom he laft the house were equally well remembered. This answered the first inquiry-with whom was ha last seen ? On the ground, not far from the body of Ortero, there was found a pair of gloves, one of them cut and bloody, two razors, one of them badly hent, And a dagger. The police went to work, and they soon ascertained, by means of the receipted hotel hill, that the "Barcelona" was the stopping place of Ortero, and that
* PELLICIER, the day before he was executed, made & full confession of the commission of the crime, in which he disagreed in eome respecte with the evidence given for the people on the trial. He denied that the party were at the Evans House at all, insisting that they went directly from the ferry to the park; that Gonzalez began the attack upon Ortero, and did the principal part of the murder; that he, Pellicier, inflicted no injury upon their victim until after he had fallen upon the ground, and then, fearing that Gonzalez would kill him for having taken no part in the murder, he made several cuts on Ortero with a razor; that while doing eo, Gonzalez, in attempting to make another cut at Ortero, inflicted the wound on Pellicier'e left hand, by which he had hold of the victim. The struggle was, he said, entirely between Ortero and Gonzalez, and Ortero wae hrought to the ground by the plunge of the dagger, which pierced the spinal column. They had, previoue to thie time, lald a plan to murder him at his hotel in New York, intending to take up the floor and secrete his body beneath it, and with his money eecape to Spain in a eteamar about to asil, but difficulty In taking up the floor prevented.
Gonzalez and Pellicier, who answered the descriptions of the men who were with Ortero at the Evans House, were with him at the Barcelona and at the Hotel de Cuba, and that he left the latter hotel in their company. Two steamers were to sail for Havana on the day on which the murder was discovered; the police officers were detailed to watch these steamers. About three o'clock in the afternoon Pellicier, wearing a pair of heavy woolen mittens, went on board one of the vessels and was im- mediately arrested. At first he refused to take off his mittans, but at length reluctantly did so, and a deep wound on his hand was revealed. He was taken to Brooklyn and confronted with the bloody glove, which he had worn when committing the murder, and the cut in the glove exactly fitted the cut in his hand. Gonzalez was arrested at a boarding-house in Center street the next day after the murder. He went directly from the bloody scene to this boarding-house, reaching there quite late in the night; the next morning he purchased a new suit of clothes, shaved his mustache, and otherwise attempted to change his appearance. Pellicier had also changed his clothes in many respects. Gonzalez' vest, pants, drawers and shirt, that he had cast off, were found with spots of blood on them. The next day after the murder Gonzalez had plenty of money, and treated the persons about the hotel to whiskey, and upon one occasion he took a handful of gold coin from his pocket and, showing it, said, " That's the kind of money they have in Spain." After his arrest, $40 or $50 in gold and other money was found in his pockets, and two certified drafts, payable to Ortero, were found sewed in Gonzalez' coat collar; the drafts wero for a large amount. Pellicier and Gonzalez were indicted by a Grand Jury of Kings County, in December, 1865, and in January, 1866, they were brought to trial at a Court of Oyer and Terminer, held at the Court House in Brooklyn, Mr. Justico Gilbert presiding. Hon. S. D. Morris, then District Attorney of Kings County, appeared for the people, and Hon. William C. De Witt appeared for the defense. Gonzalez and Pellicier were indicted jointly, but they were tried separately, Gonzalez being first brought to trial. A long, interesting and exciting legal contest took place; the trial was conducted with great legal skill and learning on both sides. The evidence for the people consisted mainly of the facts already related, as sworn to by different witnesses. The circumstances proved against Gonzalez were, as we have seen, very strong, but the defense grapplad with them with an energy and subtlety which seemed to render a conviction doubtful. Anthon, one of the policemen who arrested Gonzalez, in answer to the question as to the identity of a pair of drawers produced on the trial, said he thought those were the prisoner's drawers; that he noticed a mark of blood on them when he found them. The counsel for the defense objected to the expression "n mark of blood," and excepted to the refusal of the Court to strike it out. In reply to a question on his cross-examination, the witness said "I noticed a spot of blood on the drawers."
Waddy, another of the officers who made the arrest, testified to the identity of the coat, vest, pants, shirt and drawers found in the prisoner's room, and was asked : "Did you notice nny spots on these clothes ?"
Objected to ; objection overruled.
Ans. " Yes, sir : stains on the coat, vest, pants, drawers and shirt. There is one of the stains on the pants, and there is ons on the waist. The spots on this light coat are nearly off. The spots that were on the right sleeve I don't see. The spots which were on the coat are rubbed off."
Ques. " Examine the drawers."
Ang. "I examined them the morning I brought them down to the station, and the spots that were on them are all rubbed off." Ques. "Look at the shirt."
Ans. " There on the waist of the shirt is a spot."
Objected to on the ground that there is no evidence that the shirt belonged to the prisoner ; objection overruled; exception.
1258
HISTORY OF KINGS COUNTY.
Mr. De Witt : " The court understands, I suppose, that all this testimony as to the character of these stains is taken subject to an exception ?"
Judge Gilbert : " No, sir."
Mr. De Witt : " We excepted in the case of the witness Ashton, and have excepted here. The character of the blood stains can only be determined by scientific analysis."
Judge Gilbert : " We do not understand that there is sn excep- tion to the testimony of the witness on that subject, and if counsel desires to save this point they must move to strike out that portion of the testimony."
Accordingly the counsel for the prisoner did move to strike out all the testimony as to the stains on the clothing. As the District Attorney did not object, that evidence was stricken out. The opposition then offered to exhibit to the jury the clothes and the stains thereon. This was objected to by the defense, but the objection was overruled, and there was an exception. It was proved these clothes had been found in the room of Gon- zalez at the time of the arrest, and had been pointed out by the landlady. It was proved that the shirt belonged to Pellicier, who returned from Brooklyn with Gonzalez, and slept with him the night after the murder; that he wore a new shirt soon after. The defense on the trial proved that several days before the murder a fight took place between the parties, in which Pellicier's hand was cut, which accounted for the wound on his hand. There was some other explanatory evidence on the part of the de- fense, but the foregoing is substantially the evidence in the case. The evidence was very ably summed up by the respective counsel, in a manner that negatives the assertion that the eloquence of the Bar has passed away. After a very learned and impartial charge from Mr. Justice Gilbert, the case was given to the jury, who, in due time, returned s verdict of " murder in the first degree." The trial of Pellicier resulted in a like ver- dict, and both prisoners wers sentenced to be hanged, but the indefatigable counsel for the defense carried the case to the General Term of the Supreme Court, alleging, among other grounds of error, that Judge Gilbert erred in admitting proof that the clothing worn by the prisoners on the night of the murder was found, at the time of their arrest, to be marked with spots which had the appearance of stains of blood; and in permitting the clothes thus stained to be inspected by the jury. The court sustained these grounds of error and set aside the con- viction of the prisoners, and ordered a new trial. From this judgment of the Supreme Court the District Attorney appealed to the Court of Appeals. In February, 1866, the cases came on for argument in that high court. Hon. Samuel D. Morris and John H. Reynolds appeared for the people; Hon. Alexander McCue and William C. De Witt for the defense. After argu- ments of unusual ability and learning, the court handed down an opinion reversing the judgment of the Supreme Court, sus- taining the ruling of Judge Gilbert, and directing that sentence of death against the prisoners be carried into execution.
As a matter of instruction and interest, we add that the follow- ing is among the rulings of the Court of Appeals in the case : "It is not erroneous, on the trial of one who was last seen with a murdered man a few moments before the homicide, to admit proof, by those who arrested him, that they found his clothing stained with blood.
Such stains upon the person and clothing of the accused are among the ordinary indicia of homicide; and the practice of identifying them by substantial evidence, and by the inspection of witnesses and jury, has the sanction of immemorial usage in all criminal tribunals.
Matters of common observation may ordinarily be proved by those who witness them, without resorting to scientific or mechanical tests, to verify them with definite precision.
The testimony of the chemist who has analyzed blood, and that of the observer who has merely recognized it, belong to
the same grsde of original and primary evidence ; and though one may be entitled to grester weight than the other with the jury, the exclusion of either would be illegal.
The clothes, identified as those worn by the prisoners on the evening of the murder, were properly submitted to the inspec- tion of the jury by the judge:
Nothing legitimately connected with the res gesto of the crime should be excluded from the consideration of the jury." Gonzalez and Pellicier were both executed.
JOHN H. MILLS AND ISAAC M. DEAN vs. THE CITY OF BROOKLYN.
THE interest and importance attached to this case is derived from the fact that it is a precedent showing that a municipal corporation, village or city is not liable to private sctions for damages accruing for not providing sufficient sewerage for the drainage of lots or land belonging to citizens, etc.
The establishment of this precedent, with othera equally im- portant, was the result of the adjudication in the Circuit Court, the General Term, and the Court of Apppeals, of the following case, which we take from the evidence given on the trial:,
John H. Mills and Isaac M. Dean, the plaintiffs in the case, were the joint owners of a lot, with a valuabls brick dwelling- house thereon, situated st the northwest corner of Franklin and Putnam avenues, Brooklyn. The defendants, the City Corpora- tion, had, by law, the care of its streets and avennes, and the control of widening the sewerage and drainage of the said streets and avenues. The grievances of which the plaintiffs complain, and which constituted their cause of action, were as follows:
" That the said corporation negligently and unskillfully built, provided and established sewers at the corner of Franklin and Putnam svenues. That the said sewers were insufficient to properly conduct the water brought to said corner by the grade of said avenues, and the streets and avenues thereto adjacent. That the sewers were so negligently and unskillfully built that they failed to perform the office for which they were constructed. That by reason of this imperfect construction, the plaintiffs' house and lot was repeatedly flooded with water during certain periods of time in the months of March and August, 1861 and 1862, causing the walls to settle and crack, and the building to be otherwise injured, resulting in damages to the plaintiffs of the sum of $2,500."
Ths proofs in the case, on the part of the plaintiffs, show that there was s sewer or outlet for water under the sidewalk of the street prior to the first storm, and after the storm in March and in the month of May following, the Water Commissioners caused a pipe drain, earthen sewer, about twelve inches in diameter, to be constructed in the street, but it proved insufficient to carry off the water as it came down. The sewer was built in obedience to a resolution of the Common Council, adopted April 16, 1861.
The [proof, on the part of the defendants, as given by an assistant engineer of the Water and Sewerage Commissioners, who constructed the sewer, established the fact that it was a stoneware pipe, eighteen inches in diameter, above the plaintiffs' premises. That below that point a large sewer could not be laid on that course, in consequence of the grade and different dimen- sions of the sewers with which they were obliged to connect; that if made larger, it would have to be so near the surface of the street that it could not have & sufficiently thick covering. That, after the August storms, sn additional sewer was con- structed. The corporation further proved that the walls of the house had been very much damaged prior to the laying down of the temporary sewer, and that the basement walls of the house were laid in unsuitable mortar. A large amount of evidence was given on both sides. At the close of the plaintiffs' case, J. G. Schumaker, counsel for the corporation, moved for & non- suit, on the ground that the plaintiffs had failed to establish
1259
BENCH AND BAR OF BROOKLYN.
sufficient facts to constitute a cause of action. The motion was denied, with proper exceptions.
Both parties having rested, the judge, in his charge to the jury, instructed them, among other matters, that the plaintiffs were not entitled to damages sustained by them prior to the building of the sewer in May, 1861 .- The counsel for the corpo- ration took proper exception to the charge of the judge, and re- quested him to charge, as a matter of law, that the plaintiffs could not recover damages in any point of view, founding his request by several, as he. believed, well-established precedents, which we shall give hereafter.
The judge declined to thus instruct the jury, to which there was an exception, and the plaintiffs recovered a verdict of $900. On an appeal to the General Term, this verdict was affirmed, whereupon the corporation took an appeal to the Court of Ap- pesle, where, after elaborate arguments, the verdict at the Circuit, and the judgment affirming it at the General Term, were in all things reversed. In the Court of Appeals Mr. Schumaker* ap- peared for the corporation, and David J. Dean for the plaintiffs. The ability with which these able lawyers conducted the argu- ment before that court, although what might be expected from lawyers of their high standing, was considered something more than ordinary. The brief of Mr. Schumaker was marked by logical strength and acumen, united with extended legal learn- ing. As an evidence of this, it was largely engrafted in the opinion of the court. The following is a condensed extract from it. The first point in it we have substantially given hereto- fore: "A municipal corporation is not liable to private actions for not providing sufficient sewerage for draining the premises of citizens owning the same. Second, the duty of draining the streets and sewerages of a city or village, although not a judicial one, is of a judicial nature, requiring the exercise of qualities of deliberation and judgment. Third, where duties of a purely ministerial character are cast upon an officer, although his chief duties are judicial, and he violates his ministerial duties, he is civilly responsible, hut in respect to his judicial duties other- wise." As these points enter largely into the opinion of the Court of Appeals delivered in this case, they constitue the law of the land touching the liability of corporations for damages in cases like the one we have described.
THE PEOPLE vs. YATES.
No case on record more graphically exhibits the danger of unbridled political hatred, the terror of a mob, or the sudden and overwhelming misfortunes which often overtake men in the midst of their business and social career, than this.
Early in the evening of October, 1864, Yates was assisting a lady to remove her furniture from one house to another, in Brooklyn. About nine o'clock, as he was passing the corner of Hudson avenue and Plymouth street, where a large out-door Democratic meeting was convened, he stopped and listened a moment to the speaker. While standing there, some person remarked that he would "bet that Mcclellan would be elected," to which Yates replied, "I'll bet ten dollars Lincoln will be elected." This reply was followed by the exclamation, "Let us give it to the ," and immediately a dozen men attacked him, knocking him down, kicking and pounding him; they tore his clothes nearly off him, and his face was covered with blood. While struggling with the crowd he dis- charged a revolver at his assailants, slightly wounding a by- stander; he succeeded in breaking away from the crowd and ran, pursued by a multitude of persons, crying, "Stop the murderer; kill him; hang him!" etc., etc. Among the crowd was
a police officer by the name of Curran; he was two or three yards in advance of the others, and when at a distance of five blocks from where the affray began, he siezed Yates, who ex- claimed, "Let go, or I'll shoot you!" At this time, Curran had his hand pressed against Yates' breast, and called for some one to catch the pistol. At this time, Curran raised his hand, when Yates fired and the officer fell, mortally wounded; he was then in the uniform of the police force, having upon his person the cap and shield of the Metropolitan police force. Yates fled, followed by the shouting crowd; several other pistol shots were fired, but by whom does not distinctly appear.
He continued his flight, and finally rushed into the store of a Mr. Markey, exclaiming, under apparent excitement, "Look out! I've shot two men!" Leaving the store, he continued to run, pursued by the enraged crowd to a place called "Tammany Hall," where he was arrested by a body of policemen.
According to the evidence, at the time of this struggle, the night was dark and rainy. Yates was indicted for willful murder, and on January 24, 1865, was brought to trial.
His trial is an important incident in legal history.
The circumstances we have related were given in evidence on the trial; there were, of course, some contradictions and differ- encos of statement, but the foregoing are substantially the facts in the case, with those we shall give hereafter. It was proved on the defense that Yates was near-sighted; the materiality of this evidence will presently appear. Daniel Cannen, a witness for the people, testified that Curran was shot about four rods from a lamp-post on which a light was burning. John Larkin, another witness for the people, swore that Curran and Yates, at the time of the shooting, were within a half block of a lamp; but that there was no light shining from it. John Maloy, another witness for the people, said that he lighted the lamp referred to at six o'clock that evening; on his cross-examination he said he had no recollection of lighting that particular lamp that evening. It did not appear in evidence that there was any communication made to Yates at the time that Curran was a police officer, nor that there was any demand made upon him to surrender to the officer, nor was there any proof that Cur- ran was known to Yates. One witness said, "I saw Yates knocked down, and saw more than a dozen men beating and kicking him; I saw him struggle desperately to get up, and he finally succeeded, but his face was covered with blood and pre- sented a frightful appearance. In his struggle to get up, I heard the report of a pistol, then I saw Yates on his feet, and he broke away and ran, the crowd after him."
To rebut the evidence, that there was no light burning at the time of the fatal shot, the judge permitted the District Attorney, against an objection and an exception, to prove by Sergeant Crow that, nearly four months after the killing of Curran, he went to the lamp near which it took place, in a dark evening, and found that he could very easily read a newspaper by its light, and that all objects about it were plainly visible; this, it was contended, must have plainly revealed to Yates the uniform and badge of the police officer. This was objected to by the counsel for Yates, as no evidence for any purpose; that it of course was material to the issue that the light was such at the time as must have apprised the accused of the character of his pursuer, and the object of his pursuit; but proof of the condi- tion of the lamp, and its power to diffuse light, on the 21st of January, was no evidence of its power on the 1st of October preceding; that the power of street lamps to emit light de- pends upon many things, among which are the purity and transparency of the medium through which the rays are projected.
The trial resulted in the conviction of Yates for the crime of murder in the first degree, and he was sentenced to be hanged; but his counsel took an appeal to the General Term of the Supreme Court, obtaining an order for the stay of the execution pending the appeal. After exhaustive arguments on the part of
* Mr. Schumaker was, during this litigation and for some time prior and subsequent thereto, Corporation Counsel for the City of Brooklyn. A record of his official record more fully appears in the Municipal History of Brooklyn, in another part of this work.
1260
HISTORY OF KINGS COUNTY.
the respective counsel engaged, the General Term affirmed the conviction of Yates, and it was believed his doom was sealed. But his counsel, stimulated in the belief that the conviction was unjust-that Yates, subjected to the fury of a howling and murderous mob, excited and rendered desperate by the fear that he was to be cruelly murdered, discharged his pistol in self-defense-removed the case by another appeal to the Court of Appeals, the court of last resort, obtaining another stay of the execution.
The counsel for the people contended that Yates was rightly convicted; that he must have known the purposes for which Curran was pursuing him, because the evidence shows that he, Curran, was largely in advance of the crowd, conspicuous in his uniform as & police officer, and it was apparent that Yates fired the fatal shot to escape lawful arrest. This, with the fact that he had just committed a felony by a murderous attack on & citizen, constitutes the crime of murder in the first degree. That this was well established by all the authorities, many of which appear on the very ably prepared brief of the District Attorney. There were other ingenious and learned points on which the prosecution relied for an affirmance of the conviction.
The counsel for the defense insisted that the judge who tried the cause erred in admitting the evidence of Sergeant Crow, who testified that four months after the fatal event he visited the place where it occurred, at night, and that he could easily read & newspaper by the light of the lamp near by. We have already given the grounds of the objections to this evidence, made at the trial. On the argument in the Court of Appeals- and we believe in the General Term-the defense raised other points against the legality of the conviction, among which were the following: there was no proof that the structure of the lamp near the place of the killing was the same in January, the time of the trial, as it was on the first of October preceding, when the alleged murder took place; that there was no reliable evidence that any lamp was burning at the time; that as Yates was set upon by a dozen men, with what he might suppose a murderous intent, he was justified in defending himself with all reason- able means in his power, and that he behaved but with reason- able prudence; that there was no act proved showing any mur- derous intent, or any premeditated malice.
In due time the Court of Appeals handed down a decision, concurred in by all the judges, setting aside the conviction of Yates, granting him a new trial. The opinions of the judges, found in 32 N. Y., 509, will be found full of interest to the pro- fessional and the lay reader.
In their opinion the judges sustain the points made by the counsel for the defense, and express, in strong language, their condemnation of the attack made by the crowd upon Yates. "It was a brutal and cowardly attack," say the court, "of some dozen men upon one man, and he a stranger to them; he had done nothing to invite this attack except to express his prefer- ence for one of the presidential candidates, doing nothing to interrupt the meeting.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.