Late on the night of February 15, 1941, Leon Fox, a patrolman in the Police Department of the City of New York, was shot, and he died shortly thereafter as a result of bullet wounds. At the time of the shooting the police officer, in the course of his duties, was accompanying the manager of a moving picture theatre who was carrying the day's receipts to a bank. In November, 1942, *Page 377 more than a year and a half after the shooting the Grand Jury indicted Morris Malinski, Sidney Rudish and Joseph Indovino for "the crime of Murder in the First Degree, committed as follows: The defendants, on or about February 15, 1941, in the County of Kings, acting in concert with Abraham Beitler, deceased, wilfully, feloniously and of malice aforethought shot and killed Leon Fox, with a pistol." The three defendants named in the joint indictment were jointly tried and found guilty. As part of the verdict against the defendant Indovino the jury recommended life imprisonment. No such recommendation was included in the verdict against the defendants Malinski and Rudish. They have appealed to this court. The verdict against Indovino has not been brought up for review to this court.
The testimony of the manager of the moving picture theatre shows that, as he and the police officer were walking toward the bank, a man jumped out of an automobile which was parked at the curb and shot Fox. The manager of the theatre attempted to run away with the bag containing the money he was taking to the bank, but he threw away the bag when the man who had shot the police officer said to him: "Drop the bag, or I'll drop you." The robber picked it up, jumped back into the car and the car sped away. Later during the same night an abandoned car was identified as the car used in the robbery. It had been stolen earlier that night.
No eye witness of the robbery was able to identify the men who took part in it. To connect the defendants with the crime the People produced associates of the defendants who gave testimony of incriminatory statements made by the defendants in furtherance of a conspiracy to rob the manager of the theatre in the Coney Island district of Kings County and, in addition, of incriminatory admissions made thereafter. To prove the guilt of the defendant Malinski, the People introduced, also, a written confession made by Malinski while he was in the custody of the police, but before his arraignment.
David Yellin testified that a few days before February 15, 1941, he was introduced by Beitler, now deceased, to the defendant Indovino. He was told by them about a plan to rob the manager of the moving picture theatre. Indovino was *Page 378 the author of the plan, but said he would not accompany the others at the robbery because he was too well known in Coney Island. Beitler wanted one Spielfogel, known as "Slip", to take part in the robbery. Yellin saw Spielfogel the same night, but Spielfogel, distrusting Indovino, refused to go along. Yellin further testified that in the early morning after the holdup he met the defendant Rudish and Rudish told him that he had come back from a "trick" on Coney Island and that Beitler and Malinski had shot a cop. At that time, according to Yellin, Rudish was carrying the "pieces" or guns, which he said had been used in the robbery. The witness Yellin had been committed to Sing Sing on December 12, 1941, upon a sentence of imprisonment for ten to twenty years for robbery while armed with a gun. Nathan Spielfogel had been sentenced to Sing Sing upon a conviction for the same crime to a term of imprisonment of thirty to sixty years. Both were serving their terms when the District Attorney was informed that these men knew who had killed the police officer.
Spielfogel testified that when Yellin spoke to him he had refused to take any part in the robbery because he distrusted Indovino and that on the next day he told Beitler, also, that he would not go along. According to his testimony, Beitler then asked him whether they could use some "pieces" or guns which apparently Beitler thought belonged to Spielfogel, and Spielfogel said:
"Those pieces don't belong to me. They are Malinski's pieces. If he gives them to you, you got them." He testified that at 1:30 on the morning of February 16, 1941, Malinski came to his house and told him that Beitler, Rudish and he had committed the robbery and gave him complete details as to the robbery. He told of other admissions alleged to have been made by Malinsky after the crime and these admissions are corroborated, at least in part, by the testimony of other witnesses. His testimony also implicates Rudish. Rudish, he said, told him early in the evening of February 15th that he, Malinski and Beitler were going to meet at 9 o'clock that night to carry out their conspiracy to rob the manager of the theatre and on the next day, Sunday, February 16th, he again saw Rudish and Rudish gave him full details of what had occurred that night. *Page 379
The record is devoid of any testimony which tends to connect the defendant Rudish with the crime, other than the testimony of Yellin and Spielfogel. The Trial Judge charged the jury that Yellin was an accomplice as matter of law, for according to his own admissions he aided and abetted the defendants in their conspiracy. The Trial Judge left to the jury as a question of fact whether or not Spielfogel was an accomplice. It is, of course, not disputed that Spielfogel was an associate of the defendants and, according to his own story, he had gone out with them on other "jobs." Nevertheless, he is not an accomplice in the crime of robbery in the commission of which the police officer was killed unless he aided and abetted the defendants in that crime. The appellants now urge that his testimony conclusively proves that if the defendants committed the crime, the witness Spielfogel took part in furnishing the "pieces" or guns used in the robbery with knowledge that they were intended for such use. If that is true Spielfogel is an accomplice as matter of law.
These guns, according to the witnesses for the People, were hidden in the toilet connected with the store where Malinski worked and were taken from that toilet by Malinski on the afternoon or early evening of February 15th. Spielfogel admitted that he had put the guns in the store. On cross-examination the following questions were put to him, and he gave the following answers: "Q. Now on your direct examination you said that you put the guns in the store, is that right? A. What do you mean? When they came out of the cellar? Q. I am asking you, did you say that? You said before, `I put the guns in the store'. Is that what you said? A. In the store? Q. Is that right? A. In the toilet in the store. Q. What? A. In the toilet. Q. You put the guns in the toilet in the store? A. Yes. Q. When was it that you put the guns in the toilet in the store? A. Saturday morning. Q. How many guns did you put in the toilet in the store? A. Four, to be exact. Q. And they were your guns? A. No, sir."
Later he explained that though he went with Malinski to hide the guns "it was not for that particular job," and in answer to a question put to him by the court he said it was in connection with another matter or proposed holdup. *Page 380
Spielfogel admits he hid guns which, he said, belonged to Malinski, and which were used by the robbers, but he claims that though he knew that Malinski was planning to hold up the theatre manager, yet he did not intend that Malinski should use his own guns in that holdup, but should use them in another matter. Except for that explanation of Spielfogel, the other evidence produced by the People would lead irresistibly to the inference that Spielfogel put the guns in the toilet with the purpose of aiding and abetting the "particular job" which was scheduled for that night. In People v. Swersky, 216 N.Y. 471, 478, the witness had been associated with the defendants in other crimes, but there was, as the court found, no evidence of any kind which would "implicate" the witness in the crime with which the defendants were charged or that would "stamp Levinson [the witness] as an accomplice." Here we have evidence from which a reasonable person could hardly fail to draw an inference of guilty participation unless he accepts an explanation of the witness which, I think, calls for credulity possessed only by the naive and perhaps by those who are irked by the statutory rule that a conviction cannot be had upon the testimony of an accomplice "unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime." (Code Crim. Pro. § 399.) In such case what was said and decided in People v. Swersky (supra) has no application. (People v. Feolo, 282 N.Y. 276.) A finding that Spielfogel was not an accomplice is, I think, clearly contrary to the evidence. That conclusion "disregards", as the prevailing opinion states, "the testimony of Eisler"; but only because I find nothing in Eisler's testimony which in the slightest degree tends to support an argument to the contrary. The conviction of Rudish thus rests upon the testimony of two witnesses who are accomplices as matter of law or, at least, shown to be accomplices by the great weight of evidence. The Trial Judge charged that no "other evidence" corroborates them. The verdict against Rudish should for that reason be set aside.
The evidence against Malinski is far stronger. The testimony of Yellin and Spielfogel is in his case corroborated by other witnesses who are not accomplices and he has signed a *Page 381 confession. If his confession is voluntary and was not made under the influence of fear produced by threats, his guilt has indeed been proven to a moral certainty. As to him the question then is whether the confession was admissible under the provisions of section 395 of the Code of Criminal Procedure and whether the defendant Malinski had a fair trial upon that question.
Malinski was taken into custody by two detectives at seven-thirty on the morning of Friday, October 23rd. He was taken, not to police headquarters, but to the Hotel Bossert in Brooklyn. There he was compelled to strip so that the police could see whether there were any scars of bullet wounds on his body. Concededly, after the police had made that inspection he was not permitted to put on his clothes, but was compelled to remain in his "shorts" or "B.V.D's" and a blanket until five-thirty that evening. That afternoon an Assistant District Attorney visited the hotel room and saw that Malinski was being held there without his outer clothing, but apparently did not object. Malinski was kept at the hotel until the afternoon or evening of October 26th except for a visit with the police to a garage where the car used in the robbery was kept. During that time he complained of stomach trouble and asked for a doctor. That request was refused. At the police station to which he was taken on October 26th he was questioned by the District Attorney and then signed the written confession. On the morning of October 27th — four days after the police took him into custody — he was arraigned in court.
This testimony is uncontradicted. The defendant Malinski testified that he was beaten while in the Hotel Bossert and that his confession was extorted from him under the influence of fear. The testimony in regard to the beating by the police is contradicted by the police officers. A question of fact is thus presented whether the confession was admissible under section 395 of the Code of Criminal Procedure.
The Legislature has commanded that "The defendant must in all cases be taken before the magistrate without unnecessary delay". (Code Crim Pro. § 165.) Here there has been a delay of four days. Except for the delay in arraigning a *Page 382 person arrested by the police, there would be no room for any claim that a confession made by the accused was extorted by threats or violence. We have said that "the police are guilty of oppression and neglect of duty when they willfully detain a prisoner without arraigning him before a magistrate within a reasonable time. (Code Crim. Pro. § 165.) The conclusion is inescapable that they do this for the purpose of subjecting him to an inquisition impossible thereafter." (People v.Mummiani, 258 N.Y. 394, 399.) The police lieutenant who was primarily responsible for the delay claimed that though the defendant was seized by the police on the morning of October 23rd, he was not "arrested" until October 26th when he made his written confession and that he was arraigned as soon as possible thereafter. The Legislature has defined arrest as "the taking of a person into custody that he may be held to answer for a crime." Malinski testified, without contradiction, that at 7:30 in the morning of October 23rd two detectives "put guns into my head and they said, `If you move, I will blow your brains out.'" They then put handcuffs on him and took him to the Hotel Bossert. That the detectives did seize him and take him to the Hotel Bossert is not open to challenge. If the police officers were not exercising at that time their power to arrest, then it is plain that they were committing a crime. If, as appears plain, they did "arrest" the defendant Malinski, then his confinement by the police at the Hotel Bossert, or any other place, without prompt arraignment was contrary to the express command of the statute and was unlawful. We may understand the impatience of police officers at the restrictions imposed upon them by law in obtaining evidence necessary to convict a person of whose guilt they are certain, though the guilt has not at that time been established. Undoubtedly, the unpunished murder, by men intent on crime, of a police officer who has sought to prevent the crime, weakens respect for the law, but lawlessness in law enforcement weakens it no less. Free men for centuries have cherished as an essential part of their liberty the right to prompt arraignment in court when seized by the police. The statute also has commanded that officers of the law shall accord that right to every person they arrest. Invasion of that right cannot be justified *Page 383 by proof, however convincing, that the person who asserts it is not worthy of his liberty, or that the officers of the law desire only to obtain the evidence required by law to convict men of whose guilt they are convinced.
"An unfair trial, especially in a criminal case, is a reproach to the administration of justice and casts grave responsibility not only upon the prosecuting officer but also upon the trial judge." (People v. Wolf, 183 N.Y. 464, 472.) The defendants may be depraved creatures who have committed a heinous crime. Nonetheless, until condemned by a jury after a fair trial and upon competent evidence they are entitled to the benefit of the presumption of innocence and to assert all those rights and privileges which have been formulated for the protection of the innocent by the Constitutions of the State and nation, by statutes, and by age old judicial decisions. The courts cannot permit either the prosecuting attorney or the police to decide whether the public interest would be advanced by disregard of the safeguards imposed by law for the protection of an accused. Such safeguards become valueless if they may be violated with impunity when judges or law enforcement officers conclude that otherwise a guilty man might escape punishment.
In this case there can be no doubt that the police officers flagrantly disregarded the provisions of section 165 of the Code of Criminal Procedure by holding the defendant Malinski at the Hotel Bossert and postponing arraignment until after they had obtained a written confession. Their explanation may show that their conduct was due solely to zeal in seeking evidence through which the guilt of the defendants could be established at a trial. It furnishes no justification for their wrong. We are told that even though that may be true and even though the lawless conduct of the police in that respect may have furnished the police with opportunity to obtain the confession, nevertheless, the confession was properly admitted in evidence and could be given weight by the jury if the jury found that it was not induced by fear.
In this State we have repeatedly held that the evidence otherwise competent may not be rejected on the ground that it was obtained by unlawful means. (People v. Defore, 242 N.Y. 13.) *Page 384 A confession which is not incompetent under the provisions of section 395 of the Code of Criminal Procedure is not to be rejected because the accused was unlawfully detained by the police without arraignment for the purpose of obtaining the confession. "Nevertheless, in determining whether a confession has been obtained as a result of a beating, or is voluntary, the circumstance that it was obtained while arraignment was illegally delayed for no apparent reason except that the police needed a confession in order to have competent proof of the commission of a crime, should be considered by the jury." (People v. Alex,265 N.Y. 192, 194.) We must examine the record in this case to determine if there has been a fair trial in this case of the question whether the confession under the circumstances here disclosed was obtained as a result of threats or violence.
The Assistant District Attorney who tried the case has stated in the summation what occurred at the Hotel Bossert while Malinski was being detained there and what effect should, in his opinion, be given by the jury to what there occurred. Without analyzing the testimony to determine the accuracy of what was said in the summation I quote the parts that seem to me most significant:
"* * * Malinski was held and he was allowed to sleep there. He could not get away. When McNally was asked, `Did you place him under arrest?' he probably meant he did not book him right away. They hold men for several days. Are you satisfied with that?They are not going to let him go home, or let him get hold of asmart mouthpiece to preach about his rights and sue out writs. You want a district attorney in this county that is worth his salt, not a powderpuff district attorney. When you are trying a case of murder, especially murder of a police officer, you don't go over and give him a pat on the back and say, `Do you want anything? Do you want to have your lawyer or your wife or somebody else?' In fact after they would not even let him see Mr. Math, an assistant in our office; they would not even let him talk to a rabbi. Do you think McNally, 17 years in the Police Department is going to let this jerk from the East Side tell him his business? * * *. *Page 385
"* * * Why this talk about being undressed? Of course they had a right to undress him to look for bullet scars, and keep the clothes off him. That was quite proper police procedure. That is some more psychology — let him sit around with a blanket on him, humiliate him there for a while; let him sit in the corner,let him think he is going to get a shellacking. McNally took one look at him and said, `Come here' — just a little tough talk — `what do you know about it?' Six o'clock in the evening after he was picked up he told the whole thing." (Italics are mine.)
In a recent case in the Supreme Court of the United States in which a judgment of conviction in a Federal court was challenged on the ground that at the trial a confession was admitted in evidence though obtained while the accused was detained by law enforcement officers in violation of a statute requiring prompt arraignment, the Supreme Court said: "In formulating such rules of evidence for federal criminal trials the court has been guided by considerations of justice not limited to the strict canons of evidentiary relevance. Quite apart from the Constitution, therefore, we are constrained to hold that the evidence elicited from the petitioners in the circumstances disclosed here must be excluded. For in their treatment of the petitioners the arresting officers assumed functions which Congress has explicitly denied them. They subjected the accused to the pressures of a procedure which is wholly incompatible with the vital but very restricted duties of the investigating and arresting officers of the Government and which tends to undermine the integrity of the criminal proceeding. * * *.
"* * * The purpose of this impressively pervasive requirement of criminal procedure is plain. A democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down crime is not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement does not alone prevent disregard of cherished liberties. Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic. * * *.
"* * * Legislation such as this, requiring that the police must with reasonable promptness show legal cause for detaining *Page 386 arrested persons, constitutes an important safeguard — not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the `third degree' which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime. It reflects not a sentimental but a sturdy view of law enforcement. It outlaws easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection. A statute carrying such purposes is expressive of a general legislative policy to which courts should not be heedless when appropriate situations call for its application. * * *.
"* * * The record leaves no room for doubt that the questioning of the petitioners took place while they were in the custody of the arresting officers and before any order of commitment was made. Plainly, a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in willful disobedience of law. * * *.
"* * * We are not concerned with law enforcement practices except insofar as courts themselves become instruments of law enforcement. We hold only that a decent regard for the duty of courts as agencies of justice and custodians of liberty forbids that men should be convicted upon evidence secured under the circumstances revealed here. In so doing, we respect the policy which underlies Congressional legislation. The history of liberty has largely been the history of observance of procedural safeguards. And the effective administration of criminal justice hardly requires disregard of fair procedures imposed by law." (McNabb v. United States, 318 U.S. 332, at pp. 341-345, and 347.)
We cannot close our eyes to the fact that our frequently and solemnly repeated admonitions to law enforcement officers that they are not above the law and may not in their zeal to obtain convictions hold, without arraignment, persons suspected of crime in order to have opportunity to obtain confessions, are often unheeded. *Page 387
Perhaps the remedy is by legislation providing that in the courts of this State, as in the Federal courts, evidence obtained by flagrant violation of the rights of the individual must be excluded. However persuasive may be the reasons which have led the Federal courts to adopt that rule, we cannot do so. The contrary rule of evidence has been so long established by repeated decisions of this court and has been the subject of so many debates in the Legislature and in the Constitutional Convention of 1938 that change of the rule now by the court, without legislative sanction, would be an encroachment upon the legislative field. The confession is admissible if the jury find that the confession is not made "under the influence of fear produced by threats." The function of this court in reviewing a judgment resting in part upon a confession, obtained by unlawful means, is confined to the inquiry "whether there has been a fair trial of this issue at which the prosecution has presented testimony which would enable the triers of the fact to determine that issue fairly and truly." (People v. Mummiani, supra, p. 398.)
Here we are agreed that a finding by the jury that the defendant's confession, though obtained while he was unlawfully detained without arraignment, is not against the weight of the evidence. The officers of the law deny that they beat the defendant or threatened him. Whatever may have been the motive of the police in taking Malinski to the Hotel Bossert instead of to a police station or jail, we find no basis for any inference that the police believed that the hotel was an appropriate place where a person could, without too much risk of discovery, be beaten in order to compel a confession. Nonetheless, in this case, as inPeople v. Mummiani (supra, pp. 399-400) "the conclusion is inescapable" that the police delayed the arraignment of the defendant "for the purpose of subjecting him to an inquisition impossible thereafter" at which he might be induced to make a confession by resort to what the Supreme Court of the United States has described as "those reprehensible practices known as the `third degree' which, though universally rejected as indefensible, still find their way into use." There can be no fair trial of the issue whether the confession is voluntary where the jury is not properly informed that the detention was *Page 388 unlawful and that they must take that fact into consideration. That has not been done in this case.
It is true that in the charge of the court the jury was informed that "it was the duty of the police to arraign the defendant before the nearest Magistrate without unnecessary delay and further if a police officer fail or refuse to perform such duty, he is guilty of a misdemeanor," and that "if you should find that the arraignment of the defendant was delayed, you may consider that on the question of the voluntariness of any confession made by Malinski, including the one made in the early hours of October 27th at the Bath Beach station house." That instruction is not sufficient where, as in this case, the evidence produced by the People conclusively shows that the police flagrantly disobeyed the express mandate of the law. Even if there had been question in this case that the delay in arraignment was not "unnecessary" within the meaning of section 165 of the Code of Criminal Procedure, that question was not properly submitted to the jury. I have quoted what the Assistant District Attorney told the jury in his summation. The jury was urged to find that the police act properly when they hold a suspect incommunicado in order to induce him to incriminate himself before he can "get a smart mouthpiece to preach about his rights and sue out writs." Worse than that the jury was informed that it was "quite proper police procedure" to keep a man undressed for hours in order to "let him think he is going to get a shellacking" and thus perhaps to obtain a confession "under the influence of fear induced by threats," even though the threats be implied rather than expressed.
Failure of counsel to interrupt the summation by objection to these remarks, though counsel did interrupt by objection to other statements, indicates, it is urged, that these comments of the District Attorney did not seem important to counsel. Counsel did, however, move at the close of the summation for a mistrial because of these statements, and the trial court in denying the motion failed to indicate in any way that there was no justification for the comments of the District Attorney and that the jury must disregard them.
The prosecuting attorney is an officer of the State and he speaks to the jury with added weight because of his office. His *Page 389 remarks here went unrebuked by the court and the jury was not informed even that if the defendant made his confession because he believed he might "get a shellacking" it would be inadmissible. We are loath to believe that the police did actually act as the Assistant District Attorney says they did. We certainly cannot say that the police did not do so and we should not hesitate to reverse a judgment which is the result of a trial at which the jury was led to believe that such practices were lawful and proper. A great citizen and a great jurist has said:
"An expert Bar, tenacious of its rights and also aware of their limitations can aid the courts by keeping within the lines and by not attempting to play off-side. Let us not talk simply of rules of procedure in the desire to obtain the appropriate punishment of crime and the enforcement of law, but make it our concern that trials of criminal cases shall be less a game to please the spectators than a serious and successful effort to deal promptly and efficiently with a precise charge with no right infringed and no nonsense tolerated.
"Liberty and law — one and inseparable! The noblest endeavor of democracy to safeguard the one by intelligence in the other!" (Presidential address of Charles Evans Hughes to the American Bar Association, 1925.)
The judgment should be reversed and a new trial ordered.
LEWIS, DESMOND and THACHER, JJ., concur with CONWAY, J.; LEHMAN, Ch. J., dissents in opinion in which LOUGHRAN and RIPPEY, JJ., concur.
*Page 390Judgments of conviction affirmed. (See 292 N.Y. 686.)