Opinion
June 5, 1908.
John F. Harrington, for the appellant.
Peter P. Smith [ John F. Clarke with him on the brief], for the respondent.
The defendant was convicted under an information of the District Attorney charging him with violating section 290 of the Penal Code, by admitting two minor boys, one of the age of 14 years and the other of the age of 7, to "a place of entertainment" kept by him, and "injurious to the health and morals of minor children", and allowing them to remain there. Although there was no evidence that the place was injurious to health or morals, but on the contrary it was shown to be innocent, the defendant was convicted, apparently under the notion that police courts may be better than the law, and a law unto themselves. There was no other charge against the defendant. The part of the said section of the Penal Code applicable is as follows: "A person who * * * admits to, or allows to remain in any dance house, concert saloon, theatre, museum, skating rink, or in any place where wines or spirituous or malt liquors are sold or given away, or in any place of entertainment injurious to health or morals, owned, kept or managed by him in whole or in part, any child actually or apparently under the age of sixteen years, unless accompanied by its parent or guardian, * * * is guilty of a misdemeanor." Nothing but moving pictures were shown in the defendant's place. It was not any of the places mentioned by the said statute, unless it comes under the head of a museum, which would seem doubtful, to say the least, if the definition of that word be adhered to to any extent. But it is enough that the defendant was not convicted on any such charge. Nor does the evidence show that the children were unaccompanied by "parent or guardian", to use the phrase of the statute. The word guardian does not there mean a guardian appointed by a court. If children be sent or taken to the theatre by a person other than one of their parents or their legal guardian — by their elder brother or sister, or by a neighbor or friend, for instance — he or she is their guardian for the time being within the meaning of the said statute, if not excluded in some way or for some reason by law. Courts and police officials should not strain criminal statutes, or try to be better in the administration of the law than the law itself is.
The judgment should be reversed.
WOODWARD, HOOKER, RICH and MILLER, JJ., concurred.
Judgment of the Court of Special Sessions reversed and defendant discharged.