103 N.Y.S. 1000 | N.Y. App. Div. | 1907
The defendant was charged with maintaining a public nuisance under the provisions of sections 385 and 387 of the Penal Code. An examination of 'the record shows that there was a fair trial, and that the judgment of conviction rests'upon sufficient and competent evidence of the facts set forth in the information. The appellant insists that no crime.under section 385 of the Penal Code was stated in the information, and that, therefore, the motions on the opening and closing of the case and in arrest of j'udgment should have been granted. This seems to he the only question requiring consideration.
The section of the Code concerned, so far as it is involved on this appeal, defines a public nuisance to be “A crime against the order and economy of the State, and consists in unlawfully doing an act, or omitting to perform a duty, which act or omission : 1. .Annoys, injures or endangers the comfort, repose, health or safety of any considerable number, of .persons; or 2. Offends public decency.” The facts set forth in the information and supported by the evidence show that the defendant advertised in the public newspapers
Construing the provisions of the Penal Code under which this charge is made in the light of the.common law, it is only a just construction to hold that the broad language used embraces the .offenses of the common-law rule. As before seen, the section defines a nuisance to consist in unlawfully doing an act which annoys, injures or endangers the comfort, repose, health or safety of any considerable number of persons, or offends public decency. This surely is as broad and inclusive in terms as the rule of the common law, which has been made the subject of the Code provisions. At common law it would have been, and under the Code provisions it is, a nuisance for a person, by public advertisement, to invite and receive a class of the .public to his premises for the purpose of violating the laws of the State, as was done in this case. This, in our opinion,.constitutes “crime against the order and economy of the State” by offending “public decency.” It is the duty,' therefore, of this court, in accord with law, to sustain this conviction. The offense of abortion is one thing; that of maintaining premises open to the public for the purpose of consummating that .crime is another and separate offense against the peace and good order of the State. It is an inducement to moral laxity and to crime, and is within the letter and spirit of the sections of the Penal Code here under consideration.
Ho errors prejudicial to the defendant appearing in the record, the judgment of conviction is affirmed.
Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred.
Judgment affirmed.