People v. Moses — 47 N.Y. St. Rep. 181

Majority

p. 181

The People, Resp’ts, v. Robert H. Moses, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

Sunday—Fishing on, a crime—Penal Code, § 265.

Fishing on Sunday is a crime under § 265 of the Penal Code, although done privately and without any disturbance. Said section, while forbidding only public sports, exercises and pastimes, prohibits all shooting, hunting and fishing.

Appeal from judgment of the Orange county court of sessions affirming conviction of defendant of a misdemeanor in fishing on Sunday.

Matthew Daly, for app’lt; M. H. Hirschberg, for resp’ts.

-—The defendant was convicted before a justice of the peace in Orange county of a misdemeanor, in fishing on Sunday, and fined five dollars. This appeal is from the judgment of the court of sessions affirming such conviction.'

But one question is presented to us on this appeal. That the defendant was fishing on Sunday is conceded; that the lake where he fished was private property, and that he had the privilege of fishing in it was also conceded. It is not shown that he created any commotion or disorder, or that his acts attracted or were witnessed by any person other than the complainant, or disturbed the peace. On these facts the defendant contends that he was guilty of no offense; that under the authority of People v.

p. 182

Dennin, 35 Hun, 327 , to constitute the crime the act must disturb the repose of the community. u We think not. Section 265, Penal Code, prohibits “ all shooting, hunting or fishing, playing, horse racing, gambling or other public sports, exercises, pastimes or shows.” It will thus be seen that while only public sports, exercises and pastimes are forbidden, all shooting, hunting and fishing, etc., are inhibited. The decision in People v. Dennin proceeds on this distinction. In fact, it might be very difficult to draw any distinction between a “ public ” fishing or hunting, and private fishing or hunting. The validity of such legislation cannot be questioned in this state. Neuendorff v. Duryea, 69 N. Y., 557 ; Lindenmuller v. People, 33 Barb., 548 .

The question of how far these restrictions should be carried is for the legislature, not for the courts.

Judgment and conviction appealed from affirmed.

Barnard, P. J., and Dykman, J., concur.