People v. Hemleb

127 A.D. 356, 22 N.Y. Crim. 511, 111 N.Y.S. 690, 1908 N.Y. App. Div. LEXIS 1985

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1908
• Status: Published

Opinions

Gaynor, J.:

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 ”, These words have to be construed in line with what precedes. They have to be construed in. the light of the society of words in which they are found, under two familiar maxims which apply in full- force in civil cases (Matter of Tilden's Executors, 98 N. Y. 434; And. L. Dic. 394), and all the more so in criminal cases for obvious reasons'; for criminal statutes cannot be left in doubt, nor strained in construction to make out a crime. Eo crime exists which is not defined expressly or by necessary implication.. The general words in question mean other like public sports, exercises or shows. The.lineage of the statute as it is in the Penal Code shows its meaning. The original legislative object has never been changed, but continued" in each amendment. There is no ground for the argument that the general intention and scope of the original act has been departed from.

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 healthy exercises and amusements after church on Sunday. John Knox visited John Calvin of a Sunday afternoon at Geneva and found him out back at a game of bowls on the green.

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.