People v. Fogel

McLaughlin, J.:

The defendant was convicted in a City Magistrate’s Court of the City of New York of disorderly conduct (Consol. Act [Laws of 1882, chap. 410], § 1458), for which he was sentenced to be confined in the workhouse for six months. On appeal to the Court of General Sessions the judgment of conviction was affirmed and an appeal is now taken to this court.

The charge made against the defendant was that in the lobby of the Hotel McAlpin, in the city of New York, on the 22d of October, 1913, he used “threatening, abusive and insulting behavior, with intent to provoke a breach of the peace, and whereby a breach of the peace might be occasioned; that said defendant did then and there loiter in the lobby of said hotel annoying and accosting guests of the hotel, and also approached one of the guests for the purpose of engaging in a game of chance of coin matching.”

The proof presented to establish the charge was that on the 21st of October, 1913, one Hardwick, who resided in Virginia, was a guest of the hotel; that early in the evening of that day the defendant met Hardwick in the lobby and asked him how long the hotel had been built, to which Hardwick responded he was a stranger and could not tell him. What followed is best told in Hardwick’s own words: “ He says, ‘ I am a stranger here, too; just first in town; just got in here. I am glad to meet some one. * * * I come from down Jacksonville, Florida.’ I said,

‘ I come from Virginia, both down South. * * * He said, ‘Yes, it does me good to meet somebody from down South. * * * How long are you going to be in town ? ’ I said, ‘ A few days, I guess.’ He says, ‘ I would like very much for to go around with you some time.’ I says, ‘ I have got an engagement at eight o’clock. I cannot go out to-night; probably I can go some other time.’ He said, ‘ Suppose your friends are not coming ? It is getting late.’ He looked at his watch. I said, ‘ I am not uneasy about that.’ He said, ‘What are you going to do to-morrow morning ? ’ I said, ‘ I have got an engagement at half-past one, but in the morning I am not going to do any: thing.’ He said, ‘ What time do you get up ?’ I said, ‘ I don’t have to be in a hurry; I am not on any business; about seven o’clock, I guess.’ He said, ‘ Suppose we meet at ten o’clock. I. will meet you here in the office.’ I said, ‘ So good.’ I turned around and walked off. * * * As I got near to the office I looked over my shoulder. He was behind me. He said, ‘ I don’t suppose your people are coming. It is quite late; probably they are not coming.’ I said, ‘It is all right; they will be here. I am not uneasy at all. * * * I put my hand in my inside pocket and gave him one of my cards. He said, ‘ I have not any card of my own; my baggage has not been carried to my room yet. Have you one of the two-dollar rooms ? ’ I said, ‘Yes, on the nineteenth floor — Ho. 1947.’ He said, ‘Mine is 1953. Have you a card ? ’ I put my hand in my pocket and ' pulled out a card. I said, ‘ Write your name on the back of that’ * * * pulled out a pencil and handed it to him; * * * then he wrote that name. * * * Q. When did you meet this defendant again ? A. At about twenty-five minutes after nine on the 22d. I came down from the room into the lobby of the hotel to keep the engagement which we had made at ten o’clock that morning. At about quarter to ten I guess it was, in walked the gentleman, who walked up and very politely spoke to me. He squeezed my hand pretty hard; that ring hurt a little. He was very glad to see me and hoped I had a good time the night before. I thanked him very much and got up as if I was going to walk away from him. * * * He says, ‘ Hold on a minute. I have to go up to my room to get a clean handkerchief.’ I said, ‘All right.’ * * * In a few minutes he came down stairs. He said, ‘ All right, we are ready.’ I said, ‘ I want to stop here at the office.’ He said, ‘ All right. ’ I got up and we walked toward the office. As we were walking towards the office I saw Mr. Power and Mr. Denniston. I gave them a wink over my shoulder. They walked up and took him.”

Denniston, the house detective, took the defendant to his office on the third floor and put various questions to him, most of which he refused to answer. He refused to give his name, tell what his business was, and denied telling Hardwick that he had room 1953 in the hotel. When asked where he went on the elevator, said he went to the toilet on' the floor above. On being informed by the detective, who was in the elevator at the time, that he went to the nineteenth floor, the only response he made was a shrug of his shoulders.

The proof thus offered did not, in my opinion, establish that the defendant was guilty of the charge made against him, or any part of it; nor did it show that he was at the time guilty of disorderly conduct, or that any of his acts tended in any way to a breach of the peace. There is not a particle of proof that he used any threatening, abusive or insulting language or that his behavior was such as tended to provoke a breach of the peace. Nor is it of such a character as to show that Hard-wick, the guest of the hotel, was in,any way annoyed by what he did. It is quite inconceivable, if he were annoyed, that he should voluntarily have given to the defendant his card and made an appointment to meet him the following morning. There is not a suggestion in the proof that he approached Hardwick “ for the purpose of engaging in a game of chance of coin matching; ” on the contrary, the only evidence bearing on that subject is that he denied being so engaged. He did admit, according to the testimony of the house detective, that he was a gambler and worked for gambling houses and bookmakers, but no such information was conveyed to Hardwick, nor was he asked to engage in a game of chance of any kind.

Before one can be convicted of a crime, under our system of jurisprudence, a specific charge has to be made, and then that charge proved by competent evidence. Here the charge was made but no proof offered which sustained it. The judgment of conviction was affirmed by the Court of General Sessions on the ground, as appears from the opinion, that the defendant was a “common crook.” No evidence whatever was offered to establish that fact. This the judge seemed to appreciate, because in his opinion he said: “ A great number of professional crooks pass before the magistrate daily, and by their conduct, manner and demeanor they are an exhibit' in the case which is of value to him in construing the evidence in reference to them. He becomes an expert from daily contact and observation, his court being a psychological laboratory for qualitative analysis.” Courts, at the present time, have a tendency, and quite properly, to overlook technical errors or defects and affirm judgments of conviction if satisfied that the defendant has had a fair trial and is guilty of the charge made against him. But they have not yet reached the point where they will affirm a judgment of conviction simply because the defendant was, without his consent, made “ an exhibit in the case ” or because the trial court is “ a psychological laboratory for qualitative- analysis” of the guilt or innocence of the person accused; on the contrary, evidence must be produced showing that the person is guilty of the crime charged, so that when the conviction is brought under judicial review an appellate court can see, minus the “exhibit” and the “qualitative analysis,” that the crime charged was properly proven according to established rules of law.

The judgment of conviction is, therefore, reversed, and the relator discharged.

Ingraham, P. J., Laughlin and Dowling, JJ., concurred; Hotchkiss, J., dissented.