111 N.Y.S. 690 | N.Y. App. Div. | 1908
Lead Opinion
The defendant was accused and convicted of conducting an illegal “ public show ” on Sunday, in that he exhibited pictures by throwing them on a canvas screen in the Usual way, and at the same time, had a piano played at intervals. No indecency or immorality is charged ; that comes under another head of crime. The case would be the same however edifying and improving the pictures; that they evpn illustrated the life and mission of Jesus, or the events of the Crusades, would make no difference, Nor is there any question in the case of whether the defendant unlawfully carried on business on Sunday inasmuch as he charged an admission fee. No such charge was made against him, and it may be that none would lie.
. The only law that applies to the case is section 265 of the Penal Code. It prohibits “ 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 ”. The origin of this law is in chapter 42 of the Laws of 1788, which prohibited servile work and travelling, and “ shooting,-fishing, sporting, playing, horse-racing, hunting, or frequenting of tipling-houses, or any unlawful exercises or pastimes on Sunday. This was carried into the ¡Revised Laws of 1813 without change, and into the ¡Revised Statutes of 1830 with the addition of “ gaming ”. The addition in the Penal Code is the phrase at the end, “ or other public sports, exercises or shows” — the meaningless phrase “or any unlawful exercises or pastimes” being dropped. The statute as it stood before the adoption of the Penal Code indisputably related to out-of-door, sports, or things in the open, only. This was the manifest legislative intention. To these public things (public in that sense) the Penal Code add.ed “ Or other public sports, exercises or shows ”,
This becomes all the more manifest by the fact-of the legislature passing a subsequent separate' act prohibiting a long list of theatrical or stage plays, and performances not to be classed as oüt-of-door or open. It was first" made applicable to the city of Eew York only (Laws of I860, chap. 501), and afterwards to the whole state, and is section 277.of tlie Penal Code. If the phrase “ or other public sports, exercises or shows ” in section. 265 "is to be given the meaning contended ■ for by the learned District Attorney, and adopted below, i. e., that it covers all shows or exhibitions indoors or -out-of-doors or open to which the public is-invited, then section 277 adds nothing-; it becomes mere rigmarole and superfluous.
It will not do to say that the legislative mind was so pregnant of the intention of stopping what is called the desecration of the Christian Sabbath that the courts cannot set the bounds to the statute which the words used, construed in the usual way, set, without thwarting the legislative intention. When it is. considered that nowhere outside of the British Isles has the old Testament notion of a still Sabbath ever existed in the Christian world, it is impossible to attribute to the aggregate Christian mind, as rather fairly represented in our legislature, with such a varied national lineage in its membership, any such strictness or singleness of purpose. Christians of no nation, church or sect, except in the British Isles, and not there until recent centuries, ever entertained the old Testament notion of a still Sabbath, but favored and practiced" innocent and
The judgment should be reversed.
Woodward and Jenks JJ., concurred; Hooker, J., read for modification of the judgment of conviction by directing that the fine be ten dollars, and as so modified affirmed, with whom Rich, J., concurred.
Dissenting Opinion
With the propriety or impropriety of the so-called Sunday laws, we, as a court, have nothing to do; our. function is to give effect to the statutes as they are enacted by the Legislature.
The Legislature has authority to protect the Christian Sabbath from desecration, by such laws as it may deem necessary, and it is the sole judge of the acts proper to be prohibited, with a view to the public peace on that day. (Neuendorff v. Duryea, 69 N. Y. 557; Matter of Rupp, 33 App. Div. 468; People v. Moses, 65 Hun, 161; Lindenmuller v. People, 33 Barb. 548.)
That the courts are not entirely blind to the reasons which underlie the enactment of Sunday laws is apparent from, the following quotations from the opinion in Matter of Rupp (supra): “ Our laws for the observance of the Sabbath are founded upon the command of God at Sinai that we should ‘ Remember the Sabbath Day to keep it holy.’ * * * The experience of mankind demonstrates that the setting apart of one day in seven is not only- conducive to the spiritual welfare of the people, but it is essential to the rest and recuperation which every one needs at stated intervals from the cares, burdens and anxieties of life. The Sabbath, therefore, is the result of the highest dictates of public policy ac well as of religious duty. The Sabbath existed before Constitutions or statutes and was sanctioned by the common law.”
The appeal is by the defendant from a judgment of conviction of a violation of section 265 of the Penal Code. The evidence disclosed that on Sunday in a large room, located on Atlantic avenue in the borough of Brooklyn, thedefendant produced moving pictures by means of a stereoptieon, upon canvas or some similar material; that a piano was played in connection with such pictures; that an
Section 265 of the Penal Code provides as follows: “ All shoots ing, 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.”
One question for determination is whether the moving picture exhibition was a show, and if so, whether it was a public show within the meaning of section 265 of the Penal Code. The law is plainly written, and its meaning cannot be' obscured in. much doubt. The Century Dictionary defines “ show ” as a sight or spectacle, an exhibition ■ a pageant; a- play, • The numerous cases,at ' Special Term in the .different departments, which have dealt with . questions similar to that raised by this appeal* have all referred to the throwing of moving pictures upon a screen as a moving picture exhibition. The demonstration.was certainly a show. It is suggested that because the Legislature enacted section 277 of the Penal Code simultaneously with section 265, and therein forbade the performance of any tragedy, comedy, opera, ballet, farce, negro minstrelsy, dancing, wrestling, boxing with or without gloves, sparring Contest, trial of strength, or any part or parts therein, or any circus, equestrian, or dramatic performance or exercise,.or any.performance or exercise of jugglers, acrobats, club performances or rope dancers, on the first day of the week, and failed to declare against moving picture exhibitions therein,' it must not have intended that section 265 should cover exhibitions of this kind. There are two answers: First, section 265 is so plain that it needs no astute interpretation and successfully resists involved distinction and discrimination ; ■ and, second, it is provided by the latter part of section 277 that violations of its provisions áre the subject Of special penalties therein mentioned, in addition to the punishment provided for violation of section 265.
The Century Dictionary defines the term “public” as follows: Of or belonging to the people at large; relating to or affecting the whole people of á State, nation, or community; opposed to private / open iO all the people / shared in or to be shaved or participated, in or enjoyed by people at large ; not limited or restricted to any partícula,!' class of'.the community; as, a public meeting. .It is perfectly clear that any orderly person would have been ..permitted' to
It is also said that because the section furthers provides “ and all noise disturbing the peace of the day,” the fair construction thereof is that no public shows or exercises are prohibited unless they are accompanied by noise disturbing the peace of the Sabbath. The section does not so provide; in fact it provides exactly the contrary in plain language which is unmistakable; it prohibits public shows and also prohibits all noise disturbing the peace of the day. It is impossible to construct sentences in our language whose meaning is clearer than that of the sentence in this section. If, however, more must be said in relation to what the exact intent of the Legislature was in framing the chapter relating to offenses against religious liberty and conscience, it is to be noticed that distinct provision is made by section 259 as follows: “ The first day of the week being by general consent set apart for rest and religious uses, the law pro
I think the moving picture exhibition was a public show, which by section 265 of the Penal Code is prohibited on Sunday.
The sentence imposed by the court was that the defendant pay a fine of $100 or in default thereof bé committed for thirty days. The penalty was greater than the statute permits. The Court of Special Sessions had jurisdiction of the crime and, as held in Matter of Erbe (13 Misc. Rep. 404), the jurisdiction was exclusive. (See Steinert v. Sobey, 14 App. Div. 505, 509.) The offense for which the defendant was convicted was, however, punishable by a finé of not more than $10 or by imprisonment in the county jail not exceeding five days, or by both. (Penal Code, §§ 259, 260, 269.) It is not necessary to send the whole case back for a new trial, for where the sentence is not legal the appellate court may remedy the error in compliance with the law. (People ex rel. Stokes v. Riseley, 38 Hun, 282.) The judgment of conviction should, therefore, be modified by directing that the fine be $10, and as so modified affirmed.
Rich, J., concurred.
Judgment of the Court of Special Sessions reversed.
