People v. Minkowitz
| Decision Date | 06 April 1917 |
| Citation | 115 N.E. 987,220 N.Y. 399 |
| Parties | PEOPLE v. MINKOWITZ. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
George Minkowitz was convicted of criminally receiving stolen property. From a judgment of the Appellate Division (162 N. Y. Supp. 1136), reversing conviction and ordering a new trial, the People appeal. Affirmed.
Harry E. Lewis, Dist. Atty., of Brooklyn (Ralph E. Hemstreet, of Brooklyn, of counsel), for the People.
Isaac N. Jacobson, of New York City, for respondent.
On February 7, 1915, the manufactory of Ike Lipshitz at No. 441 Blake avenue, Brooklyn, N. Y., where he conducted the business of manufacturing shirt waists, was broken into and 13 sewing machines stolen. On the following day some of these machines were found at No. 434 West Broadway, New York City, in the premises of the defendant, George Minkowitz, where he conducted a second-hand sewing machine business. Two of these machines thus found were of Wilcox & Gibbs make, bearing underneath on the bed plate the serial numbers, L. 59421 and L. 67854. These numbers were included in an inventory made by Ike Lipshitz of his property some time before the burglary.
Alexander Silverman and George Minkowitz, the defendant, together with others, were indicted for burglary in the third degree, grand larceny in the first degree, and for criminally receiving stolen property. The two defendants above named appeared by the same attorney, Mr. Martin, to Kings county, and demanded separate trials. Silverman was the first to be placed upon trial on October 14, 1915, and was convicted. George Minkowitz appeared as a witness for Silverman upon his trial, and testified that the two Wilcox & Gibbs machines, found in his place as above stated, had been purchased by him from Lille & Brodowsky on March 22, 1913, and he produced a receipted bill of that date, purporting to contain the numbers upon the face of the machines. The numbers above given were upon the bed plate, but there were other numbers upon the face of the machines. These face numbers were L. 59824 and L. 69858. When the police took away the machines from Minkowitz's place he hurriedly made a note upon the back of one of his business cards of these face numbers. In his hurry he copied the number L. 59824 as L. 59284. Upon the receipted bill which he produced of Lille & Brodowsky of March 22, 1913, the number of the Wilcox & Gibbs machine purchased is given as L. 59284. It was a reasonable presumption that this number had been inserted in the receipted bill by copying the number from the card, and that this mistake indicated that the receipt, so far as this number was concerned, and L. 69858, was a falsity, and was prepared for the purpose of deceiving. There were other indications upon the face of the receipted bill which also led to the conclusion that these two numbers had been inserted at a later time than March 22, 1913.
Upon the Silverman trial this receipted bill, the business card upon which the numbers were placed by the defendant, and the check for the payment of the bill drawn by George Minkowitz to the order of Lille & Brodowsky for $153, were offered and received in evidence as Exhibits A. B. and No. 8. These papers were produced by George Minkowitz from his possession, and after the trial were returned to his lawyer, Mr. Martin, who gave a receipt therefor.
[1] On May 15, 1916, this defendant, George Minkowitz, was placed upon trial in the County Court of Kings county, being represented and defended by his attorney, Mr. Martin, the same lawyer who defended Silverman. The people introduced in evidence the testimony of Minkowitz, as given by him upon the trial of Silverman, wherein it appeared that the above papers were offered in evidence. The district attorney had served a subpoena duces tecum upon the defendant's lawyer, Mr. Martin, to produce these papers upon this trial of Minkowitz, and during the trial and in the presence of the jury, he said:
‘Mr. Martin: The defendant refuses to produce any exhibits that belonged to him on the trial of Silverman, on the ground that it compels him to testify against himself.’
Thereupon Mr. Martin was called to the stand by the district attorney, and, over objection, compelled to testify that the exhibits were offered in evidence at the Silverman trial, and that thereafter they were returned to him, and that he signed a receipt therefor. Further, he was compelled to answer that he had been served with a notice to produce these papers upon the then pending trial of George Minkowitz, whom he was defending; the examination concluding with the question and answer:
It appears that all these papers were originally in the possession of the defendant Minkowitz, and were given to his lawyer after he had been retained, and while the relationship of attorney and client existed. Under these circumstances the possession of the lawyer was the possession of the defendant. To ask the attorney in the presence of the jury to produce the papers, and then to call him to the stand to testify about them, and to declare his refusal to produce them, was a practice condemned by this court in People v. Gibson, 218 N. Y. 70, 112 N. E. 730. In the briefs submitted for the people is this statement:
‘We agree that a demand should not be made in the presence of a jury for the defendant to produce an incriminating document which appears to be in his possession.’
This court fails to appreciate the distinction between making a demand upon the defendant and making a demand upon the defendant's lawyer in his presence and in the presence of the jury. The evil effect is the same in both instances. And this play before the jury was entirely unnecessary in order to accomplish the purpose given by the prosecutor for his procedure. He stated that it was to lay a foundation to introduce secondary evidence of the exhibits. It was very easy to prove by others, or by the receipt, that they were in the possession of the defendant's lawyer or the defendant. This would be sufficient to justify secondary evidence.
[2] We do not say, neither do we decide, that in every case a lawyer who appears for a defendant in a criminal...
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Anderson v. State
... ... The check in question was not ... fully described. There was no allegation that G. S. Williams ... was defrauded. ( Current v. People, 153 P. 684; ... Kraft v. State, 217 S.W. 1038; Bonnell v ... State, 64 Ind. 498; Martins v. State, 17 Wyo ... 319; 98 P. 709; People v ... prosecuting attorney. ( People v. Watson, 216 N.Y ... 565; 111 N.E. 243; People v. Minkowitz, 220 N.Y ... 399; 115 N.E. 987; Baker v. People, 105 Ill. 452; ... People v. Mitchell, 164 Mich. 583; 129 N.W. 698; ... People v. Cuff, ... ...
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...192, 203 P. 126, 130; State Chamberlain, 152 Minn. 401, 188 N.W. 1012; State Jackson, 83 Wash. 514, 145 P. 470; and People Minkowitz, 220 N.Y. 399, 115 N.E. 987. The Commonwealth contends that they are unsound and to support that contention it relies upon the following authorities: Bain Uni......
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