People ex rel. Burnham v. Flynn

• Decision Date: 01 October 1907
• Parties: PEOPLE ex rel. BURNHAM v. FLYNN, Warden of the City Prison, et al.
• Court: New York Court of Appeals Court of Appeals

189 N.Y. 180

82 N.E. 169

PEOPLE ex rel. BURNHAM

v.FLYNN, Warden of the City Prison, et al.

Court of Appeals of New York.

Oct. 1, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Habeas corpus by the people, on relation of Charles Burnham, against William J. Flynn, warden of the city prison, and another, city magistrate, to obtain relator's release from custody on a charge of criminal conspiracy. From an order of the Appellate Division (100 N. Y. Supp. 31,114 App. Div. 578) reinstating the writ, and discharging the relator, rendered on appeal from an order of the Special Term (99 N. Y. Supp. 198,49 Misc. Rep. 328) dismissing the writ and remanding relator to custody, defendants appeal. Affirmed.

Wm. Travers Jerome, Dist. Atty. (James W. Osborne, of counsel), for appellants.

Herman Aaron, for respondent.

EDWARD T. BARTLETT, J.

Complaint was made to a magistrate in the city of New York charging relator, charles Burnham. with violating section 168, subd. 5, of the Penal Code, which reads as follows: ‘Sec. 168. Conspiracy defined.-If two of more persons conspire, either * * * (5) To prevent another from exercising a lawful trade or calling, or doing any other lawful act, by force, threats, intimidation, or by interfering or threatening to interfere with tools, implements, or property belonging to or used by another, or with the use or employment thereof. * * * Each of them is guilty of a misdemeanor.’ After examination before the magistrate, the relator, Burnham, was taken into custody by virtue of a commitment then issued. Thereupon he sued out a writ of habeas corpus. After a hearing the Special Term made an order dismissing the writ and remanding the relator to custody. The Appellate Division reversed this order, reinstated the writ and discharged the relator. From the latter order, this appeal was taken by the defendants.

The petition for the writ alleged, among other facts, the following: That the relator, Charles Burnham, is a theatrical manager, and particularly manager of the theater known as ‘Wallack's Theater,’ situated at Thirtieth street and Broadway, in the city of New York; that the cause of imprisonment of petitioner is that he was and is a member of an association of theater managers having for its general object the promotion of the interests and welfare of the theatrical industry, in which the members of said association are interested; that, while a number of the members of the association were holding a meeting, the petitioner called attention of the members to certain scurrilous, libelous, and malicious attacks made by one James S. Metcalfe upon some of the members of the association, affecting their personal integrity and holding their religion up to ridicule; that petitioner at such meeting, or immediately after formal adjournment, presented and read to the members a written statement, as follows: ‘The attention of this association is called to the following matter: A certain writer on a certain periodical has for the past 10 years persistently, and without just cause, libeled in its columns a large portion of our theatergoers, and attacked the personal integrity of members of this association. Its continued malicious, vile and unjustifiable attacks upon those of the Jewish faith are unwarranted, and as it may affect our business interests should receive attention from all managers. For their so-called criticism on plays or business methods we make no mention-that does not concern us and is without our provice-but when they persistently and for no discernible just cause (but a personal feeling, perhaps) make a butt of one's religion-be his faith what it may-then some action should be taken to give the members of this association so assailed its vote of confidence and support and to take necessary steps to prevent our business interests being injured.’ It further appears in the petition that no resolution was passed at the meeting where this statement was read, but that thereafter said Metcalfe was, by the purely voluntary action of individuals controlling their own theaters, in several instances excluded from such theaters, not including, however, the theater controlled by the petitioner, and that thereupon the magistrate issued his mandate herein, ordering the arrest of the petitioner. The petition proceeds with certain formal allegations, and prayed that the writ of habeas corpus might issue to the end that after hearing relator be discharged from custody.

The return to the writ is exceedingly brief and formal, and the relator duly traversed the same. A hearing was had before the magistrate. The controlling facts are undisputed. It was proved that the relator did appear at this gathering of theater managers and read the statement, after formal adjournment, to which reference has already been made, and that later certain informal discussion and proceedings took place, when the managers separated. It also appears that some time thereafter said James S. Metcalfe, although provided with tickets of admission, was, without undue violence, prevented from entering some nine theaters in the city of New York, many or all of which were managed or controlled by a member or members of the so-called ‘Theater Managers' Association.’ On this general state of facts, Metcalfe, acting as complainnat,...