
    The People ex rel. Fred Bedell, Relator, v. Alvah De Mott, Constable, Defendant.
    (Supreme Court, Kings Special Term,
    June, 1902.)
    Crimes — Sunday base ball playing when not within Penal Code, § 365.
    Playing base ball on the first day of the week, when not amounting to a serious interruption of the repose and religious liberty of the community, is not a violation of Penal Code, section 265.
    Heaping- on return to a writ of habeas corpus. On the argument it was also consented that the complaint and warrant granted thereon by the justice of the peace should be presented and considered as though returned by the justice in obedience to a writ of certiorari, in order to save the necessity of issuing such a writ and awaiting the return thereto, the relator not yet having been heard before the magistrate.
    F. L. Gilbert for relator.
    John J. Graham opposed.
   Gaynor, J.:

The relator, a boy, was arrested by virtue of a warrant issued by a Justice of the Peace of the Town of Hemp-stead, County of Nassau. The warrant was issued on a complaint that the relator on May 25th, 1902, in the said town, did unlawfully and knowingly violate section 265 of the Penal Code of the state of New York relating to public sports on the Sabbath day in that he was playing a game of baseball which is a public sport.” There is no statement of any particular facts showing where in the town he played, whether the place was remote, or in the public highway, or whether there was an assemblage or noise, or whether the repose of the community was interrupted.

Section 259 of the Penal Code 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 265 is as follows:

“ All shooting, hunting, fishing, playing, horse racing, gaming or other public sports, exercises or shows, upon the first day of the week, and all noise disturbing the peace of the day, are prohibited.”

It was decided by the General Term of the Supreme Court in this judicial department in 1885 in the case of The People v. Dennin (35 Hun, 327) that ball playing on Sunday in an open space is not in itself prohibited by these sections, except in cases where it is a serious interruption of the repose of the community.”

It is now claimed that such decision was overruled by the later decision of the Court of Appeals in 1893 in the case of The People v. Moses (140 N. Y. 214); but the claim does not seem to be well founded. That case was a prosecution for fishing on Sunday. The opinion there written by Judge Earl was that the offense was made out by the simple act of fishing, although the repose and religious liberty of the community were not interrupted. Two other judges concurred with him in this, and three dissented. The remaining judge of the seven concurred in the result only, and on the ground that the evidence showed that “ the act complained of was committed under such circumstances as to constitute a serious interruption of the repose and religious liberty of the community.” It thus appears that four of the seven judges refused to concur- in the view that the mere act alone constituted the offense, regardless of whether it interrupted the repose and religious liberty of the community.

As the complaint here contains no facts showing that the repose and religious liberty of the community were interrupted it states no offense.

The relator is discharged.  