People v. Malkin

CourtNew York Court of Appeals
Writing for the CourtLEHMAN
Citation250 N.Y. 185,164 N.E. 900
PartiesPEOPLE v. MALKIN et al.
Decision Date31 December 1928


Maurice Malkin, Samuel Mencher, and others were convicted of assault in the second degree. From a judgment of the Appellate Division (223 App. Div. 852, 228 N. Y. S. 869), defendants appeal.

Affirmed as to defendant first named and a certain other defendant, and reversed as to defendant last named and remaining defendants, and a new trial ordered as to them.

Crane and O'Brien, JJ., dissenting in part.Appeal from Supreme Court, Appellate Division, Second Department.

George Z. Medalie, George Sylvester and Jacob J. Rosenblum, all of New York City, for appellants.

Elvin N. Edwards, Dist. Atty, of Mineola, (Charles I. Wood, of Mineola, of counsel), for the People.


In April, 1926, at a time when the ‘Joint Board Furriers' Union’ was conducting a strike in the fur industry of New York City, a band of ten or twelve men raided a fur shop belonging to two brothers named Barnett in the village of Rockville Centre, assaulted the proprietors, and destroyed property. Until that time, the fur shop had not been involved in the strike in any way. No pickets had visited, or paraded in front of, the shop. The only employees of the Barnetts were two girls. One escaped from the shop and called for the police. The raiders ran off. The Barnetts and their employees had recognized one of them, Barnet Basoff. He was an intimate friend of one of the proprietors. They had been schoolmates in England. Their friendship had been renewed here. They had dined together in amity the day before the raid.

Within a few minutes of the raid the police arrested two of the defendants, Malkin and Franklin. The Barnett brothers and their two employees positively and immediately identified them as part of the raiding party. Both admitted that they were members of the strikers' union. They said that they had been picketing on the street in front of the Barnett shop. They had seen the raiding party enter the shop, but had taken no part in the raid. Indeed-so they said-they did not know many of the raiders, and had joined in the calls for the police. At the time of their arrest, they claimed that they were looking for the railroad station, to return to New York.

Basoff, Malkin, and Franklin were jointly indicted. The Barnetts and their employees did not know the others who were in the raiding party-though one of the girls testified that she had previously seen some of them in the fur ‘market’ or district of New York City. Basoff confessed to the police that he had taken part in the raid. He implicated Malkin and Franklin. They were tried together. At the trial Basoff recanted his confession and claimed that it was extorted by the police by threats and violence.

The striking union gave bail for the three accused, furnished a lawyer for the trial, and paid the expenses of an appeal from their conviction. The Appellate Division gave judgment reversing the conviction of Franklin and Malkin. The conviction of Basoff was affirmed.

After his conviction, and while the appeal was pending, Basoff visited the district attorney, and again confessed his guilt. Then for the first time he stated that Benjamin Gold, the head of the Joint Board of the International Fur Workers' Union ordered the raid upon the little fur shop, and arranged the details, though he took no active part in it. This time he named as active participants in the raid not only Franklin and Malkin, but also Isidore Shapiro, a member of the strike committee assigned to duty as chairman of the law committee of the union, Samuel Mencher, the chairman of the picket committee of the union, and the other defendants who were subsequently jointly indicted for assault. Wisenbloom, a former employee of the Barnett brothers, who, like Basoff, had been friendly with them as a school boy in England, was also named by Basoff as a party to the raid, though it is said that he remained downstairs, and did not enter the fur shop. He was at some time indicted and pleaded guilty to the charge of assault. At the time of the trial he was awaiting sentence.

At the trial Basoff, the intimate friend of the Barnett brothers, and Wisenbloom, their former friend and employee, testified against the accused. They are confessed participants in the crime. Their testimony is not free from reasonable grounds of suspicion. All the accused except Gold were identified by Mary Farkas, one of the girls employed by the Barnett Brothers; but her identification, made many months after the event, of men whom she had previously not known or at most had known only by sight, is not entirely convincing. Finally, detectives testified that all the defendants when arrested individually and voluntarily made admissions to them which undoubtedly tend, if true, to connect them with the crime, but no signed admissions were obtained from any, and the captain of police who was present when some of the admissions were said to have been made did not hear them.

The accused all denied guilt and denied making any admissions. With the exception of Franklin and Malkin, who undoubtedly were in Rockville Centre at the time of the raid, all claimed that on the afternoon of April 19, 1926, when the crime was committed, they were in New York City, and produced witnesses who supported their testimony. Undoubtedly at that time an important meeting of the ‘shop chairmen’ of the union was being conducted, and Mencher and three others produced evidence to show that they were present at that meeting. Testimony was also produced which, if true, would tend to show that the raid was arranged by Basoff and Wisenbloom to satisfy a private grudge, and that Basoff's story to the district attorney implicating the union leaders was concocted by him in a spirit of revenge because these leaders refused to submit to blackmail.

The jury acquitted Gold, in spite of the testimony against him given by Basoff and Wisenbloom, and in spite of the evidence that he had made damaging admissions to the police, or that, indeed, he had avowed, and attempted to justify, participation in the crime charged. The jury acquitted Shapiro, in spite of the fact that the testimony of Basoff and Wisenbloom against him, the identification by Mary Farkas, and the proof of alleged admissions made to the police were just as positive and in every way as strong as the testimony and proof against any of the other defendants, except Malkin and Franklin, and the same witnesses testified against all. In his case the jury rejected all that testimony. They could not reasonably do otherwise, for he was able to produce as a witness a general in the National Guard who testified that twice on the afternoon of the raid, when, according to the claim of the people, Shapiro was assaulting the complaining witness in Rockville Centre, Shapiro had visited him for the purpose of hiring an armory in which to hold a great meeting of the members of the striking union. Certainly no friendship or bias could have colored the testimony of that witness, and he gave details which almost completely exclude possibility of mistake. The other defendants who could not produce in their behalf witnesses of the same evident credibility were all convicted, though the testimony against most of them was no stronger.

It is unnecessary to analyze the testimony further at this point. We may not consider the weight of evidence, and there can be no doubt that there is evidence which in law is sufficient to sustain a finding of guilt against all the defendants, even though it might not be difficult to point out reasons for distrusting must of that evidence. Against Malkin and Franklin, who admit being near the place of the assault, and who were identified the same afternoon as participants in it, the evidence is, indeed, convincing. The issue of the guilt of the other defendants depends on sharply disputed questions of fact, and we must examine the rulings of the trial judge to determine whether the defendants have been deprived by such rulings of the opportunity to present their case fairly for the impartial consideration of the jury.

It is urged that the court erred in excluding a writing signed by officers of the American Federation of Labor and embodying terms of an agreement intended to settle differences which had arisen between the American Federation of Labor and its subsidiary union, the Joint Board.’ Undoubtedly such an agreement had been tentatively arranged between the leaders of the Joint Board of the local unions conducting the strike and the leaders of the parent body. Undoubtedly a meeting of the ‘shop chairmen’ of the Joint Board was held on April 19th to consider the tentative agreement. The writing, embodying the written agreement, was excluded, not because such evidence was incompetent, but because those facts upon which the writing might have probative value had already been abundantly proven. The proffered evidence, even if competent, was merely cumulative. The jury already knew, in a general way, the contents of the writing. The trial judge, we think, made sufficiently plain to the jury that there could not be any substantial controversy in regard to the fact that a meeting was held the purpose of the meeting. The defendants would not have obtained any substantial advantage by admission of the writing and its exclusion did not constitute reversible error.

More serious is the claim that erroneous rulings of the trial judge gave license to the district attorney to influence the jury in its consideration of the guilt of the accused by introducing into the record at least suggestions of matters which were irrelevant and unproven, and which were calculated to prejudice the jury. The trial judge stated, in effect, while the people's case was being presented, that the people might not affirmatively prove that the defendants or some of them had on other occasions been guilty of violence. No exception was taken to...

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    ...have been avoided." 49 Osborn, The Problem of Proof (2d ed. 1926) 112. 50 Osborn, The Mind of the Juror (1937) 87. 51 In People v. Malkin, 250 N.Y. 185, 201, 164 N.E. 900, 907, Judge Lehman said: "Society may be endangered as much by the violence of its friends as of its enemies, and an app......
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    ...Fitter v. United States, 2 Cir., 258 F. 567, 573; Johnson v. United States, 7 Cir., 215 F. 679, 685, L.R.A. 1915A, 862; People v. Malkin, 250 N.Y. 185, 201-202, 164 N.E. 900; State of Iowa v. Roscum, 119 Iowa 330, 333, 93 N.W. 295. Moreover, we have not here a case where the misconduct of t......
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    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 14, 1973
    ...must remain unchallenged. It is threatened by each trial where there is a justified doubt of fairness and impartiality. People v. Malkin, 250 N.Y. 185, 201, 164 N.E. 900, 907 (1928) (Lehman, 6 By framing the question in this fashion we distinguish the cases in which the conduct of state pro......
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    • James Publishing Practical Law Books Is It Admissible? Part I. Testimonial Evidence
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    ...has traditionally placed a high value on the benefits of uninhibited impeachment in the truth-gathering process. See People v. Malkin , 250 N.Y. 185, 164 N.E. 900 (1928), and People v. Lustig , 206 N.Y. 162, 99 N.E. 183 (1912). Nevertheless, see People v. Johnson, 683 N.Y.S.2d 681 (1998); t......

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