137 N.Y.S. 652 | New York County Courts | 1912
Appeal from a judgment of conviction rendered against the defendant by the Hon. Charles J. Dodd, city magistrate, in the
The defendant 'has been convicted of conducting a common show without a license, in violation of chapter 7, article I, section 305, of the ordinances of the city of ¡New York. It appears from the evidence taken at the trial that the defendant conducts a hotel on Surf avenue and West Twelfth street, Coney Island, and is engaged there in the business of trafficking in liquors under a liquor tax certificate issued to him by the State of ¡New York. In conjunction with the said business he offers entertainment to his patrons by maintaining in his place of business the usual apparatus and screen for exhibiting'moving pictures. The ground floor of the hotel is a large open room having a seating capacity of from 500- to 600 persons, being provided with that number of chairs and about 100 tables, and having a bar on the side. In this room moving pictures are thrown upon a white surface and provided by the defendant for the entertainment of his guests. ¡No- admission fee is charged to enter the hotel or the room where the moving pitures are shown. Defendant does not hold what is known as a common show license of the city of ¡New York.
Upon this appeal defendant urges as grounds for the reversal of the judgment of conviction: (1) that the information is insufficient in that it does not state facts sufficient to constitute a crime; and (2) that the evidence adduced at the trial shows that the defendant was engaged in the business of keeping a hotel and that inasmuch as the exhibition was .given only as an incident to the hotel business, as a, gratuitous contribution to his guests for their entertainment, vsuch exhibition does not come within the provisions of said ordinance.
First. “An information is the allegation made to a magistrate that a person has been guilty of some designated crime.” Code Grim. Proc., § 145. It performs; the same function as an indictment in a court of record, and must set forth facts to establish
In People v. Bates, 61 App. Div. 559, the indictment charged the defendant with the crime of violating the Liquor Tax Law in that he did wrongfully and unlawfully sell liquor to certain, persons, and it was held to be defective because it did not contain a statement of the precise ground of the violation, namely,, that it failed to allege that the electors of the town mentioned in the indictment had voted that no certificate to sell liquor in that; town should be granted.
In People v. Olmstead, 74 Hun, 327, the information filed with the justice of the peace charged that the defendant “ on various occasions of 1890 and ’91 at Mongaup Valley, in the town of Bethel, county of Sullivan, H. Y., at different times did. commit the crime of selling strong and spirituous liquors ” to certain persons named. It was held to- be defective and not sufficient to support a conviction in the Court of Special Sessions, for the reason that it did not charge any specified crime; that is, it did not state whether the liquor was sold without a
In People ex rel. Sandman v. Tuthill, 79 App. Div. 24, the information alleged “ that on or after the 1st day of May, 1911, at the town of Riverhead, in said county of Suffolk, one David Sandman and other persons of said town of Riverhead, county of Suffolk, did commit the crime of misdemeanor in that they did at the time and place above named, unlawfully, wilfully and knowingly violate the Liquor Tax Law of the State of Hew York.” This was held to be insufficient, and the defendant was released from the county jail upon writ of habeas corp-us, and, when the magistrate continued to- take testimony under the information, a writ of prohibition was issued against him, which was affirmed by the Appellate Division. The court held that a general allegation of the violation of a statute without stating the particular grounds of the violation was insufficient to- give She court jurisdiction.
Jn People v. Lowndes, 130 N. Y. 455, an indictment based upon a provision of the Penal 'Code that a nonresident “ who plants oysters in the waters of this State without consent of the owner- of the same, or on the shore, or gathers oysters, in any such waters for his own benefit, or for the benefit of a nonresident employer,” shall be guilty of a misdemeanor, was fatally defective because it omitted to aver that the planting was done for -his own benefit or for the benefit of a nonresident employer, which was the essential element of said statutory offense.
The information under consideration on this appeal alleges “ that on the 26th day of March, 1912, at the borough of Brooklyn, in -the city of Hew York, county of Kings, Herman Wacke (now here) did unlawfully operate a moving picture show — being a common show —- on iSurf avenue, near West 12th street, Coney Island, in violation of chapter 7, article 1, section 305, of the ordinances of the former city of Brooklyn, now the borough of Brooklyn, city of Hew York.” The allegation “ did unlaw
Second. The evidence failed to establish a violation of the ordinance in question. The ordinance depends for its validity upon section 51 of the Hew York charter (Laws of 1901, ch. 46'6). The section provides for the “licensing and regulating certain trades or business.” Section 305 of the ordinance in question, passed by the board of aldermen, in pursuance of the authority granted to said board by said section 51 of the Hew York charter, is headed: “ Business Requiring a License,” and then states that “ The following businesses must be duly licensed as herein provided,” enumerating among them “ common shows.” It seems to me that a common show must be carried on as a business in order to come within the object and meaning of said charter provision and ordinances, and, where such show is conducted merely as an incident to some regular, established business, the ordinance does not apply. The defendant was not engaged in the moving picture business. He was conducting a hotel and was engaged in the hotel and liquor business. He was exhibiting the pictures for the entertainment of his guests as an incideM to his hotel business at the sea shore. The case of People v. Royal, 23 App. Div. 258, seems to me to be decisive of the question under consideration. In that case, the court, considering the then existing ordinance requiring certain persons
It follows from the foregoing that the judgment of conviction appealed from should be reversed. It was stipulated that the decision in this case should apply to the cases of People v. Diecker, People v. Weisberger, People v. Marakos, People v. Calaplas, and People v. Ecomoupoly, in which the same questions arose, and the same judgment was rendered, and in each of which an appeal was duly taken; and the judgment of conviction in said cases are, therefore, also reversed. '
Judgments reversed.