People ex rel. McPike v. Van De Carr

• Decision Date: 17 May 1904
• Citation: 178 N.Y. 425,70 N.E. 965
• Parties: PEOPLE ex rel. McPIKE v. VAN DE CARR, Warden.
• Court: New York Court of Appeals Court of Appeals

178 N.Y. 425

70 N.E. 965

PEOPLE ex rel. McPIKE

v.VAN DE CARR, Warden.

Court of Appeals of New York.

May 17, 1904.

Appeal from Supreme Court, Appellate Division, First Department.

Application by the people, on the relation of Jacob H. McPike, against John E. Van De Carr, as warden of the City Prison of the city of New York, for a writ of habeas corpus. An order of the Special Term dismissing the writ and remanding the relator to custody was reversed by the Appellate Division of the Supreme Court (86 N. Y. Supp. 644), and defendant appeals. Affirmed.

John McPike, the relator, sued out a writ of habeas corpus to review a judgment of conviction rendered against him for violating chapter 272, p. 572, Laws 1903, entitled ‘An act to amend section six hundred and forty of the Penal Code, relative to the desecration, mutilation or improper use of the flag of the United States, or of this state.’ The statute is as follows: ‘Any person who, in any manner, for exhibition or display, shall place or cause to be placed, any word, figure, mark, picture, design, drawing or any advertisement, of any nature, upon any flag, standard, color or ensign of the United States or state flag of this state or ensign, or shall expose or cause to be exposed to public view any such flag, standard, color or ensign, upon which shall be printed, painted, or otherwise placed, or to which shall be attached, appended, affixed, or annexed, any word, figure, mark, picture, design, or drawing, or any advertisement of any nature, or who shall expose to public view, manufacture, sell, expose for sale, give away, or have in possession for sale, or to give away, or for use for any purpose, any article, or substance, being an article of merchandise, or a receptacle of merchandise upon which shall have been printed, painted, attached, or otherwise placed, a representation of any such flag, standard, color, or ensign, to advertise, call attention to, decorate, mark, or distinguish, the article, or substance, on which so placed, or who shall publicly mutilate, deface, defile, or defy, trample upon, or cast contempt, either by words or act, upon any such flag, standard, color, or ensign, shall be deemed guilty of a misdemeanor, and shall be punished by a fine not exceeding one hundred dollars or by imprisonment for not more than thirty days, or both, in the discretion of the court. The words flag, standard, color, or ensign, as used in this subdivision or section, shall include any flag, standard, color, ensign, or any picture or representation, of either thereof, made of any substance, or represented on any substance, and of any size, evidently purporting to be, either of, said flag, standard, color or ensign, of the United States of America, or a picture or a representation, of either thereof, upon which shall be shown the colors, the stars, and the stripes, in any number of either thereof, or by which the person seeing the same, without deliberation may believe the same to represent the flag, colors, standard, or ensign, of the United States of America. This subdivision and section shall not apply to any act permitted by the statutes of the United States of America or by the...