
    The People of the State of New York, Respondent, v. Harry Samwick, Appellant.
    Second Department,
    June 5, 1908.
    Crime — admission of minors to place of entertainment — proof essential to conviction — “ guardian ” defined.
    The owner of an establishment where moving pictures are exhibited cannot be convicted of a violation of section 290 of the Penal Code in admitting minors under sixteen years of age, in the absence of proof that the place was injurious to the health and morals of the minors.
    Moreover, in a prosecution under said section it must be shown that the minors were unaccompanied by “parent or guardian,” and by the latter is meant not a guardian appointed by the court, but a proper custodian.
    Appeal by the defendant, Harry Samwick, from a judgment of the Court of Special Sessions of the Second Division of the city of Mew York, rendered on the 27th day of May, 1907, convicting the defendant of a violation of section 290 of the Penal Code.
    
      John F. Harrington, for the appellant.
    
      Peter P. Smith [ John F. Clarke with him on the brief], for the respondent.
   Gaynor, J.:

The defendant was convicted under an information of the District Attorney charging him with violating section 290 of the Penal Code, by admitting two minor boys, one of the age of 14 years and the other of the age of 7, to “a place of entertainment” kept by him, and “ in jurious to the health and morals of minor children ”, and allowing them tó remain there. Although there was no evidence that the place was injurious to health or morals, but on the contrary it was shown to be innocent, the defendant was convicted, apparently under the notion that.police courts may be better .than the law, and a law unto themselves. There was no other charge against the defendant. The part of the said section of the Penal Code applicable is as follows: A person who * * * admits to, or allows to remain in any dance house, concert saloon, theatre, museum, skating rink, or in any place where wines or spirituous or malt liquors are sold or given away,, or in any place of entertainment injurious to health or morals, owned, kept or managed by him in whole or in part, any child actually or apparently under the age of sixteen years, unless accompanied by its parent-or guardian, * * * is guilty of a misdemeanor.” Nothing but moving pictures were shown in the defendant’s place. It was not any of the places mentioned by the said statute,-unless it comes under the head of a museum, which would seem doubtful, to say the least, if the definition of that word be adhered-to to any extent. But it is enough that-the defendant was not convicted on any such charge. Nor does the evidence show that the children were unaccompanied by “ parent or guardian ”, to use the phrase of the statute. The word guardian does not there mean a guardian appointed by a court. If children be sent or taken to the theatre by a person other than- one of their parents or their legal guardian ■—■ by their elder brother or sister, or by a neighbor or friend, for instance—he or she is their guardian for the time being within the meaning of the said statute, if not excluded in some way or for some reason by law. Courts and police officials should not strain criminal statutes, or try to be better in the administration of the law than the law itself is.

The judgment should be reversed.

Woodward, Hooker, Rich and Miller, JJ., concurred.

Judgment of the Court of Special Sessions reversed and defendant discharged.  