
    PEOPLE v. MEADE.
    
      N. Y. General Sessions;
    February, 1890.
    
      Children; employment in theatrical exhibition.1 To make out the offense of employing children under sixteen years of age in a theatrical exhibition in violation of Penal Code, § 292, it is only necessary to show that the exhibition was a theatrical performance, that the children were employed by the defendant for that purpose, and that they were under the age of sixteen years. It is not necessary to show that the exhibition endangered the health or injured the morals of the children, nor need any specific act of physical cruelty be shown.
    Trial of indictment against James H. Meade for violation •section 292 of the Penal Code.
    The defendant was indicted upon the complaint of The New York Society for the Prevention of Cruelty to Children •(L. 1886, c. 30) for a misdemeanor committed in the city of New York in violating section 292 of the Penal Code, which provides that “ A person who employs or causes to be employed, or who exhibits, uses, or has in custody, or trains for the purpose of the exhibition, use or employment of any child apparently or actually under the age of sixteen years . . . as a . . dancer . . or in . . singing . . or in a theatrical exhibition . . . is guilty of a misdemeanor.”' The indictment charged that the defendant Meade •“ being-the manager of a certain theatrical exhibition then being carried on and conducted at a certain theatre there situated called Xiblo’s Garden Theatre, and then and there having the charge and supervision of the said theatrical exhibition, did unlawfully employ and cause to be employed, and exhibit and use in the said theatrical exhibition, divers to wit,, thirteen certain children, each being then and there actually and apparently under the age of sixteen years (here follow the names and ages of the children, the youngest being five and the eldest fourteen years) against the form of the statute-in such case made and provided, and against the peace and dignity of the said People.”
    The defendant on arraignment pleaded not guilty, and the trial took place before the court and a jury. The People-called two officers of the society, who severally testified in substance that on the evening of February 3, 1890 (the day-charged in the indictment), they attended the performance of the spectacular play called “ Bluebeard, Jr.,” at the .theatreknown as Xiblo’s Garden. That the place was an ordinary theatre arranged with seats, curtain, footlights and scenery,, that an audience was present, and that the performers appeared in various costumes supposed to be appropriate to the respective characters they represented. That in the first act five children, aged from five to twelve years, appeared and' sang in the chorus and later appeared again and danced and sang. That in the second act nine children,'of similar ages,, appeared from a large shoe, sang a song and chorus. That in the third act more children appeared as pages, and in the-fourth and last act, which did not finish until 10.33 p. m., four of the children sang and danced. That the children were all in theatrical costume. The children mentioned in-the indictment were then produced in court and identified before the jury in accordance with section 19 of the Penal" Code. The printed programme of the performance on which the name of the defendant appeared as manager, was also produced by one of the witnesses, who testified that he procured it at the theatre on the evening in question, and that the defendant admitted to him that he was the manager of the company.
    The defendant called several witnesses to show that at •other theatres in Hew York city children under the age of sixteen years had been exhibited in theatrical performances, but the testimony was excluded by the court. The following letter from him to the president of the society prosecuting was then read in evidence, the People not objecting.
    Eldbibge T. G-ebbv, Esq., President of the Society for the Prevention of Cruelty to Children:
    Deab Sib : As I do not believe that the law relating to the appearance of children on the stage was intended to operate in any direction save that which tended to humanely protect them from the performance of labors to which they were unequal, and to guard against the impossibility of cruelly subjecting them to severe tasks and overwork, I have concluded to present the play of “ Bluebeard, Jr.,” at Hiblo’s Theatre with its original complement of performers, including the children, at the matinee next Saturday. I am impelled to this action for the reason that the appearances of the children in the play simply illustrate what children like to do, and naturally do. Their performance being apparently to them a pleasure rather than a task, and because they can by such appearance be enabled to contribute, by means of the salary paid them, to the support of families, who are not only poor, but in many cases sick and infirm, and can ill afford the deprivation of the stipend resulting from such employment. I am also impelled to this step by the knowledge that, uninterfered with, there are now performing in the “ Dolls’ Dance ” at the Metropolitan Opera House, in arduous duties, seventy-five children; that there is also performing at the Broadway Theater, in the play of the “ Prince and Pauper,” a child named Elsie Leslie, who sustains the burden of an onerous melodrama, and who is subjected to the mental and physical effort nightly of declaiming a part as long; if not longer, than that of Hamlet. There is also performing at the Bijou Opera House, a child, described as Dot Clarendon, in the “ Midnight Bell,” and at Miner’s People’s Theater, in a play called “ Roger La Honte,” an infant named Marguerite Field. As these performances are nightly given with your sanction, I cannot understand the reason for your Society’s discrimination. I do not believe the law was intended to permit such discrimination, and I feel it my duty to make proper test of it.
    (Signed) James H. Meade,
    Manager of “ Bluebesard, Jr.”
    
      Charles W. Brooke for the defendant,
    then requested the court to advise the jury to acquit (Code Crim. Pro. § 410) upon the following grounds :
    I. The Title of Penal Code, Chapter 3, in which is the section on which the indictment is based, reads “ Abandonment and 'other acts of cruelty to children.” To prove a violation something more than the fact that a child within the prohibited age was exhibited in a theatrical exhibition, must be proven. It must be shown that such exhibition endangered the health or injured the morals of the child. In other words some, specific act of physical cruelty must be shown.
    II. The section is obsolete because the law is not enforced in every case where a child is so exhibited. Managers of other theatres have been allowed to give such exhibitions and have not been prosecuted by the society.
    
      Wm. Travers Jerome, assistant district attorney (with whom was Eldridge T. Gerry) for the People,
    contended : I. The exhibition was clearly within the statute (Society Ref. Juvenile Delinquents v. Diers, 10 Abb. Pr. N. S. 216). "While it is not necessary to prove anything beyond the fact of the exhibition within the prohibited age, the Legislature wisely considered the following points in enacting the statute. (1.) The deprivation of rest and sleep to the child when it needs these most. (2.) Its exposure to the inclemency of the weather without, and the drafts within the theatre when in scant costume. (3.) The overstimulant of the physical system by the muscular efforts, especially in song and dance, and of the nervous system of the child by the excitement and applause of the exhibition, especially when continued nightly "by the week. (4.) The loss of education which the law prescribes it must have, and for the acquisi • tion of which the exhibition unfits it. (5.) The evil associations, especially in the ballet and song and dance exhibitions. (6.) The injury to the voice by overstraining at an early age. (I.) The only object of the exhibition to make money for the parents—an illegal one because the law compels the parents to support and maintain the child during its minority, and • nowhere sanctions the reverse, of this rule (Cromwell v. Benjamin, 41 Barb. 558 ; Furman v. Van Size, 56 N. Y. 435 ; Reg. v. Chandler, 1 Jur. (N. S.) 429; Code Crim. Pro. § 921).
    II. The objection that other offenders are not prosecuted, and the law has therefore become obsolete, is frivolous. The right of the Society to prosecute is permissive, not compulsory (Penal Code, § 293) and it has a right to exercise its own judgment in preferring complaints, especially as its right to enforce the law is not an exclusive one.
    The court denied the motion and charged the jury as follows:
   Fitzgerald, J.

The issues upon which you are to pass as jurors are very narrow, and ought not to occasion much difficultyin determining.

It is the duty of the jury to decide all questions of fact. In matters of fact you are supreme, the court has nothing to do with questions of fact. But in questions of law the duty of the court arises, and the court is just as supreme in regard to questions of law as the jurors are in reference to questions of fact. So that, when the court instructs a jury as to the law, it is the duty of the jury to ccept the court’s instructions as to the law, and then to examine into the facts and determine from the facts whether the law, as laid down, by the court, has or has not been violated. You will readily perceive, gentlemen of the jury, that, in any permanent system of government, observance of such a rule is vital. Otherwise, one jury might find the law to be. one way, and another jury might find it to be the other way, and there would be nothing reliable or permanent about the administration of justice. If the court errs in declaring the law to the jury, the rights of the defendant are amply preserved and protected upon appeal; but, in so far as the jurors are-concerned, they would violate their oaths if they should undertake to question in any way the rules of law as laid down by the court for their guidance.

There has been some discussion between counsel as to the policy of this act, and as to the wisdom or power of theLeglislature in enacting it. Those are matters for certain tribunals. They are not matters for a jury to pass upon. The issue in this case is an exceedingly simple one. I will not cloud your minds by reading the entire act that relates to the misdemeanor with which this defendant at the bar is charged. But I will read to you such portion of the statute as I think it is necessary for you to know, in order that you may determine the issues of fact in this case.

The statute under which this indictment is drawn reads as follows:

“ A person who employs, or causes to be employed, or who exhibits, uses or trains for the purpose of exhibition, any child, apparently or actually under the age of 16 years, in peddling, singing or playing upon a musical instrument, or in a theatrical exhibition, or in any wandering occupation, is guilty of a misdemeanor.”

This is the statute as far as it applies to the case at bar, and the issues involved are very simple and very easily to be determined. I regard them to be merely three questions of fact, and, as you find these three questions of fact, your final conclusion will be easily reached.

The first question, in my judgment, for you to determinéis : Was it a theatrical performance?

Upon that question you have the testimony of the officers for the Society for the Prevention of Cruelty to Children,, who informed you that, on February 3rd, they went to Niblo’s Garden, and paid an admission fee of one dollar, and that they entered the place. They described what they saw there—an auditorium and footlights, and the 'costumes of the various persons who appeared upon the stage—and it is-for you to determine from that description, whether that was a theatrical performance. That is the evidence that addresses itself to your minds upon that subject.

The People claim that it was a theatrical performance,, that it was a theatre, with an admission price, and all the surroundings and appurtenances belonging to a place of that character, and that there can be no question in dispute as to the nature of the performance, and as to its being a theatrical performance. That is the contention of the People, and that is the evidence that they submit to you. Now, the next question after you have disposed of that one, is : Did the defendant employ these children for the purpose of such theatrical performance or exhibition ? Did he employ them for that purpose ?

In- relation to that, you have the admission upon the record, that the defendant is the manager of the “ Blue Beard,. Jr.” company, and that he employed the persons who were engaged in acting in that performance. Then you have the evidence of the officers that they saw these children among the actors in that performance, of which it is admitted that he was the manager.

Then the third question is : Are they under the age of 16 years ?

In relation to that, gentlemen of the jury, the People called in this case the children who, it is charged, were employed. They were brought into court, and were identified before yon; and, under a provision of our law, it is provided :

Whenever, in any legal proceeding, it becomes necessary to determine the age of a child, the child may be produced for personal inspection, to enable the magistrate, court or jury to determine the age thereby.”

Now, they have been produced here, and you saw them, and it is for you, as a question of fact, to determine whether they were under the age of 16 years of age.

There has been some evidence adduced here in relation to other performances in this city in which children ■are employed. With that, you, as jurors, have nothing to do. It is not a matter to influence or determine the decision at which you are to arrive upon the evidence here. We are trying simply one issue here, and, of course, it is our duty to coniine ourselves to that issue. We are not trying the policy of laws here. We are not trying, under this indictment, the methods or practices by which associations or •organizations or officials of any character perform or neglect to perform their duty. We are simply trying this issue, as to whether or not the defendant at the bar, Mr. Meade, violated the provisions of the act to which I have directed your .attention. If he did, he is guilty, and should be convicted; if he did not, he ought to be acquitted.

I have now, gentlemen of the jury, endeavored to place as clearly as I could before you, the rules of law that, in my judgment, should govern you in considering this evidence. It is for you now to determine the facts. It is the duty of the People to prove their case beyond a reasonable doubt, and, if they have accomplished that, if they have proved to your satisfaction, beyond a reasonable doubt, that this defendant employed children under the age of 16 years, for the purposes of a theatrical exhibition, and that they did perform, as charged in this indictment—if that is proved, beyond a reasonable doubt, to your satisfaction, your duty is to find a verdict of guilty. If not, your verdict should be not guilty.

The jury returned a verdict of guilty.  