People v. Horwitz

Fresohi, City Magistrate: This case was heard by me originally on a summons. Later a complaint was filed, and a warrant issued. The defendant requested an immediate trial and he was adjudged guilty. — 238 — Thereafter counsel appeared on the day set for sentence, and although given an opportunity to adduce additional evidence,, he did not avail himself of it, hut filed instead a brief on a, motion to arrest judgment herein because as he states, the facts, charged do not constitute a crime. On Sunday, January 28, 1912, the defendant, who was engaged in selling newspapers, had his stand on Yinth avenue and 42d street, Manhattan Borough, city of Yew York, did insert, and distribute certain hand bills, circulars and advertising matter, by delivering such matter contained in copies of the Yew York Times and Yew York World sold by him. Is such distribution unlawful ? My attention is directed to the provisions of chapter 9, see.. 408, of the Oode of Ordinances of the city of Yew York, on p. 98 (1912 edition), which provides: “That no person shall throw, cast or distribute in or upon any of the streets, avenues- or public places, or in front yards or stoops, any hand bills, circulars, cards or other advertising matter whatsoever.” Section 418 of the Ordinances provides that any person violating-such provisions shall be deemed guilty of a misdemeanor, and upon conviction thereof by any magistrate, either upon confession of the party or competent testimony, may be fined for-such offense any sum not less than one dollar and not exceeding-three dollars; and in default of payment of said fine may be-committed to prison by such magistrate until same be paid. Such imprisonment shall not exceed one day. Section 50 of the Greater Yew York Charter provides that, subject to the Constitution and the laws of the State, the board of aldermen shall have power among other things, “ to regulate-the exhibition of- advertisements or hand bills along the streets.”' To carry into effect the powers conferred upon the city of Yew York by the charter or by any other law of the State, section 43 of the charter provides that the board, of aldermen may “make, establish, restore, modify, amend and repeal ordin — 239 — anees,” which are not contrary to State law or the United States Constitution, deemed “ necessary and proper for the good government, order, protection of person and property, and for the preservation of the public health, peace and prosperity of said city and its inhabitants.” The enumeration of the powers in the charter shall not be held to limit the legislative power of the board of áldermen, and they may pass such other ordinances “ for the good rule and government of the city ” as to the Board may seem meet “ provide fines, penalties, forfeitures and imprisonment for violation thereof.” The provisions of the Greater blew York Charter are ample to warrant the enactment of the ordinances in question (Secs. 43 and 50). The alleged objectionable matter consists of ordinary hand bills or “ throw-aways;” a folder of the Surprise Department Store, printed in hlack and colored ink, announcing “ Stocktaking Sale,” which when open measures seventeen by twenty-two and one-half inches, an advertising sheet printed in precisely the same style as a newspaper advertisement and a sheet with printed matter on both sides, containing cuts, advertising matter and prices of the goods offered for sale by McPartland & O’Flaherty, with the words “ McPartland & O’Flaherty Company Bulletin,” printed at the top and only on one side of the sheet, in very small brevier type, the sheet measuring sixteen and one-half by twenty-one and one-half inches, resembling in size, style, make-up and character a full sized advertising sheet of a newspaper. The defendant, who admits these facts, testified that he received the sum of fifteen cents per hundred for inserting and distributing each circular in the newspapers, in the manner as herein stated. The plain purpose of this ordinance is to prohibit the distribution, among other things, of circulars, hand bills, etc., — 240 — openly or otherwise, in a public place. This is the gravamen of the regulatory ordinance. The undisputed evidence shows that the defendant did the thing prohibited, i. e., he distributed printed matter in the public street. Counsel for the defendant argues that before a conviction can be had there must be proof that the objectionable matter was cast or thrown away, and that the streets were littered with it. In my opinion, it is not necessary to prove, as a condition precedent, that the circulars and the printed matter were thrown upon the street. He who “ distributes " it in a public place is as guilty of a misdemeanor under the ordinance, assuming, of course, the constitutionality of the ordinance, as is he, who throws any such circular so distributed upon the street. The act of distributing and the act of throwing are separate offences under the same ordinance. The board of aldermen use the word “ or ” in the phrase of the ordinance, “ throw, cast or distribute.” If it had not been intended to prohibit the mere distribution of circulars, etc., the conjunctive “ and ” would have been employed. The mere act of distribution makes the offense complete. There is no difference between the case of the person, who stands on a street corner or other public place and openly distributes hand bills or advertising matter, and that of the person, who chooses to adopt a container, envelope, wrapper or other thing in which he encloses or places hand bills, circulars or advertising matter. The latter is precisely in the same position, in my opinion, if he uses that means of distribution, as the individual who stands on the street corner or other public places and openly gives away circulars. It is as much a violation of the ordinance in one instance as it is in the other. There must be a distribution on a public street or other public place. So it seems that the distribution of such matter in — 241 — any private place such as a store, or a delivery of newspapers containing the objectionable matter in the home of the reader, or the sending out through the mail provided such act does not violate any postal regulation in such cases, is not prohibited, by this ordinance, since it is not a public distribution. The defendant contends that the ordinance under consideration is an unreasonable and arbitrary interference with said limitation upon his constitutional rights. He asks to be discharged, claiming that the ordinance is in conflict with the Constitution (Art. 1, Sec. 6), which provides, that “Ho person shall be deprived of life, liberty or property without due process of law.” Defendant’s counsel properly argues that the constitutional rights of the defendant to life, liberty and property are wholly unlimited and unrestricted except by considerations of the public good, and contends that no abridgement or deprivation of these rights by the enactment of ordinances will be upheld or enforced except under the police power operating to the benefit of all individuals of the community, equally. Hr. Justice Peckham, writing for the Court of Appeals, in The People v. Gillson (109 N. Y. 389-398), said: “ The following propositions are firmly established and recognized; a person living under our Constitution has the right to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit. The term ‘ liberty ’ as used in the Constitution is not dwarfed into mere freedom from physical restraint of the person of the citizen as by incarceration, but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. Liberty, in its broad sense, as understood in this country, means the right not only of freedom from servitude, imprisonment or restraint, but the right of one to use his — 242 — faculties in all lawful ways, to live and work where he will,, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. These principles are contained and stated in the above language in various cases, among which are Live Stock Association v. Crescent City, etc. Co. (1 Abb. U. S. 388, 398); Slaughter House Cases (16 Wall. 36, 106), Matter of Jacobs (98 N. Y. 98); Bertholf v. O’Reilly (74 id. 509), and People v. Marx (99 id. 377).” It is perfectly plain that the defendant’s right of liberty includes the right to pursue any legitimate business enterprise for a livelihood, and that this right can only be limited by the proper exercise of the police power. The citizen of the State and city unquestionably has a right to use the highways, but it. must be exercised in a manner that shall not abridge or interfere-with the rights of his fellow citizens. This right has time and again been restrained and limited in many ways. The city has by ordinance limited the use of the highways by hackmen, peddlers and others; it also has ordained that booths and newspaper stands must be licensed. Ho special advantages in privileges should be given to one-over others. Hothing should be done that will interfere with the condition of the streets or their free use by all alike. Even public gatherings, which obstruct the public streets, are not permissible unless the use of the highway is licensed and yet the-right of free speech is one of the inalienable rights under our constitutional government. The city within the exercise of its powers, has granted by ordinance privileges to public hacks to stand at given points on the highway, and it seems that these have been looked upon as a proper exercise of the police power. This is more liberal than I am willing to be. I doubt the power of the city to go to-that extent in granting privileges to citizens in special lines of business. I question the right of any village, town or city to grant by — 243 — special license to any person or set of individuals the privilege to use for a private purpose the public highways and the streets which belong to all the people alike, and over which the State has made the city trustee for their benefit, yet it must be obvious that to that extent the right of liberty is qualified. The district attorney cites many authorities in support of the constitutionality of the ordinance in question, among them City of Philadelphia v. Brabander (Penn. 51 Atl. Rep. 374); Wettengel v. City of Denver (Col.) (30 Pac. Rep. 343); and Anderson v. The State (Neb.) (96 N. W. Rep. 149). These cases seem to hold that an ordinance like the one before me is a bona fide exercise of the police power and it does not arbitrarily and, unreasonably interfere with the rights of an individual under the guise of police regulation. They seem to argue that the natural and probable consequence of the placing of advertising matter in the hands of those who have no desire or use for them is to litter the streets and, probably, frighten horses thereon at the time. I am not prepared to go as far as that and do not altogether agree with that reason as a sound foundation for the sustaining of an ordinance of this character. I would put the constitutionality of this ordinance on the ground that a municipality, through its legislative body, has the right to prohibit the use of the streets by persons for any purposes detrimental to the common good, or that may conflict or interfere with the rights of others in the enjoyment of the highways, which should be unincumbered and clean, so as to promote the safety, health and comfort of the public (Lang v. Palmiter, 71 Misc. 158 aff’d 144 App. Div. 894, and now pending in the Court of Appeals). In the Palmiter case {supra), the defendant was charged with unlawfully conducting the business of selling tickets of admission to the Metropolitan Opera House; he admitted that he was a ticket speculator and that he sold tickets in the public highway. He moved his discharge on a writ of hapeas corpus. — 244 — The ordinance prohibiting such sale of any ticket of admission to a theatre was attacked as unconstitutional. Mr. Justice ISTewburger, writing in this last case, quotes the' Court of Appeals (People ex rel. Armstrong v. Warden, 183 N. Y. 223), as saying: “ The other objection made by the relator to the validity of the statute presents a question which has been very much discussed in this court, as well as in other courts, and that is that the statute interferes with the relator’s right to carry on a lawful business without being hampered by statutory regulations. The cases are abundant which hold that the individual has the right to carry on any lawful business or earn his living in any lawful way, and that the legislature has no right to interfere with his freedom of movement. But, of course, these cases must all be understood as applying to laws that are not within the police power. If the statute comes fairly within the scope of the police power it is a valid law, although it may interfere, in some respects, with the liberty of the citizen, which of course, includes his right to follow any lawful employment. A statute to promote the public health, the public safety or to secure public order or for the prevention or suppression of fraud is a valid law, although it may, in some respects, interfere with individual freedom. All business and occupations are conducted subject to the exercise of the police power. Individual freedom must yield to regulations for the public good. It may be laid down as a general principle that legislation is valid which has for its object the promotion of the public health, safety, morals, convenience and general welfare or the prevention of fraud or immorality.” And he holds as follows: “ It is apparent that the control of the streets, with the adoption of reasonable regulations as to the traffic thereon, and the use of the sidewalks by foot passengers, is within the powers of the board of aldermen of this city. The ordinance is not unreasonable, oppressive or in contravention of common right. Broadway is an important thorough — 245 — fare; it is crowded at all hours, and the effect of selling tickets on the sidewalk might be to collect crowds and thus to interfere with the use of the sidewalks by the public and lead to disorder. Nor does the ordinance deprive any citizen of the right of earning his livelihood in a lawful manner, as is contended by petitioner. It simply prohibits the party from selling tickets on the streets in front of any licensed theatre or place of amusement. He may sell tickets in any store, office, and to any person, but not on the street in front of a licensed theatre. Nor is the ordinance in violation of the constitutional rights of the petitioner.” The individual using the public highway' does so in the enjoyment of his rights, and he must not be molested in any way without his consent in the exercise of that right. It must be perfectly plain that the person who stands upon the highway and openly distributes hand bills and circulars or who distributes them in any other way, must, in a measure, annoy or tend to annoy persons thereon, who have a right to go along peaceably and without molestation. Such conduct in my opinion tends to a breach of the peace, and the board of aider-men recognizing that fact, have ordained this ordinance for the-, proper regulation of the use of the streets of this city. This casa, is in the same class as the Palmiter case (supra), which absolutely-prohibited the sale of tickets of admission to any theatre by ticket speculators on the streets. While I recognize the right of the newsdealer to sell newspapers, yet he cannot in the pursuit of his business interfere with the rights of others. The defendant relies upon the case of People v. Armstrong, reported in 41 N. W. Rep. 275, decided by the Supreme Court of Michigan, in which a similar ordinance as the one now under consideration was construed. The defendant there was charged, with and convicted of distributing a small card in violation of an ordinance which prohibited any person circulating, distri — 246 — buting or giving away any circulars, hand bills, or advertising cards of any description, in or upon the public streets or alleys in the city of Detroit. Hr. Justice Long, writing for the court, held the ordinance unconstitutional, and said in part, that “ the reasonableness or unreasonableness of an ordinance is not to be determined by the enormity of some offense it seeks to prevent and punish, but by its actual operation in all cases that may be brought thereunder. *■ * * If this act can be classed as an offense punishable by fine or imprisonment, then selling or distributing, newspapers upon the streets would be punishable in the same way.” In so far as this case may seem to hold contrary, to the opinion herein expressed, I feel that it is not in accord with the weight of authority and not binding upon the case here. In my judgment the decision in the Palmiter case {supra,) is conclusive. The ordinance should be sustained as a proper exercise of the legislative power of the city of Hew York. I do not find that it is in conflict with the fundamental law. On the contrary, it seems to be in harmony with it, since the purpose of the ordinance is to regulate in a matter of the public convenience, and, in a measure, under the circumstances of this case, it prevents a repetition of the acts that may tend to deceive or work a fraud on the public. The promotion of the public health and safety, morals, convenience and general welfare, or the prevention of fraud or immorality, are purposes recognized as lawful whenever a municipality seeks to exercise the police powers for its own and citizen’s welfare (People ex rel. Duryea v. Welber, 198 N. Y. 1). While the ordinance has nothing whatever to do with health or morals directly, it in a way affects, the safety and the peace — 247 — •of the community and its welfare generally, which must be conserved. Since the evidence charges a misdemeanor, and I have found against the defendant, I see no reason why I should disturb such finding. As I understand that this is a test case, I hereby impose the minimum fine fixed by the ordinance, and the defendant will be committed in default of payment thereof. NOTE ON ABANDONMENT. •(See People v. Harner, p. 104, this Volume. See also Note on Disorderly Persons, 14:412.) ABANDONMENT OF WIFE—GENERALLY. The jurisdiction of a police justice to try the offense is not ousted by the husband’s denial of the marriage. People v. Hodgson, 120 N. Y 347. Abandonment, in the sense in which it is used in the statute, means the actual and wilful desertion by the husband of the wife. People ex rel. Comm’r v. Cullen, 153 N. Y. 629. Laws of 1882, ch. 410, sec. 1554, providing for proceedings in the City of New York against a person who has abandoned his wife without adequate support was never intended to apply to a case where the obligations of the marital contract have been modified by a decree of a court, and where the defendant is guilty of no act except failure to obey the decree. People ex rel. Comm’r v. Cullen, 153 N. Y. 629, 12 N. Y. Crim. 462. Where after a wife has failed to recover in an action for alienation of her husband’s affections, they separate, and after seventeen years, during which period he contributes to her support, he refuses, though earning good wages, to further contribute, upon the ground that he is not liable for her support unless she lives with him, and her own earnings are insufficient for her support, he is properly convicted of being a disorderly person under section 899 (1) of the Code of Criminal Procedure. People v. Romaine, 22 N. Y. Crim. 196. General purpose of laws regarding abandonment of wife is to protect the abandoned and unsupported wife from becoming a public charge. People v. Walsh, 11 Hun, 292. — 248 — If the wife was justified in leaving the husband she may prosecute him for abandonment. People v. Walsh, 33 Hun, 345. The husband’s refusal to maintain the wife upon her leaving him or remaining away from him without cause does not amount to an abandonment. People v. Naehr, 40 Hun, 197. Infidelity of a husband is not in itself abandonment. People v. Neyer, 79 Supp. 367. Section 685 Charter Greater New York, relating to abandonment and providing for the punishment of a husband who deserts his wife, is a penal statute and must be strictly construed. People ex rel. Feeney v. Dershem, 78 App. Div. 626. Section 685 of the Greater New York Charter, relating to abandonment, does not apply to a case where the abandonment took place in a foreign State, and the husband came to New York, and refused to allow his wife, who followed him, to live with him. People v. Crouse, 86 App. Div. 352. Conviction before a magistrate in one borough while a prosecution for same offense pending in another borough, invalid. People v. Sagazei, 27 Misc. 727, 14 N. Y. Crim. 129. A wife abandoned by her husband does not constitute an abandonment of a family. SAME—EVIDENCE. That the wife is a burden on the public is required to be shown by the prosecution.. People v. Walsh, 11 Hun, 292. It is reversible error for a magistrate to neglect to preserve the testimony upon which a person is convicted of disorderly conduct in failing to support his wife. People v. Benison, 15 N. Y. Crim. 142. Where a husband, on his wife’s advice, went to a sanitarium, and upon his release wrote an affectionate letter to her, which she failed to answer, and refused to live with him, there is no proof of abandonment. Reade v. Continental Trust Co., 28 Misc. 721. Where defendant was arrested for non-support and leaving his wife in danger of becoming a burden on the town and it appeared that the wife had abandoned a former husband in New Jersey and was never married to defendant, but that when he left her, by an agreement in which he referred to her as his wife, he left her a house and lot, held, that there could be no conviction under the evidence. People v. Miller, 30 Misc. 355. — 249 — SAME—DEFENSES. Where in a proceeding under section 685 of the Revised Greater New York Charter, providing for the punishment of a husband who deserts Ms wife, it appeared that the husband had in good faith offered to maintain his wife, who was unwilling to occupy a home with him, and that she had capriciously or unreasonably refused a fair provision for her keep, held that he had a valid defense under the statute, and if on the other hand the offer was a mere formality, without good faith, or made under such conditions as assured its rejection, it would not, of course, shield him from the statute. People ex rel. Feeney v. Dershem, 78 App. Div. 626. A defendant who is accused of being a disorderly person in not supporting his wife is entitled to show that she had been unfaithful to her marriage vows, and that by reason of her adultery he was not obliged to support' her. People v. Bliskey, 21 Misc. 433, 12 N. Y. Crim. 472. The fact that a wife had formerly abandoned the husband is no defense. Bell v. People, 6 Hun, 302. An offer made by the husband by letter to furnish the wife transportation to the place where he is working and support her there does not relieve him from liability for abandonment where it does not name the place where he is at work. People v. Harris, 60 Hun, 581. No defense that the wife’s temporary alimony, made in a divorce suit instituted by the husband, was denied. People v. Brady, 13 Misc . 294. Adultery prior to the abandonment is a defense. People v. Brady, 13 Misc. 294. Adultery after the abandonment is no defense. Keller v. Foleron, 36 Misc. 534. A prosecution of a husband as a disorderly person in refusing to support wife is not barred by his offer to try to support her. People v. Dubois, 26 Supp. 895. The pendency of a suit for divorce by the husband is no defense. People v. Schnitzer, 71 Supp. 320. ABANDONMENT OF CHILDREN—GENERALLY. For circumstances .amounting to abandonment under section. 480 Penal Law, see Matter of Larson, 31 Hun, 539. — 250 — Laws of 1903, eh. 376, changed section 287 Penal Code (now section '481 Penal Law) so as to make it a crime to desert a child under fourteen instead of under six years of age. People v. Frank, 88 App. Div. 294. The offense under section 481 Penal Law is complete when the abandonment takes place, and it is only one offense whether the separation be long or short. Bayne v. People, 14 Hun, 181. In Penal Code, sec. 287 (Penal Law, sec. 481) which provides that a parent or other person having the care or custody, for nurture or education, of a child under the age of fourteen years, who deserts the child in any place with the intent wholly to abandon it, is punishable by imprisonment for not more than seven years, the words “ in any place ” are not mere surplusage, but are important in construing the statute, and to make out a crime thereunder it is necessary to show-that the child is deserted in a place, and so left with an intent wholly to abandon it, and that a father’s leaving his children, two and three years of age, respectively, with their own mother, is not such a desertion and abandonment as the section intends to punish. People v. Joyce, 112 App. Div. 717. In order to constitute the crime of abandonment under section 287a of the Penal Code (now section 480 Penal Law) both abandonment in destitute circumstances and failure to provide must exist, although it is not essential that the physical act of leaving the child and the failure to provide should coincide as to time. People v. Lewis, 23 N. Y. Crim. 413. The fact that a father refuses to support his children, whom his wife unlawfully keeps from him or prevents him from seeing, does not constitute a criminal abandonment. People v. Rubens, 92 Supp. 121. Where an agreement for a separation provided that the husband should pay a certain weekly sum for the support of his wife and child, and afterwards he failed to make the payments, he is guilty of neglecting to support his wife and child in the county in which she then resided. People v. Meyer, 12 Misc. 613. SAME—INDICTMENT. A variance between the indictment and the proof respecting the date upon which a crime was committed is immaterial, unless time is a necessary ingredient of the offense, and an amendment of the indictment in that respect is properly made at the opening of the case. People v. Lewis, 23 N. Y. Crim. 413. An indictment charging defendant with abandoning a child in destitute circumstances and wilfully omitting to furnish it with necessary and proper — 251 — -food, clothing or shelter, may be amended at the opening of the trial by .alleging August first as the date of the commission of the crime instead of April 26th of the same year. People v. Lewis, 23 N. Y. Crim. 413. A court has no power to amend an indictment charging defendants with .abandoning a child under the age of fourteen years, found at a time when it was a crime to abandon a child under the age of six years, but when it was not a crime to abandon a child over that age, by inserting therein •a statement that the child was under six years of age. People v. Trank, 88 App. Div. 294. SAME—EVIDENCE. Evidence that a husband has not supported his child is incompetent upon -the hearing of a charge by the wife that her husband had abandoned her, .and the magistrate had no jurisdiction to pronounce judgment for abandonment of wife and child upon such testimony. People ex rel. Keller v. Powers, 16 N. Y. Crim. 48. SAME—DEFENSES. The fact that the defendant was willing to support the child and offered -to do so on the surrender of its custody to him by the wife, held a defense. People v. Rubens, 92 Supp. 121.