People v. Michalow

Samuel Michalow is a Russian, fifty-seven years of age, who has been in this country for twenty-seven years. He is engaged in the real estate business in a small way and has accumulated a few thousand dollars. Sometime in the spring of 1919 he became acquainted with a young Russian named Lipp who was employed in a butcher shop where the defendant dealt.

From the evidence produced by the People the jury might find that shortly after they met Michalow began to ask Lipp if he knew of any Italians who would help on a job, meaning by that a burglary or a robbery. Lipp replied that he did not; -but Michalow talked with him frequently on the subject. At last he asked Lipp if he himself would do it. He, Michalow, had a woman in Yonkers who was “ leading him to a woman who had $3,500.” Lipp finally consented.

A man named Shadlidk, nicknamed “ John the Painter,” was a friend of Michalow. They had done business together and they had discussed a niece of Shadlidk’s

Early in September or late in August Michalow, Lipp and Shadlidk went to Yonkers and to her house. After some talk she took them to a tenement in which, on the second floor, a Mrs. Niznick lived in four rooms with a son and a boarder. Michalow pointed out this house and gave some information about it and about Mrs. • Niznick to Lipp. He told him among other things that he, Michalow, would get two other men to help in the robbery, and said that the three would bind and gag Mrs. Niznick and get the money.

The next Saturday Lipp met Michalow outside a saloon and Michalow introduced him to Cohen and Givner. He told him that these were the two boys, of whom.he had spoken and that they were to go together to Yonkers and do the job. The next Monday the three men did go to Yonkers and to the house of Mrs. Niznick. In a factory across the way, however, there was a strike and policemen were in the vicinity. Therefore the time was thought inopportune. The three men went back to New York and reported' the facts to Michalow, and Cohen told him and told the others that he would have nothing further to do with the crime. On receiving the report Michalow told Lipp and Givner to go back after the strike was over. The two did go back on the seventh of October. Givner knocked at the door of Mrs. Niznick’s apartment. He then entered leaving Lipp outside. Ten minutes later he came out saying to Lipp, “ All right come in the house.” Lipp entered and found Mrs. Niznick sitting in a chair in the front room. Givner said, “ All right I got the money,” and then turning to Mrs. Niznick said, “ Stand up and walk in the bedroom.” Without resistance or remonstrance she did so. She

The proceeds of the robbery was in Liberty bonds and cash amounting to something over $1,200. Givner seems to have carried it away with him but later he gave $600 of it to Lipp. Immediately afterwards he asked Lipp to return $15, saying that he was going to give Michalow $30. Lipp handed him the $15 and saw Givner go down into the cellar of the house where Michalow lived. He saw Michalow present in the cellar but did not see the money handed over. The hour of this transaction must have been about five o’clock on October seventh. Michalow later told him that Givner had fooled him as to the amount obtained by the crime. The next day Michalow handed Anne Moscowitz $40 and told her that “ This is the Niznick money,” and to keep quiet about the defendant’s having been in Yonkers. On the tenth of October Michalow was arrested and while under arrest he told Cohen to say nothing “ on him.” He also said that he did not know Lipp, Givner, Cohen or Anne Moscowitz.

Michalow denies this story entirely. If he and his witnesses are to be believed, he was innocent of any participation in the crime. He claims that the People’s

The evidence is sufficient, however, to present a fair question of fact to the jury and we may not interfere with the result reached by it. But under the circumstances we must scrutinize with care the rulings of the trial court. Merely technical errors we may ignore. If, however, the substantial rights of the defendant have been affected, he is entitled to a new trial.

It is said that one who conspires with others to commit a robbery but is not present at the transaction itself is not guilty of murder in the first degree, when one of the conspirators actually engaged in the robbery kills his victim accidentally or otherwise. “ The killing of a human being * * * is murder in the first degree, when committed: * * * without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise.” (Penal Law, § 1044.) “A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a ‘ principal.’ ” (Penal Law, § 2.) Michalow, therefore, was a principal in the Niznick robbery. Was he “ engaged ” in its commission? Clearly we think he was. A “ look-out ” who does not enter the house is so engaged. That was the position of the defendant in People v. Usefof ( 227 N. Y. 622 ). The facts before us require one further step. But to say that a man, who induces or procures a crime, but who remains absent while it is being committed, is not engaged in it, while his tools are so engaged, would be a mockery. If so, it is immaterial whether one or all of the conspirators intended to use force, whether they were armed or unarmed, whether one or all were actually present when

The next claim of the defendant is that the object of the conspiracy had been accomplished, the robbery had been completed and the subsequent acts of Givner and Lipp were not connected with it, but were entirely independent and done to effect the escape of one or both, and he cites People v. Marwig ( 227 N. Y. 382 ). It must be conceded that prior to the assault on Mrs. Niznick, Givner had already obtained her property, but the transaction was not ended, the criminals were not actually engaged in escaping from the scene of the crime. They were still on the premises. They were still busied in making safe the removal of their loot. Whether they already had the money in their pockets or were to take it up afterwards is immaterial. The robbery was not complete until, at least, it was removed from the apartment. Nothing that was decided in the Marwig case in any degree conflicts with this conclusion. (Dolan v. People, 64 N. Y. 485 .)

We find, however, one error by which the rights of the defendant were prejudiced. The hostility of a witness to the defendant may be proved by any competent evidence. It may be shown by cross-examination of the witness, or witnesses may be called who can swear to facts from which it appears. It is not necessary to first examine the witness as to his hostility. (People v. Lustig, 206 N. Y. 162 .) As we have seen here, the claim of the defendant was that the hostile witnesses had conspired to place the burden of the crime upon him. One of the most important of these witnesses was Anne Moscowitz. A man named Bogoc while not sworn, was present for the defense and during the trial he with the other witnesses was kept in an anteroom adjoining the court room. At the close of the testimony he was called

That the testimony of Bogoc, if believed, was important, is clear. It is clear, also, that the ruling was erroneous. Obviously the object of the testimony was to show hostility and corruption on the part of the witnesses. It should have been received. Was the mistake cured by what subsequently occurred. In response to the ruling of the court, the counsel for the defendant, although he had taken exceptions, replied, “ I accept the suggestion.” Hé then called Moscowitz and two other witnesses and asked them as to the alleged conversation. All denied it. Bogoc was then recalled and was allowed to say that Mrs. Moscowitz described to one witness the appearance of the defendant, apparently before he had been asked to identify him, but the court refused to allow him to give a similar conversation with another witness because the question had not previously been put to him, but allowed him to state that she asked this witness if he had said “ the same that she told him. ”

We do not think that these proceedings cured the

The judgment of conviction should be reversed and a new trial should be granted.

; Hiscook, Ch. J., Collin, Hogan, Pound, McLaughlin and Elkus, JJ., concur.

Judgment of conviction reversed, etc.