People v. Monnier

New York Court of Appeals

People v. Monnier

19 N.E.2d 789, 280 N.Y. 77, 1939 N.Y. LEXIS 1291

CourtNew York Court of Appeals

DecidedFebruary 28, 1939

StatusPublished

Cited by28 cases

This text of 19 N.E.2d 789 (People v. Monnier) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Monnier, 19 N.E.2d 789, 280 N.Y. 77, 1939 N.Y. LEXIS 1291 (N.Y. 1939).

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Opinion

Finch, J.

Even assuming that this defendant called the complaining witness on the telephone and applied to her certain foul epithets which were overheard by the telephone operator, the defendant is not guilty of the offense of disorderly conduct as defined in section 722, subdivisions 1 or 2, of the Penal Law. Such a person must act or speak either with an intent to provoke a breach of the peace or in such a manner “ whereby a breach of the peace may be occasioned.” In the case at bar there is no evidence of an intent on the part of the defendant to effect a breach of the peace, nor are the circumstances such as could possibly occasion such a breach. The means employed, to wit, the telephone, would seem to indicate a contrary intention.

In People v. Perry (265 N. Y. 362) the proof showed that a restaurant owner and his employee struck with their fists an acquaintance of the employee; that the fight occurred at four o’clock in the morning when no customers were present in the dimly lighted grill which was not open for business; that three witnesses, who saw the fight from the street, testified that they looked on voluntarily to gratify their curiosity. There it was unanimously held that the acts of defendants did not tend to such a disturbance of the tranquillity of the People as to constitute disorderly conduct in violation of the statute. (Penal Law, § 722, subd. 2.) The facts in the case at bar present a weaker case of alleged disorderly conduct than People v. Perry. Since the decision in People v. Perry, it has been settled that acts charged as disorderly conduct must be public in character, and such as actually to tend to disturb the *79 public peace and quiet. If defendant had uttered the words charged to her in the privacy of the office of complainant, no one else being present, defendant would not have committed the offense of disorderly conduct. (People v. McCauliff, 267 N. Y. 581.) The possibility of a breach of the peace being occasioned under the condition here existing is too remote, and the intent to commit such a breach cannot reasonably be inferred from the evidence. The conduct charged must at least be such that a breach of the peace has become imminent or might reasonably be expected or intended to flow from such conduct.

The judgments should be reversed and the information dismissed.

Crane, Ch. J., Hubbs, Loughran and Bippey, JJ., concur; Lehman and O’Brien, JJ., dissent.

Judgments reversed, etc.

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Finch, J.

Even assuming that this defendant called the complaining witness on the telephone and applied to her certain foul epithets which were overheard by the telephone operator, the defendant is not guilty of the offense of disorderly conduct as defined in section 722, subdivisions 1 or 2, of the Penal Law. Such a person must act or speak either with an intent to provoke a breach of the peace or in such a manner “ whereby a breach of the peace may be occasioned.” In the case at bar there is no evidence of an intent on the part of the defendant to effect a breach of the peace, nor are the circumstances such as could possibly occasion such a breach. The means employed, to wit, the telephone, would seem to indicate a contrary intention.

In People v. Perry (265 N. Y. 362) the proof showed that a restaurant owner and his employee struck with their fists an acquaintance of the employee; that the fight occurred at four o’clock in the morning when no customers were present in the dimly lighted grill which was not open for business; that three witnesses, who saw the fight from the street, testified that they looked on voluntarily to gratify their curiosity. There it was unanimously held that the acts of defendants did not tend to such a disturbance of the tranquillity of the People as to constitute disorderly conduct in violation of the statute. (Penal Law, § 722, subd. 2.) The facts in the case at bar present a weaker case of alleged disorderly conduct than People v. Perry. Since the decision in People v. Perry, it has been settled that acts charged as disorderly conduct must be public in character, and such as actually to tend to disturb the *79 public peace and quiet. If defendant had uttered the words charged to her in the privacy of the office of complainant, no one else being present, defendant would not have committed the offense of disorderly conduct. (People v. McCauliff, 267 N. Y. 581.) The possibility of a breach of the peace being occasioned under the condition here existing is too remote, and the intent to commit such a breach cannot reasonably be inferred from the evidence. The conduct charged must at least be such that a breach of the peace has become imminent or might reasonably be expected or intended to flow from such conduct.

The judgments should be reversed and the information dismissed.

Crane, Ch. J., Hubbs, Loughran and Bippey, JJ., concur; Lehman and O’Brien, JJ., dissent.

Judgments reversed, etc.

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Bluebook (online)

19 N.E.2d 789, 280 N.Y. 77, 1939 N.Y. LEXIS 1291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-monnier-ny-1939.

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