People v. Nixson

CourtNew York Court of Appeals
Writing for the CourtLEHMAN
Citation161 N.E. 463,248 N.Y. 182
Decision Date01 May 1928
PartiesPEOPLE v. NIXSON et al.

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.

[161 N.E. 464]


[248 N.Y. 182]Appeal from Court of Special Sessions.

[248 N.Y. 183]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 [248 N.Y. 184]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 testified

[161 N.E. 465]

that 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 [248 N.Y. 185]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 [248 N.Y. 186]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...

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57 practice notes
  • People v. Turner
    • United States
    • New York Supreme Court — Appellate Term
    • November 12, 1965
    ...more than a mere inconveniencing of pedestrians is required to support a conviction under subdivision 2. As was stated in People v. Nixon, 248 N.Y. 182, 187-188, 161 N.E. 463, 466, 'Men and women constantly congregate or walk upon the streets in groups, quite oblivious of the fact that in s......
  • State v. Lashinsky
    • United States
    • United States State Supreme Court (New Jersey)
    • July 23, 1979
    ...duties they may give reasonable directions' ". State v. Taylor, supra, 38 N.J.Super. at 30, 118 A.2d at 48, quoting from People v. Nixon, 248 N.Y. 182, 188, 161 N.E. 464, 466 (Ct.App.1928) and People v. Galpern, 259 N.Y. 279, 181 N.E. 572 (Ct.App.1932); accord, State v. Manning, supra, 146 ......
  • Papineau v. Parmley, Docket No. 05-1830-cv (L)
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 4, 2006
    ...roadway to get to the other side, was required to sustain a conviction for obstructing pedestrian traffic."); see also People v. Nixon, 248 N.Y. 182, 185, 187, 161 N.E. 463 (1928) (overturning disorderly conduct conviction where protesters who occupied the entire sidewalk forced pedestrians......
  • People v. Penn
    • United States
    • New York Supreme Court — Appellate Term
    • October 15, 1964
    ...144 N.E.2d 81, 65 A.L.R.2d 1145). Inconveniencing pedestrians, or vehicular traffic for that matter, does not suffice (People v. Nixon, 248 N.Y. 182, 187-188, 161 N.E. 463, 466-467); nor does lack of manners or [48 Misc.2d 646] good taste (ibid. p. 185, 161 N.E. 463). In this setting, only ......
  • Request a trial to view additional results
57 cases
  • People v. Turner
    • United States
    • New York Supreme Court — Appellate Term
    • November 12, 1965
    ...more than a mere inconveniencing of pedestrians is required to support a conviction under subdivision 2. As was stated in People v. Nixon, 248 N.Y. 182, 187-188, 161 N.E. 463, 466, 'Men and women constantly congregate or walk upon the streets in groups, quite oblivious of the fact that in s......
  • State v. Lashinsky
    • United States
    • United States State Supreme Court (New Jersey)
    • July 23, 1979
    ...duties they may give reasonable directions' ". State v. Taylor, supra, 38 N.J.Super. at 30, 118 A.2d at 48, quoting from People v. Nixon, 248 N.Y. 182, 188, 161 N.E. 464, 466 (Ct.App.1928) and People v. Galpern, 259 N.Y. 279, 181 N.E. 572 (Ct.App.1932); accord, State v. Manning, supra, 146 ......
  • Papineau v. Parmley, Docket No. 05-1830-cv (L)
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 4, 2006
    ...roadway to get to the other side, was required to sustain a conviction for obstructing pedestrian traffic."); see also People v. Nixon, 248 N.Y. 182, 185, 187, 161 N.E. 463 (1928) (overturning disorderly conduct conviction where protesters who occupied the entire sidewalk forced pedestrians......
  • People v. Penn
    • United States
    • New York Supreme Court — Appellate Term
    • October 15, 1964
    ...144 N.E.2d 81, 65 A.L.R.2d 1145). Inconveniencing pedestrians, or vehicular traffic for that matter, does not suffice (People v. Nixon, 248 N.Y. 182, 187-188, 161 N.E. 463, 466-467); nor does lack of manners or [48 Misc.2d 646] good taste (ibid. p. 185, 161 N.E. 463). In this setting, only ......
  • Request a trial to view additional results

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