Opinion
December 24, 1908.
William Hawkins, for the appellants.
Robert C. Taylor, for the respondent.
The defendants appeal from a judgment convicting them of disorderly conduct. They were charged with violating the provisions of sections 1458 and 1459 of the Consolidation Act (Laws of 1882, chap. 410). The former section provides that a person is guilty of disorderly conduct that tends to a breach of the peace who shall commit certain offenses, and among others: "3. Every person who shall use any threatening, abusive or insulting behavior with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned," and the latter provides: "Whenever it shall appear on oath of a credible witness before any police justice * * * that any person * * * 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 appellants contend that they were guilty of none of the acts specified in section 1458 and that section 1459 relates only to such acts; in other words, that the word "such" as used in the latter section refers only to the acts specified in the former section. I do not think the sections, when read together, are susceptible of this construction. The evident intent and meaning of section 1459 is "any disorderly conduct such as in the opinion" of the magistrate tends to a breach of the peace. The word "such" is correlative with "as," and if it had been intended by its use to refer to the acts set forth in section 1458 only, the word "as" would not have been used. The use of the word "as" without any punctuation after the word "conduct" shows that the word "such" is used only to anticipate the limiting clause commencing with "as" and not to refer to the preceding section.
This view is sustained by the Case of the Twelve Commitments (19 Abb. Pr. 394) where DALY, J., held that what is now section 1458 did not define the only acts which constitute disorderly conduct, and that section 1461 (originally enacted in 1833), which requires that a magistrate may require security for good behavior in cases of disorderly conduct tending in his opinion to a breach of the peace, was not limited by section 1458. If this construction be correct, then upon the uncontradicted facts the defendants were clearly guilty of disorderly conduct and the judgment convicting them of that crime is amply sustained by the evidence.
The only other point raised by the appellants is that unsworn testimony of a police officer to the effect that the photograph of one of the defendants was in the Rogues' Gallery was admitted. It is perfectly obvious that the information thus obtained was elicited by the magistrate, not for the purpose of determining whether the defendants were guilty of the crime charged, but solely for the purpose of determining what sentence ought to be imposed.
The judgment of conviction is right and should be affirmed.
PATTERSON, P.J., LAUGHLIN, HOUGHTON and SCOTT, JJ., concurred.
Judgment affirmed.