Thurber & Atkin v. Sharp — 13 Barb. 627

Majority

p. 627

Thurber and Atkin, overseers of the poor of Delhi, vs. Sharp.

Headnote

Where white persons, for gain or profit, appear in public, dressed and disguised as negroes, and imitate their language and actions, sing negro songs, perform dances in grotesque manner, and do pretended feats as psychologists, and mesmerizers, it is an exhibition prohibited by the statute relative to “jugglers and the exhibition of shows, &c.” Mason, J. dissented.

The plaintiffs, as overseers of the poor of the town of Delhi, Delaware county, sued the defendant, before a justice of the peace, under section 1 of article 1, title 8, chapter 20, part 1, of the revised statutes, entitled “ Of jugglers, and the exhibition of shows, &c.” (1 R. S. 660.) The plaintiffs recovered a judgment for the penalty of $25, and on appeal to the county court the judgment of the justice was affirmed. The defendant thereupon appealed to this court.

S. H. White, for the plaintiffs.

E. More, for the defendant.

The first section of the statute reads as follows : “ No person shall exhibit or perform for gain or profit,

p. 628

any puppet-show, any wire or rope dance, or any other idle shows, acts, or feats, which common showmen, mountebanks, or jugglers usually practice or performand imposes a penalty of $25 for a violation of the act. The defendant contends that the exhibition or performance, complained of, does not come within the words and intent of the section. The defendant and his troupe are whites, but on the occasion in question they appeared on a platform, in the court house .at Delhi, dressed and disguised as negroes, and one of them as a wench dressed in Bloomer costume. They sang negro songs, performed dances in grotesque manner, gave mock psychological lectures, and mesmerized each other, and performed feats with chairs on their heads.

[Cortland General Term,

September 14, 1852.

Mason, Shankland and Crippen, Justices,]

I am of opinion this exhibition is one prohibited by the statute. A juggler is one who practices or exhibits tricks by slight of hand-—one who makes sport by tricks which make a false show of extraordinary dexterity. One trick, that of mesmerizing the leg and arm of one of the party, so as to make them stiff and immovable, was a false show of power over the mind and body of another. It is enough that one of the acts exhibited on the occasion is within the prohibited acts, although other parts of the performance are not.

Again; these performances, or a part of them, come within the definition of mountebankery, or boastful and vain pretensions. Appearing as negroes, imitating their dress, language and actions, and performing pretended feats as psychologists, clearly brings this kind of exhibition within the words and spirit of the act. But the most the defendant could claim would be that the character of the exhibition is a question of fact, to be passed on by the jury.

I advise the affirmance of the judgment.

Crippen, J. concurred.

Mason, J. dissented.

Judgment affirmed.