77 N.Y.S. 249 | N.Y. Sup. Ct. | 1902
The relator, a boy, was arrested by virtue of a warrant issued by a Justice of the Peace of the Town of Hemp-stead, County of Nassau. The warrant was issued on a complaint that the relator on May 25th, 1902, in the said town, “ did unlawfully and knowingly violate section 265 of the Penal Code of the state of New York relating to public sports on the Sabbath day in that he was playing a game of baseball which is a public sport.” There is no statement of any particular facts showing where in the town he played, whether the place was remote, or in the public highway, or whether there was an assemblage or noise, or whether the repose of the community was interrupted.
Section 259 of the Penal Code is as follows:
“ The first day of the week being by general consent set apart for rest and religious uses, the law prohibits the doing on that, day of certain acts hereinafter specified, which are serious interruptions of the repose and religious liberty of the community.”
Section 265 is as follows:
“ All shooting, hunting, fishing, playing, horse racing, gaming or other public sports, exercises or shows, upon the first day of the week, and all noise disturbing the peace of the day, are prohibited.”
It was decided by the General Term of the Supreme Court in this judicial department in 1885 in the case of The People v. Dennin (35 Hun, 327) that ball playing on Sunday in an open space is not in itself prohibited by these sections, except in cases where it is “ a serious interruption of the repose of the community.”
It is now claimed that such decision was overruled by the later decision of the Court of Appeals in 1893 in the case of The People
As the complaint here contains no facts showing that the repose and religious liberty of the community were interrupted it states no offense.
The relator is discharged.