People v. Fogel

Hotchkiss, J. (dissenting):

Although the affidavit on which the defendant was arrested charged the defendant with “using” in the lobby of the Hotel McAlpin, in the city of Hew York, “threatening, abusive and insulting behavior, with intent to provoke a breach of the peace, and whereby a breach of the peace might be occasioned, this being the language of subdivision 3 of section 1458 of the Consolidation Act (Laws of 1882, chap. 410), the commitment recites that the defendant has been found “ guilty of such disorderly conduct as in my opinion tends to a breach of the peace.” The affidavit was apparently framed in the language of section 1458, but I think it was sufficient under section 1459, under which defendant was convicted. Section 1459 is as follows: “Whenever it shall appear, on oath of a credible witness, - * * that any person in said city and county has been guilty of any such disorderly conduct as in the opinion of such magistrate tends to a breach of the peace, the said magistrate may cause the person so complained of to be brought before him to .answer the said charge. ” The breaches of the peace covered by *555section 1459 are not exclusively the disorderly acts specified in section 1458, hut include any disorderly conduct such as in the opinion of the magistrate tends to a breach of the peace. (People v. Mansi, 129 App. Div. 386.) To constitute a breach of the peace, neither turbulence nor personal violence is necessary. The offense may consist of any act which invades the security and protection which the law affords every citizen. (Davis v. Burgess, 54 Mich. 514; State v. White, 18 R. I. 473.)

My brother McLaughlin has quoted a considerable portion of the testimony taken by the magistrate, but he has omitted some things which I regard as significant. The defendant told Hardwick his name was Somerville, and he wrote the name “ F. Somerville ” on a card which he gave to Hardwick. In addition to the acts referred to by brother McLaughlin showing that defendant falsely sought to convey to Hardwick the impression that he was a guest of the hotel, defendant told Hardwick, “ My baggage has not been carried to my room yet ” — this in addition to his making an excuse to go to his room to get his handkerchief, getting into the elevator ostensibly to go to his room, but alighting at one of the lower floors. He also told Hardwick that he “ was a traveler for the ‘ Grape Juice people.’” Subsequently he told Officer Murray that this was untrue. He admitted to Denniston, the hotel detective, that he was a gambler and worked for gambling houses and bookmakers. When asked by Denniston why he had told Hardwick that he had a room in the hotel, defendant denied that he had done so. And when (according to Denniston’s testimony) Denniston told him that he had seen him in the hotel many times, the defendant “said that he had never robbed anybody in the hotel and that he did not intend to rob anyone in the hotel. He said that he was going to take this man (Hardwick) out to show him around town. Q. Did you say anything to the defendant about the game of chance ? A. Yes; talked very freely with him about that * * *. Q. What did he say ? A. He did not swindle anybody in the hotel.” And referring to the claim which defendant seemed to put forward that Dennis-ton should not interest himself in what might happen to people outside of the hotel, defendant said: “ That is none of your affair; you are not responsible for what happens away from *556the hotel.” We thus have the case of a vagabond, under an assumed name, who thrusts himself upon a non-resident guest of the hotel, is persistent in his attentions and, by false and deceitful conduct, elaborate in its details, plainly endeavors to create a favorable impression upon and to induce the stranger to accept the defendant as his cicerone about the city. When taxed with his intention to inveigle Hardwick into some embarrassing situation, the defendant, while not in words admitting that such was his purpose, plainly attenipted to exculpate himself on the ground that it was not his intention to execute his purpose upon the hotel premises. A violation of the section under which the defendant was convicted is not strictly speaking a crime, nor is a proceeding thereunder in a technical sense a criminal case. Violations of the section are included among those “minor offenses, colloquially classified as crimes, which are merely violations of police regulations.” (People ex rel. Burke v. Fox, 20'5 N. T. 490,494.) We may, therefore, read the evidence, unaffected by the strict rule of “reasonable doubt ’’"and with a view to whether it was sufficient to induce the presumption that defendant’s conduct violated the section in question. It seems to me that we should be closing our eyes to a practice common to “ confidence men ” from time immemorial if we did not regard this evidence, standing as it did wholly unexplained, as sufficient to justify the presumption that the defendant was some kind of a “crook” who had selected Hardwick as his intended victim, and whom it was his purpose to betray into some situation detrimental to his peace and safety.

The judgment should be affirmed.

Judgment reversed and relator discharged. Order to be set tied on notice.