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People ex rel. Valensi v. Flynn

108 N.Y.S. 208 Court N.Y. Sup. Ct. Decision date 1908-01-22 English

Delivered by GREENBAUM, J.

Contents

Majority

p. 208
PEOPLE ex rel. VALENSI v. FLYNN, Warden, etc.
(Supreme Court, Special Term, New York County.
January 22, 1908.)

Headnote

Sunday—Desecration—Shows.
An exhibition of a stereopticon and pictures operated by an automatic slot machine device, together with certain other machines which, on the insertion of money in the slot, communicated certain musical selections to the operator, audible to him alone, did not constitute a violation of Pen. Code, § 265, prohibiting shows on the first day of the week.
p. 209
Habeas corpus by the people, on the relation of one Valensi, against one Flynn, as warden, etc. Writ granted. Relator discharged.
S. B. Rosenthal, for relator.
W. T. Jerome, Dist. Atty., for respondent.

From the return to the writ of habeas corpus it appears that the relator was committed by a city magistrate for an alleged violation of the provisions of section 265 of the Penal Code. The charges laid against the relator were that on Sunday, December 29, 1907, he kept and maintained on the premises 112 Third avenue, in the borough of Manhattan, “a show consisting of an exhibition of a stereopticon and many pictures portraying the attack on the south gate of Pekin by means of an automatic slot machine device,” which operated “upon the insertion of a cent into a slot,” and “of certain other machines, each operated by the insertion of a cent in a slot, which communicated through the ears of the person so operating the machine certain musical selections, to wit, La Marseillaise, the Star Spangled Banner, selections from the opera Les Huguenots as rendered by Caruso, etc.; the said music being audible only to the person using said machine.” The views expressed by me in the opinion this day filed in the case of Eden Musee American Co., Limited, v. Theodore A. Bingham, Commissioner, 108 N. Y. Supp. 200 , lead me to hold that the described exhibition in the complaint upon which the relator was committed did not constitute a violation of section 265 of the Penal Code.

The writ is sustained, and the relator discharged.