People v. Nixon

Twenty persons, named as defendants in this case, were arrested in the early morning of May 27th, 1927, while walking on the sidewalk on

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 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

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.

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. “ In cities of

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

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

In the case of People v. Friedman (248 N. Y. 53l) the evidence produced to sustain the charge is in all material respects similar to the evidence produced in the instant cases. We find that it does not sustain the judgment of conviction. In the other four cases the circumstances are different. There the evidence, though meagre and unsatisfactory, yet seems to us sufficient to support a finding that the defendants acted recklessly of the rights and convenience of others, and that their conduct tended to a breach of the peace.

In all these four cases there is evidence that before the defendants were arrested they were warned by police officers that they must not persist in marching up and down the street in large groups. Police officers are guardians of the public order. Their duty is not merely to arrest offenders but to protect persons from threatened wrong and to prevent disorder. In the performance of their duties they may give reasonable directions. Present at the point where the defendants were congregating

We have considered the question of whether there is any evidence to sustain the finding of guilt in the instant case. The district attorney has not urged that upon this record we have no jurisdiction to review that question. Our jurisdiction is, of course, limited in these cases to a review of questions of law, and that jurisdiction may not be extended by consent. We are, therefore, compelled to determine whether we may review the questions argued, though no objection to such review has been interposed by the People.

Ordinarily a question of law is raised only by exception. That rule applies in criminal as well as civil cases, and in inferior courts as well as in courts of general jurisdiction. (City of Buffalo v. N. Y., L. E. & W. R. R. Co., 152 N. Y. 276 .) The rule is not entirely without its limitations. It “ must be interpreted in the light of reason and subject to certain inherent limitations. Ordinarily the question which is presented arises on the trial where full opportunity is presented to take an exception and where, generally, justice and fairness require that one should be taken at the time if the party is dissatisfied with the conduct of the trial, and it is concerning such a situation as this that the rule is constantly reiterated and enforced that an exception must be taken for the purposes of appeal to this court. But a case may arise where there is no opportunity to take an exception, and such is the

Here the defendants pleaded not guilty. After hearing the evidence adduced against them, the magistrate decided that the charge against them was sustained. Dissatisfaction with the conduct of the trial must be shown by timely exception. Without such exception we may ordinarily not review the conduct of a trial. Magistrates and other judges of inferior courts pass upon questions of fact and of law. Whether the evidence sustains a decision or judgment is a question of law, and may be reviewed by this court unless an appellant by failure to make appropriate motions or to take appropriate exception has waived his right to urge it. Where a formal decision must be made by a court, the Civil Practice Act, section 445, provides for the taking of an excéption' to a ruling upon a question of law. In the absence of such an exception there can be no review by this court. No provision is made by statute or customary practice for an exception to the decision or judgment of a magistrate or other judge of an inferior court who passes upon questions of fact and of law, without the entry of a formal decision. In the case of People v. Friedman ( 248 N. Y. 531 ), decided herewith, the defendants moved for a dismissal of the charge, and the exception to the denial of the motion unquestionably permits us to review the question of law. In the instant case of People v. Nixon, no such motion was made, and the question arises whether by failure to make such motion the defendants conceded “ that issues of fact, to be determined by the trial court, were created by the evidence and precluded themselves from asserting and asking the appellate courts to determine that the judgment of the trial court was wholly without support in the evidence.” (Seeman v. Levine, 205 N. Y. 514 .)

Doubtless where the trial is before a court and jury, even in an inferior court, failure to move for the dismissal

These cases cannot be distinguished from the case at bar. We must refuse to review the question of whether there is evidence to sustain the judgment, or overrule the earlier decisions of this court. Further consideration, with the advantage of new experience, has convinced us that our earlier decisions were wrong. Where questions of fact and law are both decided by the judge, a submission to him of all questions after the evidence is taken is not, in truth, a concession that issues of fact are raised by the evidence. Litigants present to the judge the evidence to sustain their respective contentions. He must decide the effect of the evidence. We know, now, that especially in courts where judicial proceedings are often informal, a requirement that a party must at his peril separate questions of law from questions of fact and move for a decision on questions of law before final submission of the case, does not facilitate the administration of the courts and does at times result in injustice.

The instant case shows the artificiality of the rule which we have heretofore followed, and that it is out of harmony with the actual proceedings in the courts. The

The judgment of the Court of Special Sessions and that of the City Magistrate’s Court should be reversed and defendants discharged.

Cardozo, Ch. J., Pound, Crane, Andrews, Kellogg and O’Brien, JJ., concur.

Judgments reversed, etc.