Opinion
February 7, 1913.
Robert C. Taylor, for the appellant.
Charles Goldzier, for the respondent Hammerstein.
The defendants were jointly charged with violating section 2152 of the Penal Law by unlawfully giving a theatrical performance on Sunday. The information alleged the giving of a theatrical performance on Sunday, November 27, 1910, at the Manhattan Opera House, to which the public was generally invited, and to which divers persons came who had paid admission fees; that the defendants Hammerstein and Blumenthal were in charge, had control of, and were the managers of the theatre; that by advertisement and otherwise they aided in the performance by permitting the stage to be prepared and used, and by causing and permitting persons to act as ticket takers, ushers and to distribute programmes; that the defendants Harrigan and Bedini did a juggling performance of the kind forbidden by section 2152 of the Penal Law, and that other persons unknown, who were not made defendants, did certain dancing.
The defendants demurred to the information on the grounds that it charged more than one crime and that the facts set forth did not constitute a crime. The demurrer was sustained, as appears from the opinion delivered, on the ground that more than one crime was charged in a single count, for which different punishments were provided. The People appeal, the notice of appeal being served, so far as appears, only upon the defendant Hammerstein. He challenges the right of the People to appeal and that presents the first question to be determined. That question was settled by this court on a motion to dismiss the appeal ( People v. Hammerstein, 150 App. Div. 212), and it was expressly held that where the district attorney files an information before the Court of Special Sessions, and a demurrer of a defendant to the information is sustained, the People may, under section 518 of the Code of Criminal Procedure, appeal from the judgment thereon.
The defendants, as indicated, were jointly charged with violating section 2152 of the Penal Law. This section is entitled "Theatrical and other performances on Sunday," and then follow provisions to the effect that certain acts, including "any performance or exercise of jugglers, acrobats, club performances or rope dancers on the first day of the week is forbidden" and that every person aiding in such exhibition, performance or exercise by advertisement, posting or otherwise, and every owner or lessee of any garden, building or other room, place or structure, who leases or lets the same for the purpose of any such exhibition, performance or exercise, or who assents to the use of the same for any such purpose, if it be so used, is guilty of a misdemeanor.
The purpose of the statute is obvious. It is to prohibit the giving of a theatrical performance on Sunday. If given, then any person who takes part in such performance in any way comes within its provisions and is guilty of a misdemeanor — the one who performs as well as the one who assists. They are all principals. They are all committing the same crime by violating the provisions of the same statute, and this the information demurred to charges. It is true the section does not specifically provide what punishment shall be imposed upon one found guilty. It does provide that in addition to the punishment therefor provided by statute, every person violating the section is subject to a penalty of $500, to be recovered in the city of New York by the Society for the Reformation of Juvenile Delinquents, and in other cities or towns of the State by the overseers of the poor for the use of the poor. The punishment not being specifically provided for, makes section 1937 of the Penal Law applicable.
The order appealed from, therefore, should be reversed, the demurrer overruled, and the case remitted to the Special Sessions to proceed according to law.
INGRAHAM, P.J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Order reversed and demurrer overruled and case remitted to Special Sessions as stated in opinion.