Opinion
December 30, 1912.
Philip M. Goodhart [ John H. Rogan with him on the brief], for the appellant.
Hersey Egginton, Assistant District Attorney [ James C. Cropsey, District Attorney, and Harry G. Anderson, Assistant District Attorney, with him on the brief], for the respondent.
The information on which the prosecution was based, after setting forth two previous convictions of the defendant, a domestic corporation, for violations of the Labor Law, charges in substance that on the 22d of July, 1911, in the borough of Brooklyn, the defendant did willfully and knowingly employ, permit and suffer a certain minor child, under the age of fourteen years, to wit, one Joseph Kennedy, to work in and in connection with the defendant's mercantile establishment as a delivery boy.
There is no dispute in the evidence; the defendant was shown to have employed the boy, Joseph Kennedy, under fourteen years of age, on successive Fridays and Saturdays as a delivery boy, paying him seventy-five cents for the Fridays and one dollar for the Saturdays, such employment being within the city of New York, borough of Brooklyn, and this is unquestionably contrary to the provisions of section 162 of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd. by Laws of 1909, chap. 293; since amd. by Laws of 1911, chap. 866). It is urged, however, that the crime of a third offense was not established. This contention seems to be based upon the theory that while the information charged that the defendant had been convicted of the "crime and misdemeanor of unlawfully employing a child under the age of fourteen years, as a Second Offense," the evidence merely went to the extent of showing that the defendant had been convicted of two prior offenses. We are of opinion that the statute does not require such proof; that it is sufficient to show that the defendant has been twice previously convicted of some violation of "The provisions of article eleven of the Labor Law, relating to mercantile establishments, and the employment of women and children therein." There are several things which are required in the performance of duties and obligations under this subdivision, and a violation of any of these or a failure to comply with the conditions prescribed is declared to be a misdemeanor, and upon conviction the defendant is to be "punished for a first offense by a fine of not less than twenty nor more than fifty dollars; for a second offense by a fine of not less than fifty nor more than two hundred and fifty dollars, or by imprisonment for not more than thirty days or by both such fine and imprisonment; for a third offense by a fine of not less than two hundred and fifty dollars, or by imprisonment for not more than sixty days, or by both such fine and imprisonment." (Penal Law, § 1275, as since amd. by Laws of 1911, chap. 749.) The amendment of 1911, which took effect after the crime was committed, is shown by the italicized words. The things required and the things forbidden are set forth in sections 161 and 162 of the Labor Law (as respectively amd. by Laws of 1910, chap. 387, and Laws of 1909, chap. 293; since amd. by Laws of 1911, chap. 866), and the violation of any one of these, or the failure to comply therewith, is made a misdemeanor, and the punishment of such misdemeanor depends upon whether the defendant has been previously convicted of offenses under the provisions of the Labor Law above cited. It does not require that he shall have been convicted of the same offense, but upon the violation or failure to comply with any of the provisions he is guilty of a misdemeanor, and the punishment is meted out on the basis of the number of violations of the act of which the defendant has been convicted. It does not pretend to change the grade of the crime; it is declared to be a misdemeanor, but the punishment is made to depend upon whether the defendant has merely transgressed in a single instance, or in more.
The judgment appealed from should be affirmed.
JENKS, P.J., THOMAS, CARR and RICH, JJ., concurred.
Judgment of conviction of the Court of Special Sessions affirmed.