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Harlem in Disorder: A Spatial History of How Racial Violence Changed in 1935

New York Penal Law, § 2120-2129: Robbery

Consolidated Laws of the State of New York, 1909, ch. 88

"§ 2120 Robbery defined. Robbery is the unlawful taking of personal property, from tho person or in the presence of another, against his will, by means of force, or violence, or fear of injury, immediate or future, to his person or property, or the person or property of a relative or member of his family, or of any one in his company at the time of the robbery.·

§ 2121. Force or fear must be employed. To constitute robbery, the force or fear must be employed either to obtain or retain possession of the property or to prevent or overcome resistance to the taking. If employed merely as a means of escape it does not constitute robbery.

§ 2122. Degree of force immaterial. When force is employed in either of the ways specified in the last section, the degree of force employed is immaterial.

§ 2123. Taking property secretly not robbery. The taking of property from the person of another is robbery, when it appears that although the taking was fully completed without his knowledge, such knowledge was prevented by the use of force or fear.

§ 2124. Robbery in first degree. An unlawful taking or compulsion, if accomplished by force or fear, in a case specified in the foregoing sections of this article is robbery in the first degree, when committed by a person :

Being armed with a dangerous weapon; or
Being aided by an accomplice actually present; or,
Being added by the use of an automobile or motor vehicle; or [added in 1923]
When the offender inflicts grievous bodily harm or lnjury upon the person from whose possession, or in whose presence, the property is taken, or upon the wife, husband, servant, child, or inmate of the family of such person, or any one in his company at the time, in order to accomplish the robbery.

§ 2125. Punishment of robbery in first degree.
Robbery in the first degree is punishable by imprisonment for an indeterminate term the minimum of which shall not be less than ten years and the maximum of which shall not be more than thirty years. [amended in 1932]

§ 2126. Robbery in second degree. Such unlawful taking or compulsion, when accomplished by force or fear, in a case specified in the foregoing section of this article, but not under circumstances amounting to robbery in the first degree, is robbery in the second degree, when accomplished:

By the use of violence; or,
By putting the person robbed in fear of immediate injury to his person or that of some one in his company.

§ 2127. Punishment of robbery in second degree.
Robbery in the second degree is punishable by imprisonment for a term not exceeding fifteen years.

§ 2128. Robbery in third degree. A person who robs another, under circumstances not amounting to robbery in the first or second degree, is guilty of robbery in the third degree.

§ 2129. Punishment of robbery in third degree. Robbery in the third degree is punishable by imprisonment for
not more than ten years.

New York Penal Law

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Looting in the courts (50) Police arrested sixty individuals for looting, but only fifty appeared in legal records or newspaper stories about legal proceedings. The other ten individuals appeared only in lists of those arrested for burglary published in newspapers, and in the case of six men, in the police blotter of the 32nd Precinct. As they did not appear in the Magistrates Court docket books, they were not charged in court, and none of those sources mentioned what happened to those people in the legal system. There are also an additional nineteen individuals arrested for whom no details of their alleged offense survive, some of whom may have been involved in looting. Of the three Black women police arrested for looting, Elizabeth Tai and Elva Jacobs subsequently appeared in court. While press coverage of later disorders would focus attention on female looters, few publications mentioned them in 1935, noting only the presence of Black women in the crowds at the beginning of the disorder. It is not clear if the relative absence of women reflected their behavior during the disorder or the inattention of police and journalists. Both the white men arrested for looting ultimately had the charges against them dismissed. At least one, Jean Jacquelin, had been arrested in possession of clothing rather than in the act of taking those items from a store.

Prosecutors did not charge six of those who appeared in court with the offense for which they had been arrested, but instead with disorderly conduct. An additional five men and one woman — Joseph Payne, Raymond Taylor, Preston White, Herbert Hunter, Arthur Davis, and Elizabeth Tai — had the charge against them reduced to disorderly conduct after their initial appearance in court (that change was not recorded in the docket book for Davis and Hunter, but the magistrate convicted them, which he could only do if they were charged with disorderly conduct). A smaller proportion of those arrested for looting faced that lesser charge (12 of 50, 20%) than of those arrested for breaking windows (11 of 20, 55%) and assault (8 of 13, 62%) — although given that the basis for the arrest of sixteen of those charged with disorderly conduct (32%) is unknown, that pattern has to be considered uncertain. If the change in charge indicated police lacked evidence to charge those individuals with looting, the decision to nonetheless proceed with their prosecution indicated some evidence that associated them with the disorder. The variety of acts encompassed by disorderly conduct fell between being a bystander and a participant in acts of violence and theft, including "offensive, disorderly, threatening, abusive or insulting language, conduct or behavior," acting to "annoy, disturb, interfere with, obstruct, or be offensive to others," refusing "to move on when ordered by the police," and causing a crowd to collect. Possible scenarios might involve acting in a way that police interpreted as indicating an intention to participate in violence, amounting to "disorderly" conduct or behavior — most likely by being parts of crowds in the vicinity when stores were looting. Magistrates found guilty two thirds (8 of 12) of those charged with disorderly conduct after being arrested for looting (the white man released in the Magistrates Court, Louis Tonick, had been charged with robbery not disorderly conduct).

The charge brought against individuals who were prosecuted for looting was burglary. A charge of burglary required breaking into a store, entering it, and taking merchandise — all the elements that made up looting. If police did not have evidence of all three elements, the charge had to be to another offense that carried lesser penalties. After investigation, prosecutors changed the charge against Elva Jacobs from burglary to a lesser offense, unlawful entry. That charge punished entry into a property with the intention to take merchandise, to commit burglary, suggesting police had evidence she had been in a store but not that she had taken merchandise. Seven of those arrested for looting were charged with petit larceny instead of burglary. After the initial arraignment, the charge against an additional man, Henry Goodwin, was changed from burglary to petit larceny. In those cases police likely had evidence an individual had taken merchandise but not that they had broken into and entered a store to take those goods. What form of larceny that evidence supported depended upon the value of the goods allegedly stolen. A charge of petit larceny indicated that the goods were worth less than $100. Police charged the remaining two men with robbery. That offense involved taking property from a person rather than taking merchandise from a store.

Magistrates sent just over half (28 of 50) of those arraigned for looting to the grand jury to be charged with the felony offense of burglary. In ten of those cases, the grand jury saw the alleged offense differently, and voted misdemeanor charges that sent those individuals to the Court of Special Sessions not felony charges that would have sent them to the Court of General Sessions. Magistrates sent nine others arrested for looting to the Court of Special Sessions. There the judges convicted thirteen of the seventeen tried in that court where the outcome is known. Apart from Elva Jacobs, convicted of unlawful entry, all those convictions were for petit larceny.

Individuals arrested for looting made up a substantial majority of those charged with felonies after the disorder. The grand jury indicted just seventeen men, thirteen of whom had been arrested for looting (one case they dismissed and their decision about three others is unknown); three of those indictments were later dismissed by judges in the Court of General Sessions. Eleven of the other defendants agreed to plea bargains and pleading guilty to misdemeanor charges, petit larceny in seven cases, unlawful entry in three cases, and attempted grand larceny in the case of Edward Larry, who had been charged with robbery. A judge directed the acquittal of the final man, Joseph Moore (Arnold Ford, on trial with Moore, agreed to plead guilty to a charge of petit larceny).

Just over half of those arrested for looting received a sentence of one month or longer, a similar proportion as of those arrested for breaking windows and a far greater proportion than of those arrested for riot and assault. However, almost all of those arrested for looting received terms of three months or longer (16 of 18), compared with only a third of those arrested for breaking windows (3 of 9).
Edward Larry arrested At 1:00 AM, Patrolman William Clements observed Edward Larry, a twenty-six-year-old Black laborer, traveling in a taxi at West 123rd Street and 7th Avenue. He stopped the taxi, and found that Larry had a box containing eight shirts, with a value of $12. Not satisfied with Larry’s explanation that he had found the shirts on the street at West 129th Street and Lenox Avenue, Clements took him to the 28th Precinct for further questioning. The Magistrates Court affidavit simply described Clements as arresting Larry; the Home News report of Larry's appearance in the Magistrates Court described Clements arresting Larry "as he was about to get into a taxicab with two boxes containing a dozen shirts." The more detailed account in the Probation Department investigation described Clements stopping the cab.

Larry was one of nine men arrested away from the scene of their alleged crime, a group making up one third (9 of 27) of the arrests for which that information is known (27 of 60). Although he was the only one arrested in a vehicle, a photograph published in the New York Evening Journal indicated that this was not the only instance in which police stopped vehicles. Larry told police he was returning home to the Salvation Army shelter at 224 West 124th Street, behind Kress' store (some reports listed the address as 218 West 124th Street; the MCCH business survey records that the Salvation Army operated in both buildings). He had lived there for a month, after spending two weeks at the Belmont Hotel on the Bowery, and the previous thirty days in the workhouse serving a sentence for pickpocketing.

At the police station, Morris Towbin saw Larry and identified him as one of a group of men who had threatened him and robbed his haberdashery store at 101 West 125th Street at 10:30 PM the previous evening. Towbin also identified the shirts in Larry's possession as from his store, part of $2,000 of merchandise stolen, $1,000 of fixtures destroyed and $226.89 worth of plate glass windows smashed. Towbin's encounter with Larry was described only in the more detailed account in the Probation Department investigation. The Magistrates Court affidavit recorded only that Towbin had identified the shirts, a standard feature of a charge when an individual had not been seen stealing goods, and that he could "positively identify the defendant as one of the men" who had robbed him. In the police blotter, the charge against Larry was recorded as burglary. That record suggested that Towbin's identification came after his initial booking and after police provided that information to reporters, as the list of those arrested in the Atlanta World, Afro-American, and Norfolk Journal and Guide, and the list in the New York Evening Journal, both included Larry among those charged with burglary. Towbin's allegation of force changed the offense to robbery, which is the charge made against Larry in the Harlem Magistrates Court. However, there was no mention of force or robbery in the story covering his court appearance in the Home News or in reports of Towbin's statements as president of Harlem Merchants Association in the Daily News and Home News. Nor did police find a knife in Larry's possession, the weapon with which Towbin said he had been threatened. Larry's criminal record did not suggest he would have used a weapon as none of his convictions involved the use of force.

When Larry was arraigned in Harlem Magistrates Court on March 20, Magistrate Renaud held him without bail for the grand jury. He was one of only seven of those arrested during the disorder for which magistrates did not set bail. Nine days later, on March 29, the grand jury indicted him for robbery in the first degree. It was likely this was the indictment mentioned in stories in the New York Times, New York Evening Journal, and New York American: while the latter two stories gave no details of the case, the New York Times referred to the unnamed defendant being "charged with burglary in the looting of an East 125th Street store." No one else arrested in the disorder was indicted on March 29. Rather than go to trial, Larry agreed to a plea bargain. On April 5, he appeared in the Court of General Sessions to plead guilty to attempted grand larceny in the second degree, a felony punishable by up to five years in prison rather than up to twenty years, the punishment for robbery in the first degree. Ten days later, after an investigation by the Probation Department, Judge Nott sentenced Larry to a term of between fifteen months and thirty months in the state prison. (The 28th Precinct police blotter recorded a different sentence of six months to two years, but the Probation Department investigation and a response to the parole board in the district attorney's case file both record the longer sentence). That was the longest sentence given to anyone arrested in the disorder, a reflection of the charge, and of Larry’s criminal record. He had been convicted three times for picking pockets in New York City in the three years before the disorder, and most significantly, convicted for grand larceny in West Virginia in 1928. New York's Habitual Offender statute, commonly known as the Baumes Act, required that in cases involving individuals with a previous conviction for a felony that a plea bargain be to a felony and set minimum sentences based on the previous felony conviction.

Larry had been born in Wilmington, North Carolina, in 1909. His mother died when he was three years of age, leaving his father, and later stepmother to raise him. In 1921, a year after leaving school at age eleven to work in a cotton press, Larry left home. In the only response the Probation Department received to the letters they sent inquiring about Larry's history, the Wilmington Public Welfare Commission reported an interview with his half-sister Rose, in which she said he found work in a coal mine in West Virginia. Larry himself told the Probation Department officer G. H. Royal that he first worked briefly for a transportation company, traveling to Providence, Rhode Island, where he spent two months in a fish factory, followed by time on a truck in Far Rockaway, New York, then in a steel mill in Pittsburgh and a coal mine in Carnegie, Pennsylvania. Beginning in 1924, aged fifteen, he began working irregularly for carnival companies that traveled the North in the summer and the South in the winter.

In February 1928, carnival work, or perhaps coal mining, brought Larry to Welch, West Virginia, where he was convicted of grand larceny. The court did not respond to the Probation Department's request for details of the case; Larry told them that he and another man were accused of stealing money from a drunken man in a poolroom (given Larry's record, the theft was likely accomplished by pickpocketing). Sentenced to six years in the state prison, Larry said he served four years and eight months, which would have seen him released in June 1932. By May 28, 1933, Larry was in New York City; he also said that earlier that month, while working in a carnival, he married Cora Temple, a dancer, in Elizabeth City, North Carolina. In New York City, Larry was arrested for pickpocketing — the criminal record in the district attorney's case file specifying "lush," slicing open the pocket of a drunken individual — and sentenced to thirty days in the workhouse. After his release, he remained in New York City for at least six months, presumably with his wife Cora, but without a home and relying on charity. According to his half sister, Larry returned to Wilmington in December 1933, and found work as a stevedore until July 1934; he told the Probation Department he did not visit until July 1934, and left his wife there while he looked for work.

Almost as soon as Larry arrived back in New York City, on July 29, police arrested him for pickpocketing, again lush, according to the criminal record in the District Attorney's case file. On this occasion, he was sentenced to six months in the Workhouse. Released in January 1935, it was less than a month before officers from the police pickpocket squad arrested him again, and he spent a further 30 days in the Workhouse. In the month between his release and the disorder, he told the Probation Department that he spent a week working on a Salvation Army project in Flushing, Long Island.
John Vivien arrested Around 11:00 PM, Detective Peter Naton of the 28th Precinct claimed he saw John Vivien, a twenty-seven-year-old Black laborer, reach through the smashed window of Regal Shoes and take a pair of shoes from the display. Edward Wittleder, the assistant manager, had closed the store, on the corner of West 125th Street and 7th Avenue, at 10:00 PM, before it was damaged, according to his Magistrate's Court affidavit. However, he would have known that it was likely to be attacked. By that time store windows had been smashed the length of the block of 125th Street to the west, between 7th and 8th Avenues. Police trying to clear people from the street had pushed them toward the intersection on which Regal Shoes sat, creating large crowds, as well as concentrating officers and riot control trucks there. After 10:00 PM, small groups had begun to attack businesses north and south of the intersection on 7th Avenue and further east on 125th Street. When Naton (and Officer Redmond, according to the criminal record) arrested Vivien, he claimed he found shoes which Wittleder identified as coming from the store in Vivien's possession. They had a value of $5.50, according to the affidavit. (Naton made two other arrests around this time, of John King, thirty minutes earlier, at the intersection of 7th Avenue and West 125th Street, and of James Pringle fifteen minutes later, two blocks south on 7th Avenue at West 123rd Street).

Vivien lived at 483 Manhattan Avenue, two blocks west of Regal Shoes, near the corner of West 120th Street, on margins of the Black neighborhood. He was listed among those arrested and charged with burglary in the Atlanta World, Afro-American, and Norfolk Journal and Guide, and New York Evening Journal, his name misspelled Vivian. He appeared in the Harlem Magistrate's Court on March 20, where Magistrate Renaud held him for the grand jury on bail of $1,000. It was not Vivien's first time in court; he had been arrested for robbery in 1929, a charge dismissed by a magistrate according to his criminal record. The Home News reported those proceedings, also misspelling his name Vivian. The remainder of his prosecution was recorded only in legal records and police records. Vivien appeared before the grand jury on April 4, according to his district attorney's case file, who sent him to the Court of Special Sessions rather than indicting him. That outcome indicated a lack of evidence that he had broken into the store, a requirement for a charge of burglary. The charge Vivien instead faced was likely petit larceny, a misdemeanor, as the value of the items he had taken was well below the $100 required for a charge of felony theft. The judges in that court convicted him on April 10 and suspended his sentence, an outcome recorded in the 28th Precinct police blotter.
Louis Tonick arrested Sometime during the disorder, Officer Cusberita [?] of the 28th Precinct arrested Louis Tonick, an eighteen-year-old white man who lived at 1052 Bryant Avenue in the Bronx. The charge against Tonick recorded in the 28th Precinct police blotter was robbery, with the note "Robbed store during riot," while he was named as one of those charged with burglary in the list published in the Atlanta World, Afro-American, and Norfolk Journal and Guide, and the list in the New York Evening Journal. Robbery required taking merchandise from someone, while burglary required taking merchandise from an unoccupied store. Tonick was also recorded as charged with robbery in the Harlem Magistrates Court docket book, with John Masdaym of 237 West 111st Street as the complainant and likely victim of the robbery. In this case, the address did appear to be Masdaym's residence, as there are no business identified on the street in the MCCH Business survey. There was no evidence of the location of the store in which the robbery took place.

Tonick was one of only eight men identified as white arrested during the disorder; he and Jean Jacquelin were the only members of that group arrested for looting. His identity was recorded as white in the Harlem Magistrates Court docket book and in the list published in the New York Evening Journal. Neither the 28th Precinct police blotter nor the the list published in the Atlanta World, Afro-American, and Norfolk Journal and Guide included information on an individual's race. While Jacquelin lived in Harlem, at 222 West 128th Street on the same block as the business he allegedly looted, Tonick lived in the Bronx, well beyond the neighborhood's boundaries.

Tonick appeared in the Harlem Magistrates Court on March 20. Like Edward Larry, the only other person charged with robbery after the disorder, Tonick was held without bail by Magistrate Renaud. The magistrate continued that custody when Tonick returned to court on March 25, and again on March 28. When Tonick appeared in court on April 1, Renaud dismissed the charges against him, an outcome also recorded in the 28th Precinct police blotter. That the Magistrate released Tonick indicates a lack of evidence rather than evidence only of taking merchandise or damaging a store, which would have resulted in reduced charges. In other cases it was the inability to locate a complainant that led to the discharge of defendants.

While the docket book records the name as Tonick, the newspaper lists record it as Tunick, and the 28th Precinct police blotter as Tonisle (the later an error made when the blotter was transcribed for the MCCH). A man named Louis Tonick of the correct age appeared in census schedules in 1930 and 1940 living at different addresses in the Bronx. The child of Russian immigrants who worked as a fruit peddler, he lived with his parents and four siblings in 1930. By 1940, his three older sisters were no longer recorded in the household, which included only his parents, Louis and his (twin?) brother, and an uncle who also worked as a peddler. Tonick was unemployed at the time of that census and also when he registered for the draft in 1943.
Arrested for looting & Charged with robbery (2) "§ 2120 Robbery defined. Robbery is the unlawful taking of personal property, from tho person or in the presence of another, against his will, by means of force, or violence, or fear of injury, immediate or future, to his person or property, or the person or property of a relative or member of his family, or of any one in his company at the time of the robbery.·

§ 2121. Force or fear must be employed. To constitute robbery, the force or fear must be employed either to obtain or retain possession of the property or to prevent or overcome resistance to the taking. If employed merely as a means of escape it does not constitute robbery.

§ 2122. Degree of force immaterial. When force is employed in either of the ways specified in the last section, the degree of force employed is immaterial.

§ 2123. Taking property secretly not robbery. The taking of property from the person of another is robbery, when it appears that although the taking was fully completed without his knowledge, such knowledge was prevented by the use of force or fear.

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