People v. Perry
| Decision Date | 20 November 1934 |
| Citation | 193 N.E. 175,265 N.Y. 362 |
| Parties | PEOPLE v. PERRY et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
James Perry and Harry Curtis, impleaded with another, were convicted of disorderly conduct, and from judgments of the County Court of Otsego county, which modified and affirmed as modified judgments of conviction by the City Court of the city of Oneonta, named defendants appeal.
Reversed.
Appeal from Otsego County Court.
Everett B. Holmes and George L. Bockes, both of Oneonta, for appellants.
Donald H. Grant, District Attorney, of Oneonta, for respondent.
The three defendants were tried in the City Court of Oneonta upon an information charging them with disorderly conduct in violation of Penal Law, § 722, subd. 2, ‘in that the accused did at the Empire Grill located on Broad Street within said City of Oneonta * * * strike, beat and assault one another with their hands and feet and did * * * act in such a manner by so fighting and assaulting each other, as to annoy and be offensive to others.’
The ‘Empire Grill’ is a restaurant conducted by the defendant Perry on Broad street in Oneonta. The defendant Curtis was employed there. He and the defendant Lee were friends living in the same household. The people's proof is that at 4 o'clock in the morning on March 18, 1934, in Perry's establishment, he and Curtis struck Lee with their fists; that Lee fell twice to the floor and was bruised and bleeding when the police arrived shortly thereafter. This evidence was given by three persons who attempted to enter the restaurant to get beer. The door was locked and they were waved away with the information that the place was closed. No inappropriate language was heard. The restaurant was not fully lighted. One employed as a cook was the only other person there. No one was in the adjacent street except the three witnesses for the people.
The undisputed testimony of the three defendants persuaded the trier of the fact that Lee was the aggressor in the transaction. It is conceded that the police were summoned by Perry.
All the defendants were found guilty-Lee as an invader whose admitted intoxication did not excuse him; the others because their resistance to his intrusion was adjudged to have been unsuitable in kind and excessive in degree. Each defendant was sentenced to 100 days' imprisonment and directed to pay a fine of $100. Upon appeal to the County Court of Otsego county, the judgment against the defendant Lee was reversed. The judgment against the defendant Perry and that against the defendant Curtis were modified by reduction of the fines imposed, and, as so modified, affirmed. The County Court held the defendant Lee to have been the blameless victim of treatment so brutal as to have tended to a criminal disturbance of the public order. The defendants Perry and Curtis now appeal to this court.
The ruling of the County Court rejects uncontradicted testimony which was credited by the trial judge, who saw and heard the witnesses. Strong argument could be made that the appellants have now been held to answer for an act not charged. The modified judgments are here attacked, however, upon the broader ground that upon this record the finding of guilt against the appellants is without justification in law. We think the attack must succeed.
The allegation is that the defendants transgressed Penal Law, § 722, subd. 2. That provision reads: Common-law definitions, though not controlling, are aids in ascertaining the gist of the offense so defined. People v. Most, 128 N. Y. 108, 27 N. E. 970,26 Am. St. Rep. 458.
In the orthodox language of an indictment, any criminal act is...
To continue reading
Request your trial
-
People v. Barrow
...the peace and quiet of the community' (People v. Most, 171 N.Y. 423, 429, 64 N.E. 175, 177, 58 L.R.A. 509, quoted in People v. Perry, 265 N.Y. 362, 364, 193 N.E. 175, 177).5 Representative of the minority view to the contrary are State v . Blevins, 134 Ala. 213, 32 So. 637, 638 and State v.......
-
Commonwealth v. Copenhaver
...of the peace,’ ... refers only to acts or conduct inciting violence or intended to provoke others to violence."); People v. Perry , 265 N.Y. 362, 193 N.E. 175, 177 (1934) ("A breach of the peace is ... a disturbance of public order by an act of violence, or by any act likely to produce viol......
-
People v. Turner
...produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community.' See People v. Perry, 265 N.Y. 362, 364, 193 N.E. 175, 176; People v. Pieri, 269 N.Y. 315, 322, 199 N.E. 495, 497; Cantwell v. State of Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900......
-
People v. Penn
...and circumstances of the acts, would, if not stopped, actually engender a breach of the peace are within its ambit (People v. Perry, 265 N.Y. 362, 364, 193 N.E. 175; Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894). Otherwise, they are not to be so held (People ex rel......