People v. Kohn

• Decision Date: 11 July 1929
• Citation: 167 N.E. 505,251 N.Y. 375
• Parties: PEOPLE v. KOHN et al.
• Court: New York Court of Appeals Court of Appeals

251 N.Y. 375

167 N.E. 505

PEOPLE

v.KOHN et al.

Court of Appeals of New York.

July 11, 1929.

Sol Kohn and another were convicted of attempted burglary, second degree, and, from a judgment (226 App. Div. 671, 233 N. Y. S. 854) affirming the conviction, defendants appeal.

Reversed, and new trial ordered.

Appeal from Supreme Court, Appellate Division, First Department.

Emil M. Haas, of New York City, for appellants.

Joab H. Banton, Dist. Atty., of New York City (Archibald Firestone, of New York City, of counsel), for the People.

KELLOGG, J.

The attempted burglary, of which the defendants have been found guilty, involved an effort to enter a flat in a tenement house, numbered 270 East Tenth street, New York City, which was occupied by a family named Shipkowski. The flat was on the fourth or top floor of the tenement building, and contained four rooms. At one end was the kitchen; at the other was the parlor or sitting room; between were two bedrooms. The apartment was customarily entered from a hallway by means of two doors, one into the kitchen, and one into the parlor. One of the bedrooms was equipped with a window, containing glass panes, which opened inwards from the hallway, like a door on a hinge. The testimony showed that Beatrice Shipkowski, a high school girl, on a certain morning, was doing housework in the kitchen, with the kitchen door locked. There came a rap on the door which was repeated several times. Beatrice, giving no answer, stepped into the bedroom furnished with a window. The window was swung inwards to leave an opening about seven inches wide. Beatrice, looking through the opening, observed a man standing at the kitchen door with a newspaper or newspaper parcel under his arm. Receiving no response to his rapping, the man walked down the hallway to the parlor door, and again knocked several times. He then passed up the hall stairway and lifted up the door giving upon the roof. In a few moments he came back, pushed in the bedroom window slightly, passed to the kitchen door, knocked, and tried to open the door. He then returned to the parlor door and stood there. Beatrice said that he was ‘tinkering’ at the door, but afterwards admitted that his back was toward her so that she could not see what he was doing. Beatrice called out through a window for her landlady, and a neighbor came. The neighbor saw a man, whom he identified as the defendant Sol Kohn, step out from the entrance of the tenement, 270 East Tenth street. As he came out he beckoned to a man standing in the entrance to the adjoining building, No. 272. This man, identified as the defendant John Wriede, waved in reply and stepped down to the walk to join Kohn. As the two walked away, they were arrested by a policeman to whom the neighbor had called. The defendant Kohn told the policeman that he had been looking for ‘a friend chauffeur.’ Wriede said nothing. The two were returned to the Shipkowski apartment, where Beartrice identified the defendant Sol Kohn as the man who had knocked on the doors. The neighbor noticed fresh marks on the parlor door. Beatrice and the policeman saw none. The defendants were then taken to the police station. On the way, Sol Kohn was seen to deposit his newspaper, or newspaper bundle, upon a truck standing at the curb. This was substantially the entire proof given by ...