People v. Bellows

Decision Date11 July 1939
Citation22 N.E.2d 238,281 N.Y. 67
PartiesPEOPLE v. BELLOWS et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Court of Special Sessions of City of New York, Appellate Part, Second Department.

Hy Bellows and Tony Maiorano were convicted of disorderly conduct, and from a judgment of the Appellate Part of the Court of Special Sessions of the City of New York, 170 Misc. 66, 9 N.Y.S.2d 850, which reversed on the law and facts the judgment of the Magistrates' Court and dismissed the information, the People appeal.

Judgment reversed in part and new trial ordered.

LEHMAN, J., dissenting. William F. X. Geoghan, Dist. Atty., of Brooklyn, (George F. Palmer, of Brooklyn, of counsel), for the People.

Louis Waldman and David I. Ashe, both of New York City, for respondents.

Sidney O. Raphael, of New York City, amicus curiae.

Robert R. Kaufman, of Brooklyn, for United Sign Writers & Sign Hangers Union, Local 304, amicus curiae.

CRANE, Chief Judge.

The appellants were convicted of disorderly conduct in the City Magistrates' Court, City of New York, County of Kings. Sentence was suspended. An appeal to the Court of Special Sessions, pursuant to section 41 of the Inferior Criminal Courts Act L. 1910, ch. 659, as amended, resulted in the judgment of conviction being reversed for errors, both of law and fact. The information against them was dismissed and the defendants discharged. An appeal has been allowed to this court, pursuant to section 520 of the Code of Criminal Procedure.

Mollie Munzer and her husband conducted a little store for the sale of handbags at 816 Nostrand avenue, borough of Brooklyn. They employed no help and had no employees. In the summer of 1938 they bought of the Peerless Neon Company two neon signs to put up on their store. The signs were erected in August of 1938. This sign company had a contract with the United Sign Repairs, Local 304, affiliated with the International Industrial and Building Construction Workers of America, and the sign was hung by members of Local 304. The defendants were members of Local No. 3, Electrical Workers New York Sign Painters Local No. 230, affiliated with the American Federation of Labor. The two defendants, members of the latter union, thereafter picketed the store, carrying up and down in front signs bearing these legends:

‘Maintenance of electric signs on these premises unfair to Local Union No. 3, Electrical Workers New York Sign Painters Local No. 230 Affiliated with A. F. of L.’

‘Electrical signs on these premises unfair to Local Union No. 3, Electrical Workers New York Sign Painters Local No. 230.’

In the middle of the latter sign appeared: Workers Local No. 137 Affiliated with A. F. of L.’

This constituted a secondary boycott and was illegal. The Munzers were merely purchasers of the product in the market and not parties to any labor dispute. There was no more right to picket their store than to picket the home or store of any other person who happened to buy non-union material or goods from a rival union. Goldfinger v. Feintuch, 276 N.Y. 281, 11 N.E.2d 910, 116 A.L.R. 477. There was here no such unity of interest with the manufacturer as was developed in the Goldfinger case. Cf. Canepa v. ‘John Doe,’ 277 N.Y. 52, 12 N.E.2d 790. The magistrate, in his decision, said: ‘I find here that the acts of these defendants did annoy this complainant. They obstructed the complainant's place of business. They interfered with the complainant and disturbed him, and the extent of the annoyance and disturbance and the obstruction is such that a breach of the peace might have been occasioned by the acts of the defendants, and therefore constitute disorderly conduct.’ And he cited subdivision 2 of section 722 of the Penal Law.

The appellate court, in reversing, said: ‘In our opinion the record abundantly justifies the finding that the picketing was peaceful and free from disorder. That being so, the defendants were entitled to an acquittal.’ People v. Bellows, 170 Misc. 66, 67, 9 N.Y.S.2d 850, 852.

Before we can come to the merits of any case we must first determine our jurisdiction. The Inferior Criminal Courts Act, section 41, says that an appeal to the Court of Special Sessions may be taken as a matter of right by the defendant from a judgment upon conviction rendered by a city magistrate in any criminal action or proceeding or special proceeding of a criminal nature. No appeal of course can be taken from an acquittal even though the judge is wrong on both his law and facts. The Special Sessions, on appeal, ‘may renderthe judgment which the court below should have rendered, or may, according to the justice of the case, affirm or reverse the judgment, in whole or in part, as to all or any of the defendant.’ s 50.

The Constitution of the State of New York, article VI, section 7, limits this court in criminal cases to the review of questions of law except where the judgment is of death.

‘The jurisdiction of the court of appeals, except where the judgment is of death, * * * shall be limited to the review of questions of law; * * *.

‘Appeals may be taken to the court of appeals in the classes of cases enumerated in this section.

‘In criminal cases, directly from a court of original jurisdiction where the judgment is of death, and in other criminal cases from an appellate division or otherwise as the legislature may from time to time provide.’

It will be seen that the Legislature has no power to give this court a review of the facts in any criminal case except where the judgment is of death.

By section 519 of the Code of Criminal Procedure an appeal may be taken from a judgment or order of the Appellate Division of the Supreme Court to the Court of Appeals from a judgment reversing a judgment of conviction. If we consider this appellate branch of the Special Sessions within the category of an Appellate Division for the purposes of this section, yet on the appeal no question may be reviewed, only questions of law.

That an appeal may be taken from a reversal of the judgment of conviction by the Special Sessions' appellate branch is specifically provided for in section 520 of the Code of Criminal Procedure, which says that an appeal may be taken from the appellate tribunal specified in said section, upon the certification of a judge of the Court of Appeals or a justice of the Appellate Division of the Supreme Court. Among the appellate tribunals mentioned is the Appellate Part of the Court of Special Sessions. People v. Wolf, 247 N.Y. 189, 159 N.E. 906;People v. Carmichael, 249 N.Y. 189, 163 N.E. 557. None of these provisions, however, enlarge the scope of the review or permit this court to pass upon the facts. An appeal to this court from a judgment reversing a judgment of conviction could be allowed, under section 520 of the Code of Criminal Procedure, but the allowance must result in an affirmance or dismissal if there be nothing we can review.

As stated, the Special Sessions reversed on the law and the facts and directed an acquittal. This form followed the practice on appeals by the Appellate Division, as provided in section 543-a of the Code of Criminal Procedure. This requires the order of the Appellate Division, reversing a judgment of conviction, to state whether the reversal is made upon the facts or upon the law, or upon both the law and the facts, as in civil cases. Where the order merely states that the reversal is for error of law, it shall be presumed, for the purpose of an appeal to the Court of Appeals, that the Appellate Division reviewed the facts and was satisfied with them.

Treating this appeal for the present as governed by the procedure on appeals from reversals by the Appellate Division, we are confronted with a question impliedly but not squarely decided by this court. When the order of reversal states that it is upon both the law and facts, and the indictment or information is dismissed, may this court review the reversal and direct a new trial instead of dismissal? Is this a review of the facts and is it a question of second jeopardy? If there be a substantial question of fact and evidence sufficient, if believed, to convict the defendant, is the appellate court justified in directing an acquittal or dismissing the indictment, instead of ordering a new trial? In such a case the Appellate Division should and generally does order a new trial, but if, through error, it dismisses the indictment, may this court pass upon the evidence to the exent of reversing the judgment and ordering a new trial? This is done in civil cases where the complaint has been dismissed, but the evidence made out a question of fact for the jury. Whether there be evidence to take the case to the jury always presents a question of law.

I see no reason why the same rule should not apply in criminal cases, and, although we are obliged to review the evidence to see whether or not there be a substantial question of fact, yet this is not the review on the facts prohibited by the Constitution. It is a question of law whether, from any view of the testimony, there was a question of fact regarding the defendant's guilt which should have been submitted to the trial judge or to the jury and not disposed of by dismissal in the appellate court. This point has not been squarely decided by this court, yet the cases lean to this conclusion, and some dicta indicate that we have considered such to be the law. People v. Weiner, 211 N.Y....

To continue reading

Request your trial
16 cases
  • People v. Mackell
    • United States
    • New York Court of Appeals
    • June 10, 1976
    ...352, 353, 219 N.E.2d 180, 181; People v. Nappi, 18 N.Y.2d 136, 140, 272 N.Y.S.2d 347, 350, 219 N.E.2d 176, 178; People v. Bellows, 281 N.Y. 67, 75, 76, 22 N.E.2d 238, 241, 242; People v. Peck, 205 N.Y. 554, 98 N.E. 1111; Cohen and Karger, Powers of the New York Court of Appeals, § 202, p. 7......
  • People v. Graham
    • United States
    • United States State Supreme Court (New York)
    • April 5, 1972
    ...but a higher appellate court could reverse and order a new trial without offending double jeopardy principles (People v. Bellows, 281 N.Y. 67, 22 N.E.2d 238). A further possible contention is that the appellate court determined that without the inadmissible evidence received at trial there ......
  • People v. Klose
    • United States
    • New York Court of Appeals
    • July 7, 1966
    ...to the trial court, the County Court could not reverse and dismiss on the facts. At most it could order a new trial (People v. Bellows, 281 N.Y. 67, 73, 22 N.E.2d 238, 240; People v. Rudolph, 303 N.Y. 73, 100 N.E.2d 142; People v. Scheinman, 295 N.Y. 142, 65 N.E.2d 750; People v. Potskowski......
  • People v. Muller
    • United States
    • New York Court of Appeals
    • July 29, 1941
    ...in the owner of the premises. Thus in the case at bar the storekeeper was the ultimate consumer of this property. Cf. People v. Bellows, 281 N.Y. 67, 22 N.E.2d 238;Canepa v. ‘John Doe,’ 277 N.Y. 52, 12 N.E.2d 790. We are thus brought to a consideration of the fundamental question involved, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT