People v. Nixson

• Decision Date: 01 May 1928
• Citation: 161 N.E. 463,248 N.Y. 182
• Parties: PEOPLE v. NIXSON et al.
• Court: New York Court of Appeals Court of Appeals

248 N.Y. 182

161 N.E. 463

PEOPLE

v.NIXSON et al. ^*

Court of Appeals of New York.

May 1, 1928.

Mary Nixson and others were convicted by a city magistrate of acting and using language with intent to provoke a breach of the peace. From a judgment of the Court of Special Sessions, Appellate Part, confirming such conviction by the city magistrate, defendants appeal.

Judgments reversed, and defendants discharged.Appeal from Court of Special Sessions.

Aiken A. Pope and Jacob M. Mandelbaum, both of New York City, for appellants.

Joab H. Banton, Dist. Atty., of New York City (Felix C. Benvenga and John C. McDermott, both of New York City, of counsel), for respondent.

LEHMAN, J.

Twenty persons, named as defendants in this case, were arrested in the early morning of May 27, 1927, while walking on the sidewalk on the southerly side of West Twenty-Ninth street. The police officer, who arrested them, charged in the sworn complaint that they were in ‘West Twenty-Ninth street using threatening, abusive, and insulting behavior, with intent to provoke a breach of the peace, and whereby a breach of the peace might be occasioned, that said defendants at the hour of 7:30 a. m. did then and there, while picketing with a number of others, parade up and down in mass formation, thereby obstructing the sidewalk and causing pedestrians to use the roadway.’ Nineteen of the defendants have been convicted upon this charge, after a trial before a magistrate, and have been sentenced to terms of imprisonment in the workhouse.

This appeal is one of six appeals from judgments of conviction of about one hundred and twenty people, of whom about fifty are women. All the appeals were argued together. The complaints in all the cases are similar. The alleged offenses all occurred at the same place and within the space of a few days. They were all tried before the same magistrate, and it is evident that the magistrate assumed that the defendants, found guilty in all these cases, were walking on this street as part of some tactics adopted to further the interests of a party to a strike or labor dispute in the fur industry. In some cases there is vague evidence which perhaps supports this assumption.

Though the evidence in the six cases is not identical, and the differences may produce varying consequences, yet the determination of the questions involved in the instant case, which the parties chose as the basis of the oral argument in this court, will dictate the answer to most of the questions presented in the remaining cases on appeal. In this case the police officer who made the arrest testifiedthat he had the defendants under observation for ten minutes. They were walking on the south side of Twenty-Ninth street between Sixth and Seventh avenues. They were ‘parading’ four abreast. The sidewalk was about twelve feet wide. The defendants in walking four abreast occupied about six feet of the sidewalk. ‘The regular amount of traffic was just barely getting through,’ Some persons were ‘caused’ to enter the roadway. The officer stated:

‘I fell in line with them and walked up to the southwest corner of Twenty-Ninth street and Sixth avenue. When they got to the corner, they turned around, and they marched back again on the same side, and a few persons were caused to enter the roadway again. I then placed them under arrest.’

Another officer assisted in the arrest. Neither officer warned the defendants before the arrest. The defendants apparently submitted to arrest without protest.

We have set forth the entire testimony almost verbatim. There is no suggestion in the record that the defendants' march up and down the street was not quiet and orderly. There is no suggestion that the defendants' demeanor was threatening, abusive, or insulting, or that any person on the street or elsewhere believed that he was being threatened, insulted, or abused. Nineteen or twenty persons walked up and down a busy street four abreast. They were guilty, we may well concede, of atrociously bad manners, and they discommoded some other persons lawfully using the street, to the extent that a few pedestrians were caused to enter the roadway. There is no evidence that the persons discommoded showed any particular annoyance. Perhaps bad manners are too usual to evoke unusual irritation or annoyance. As yet bad manners have not been made punishable by imprisonment. The question presented here is whether the defendants' conduct went beyond mere bad manners and tended towards a breach of the peace.

[1] It is difficult to define exactly and comprehensively the kind of conduct which ‘tends to a breach of the peace,’ though a ‘breach of the peace’ was punishable at common law. A definition has been essayed by the Legislature in section 722 of the Penal Law (Consol. Laws, c. 40):

‘In cities of five hundred thousand inhabitants or over any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, * * * (2) acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; (3) congregates with others on a public street and refuses to move on when ordered by the police.’

[2] We do not now decide whether under sections 1458 and 1459 of the Consolidation Act (Laws 1882, c. 410) a magistrate has discretion to find that conduct which does not fall strictly within the offense defined by the Legislature may nevertheless constitute disorderly conduct which tends to a breach of the peace. At least the discretion confided to a magistrate cannot be without limits. The act complained of must at least be one which reasonably does tend to a breach of the peace, and it is not without significance that the Legislature has made ‘congregating on the street’ a criminal offense only when the offender refuses to move on when ordered by the police.

[3] Though the charge recites that the offense charged was committed while the defendants were picketing, no evidence was produced to sustain this allegation. Doubtless both the magistrate and the defendants assumed, even without proof, that a labor dispute existed in the fur trade at that time, and that the defendants were walking in the street in pursuance of some tactics intended to advance the interest of a party or parties to that dispute. Even if we also should assume the existence of such facts without proof, the question before us would remain unaffected by such facts. It has been said at times that picketing in large numbers near a place of business where a strike is in progress is in itself a threat of violence, and invites counter violence. Circumstances may in particular cases justify a finding to that effect. Here we are not informed of the nature or extent of the labor dispute, if such there was. If there was a strike on the block where the defendants were walking, it may, for aught that appears, have been in connection with a business conducted on the top floor of one of the loft buildings along the street. There is nothing to show that any other person could have regarded the defendants' conduct as a threat or as calculated to coerce or impede any one. In the absence of evidence, we may not infer that the conduct of the defendants was intended as a threat, or could be so construed, or was an incentive to violence by others. Even if the defendants were parties to a labor dispute, no circumstances are shown which, it is even claimed, might possibly be considered as an excuse for or palliation of conduct constituting an invasion of the rights of the public. On the other hand, no circumstances have been shown which would give the color of disorder and violence to conduct which is otherwise colorless. Upon this record no question is presented of the rights of parties to a labor dispute to the use of the streets for their own purposes-or of any abuse by them of such rights. The sole question is whether a number of pedestrians walking, quietly, four abreast, on the sidewalk, creating no excitement, or disturbance, may without warning by the police be arrested for disorderly conduct and sentenced to a term of imprisonment.

[4][5] To us it seems that there should be no doubt of the answer to that question. Men and women constantly congregate or walk upon the streets in groups, quite oblivious of the fact that in some degree they are thereby causing inconvenience to others using the street. A public meeting may have aroused such interest that groups of men and women continue the discussion while walking up and down the street. Groups linger in quiet social converse after the religious edifice where services have been held is emptied. School children and college youths, laborers, athletic ‘fans,’ and church members, perhaps even judges, do at times congregate or walk upon the streets in numbers sufficient to cause other pedestrians to stand aside or step into the roadway. Surely such conduct is not always ‘disorderly,’ and does not always tend to a breach of the peace. The magistrate may draw distinction between innocent and wrongful conduct, but finding of guilt must be based upon logical inference from the circumstances of the case. Of course, no one urges that distinction may be based merely upon difference of...