People ex rel. Valensi v. Flynn

GREENBAUM, J. From the return to the writ of habeas corpus it appears that the relator was committed by a city magistrate for an alleged violation of the provisions of section 265 of the Penal Code. The charges laid against the relator were that on Sunday, December 29, 1907, he kept and maintained on the premises 112 Third avenue, in the borough of Manhattan, “a show consisting of an exhibition of a stereopticon and many pictures portraying the attack on the south gate of Pekin by means of an automatic slot machine device,” which operated “upon the insertion of a cent into a slot,” and “of certain other machines, each operated by the insertion of a cent in a slot, which communicated through the ears of the person so operating the machine certain musical selections, to wit, La Marseillaise, the Star Spangled Banner, selections from the opera Les Huguenots as rendered by Caruso, etc.; the said music being audible only to the person using said machine.” The views expressed by me in the opinion this day filed in the case of Eden Musee American Co., Limited, v. Theodore A. Bingham, Commissioner, 108 N. Y. Supp. 200, lead me to hold that the described exhibition in the complaint upon which the relator was committed did not constitute a violation of section 265 of the Penal Code. The writ is sustained, and the relator discharged.