Berry v. People

1 N.Y. Crim. 43 | N.Y. Sup. Ct. | 1878

The following opinion was delivered at General Term.

By the Court.—Ingalls, J.

—The plaintiff in error was com victed of the misdemeanor of keeping a disorderly house. Upon the trial, a great number of witnesses were examined, who differed widely in their statement of facts. The testimony, adduced in support of the prosecution, established the offense charged in the indictment, by showing that the' Opera House, so called, had been so conducted by the prisoner that it became very disreputable, the conduct of the inmates being grossly indecent, and calculated to. corrupt the morals of all who visited the house as a place of amusement, and by the noises and tumult created therein, disturbed the peace and quiet of the community. The evidence, on the part of the prisoner, was in conflict with that adduced by the people, and wholly irreconcilable therewith. It was the province of the jury, to settle the disputed question of fact, which they have done, in favor of the prosecution, and their verdict is not so far unsupported by evidence, as to justify a reversal upon that ground.

The plaintiff in error insisted upon certain exceptions, taken during the progress of the trial, which we will proceed to consider. Ho error was committed in excluding the inquiry addressed to the witness, Meeker, as to whether he had acted in the capacity of informer in other states.^* 1st. This inquiry was collateral to the main question involved in the trial, and hence it was discretionary with the court, how far it should be indulged. G. W. T. P. Co. v. Loomis, 32 N. Y. 127; La Beau v. People, 6 Parker, 371; 34 N. Y. 223. 2nd. The examination allowed upon that subject, sufficiently presented the attitude of the witness in that respect, and the prisoner had the benefit thereof before the jury. The law does not compel the court to go so far in allowing such examination, as, in effect, to transfer the trial from the prisoner to the witness. The only legitimate purpose of such an inquiry, in regard to a witness, is to exhibit his character fairly to the jury, so that they may place a proper estimate upon his testimony. Error was not perpetrated by allowing the witness, Ada M. Travers, who resided in the immediate vicinity of the Opera House, to testify in regard to the disturbance,, occasioned by the noises in such house, as that wras one of the elements involved in the inquiry, whether the prisoner kept a disorderly house, and such evidence bore upon that question. The nature and extent of the examination upon that subject, must necessarily be left, in a great measure, to the discretion of the court, and nothing short of a clear abuse of such discretion, should induce the appellate court to interfere. People v. Carey, 4 Park. 238.

The same reasoning applies to the exception taken to the ruling of the court, in allowing the evidence of Joseph S. Bust, upon the same subject. The case of the prisoner could not have been prejudiced by the ruling of the court, refusing to allow the witness, Thomas J. Kennedy, to answer whether he saw anything indecent or improper in the performance which he witnessed. He was allowed to state fully all that he did see or hear. And he stated that he saw nothing wrong. Certainly, it was not necessary for him to repeat his evidence in a more objectionable form. The same view may be taken of the decision, in regard to the witness Ely.

The printed rules and regulations, which were posted in the house, were properly excluded. The prisoner was not tried for a violation of his profession, but for wrongful acts performed in his house, either in his presence, or by his procurement. Such rules could be of no account, unless observed, and, if they have been, there could be no ground of complaint.

The refusal to allow the witness Barnard to testify that he had witnessed the plays “Hock Modesty” and “Silken Meshes ” at other theaters was not error. . 1st. The witness was allowed to describe all that he discovered at the opera house in question. 2d. If such plays were presented at other places in a manner equally objectionable, and tolerated, it could not excuse the prisoner, or palliate his offence.

The refusal to strike out the answer of the witness Kraft, in which he characterized the noises which he heard “ as infernal,” when taken in connection with the description which he subsequently gave of them, could not have prejudiced the prisoner. Even an erroneous ruling does not call for a reversal, when the. court can perceive that no injury resulted from it.

The decision of the court in regard to the form and sufficiency of the indictment, assailed as it was for the first time upon the trial, can be sustained. Case y. People, 21 Hun, 504, and cases there cited ; Rex v. Mathews, 5 T. R. 162; People v. Conger, 1 Wheeler, 448. The court properly refused to charge at the request of the prisoner’s counsel the following proposition: 2d. “ The granting of the license to give theatrical entertainments as provided by law by the mayor, the payment and acceptance of the additional license fee to the House of Refuge, coupled with the evidence of John D. Hardy, the clerk to the mayor, that no complaint has ever been made against the defendant’s government of the premises referred to in the testimony, since the granting of such license, nor any objections presented to its continuance, jyt'ima fade, is evidence that the defendant kept and maintained a morally proper and well-governed house.” The granting of such license could establish nothing in regard to the question tried—whether the house was rendered disorderly by the noisy and indecent conduct of the inmates of the establishment. The prisoner was not indicted and tried for keeping such house without a license, but rather for keeping a house which was rendered disorderly by base conduct, even though licensed to maintain an opera house. Again, the court gave the prisoner all the benefit of a license in the following intimation to the jury: “I charge you, gentlemen, as the law controlling your government, the third proposition requested by the counsel for the accused, as follows: 3d. “ The keeping and maintaining a house for theatrical exhibitions and entertainments is a legitimate and proper business and pursuit; and when kept and maintained in .pursuance of the license required by law, is presumed to be an orderly and well governed house, and such presumption can only be destroyed by the most conclusive proof to the contrary.”

bio error was committed by refusing to charge the following proposition at the request of the counsel of the prisoner : 4th. “ Where an indictment charges that a place of licensed resort, an entertainment is kept in a disorderly and ill-governed manner, to the common nuisance of the people of the State of blew York, and citizens in that neighborhood residing, the evidence must show conclusively that such place is a common, continuing and general nuisance to the neighborhood in which it is situated, and the citizens generally therein resident. Proof that certain of the neighbors only, were disturbed by noises and acts emanating from such place, would constitute merely a private nuisance, and not a public one, and would, therefore, not be punishable criminally.” Barnesciotta v. People, 10 Hun, 137; Jacobowsky v. People, 6 Id. 524.

The court properly declined to charge the following. 5th. “ The mere noises and outcries incident to the usual performances of plays, in a place of theatrical entertainment, duly licensed, coupled with the noises incident to the applause of the audience, are not matters in themselves sufficient to constitute a public nuisance, such matters being the legitimate and ordinary attendants upon theatrical entertainments, and if any persons, residing adjacent to such place, are disturbed and annoyed by reason thereof, the proper remedy would be in a court of equity, by injunction, and not in a criminal court, by indictment.”

It seems to us, that the third proposition, wlii'ch was charged as requested by the prisoner’s counsel, embraced all that the defense could properly claim under this request. The court could not be required to repeat or to charge propositions which were merely speculative.

The following requests were properly disposed of.

6th. “ The evidence of the two witnesses, Meeker and Waite, shows them not only to be participants in, but promoters of the alleged immoral acts, testified to, by them; they are, therefore, in the eye of the law, accomplices, and the jury should require their evidence to be corroborated in all material particulars, before they accord to it credit and belief.”

7th. “In addition to the relation of the witnesses, Meeker and Waite, as accomplices, the fact that they were the hired agents of the society instigating this prosecution, and paid for the procurement of the evidence which they testify to, having, in great measure, themselves created, are matters which go strongly to the credibility of each of them, and the jury should weigh their evidence with great care, and even suspicion.”

It will be observed that the court qualified his refusal to charge as requested.

The following, proposition of the prisoner’s counsel, was properly refused by the court:

8th. “ The fact that the society instigating this prosecution, did not proceed, by way of complaint, before the judicial officers mentioned in the act of 1836, to revoke the license of defendant, and thus, perforce, abate what they alleged to be a public nuisance, is a circumstance to be taken into consideration by the jury, against the prosecution.”

The court charged, as requested by the prisoner’s counsel, the following:

9th. “If the jury, from the majority;of the neighbors who have testified, and from, the evidence of .the numerous police officers, who, in their official and individual relations, visited the place, charged to he a common nuisance, in the indictment, find that it was free from disturbances, disorders and other incidents of ill government, and do not find the evidence as to immoral acts, given by the witnesses, Meeker and Waite, fully corroborated, they should acquit the defendant.”

10th. “ Even if tire acts and conversations, testified to by Meeker and Waite, were, in reality, recitals of truth, and the ■ jury fully believed them, the defendant can, in no manner, be held responsible for their occurrence and utterance, unless the evidence clearly shows that he knew of, and consented thereto ; and, if the jury have a reasonable doubt that he did so know and consent, then he is to be acquitted of all blame, by reason thereof.”

The court properly refused to charge the eleventh proposition, as requested by the counsel for the prisoner.

The twelfth proposition was charged as requested.

In determining whether the court erred in the instructions to the jury, or by refusing to charge as requested, the entire charge must be examined and considered, with a view to ascertain whether the plaintiff in error has any substantial ground of complaint.

In regard to the exception taken to the remarks of the court to the jury, after they returned for further instructions, it is sufficient to say that the exception was too general to avail the prisoner, as it can hardly be pretended, that no portion of such remarks were proper. We discover no error which will justify a reversal of the judgment, or the granting of a new trial, and the conviction must be affirmed.

Davis, P. J., concurs; Beady, J., dissents.

* This question was put upon cross-examination, and disallowed, on objection of prosecution.—Repórter.