People v. Phillips , 245 N.Y. 401 ( 1927 )

The defendant was convicted of the crime of disorderly conduct as defined in section 722 of the Penal Law. This provides that a person is guilty of such an offense, who in a city of 500,000 inhabitants with intent to provoke a breach of the peace or by actions whereby a breach of the peace may be occasioned, (1) uses offensive, disorderly, threatening or abusive language, conduct or behavior, (2) acts in such a manner as to annoy, disturb, interfere with, obstruct or to be offensive to others, or (4) by his actions causes a crowd to collect. As the respondent states, this conviction was under a complaint which charges disorderly conduct under one of these definitions and then proceeds to allege the acts constituting the offense, namely, "that said defendant did then and there walk up and down upon the sidewalk in front of deponent's place of business, causing a crowd to collect in front of deponent's place of business." To sustain the conviction, therefore, there must be some evidence that he did collect a crowd. We are told that a crowd is a throng, a great number of persons, a multitude. At best the word is indefinite. Difference in time and place may shape its meaning. A crowd at midnight might not be a crowd at noon. A crowd in a country schoolhouse might not be a crowd in Washington Square, but there is always implied in the word numbers with reference to the hour and location. Here we have a sidewalk ten or twelve feet wide at Broadway and Twelfth street during the morning. The complainant says this is all the testimony on the subject, that the crowd consisted of "two or three or four or five or so on." Interpreting this evidence in favor of the defendant two would hardly be a crowd within the meaning of this section of the Penal Law, nor would five be so considered, even though we were to take that number.

Without reference to the question whether there is the slightest evidence from which it might be inferred either that Phillips collected those who did collect with intent to provoke a breach of the peace or that a breach of the peace would naturally result from what he did, the conviction is not based upon the evidence. It seems to rest upon the erroneous idea expressed by the magistrate that "if there is no strike and he is marching up and down in front of this place of business he is guilty of disorderly conduct."

The judgment of Special Sessions and that of Magistrate's Court should be reversed and the complaint dismissed.

CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.

Judgment accordingly.