
    Supreme Court—General Term—Second Department.
    January, 1885.
    PEOPLE v. DENNAN.
    Playing on Sunday.—Penal Code, §§ 259, 265.
    The playing and other acts on Sunday, which are forbidden by section 265 of the Penal Code, are such as disturb the repose of the community.
    Ball playing on private grounds with the consent of the owner, there being no noise or disturbance, is not an offense under this section.
    Appeal by defendant William Dennan, from a judgment of November 24, 1884, of the court of Sessions, of Queens county, affirming a judgment of the court of Special Sessions of November 22, 1884, convicting defendant of playing on Sunday.
    The facts appear in the opinion.
    
      Michael J. Kelly, for defendant, appellant.
    
      Jno. Kerning, district attorney, for the people, respondent.
   Barnard, P. J.

The question involves no disputed fact. Section 265 of the Penal Code provides that all shooting, hunting, fishing, playing, horse-racing, gaming, or other public sports, exercises, pastimes, or shows, upon the first day of the week, and all noise disturbing the peace of the day are prohibited.” Three men, the defendant being one of them, on the first day of the week were found by a policeman playing ball in private grounds, with the consent of the owner. “ Defendant pitched the ball to one of the other two.” The defendant and others did not make any noise. “ There was nothing other than that base ball playing which was a violation of the law.”

While the words of the sections prohibit all “ playing ” on Sunday, it is necessary to take into consideration two other sections of the Code in respect to the same subject, and which are plainly explanatory of the meaning of this section 265 already cited.

Section 259 is as follows :

“ The first day of the week being by general consent set apart for rest and religious uses, the law prohibits the doing on that day of certain acts hereinafter specified which are serious interruptions of the repose and religious liberty of the community.”

Section 262 is as follows :

“ The following acts, as explained in the next six sections are those forbidden to be done on the first day of the week except in a work óf necessity or charity.

“ 1st, Servile labor.

2nd, Public sports and shows.

“ 3rd, Trading, manufacturing and mechanical employments.

“ 4th, Public trafiic.

5th, Serving process.”

From the three sections it is manifest that the thing done must be a serious interruption of the repose of the community on Sunday. The thing prohibited must be to a greater or lesser extent public.

The proof in the present case fails to make out an offense. The grounds were private. The defendant was not even a trespasser, as his entry there was by permission of the owner. There was no noise. There was no assembly of persons beyond the three persons, and the offense was made up entirely by one person, the defendant throwing the ball to another person to catch. If the third person was a party to the play of ball throwing it would make no difference. The essential character of the crime is wanting. There was nothing done to disturb the repose of the community. That is in terms declared to be the object of the law.

The conviction should be reversed.

Pbatt and Dykmah, JJ., concur. 
      
       Section 262 was repealed by L. 1883, ch. 358.
     