Commonwealth v. Sherman
| Decision Date | 22 August 1930 |
| Docket Number | 22 |
| Parties | Commonwealth v. Sherman et al |
| Court | Pennsylvania Commonwealth Court |
John A. Boyle and Ward C. Henry, for Commonwealth.
Michael Saxe and Wesley H. Caldwell, for defendants.
Appeals from convictions by magistrate.
LEWIS, J.
The Passon Athletic Field is located on Spruce Street, between 48th and 49th Streets, in Philadelphia. The field is enclosed on all sides, and for many years in season what are known as semi-professional or amateur baseball games have been played at the field. The defendant, Malcolm McGowan, on Sunday, Aug. 3, 1930, was the manager of the field and of the Passon baseball team. The defendant, Edward Sherman, was acting manager of the North Penn Athletic Club and of its baseball team, which on the Sunday in question was playing in opposition to the Passon team by invitation. The defendant, Todd Vorhees, was the umpire, chosen to officiate at the game arranged for Aug. 3rd. On the field were erected stands containing seats for several thousand spectators. The defendants, Sherman and McGowan, had arranged the contest for Aug. 3rd, and during the progress of the game, which began about 3.15 P. M., from twenty-five hundred to three thousand persons had assembled by invitation, conveyed through advertising, to witness the exhibition.
The Passon field is located in a high-class residential section, largely built up. As far as the evidence indicates, athletic contests have been conducted at the field for many years without substantial objection from the residents of the neighborhood; at least, no legal action has at any time been instituted to enjoin the athletic events habitually conducted on the premises. This is true of contests staged on Sundays as well as on weekdays.
Philadelphia police officers were present at the field on Aug. 3rd at the time of the beginning of the baseball game, and five or six officers entered the field enclosure against the objection of counsel for those in control. Police Sergeant Reavey testified at the hearing before us that, after entering the field, he warned both managers, defendants McGowan and Sherman, that if there was any attempt to commercialize the baseball game that day, or any violation of the law, such as disorderly conduct, they, the defendants, would be placed under arrest; that there was the usual noise from the spectators and players incident to the conduct of a baseball contest; that at the end of the fourth inning, defendant McGowan and his counsel, Mr. Saxe, left the players' bench and started out on the field accompanied by a group of photographers; that McGowan took off his cap and walked up into the stands and solicited contributions of money from the spectators; that thereupon Officer Dilmore beckoned to McGowan to come down and informed him that he was under arrest; whereupon the umpire turned to the crowd and stated that if any one cared to make contribution toward the expenses of both teams, he could do so by throwing coins on the field, and that he, the umpire, would personally collect the coins. Sergeant Reavey stated that many of the spectators arose to their feet and yelled, and that numerous persons started to pitch coins into the field; that he thereupon called Officer Travers and ordered him to arrest Vorhees; that Sherman then came over from the corner of the field and started to pick up some of the coins; that Police Officer Connor placed him under arrest; that prior to these last-mentioned occurrences McGowan had asked the spectators to maintain quiet. The sergeant said that his orders were to take action if there was any violation of the law at the game, such as disorderly conduct; that he did not regard the taking of the collection as disorderly conduct; that if what occurred on the Sunday in question had taken place on a weekday, he would not have made any arrests; that there are six churches within two city blocks of the basball field, and some of them have services on Sunday afternoon, and that this last circumstance, coupled with the fact that there were apartment houses and single-family residences in the neighborhood, was sufficient for the police to take action on Sunday.
Police Officer James Travers testified that he arrived at the field about 2.30 in the afternoon, as it was located on his beat; that the noise occurring during the game was the ordinary noise of a ball game, the loudest of which he thought could be heard about a square away; that there were no fights, no arguments or other disorder.
Officer Dilmore testified that he went onto the field and took a seat on the Spruce Street side about half-way up the grandstand, and that about the beginning of the fifth inning, when contributions were solicited by McGowan, he warned him against taking up a collection, placed him under arrest and sent him to the station-house " for disorderly conduct; " that McGowan, in soliciting contributions, was passing his hat around among the spectators.
Officer Connor, who arrested Sherman, stated that Sherman remarked to him after he had been placed under arrest, " I am losing money on this game," referring to the North Penn Athletic Club.
There was no other police evidence, but certain residents of the neighborhood testified that there was noise from the game on this particular Sunday; one, the proprietor of an apartment house, alleged that the noise interfered with the rest of her tenants, and another, Mr. Creelmen, stated that the noise interfered with his own rest and that of his family.
Hence, it will be observed that there was no testimony on the part of the Commonwealth that the police had at any time ordered the players or spectators at the ball game to disperse and that such an order was resisted or disobeyed.
The Director of Public Safety of Philadelphia, the Honorable Lemuel B. Schofield, submitted himself as a witness before us, and courageously and frankly outlined to the court the policy maintained by his department with reference to baseball games played on Sunday, indicating that since he had taken office as directing head of the police, he had continued the policy of his predecessors toward such sport and that he had endeavored in every way to sensibly reconcile the discordant attitudes of groups in the community toward Sunday observance, and that he regarded the taking of a collection at a Sunday baseball game as a commercialization of the exhibition or exercises, and had ordered the police to take action whenever such collections were sought.
It was conceded that no admission fee was charged for the game out of which this controversy arose, and it appears to be conceded that the players on both teams were not professional baseball players -- that is, they did not follow baseball playing as an occupation or worldly employment. The evidence as to the purpose of the collection was scant and vague, but it may be assumed that neither of the clubs engaged in the contest was operated for profit or engaged in basball as a business, and that the contributions were sought for the purpose of paying the expenses of the contest.
The evidence offered on behalf of the defendants included testimony that Sunday baseball games had been played at the Passon field on three Sundays preceding Aug. 3rd, that there had been no police or neighborhood complaints of disorder, and on the Sunday in question there was no loud, boisterous or unseemly noise, no disorder or annoyance that could be termed a breach of the peace, and that the only acts of the defendants of which the police complained were such as were incident to the passing of a hat before the spectators to obtain contributions and the solicitation of contributions from the field and the picking up of the coins tossed thereon.
At the police station, the defendants appear to have been admitted to bail for a hearing on the following Monday, at which hearing charges were made against each of them under the Act of Assembly approved May 2, 1901, § 1, P. L. 132, which act reads as follows:
Specifically the allegation against the defendants was that they had willfully made or " caused to be made loud, boisterous and unseemly noises and disturbances to the annoyance of the peaceable residents nearby, whereby the public peace was broken and disturbed and the traveling public annoyed." The evidence produced before the magistrate was substantially the same as that offered before us when the appeal was heard and which we have outlined...
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