Arrests for Public Intoxication

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Fordham Law Review

Volume 35 Issue 1 Article 1

1966

John M. Murtagh

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Recommended Citation John M. Murtagh, Arrests for Public Intoxication, 35 Fordham L. Rev. 1 (1966). Available at: https://ir.lawnet.fordham.edu/flr/vol35/iss1/1

This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Arrests for Public Intoxication

Cover Page Footnote Administrative Judge, N.Y.C. Criminal Court.

This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol35/iss1/1 FORDHAM LAW REVIEW

1966-1967 VOLUME XXXV

@ 1967 by Fordham University Press EDITORIAL BOARD

RONALD RAUCHBERo Editor-in-Chief

FRAqcis J. DEVLIN JOHN A. DONOVAN Articles Editor Articles Editor

CHRISTOPHER F. DEARIE JOHN J. REILLY HAROLD L. SCHNEIDER Case Notes Editor Case Notes Editor Case Notes Editor JosEvP J. KLovExoRN GARY MAILMAN Comments Editor Comments Editor CALsJ. NEGAo Managing Editor

MEMBERS OF THE BOARD

P=R M. AcrON ARTH-U D. GRAY EDWARD A. MCCOYD DAmiAN J. AmODEO JAMES M. KESTENBAUM EDWARD C. MERzYcx BERNARD BRADY IRWiN L. KWATEK MICHAEL J. MURPHY PAUL R. BRENNE JEREMY LANE ANOxNY V. NANNI PETER FRAsER CYNTIA LEPoW RiTA H. QUASMAN PAUL D. FREEMAN LAWRENCE A. LEVINE KEVIN A. QUINN ANDREW P. GARR NORMAN LEVY RICHARD P. SCIAEFER LAWRENCE E. GERSITMAN JAMES J. MALONEY PAUL A. SODEN KEviN GiaLFEcE EDWARD R. MANDELL FREDERICK F. WINELER BEujAiNm E. GOLDMAN RICUARD M. ZAROFT

AN V. SuavAN Business Secretary

EDITORIAL AND GENERAL OFFICES Lincoln Square, New York, N.Y. 10023 Published four times a year-October, December, March, and May. Member, National Conference of Law Reviews. Printed by the Heffernan Press Inc., Worcester, Massachusetts. Second class postage paid at Worcester, Mass. SuBSncr'ToN Pasca $5.00, SiNGwa Issue $2.00. Make checks payable to FoRDHAM LAw REvIEw. Subscription renewed automatically unless notified to contrary. TABLE OF LEADING ARTICLES-TITLES ADvERTmiNTs WinCH IDErN= "BRAND X": A TRIALOruE ON =HELAw AND PoLICY. Lawrence D. Gaughan ...... 445 ARRES FOR PUBLIc INyTOXICATION. John M. Murtagh ...... 1 ATTACKS ON THE CONSTrrUTION, VIOLENCE, AND THE NECESSITY FOR DIoEIENCE. M orris D. Forkosch ...... 71 CERTIFICATE OF INCORPORATION FOR A NEW YORK CLOSE CORPORATION: A FoRm-AN ADDENDum. Robert A. Kessler ...... 111 THE CoP.Ex OF PROOF. John Edgar Hoover ...... 577 CONFIDENTIAL CoiusruICATIONs-THE AccouizcAN-rs' DIx..rNA. Constantine N. Katsoris ...... si DRAFTMG A SAREHOI.DERS' AGREEMrNT FOR A NEW YORK CLOSE CORPORATION. Robert A. K essler ...... 625 THE FAILING C0ispx'y DocmRNE: AN ILLUslvE EcoNomc DEFENSE UNDER SEcTION 7 OF THE CLAYTOx ACT. Richard E. Low ...... 425 FIRST PUBLiCATION ABROAD-INESTITIVE, DIVEsTrTivE, OR INOPERATIrE? A TERRITORIAL ViEw OF COPYmRGHT. Elihu Inselbuch ...... 477 INTERROGATION OF CRrIMNAL DEFENDANTS-SoME VIEWS ON Miranda v. Arizona. George Edwards, B. J. George, Jr., A. Kenneth Pye, Thomas C. Lynch, Richard H. Kuh, Michael W. Hogan, Osmond K. Fraenkel, Evelle J. Younger ...... 169 JuRIsDiCToN OVER OFESaO FISHEms-How FAR INTO THE HIGH Sems. Ludwik A. Teclaff ...... 409 LOBBYING THE SUPREME COURT-AN APPRAISAL OF "POLITICAL SCIENCE FoLKL.oRE." Nathan Hakman ...... 15 LOCAL FiNANCES UNDER THE NEW YORK STATE CONsTTTUIoN WITH AN EMPHASIS ON NEw YORK CITY. Frank J. Macchiarola ...... 263 TABLE OF LEADING ARTICLES-AUTHORS EDWARDS, GEORGE, Interrogation of Criminal Defendants-Some Views on MaADA v. ARIZONA ...... 181 FoRKoscH, MORaIs D., Attacks on the Constitution, Violence, and the Necessity for Disobedience ...... 71 FRAENKEL, OsmoND K., Interrogationof Criminal Defendants-Some Views on MRANDA v. ARiZONA ...... 249 GAuGHIAN, LAWRENCE D., Advertisements Which Identify "Brand X": A Trialogue on the Law and Policy ...... 445 GEORGE, JR., B. J., Interrogation of Criminal Defendants-Some Views on M.MDA v. ARIZONA ...... 193 HsAK.AN, NATHAN, Lobbying the Supreme Court-An Appraisal of "Political Science Folklore" ...... 15 HOGAN, MICA.E W., Interrogation of Criminal Defendants-Some Views on MIRA v. ARIzo A ...... 243 HoovER,JoHNv EDGAR, The Complex of Proof ...... 577 INSELBUCH, EIZu, First Publication Abroad-Investitive, Divistitive, or Inoperative? A Territorial View of Copyright ...... 477 KAT'som, CONSTANT=NE N., Confidential Communications-The Accountants' Dilemma 51 KESS.ER, ROBERT A., Certificate of Incorporation for a New York Close Corporation: A Form-An Addendum ...... 111 Ii FORDHAM LAW REVIEW [Vol. 35

KESSLER, ROBERT A., Drafting a Shareholders' Agreement for a New York Close Cor- poration ...... 625 Kur, RICHARD H., Interrogation of Criminal Defendants-Some Views on MIRANDA v. ARIZONA ...... 233 Low, RILCARD E., The Failing Company Doctrine: An Illusive Economic Defense Under Section 7 of the Clayton Act ...... 425 LYNCH, THOMAS C., Interrogation of Criminal Defendants-Some Views on MIRANDA V. ARizONA ...... 221 MACCHIAROLA, FRANK J., Local Finances Under the New York State Constitution with an Emphasis on New York City ...... 263 MURTAGH, JOHN M., Arrests for Public Intoxication ...... I P rE, A. KENNETH, Interrogation of Criminal Defendants-Some Views on MIRANDA v. ARIzoNA ...... 199 TEcLAFF, LUDwIK A., Jurisdiction Over Offshore Fisheries-How Far Into the High Seas 409 YOUNGER, EvELLE J., Interrogation of Criminal Defendants-Some Views on MIRANDA V. ARIZ oNA...... 255

TABLE OF BOOKS REVIEWED

BAUM & STiLEs: THE SILENT PARTNERS: INSTITUTIONAL INVESTORS AND CORPORATE CONTROL. David C. Bayne, SJ ...... 393 BOZELL: THE WARREN REVOLuTION. Charles E. Rice ...... 760 CARY: POLITICS AND THE REGULATORY AGENCIES ...... 571 CAVERS: THE CHOICE OF LAW PROCESS. Willis L. M. Reese ...... 153 DAVIDSON: FORENSIC PSYCHIATRY. Robert L. Sadoff, M.D ...... 403 HARVEY: LAW AND SocmIA CHANGE IN GHANA. Robert B. Seidman ...... 743 JAFFE: JUDICIAL CONTROL OF ADMINISTRATIVE ACTION. Robert M. O'Neil ...... 159 KALVEN & ZEiREL: THE AMERICAN JURY. Delmar Karlen ...... 769 KUPER & KUPER: AFRICAN LAW: ADAPTATION AND DEVELOPMENT. Robert B. Seidman .. 743 LOFTON: JUSTICE AND THE PRssS. George D. Haimbaugh, Jr...... 765 SPEISER: RECOVERY FOR WRONGFUL DEATH. Roy L. Lassiter, Jr. and Jordan B. Ray .. 751

COMMENTS

DEDUCTIBILITY OF TREBLE DAMAGE PAYMENTS AS AN ORDINARY AND NECESSARY BUSINESS EXPENSE-THE FUTURE o REVENUE RULING 64-224 ...... 677 DISCOVERY IN FEDERAL CRIMINAL CASES-RULE 16 AND THE PRIVILEGE AGAINST SELF- INCRDM qATION ...... 315 DISCOVERY OF ATTORNEY'S WORK PRODUCT AND OTHER TRIAL PREPARATIONS IN NEW Y ORK ...... 113 HABEAS CORPUS AND THE INDIGENT MENTAL PATIENT IN NEW YORK ...... 531 THE RIGHT OF SET-OFF AGAINST A BRAwcH BANK ...... 712 SECTION 301(a) AND THE EMPLOYEE: AN ILLUSORY REMEDY ...... 517 SEX DISCRIMINATION IN EMPLOYMENT...... 503 SPURIOUS CLASS ACTIONS BASED UPON SECURITIES FRAUDS UNDER THE REVISED FEDERAL RULES OF CIVIL PROCEDURE ...... 295 THE TAX TREATMENT OF VOLUNTARY DEATH BENEFITS ...... 696 1966-67] INDEX TO VOLUME XXXV INDEX DIGEST

ACCOUNTING Strict Standards of the Clayton Act Held Not Applicable to Bank Mergers Un- See Privileged Communications der 1966 Bank Merger Act (Case Note) 541 ADMINISTRATIVE AGENCIES Politics and the Regulatory Agencies, A ARREST Book Review 571 See Due Process of Law ADMINISTRATIVE LAW ATTORNEY'S WORK PRODUCT A Director Appearing at a Securities and Discovery Of Attorney's Work Product Exchange Commission Investigation of And Other Trial Preparations in New a Corporation Has the Right To Be York (Comment) 113 Represented by the Corporation's -Attorney's Work Product 115 Counsel (Case Note) 337 -Work Which Reflects Legal Skill 116 Judicial Control of Administrative Ac- -Prepared for Litigation 118 tion, A Book Review 159 -Acting in His Professional Capacity 118 ALCOHOLISM --Material Prepared for Litigation 119 -Created by or for a Party in Prepara- Arrests for Public Intoxication 1 for Litigation 119 -Arrests Throughout the United States tion 1 -Opinion of an Expert 121 -Impossibility of Duplication and Un- -Arrests in New York City 2 121 -Model Penal Code 7 due Hardship -A Critique 122 -Recent Federal Decisions 7 -Absolute or Qualified Privilege 122 -Rationale of the Driver and Easter -Abrogation of the Work Product Con- Decisions 9 cept 123 -Practical Application of the Driver and 123 Easter Decisions 12 -Conclusion -Conclusion 13 BANKRUPTCY

ANNULMENTS Carry Back Refunds Held To Be an Asset of the Bankrupt's Estate (Case See Domestic Relations Note) 342 Penalties for Trustee's Failure To File ANTITRUST LAW Returns for Taxes Incurred by the See also Constitutional Law; Labor Law; Debtor in Possession Held Allowable Taxation Against the Bankrupt Estate (Case The Failing Company Doctrine: An Il- Note) 548 lusive Economic Defense Under Sec- BANKS AND BANKING tion 7 of The Clayton Act 425 -Introduction 425 See also Antitrust Law -Logical Bases of the Doctrine 427 The Right of Set-Off Against Branch -Relation to Other Affirmative Defenses Bank (Comment) 712 430 -The Branch Bank as A Separate Busi- -Limitations 432 ness Entity 713 -Tests of a Failing Status 437 -Commercial Paper 714 -The One-Man Firm 442 -Deposit Transactions 716 -Conclusions 444 -Attachment of Debtor's Property 716 FORDHAM LAW REVIEW [Vol. 35

-Production of Records -Attorney General 92 -Special Statutory Provisions -Department of State 93 -Conclusion -Other executive departments 94 -By the Legislature 95 CIVIL PROCEDURE -Bill of attainder 95 See also Administrative Law; Attorney's -Abdication 95 Work Product -Other instances 96 Spurious Class Actions Based Upon Se- -Attacks by the States 97 curities Frauds Under The Revised -Private Attacks 99 Federal Rules of Civil Procedure -The Necessity for Civil or Criminal (Comment) 295 Disobedience 100 -Requirements for Bringing a Class -Conclusion 109 Action 299 Commerce and the Supremacy Clauses -Common Question 299 Exempt Professional Baseball from -Typical Claims 301 from State Antitrust Statute (Case -Adequate Representation 302 Note) 350 -Subclasses 305 New York "Stop and Frisk" Law-Seiz- -Statute of Limitations 307 ure of Burglar's Tools and Narcotics -Notice 309 Without Probable Cause for Arrest or -The Effect of the New Rule 311 Search Held Valid (Case Note) 355 -Federal Rule 23 313 The Warren Revolution, A Book Review 760 COMPARATIVE LAW COPYRIGHTS African Law: Adaptation and Develop- ment, A Book Review 743 First Publication Abroad-Investitive, Law and Social Change in Ghana, A Divestitive, Or Inoperative? A Terri- Book Review 743 torial View of Copyright 477 -Introduction 477 CONFLICT OF LAWS -Two Routes to United States Copy- right 479 The Choice of Law Process, A Book -The United States Copyright Statute Review 153 in Historical Perspective 481 Connecticut Realty of a New York Part- -Construction of the Copyright Statute nership Included in the Gross Estate for Tax Purposes in New York (Case 488 -The Case Law Under the Copyright Note) 346 Statutes 490 CONSTITUTIONAL LAW -Conclusion 501 See also Evidence; Due Process of Law; CORPORATIONS Criminal Procedure; Jurisdiction; La- See also Securities Regulation bor Law Certificate of Incorporation for a New Attacks On The Constitution, Violence, York Close Corporation: A Form- And The Necessity for Disobedience 71 An Addendum 111 -Introduction 71 Drafting a Shareholders' Agreement for -Preliminary Analysis 71 a New York Close Corporation 625 -Particular Attacks 77 -Pre- and Post-Incorporation Agree- -In General 77 ments 625 -Federal Attacks 80 -Partnership Agreement Moulded to Fit -By the Judiciary 80 the Corporation Statute 628 -By the Executive 90 -Pre-Incorporation Portion 630 -Postmaster General 91 -Post-Incorporation Portion 633 1966-67] INDEX TO VOLUME XXXV

-Checklist 640 DAMAGES -Organization 640 See Wrongful Death -- Operation 640 -Termination 641 DISCOVERY -Miscellaneous 641 See Attorney's Work Product; Criminal -Shareholders' Agreement 643 Procedure -Organization 645 -Directors 647 DOMESTIC RELATIONS -Officers 649 Concealment of Radical Political Beliefs -Employees 651 Held Grounds for Annulment (Case -Share Transfers 653 Note) 125 -Dissolution 664 -Tax Election 666 DUE PROCESS OF LAW -§ 1244 Stock 668 See also Constitutional Law; Criminal -Dividends 670 Procedure -Management 671 Interrogation of Criminal Defendants- -Changes 674 Some Views on Miranda v. Ari:ona -Fiscal Year 674 169 -Parties 674 -Term 674 ESTATE TAX -Interpretation 675 Marital Deduction Disallowed on Sur- -Schedule 676 viving Spouse's Interest in a Trust As The Silent Partners: Institutional In- Not Constituting a Specific Portion of vestors and Corporate Control, A the Estate (Case Note) 553 Book Review 393

CREDITORS' RIGHTS EVIDENCE See also Constitutional Law See Bankruptcy The Complex of Proof 577 CRIMINAL LAW -Introduction 577 -The Progress of The Law 579 See Alcoholism; Constitutional Law; -Searches and Seizures 579 Criminal Procedure; Due Process of -Confessions 582 Law -The Brain Doctrine 585 -The Due Process Test 590 CRIMINAL PROCEDURE -Escobedo and Miranda 605 See also Due Process of Law; Indigents -The Fruits Doctrine 609 Discovery In Federal Criminal Cases- -Confessions Induced by Subterfuge Rule 16 And The Privilege Against 617 Self-Incrimination (Comment) 315 -Conclusion 619 -Previous Methods of Discovery by the Impeachment of Witnesses-Illegally Ob- Prosecution 315 tained Statement Held Admissable for -The New Rule 16 316 Limited Purpose of Impeaching De- -Constitutional Objections 318 fendant's Testimony (Case Note) 723 -The Right To Remain Silent 327 Search and Seizure-Analysis of a Blood -Compulsion 328 Sample Withdrawn From an Accused -Denial of Privileges 329 Over His Objection Held Admissible -California Grants Discovery to The (Case Note) 131 Prosecution 331 -Conclusion 333 FORENSIC PSYCHIATRY -Federal Rule 16 335 Forensic Psychiatry, A Book Review 403 FORDHtAM LAW REVIEW [Vol. 35

FREEDOM OF THE PRESS -Humphrey v. Moore 519 -Two Levels of "Merits" 519 Justice and the Press, A Book Review -The Relevance of Alleging Unfair 765 Representation 523 HABEAS CORPUS -Conclusion 529 Sex Discrimination In Employment See Indigents (Comment) 503 INDIGENTS -Title VII of the Civil Rights Act of 1964 504 Habeas Corpus And The Indigent Men- -Legislative History 504 tal Patient In New York (Comment) -Provisions 505 531 -Problems of Interpretation 506 -Understanding Rogers and Its Conse- -The Workings of Title VII 507 quences 531 -Discrimination by Sex under Prior -The Nelv Article 5 536 Law 507 -Rogers and the Article 5 Approach -Discrimination under Title VII 509 539 -The Bona Fide Occupational Qualifi- -Conclusion 540 cation 509 INTERNATIONAL LAW -Conflict with Protective Labor Legis- lation 513 See also Comparative Law; Copyrights -Conclusion 516 Jurisdiction Over Offshore Fisheries- Union-Antitrust-Clear Proof of Preda- How Far Into The High Seas 409 tory Intent Necessary To Establish That a National Wage Agreement Re- JURIES stricting Competition Among Marginal The American Jury, A Book Review Operators Violates the Sherman Act 769 (Case Note) 367

JURISDICTION LIMITED PARTNERSHIP See also Labor Law Limited Partner Permitted To Bring a Exercise of Jurisdiction Over a News- Derivative Action (Case Note) 731 paper Vacated on the Basis of the First Amendment (Case Note) 726 LOCAL GOVERNMENT New York "Long-Arm" Statute-Pres- Local Finances Under the New York ence Within State Held Requisite for State Constitution With an Emphasis Commission of Tortious Act of Omis- on New York City 263 sion (Case Note) 363 -Constitutional Provisions on Local Finance 263 LABOR LAW -The Origins of Tax and Debt Limits See also Unemployment Insurance in the Constitution 263 Action for Wrongful Expulsion From -The Evolution of Modern-Day State- Union Membership Dismissed by State Local Fiscal Relations in New York Court and Held To Be Exclusively 265 Within the Jurisdiction of the NLRB -The 1938 Convention and Fiscal Policy (Case Note) 137 for Localities 268 Section 301(a) And The Employee: An -Current Tax and Debt Limits 270 Illusory Remedy (Comment) 517 -Article VIII in Operation 273 -Introduction 517 -Outline of Provisions 273 -Final Determination Clauses 518 -Prohibition of Gift or Loan of Money -Generally 518 or Credit 273 1966-67] INDEX TO VOLUME XXXV

-Contraction of Debt is Restricted to -Labor Unions 32 Local Purposes 274 -- Other Supporting Activity in Commer- -Local Governments May Borrow for cial Cases 33 Common or Cooperative Purposes 274 -Non-Commercial Cases-Formal Par- -A Pledge of Full Faith and Credit Is ties and Amid 38 Required 275 -Civil Liberties Cases 39 -The Debt Must Be Financed Within -Political Offender Cases 40 the Useful Life of the Object Financed -Race Relations Cases 42 275 -Criminal Cases 43 -Debt Procedures Must Conform to -Supporting Activity in Non-Commer- Constitutional Requirements 275 cial Cases 44 -Investors Are Assured of Payment of -Conclusion 47 Principal and Interest 276 PRIVILEGED -A Qualified Ceiling Is Placed on the COMMUNICATIONS Occurrence of Debt 276 -Restricting the Creation of Overlap- See also Attorney's Work Product ping Governments 277 Confidential Communications-The Ac- -The Special Problem of New York countants' Dilemma 51 City 278 -The Certified Public Accounting Pro- -The Tax Limits in Operation 281 fession and the Importance of Con- -The Debt Limits in Operation 284 fidential Communications 51 -Recommendations for Change 286 -The Development of the Privilege of -Recommendations of Official Bodies Confidential Communications 53 286 -The Extension of the Attorncy-Client -Recommendations of Interest Groups Privilege to the Accountant 54 288 -Statutory Recognition of Accountant- -Personal Recommendations and Pro- Client Privilege 55 posed Draft 292 -Efforts Toward Better Protection 64 -Commentary 293 -Conclusion 69

NEGLIGENCE RES JUDICATA Successful Action by Passenger of One See Torts Automobile Against Driver of Another Bars Second Driver from Recovering POLITICAL SCIENCE Against First Driver in Subsequent Lobbying The Supreme Court-An Ap- Suit (Case Note) 559 praisal Of "Political Science Folklore" 15 RIGHT TO COUNSEL -Introduction is See Administrative Law; Due Process of -A Theory of the Judicial Lobby 18 Law -Sources and Methods of Investigation 25 SEARCH AND SEIZURE -The Findings 27 See Constitutional Law; Evidence -Formal Parties-The Role of Govern- ments in Supreme Court Litigation 27 SECURITIES REGULATION -Other Formal Parties in Commercial See also Civil Procedure Cases 28 Complaint Seeking Recovery Under Rule -Private Companies and Corporations 10b-5 Dismissed Upon a Finding That 31 Alleged Misrepresentations Were for -Trade and Business Associations 31 a Purpose Other Than Defrauding -The Professions 32 Purchasers (Case Note) 565 FORDHAM LAW REVIEW [Vol. 35

Conversion of Securities Held Not to -Deductibility 708 Constitute a "Sale" Under Section -Conclusion 710 16(b) (Case Note) 143 TORTS SELF-INCRIMINATION Negligence-Unsafe Condition of Super- See Criminal Procedure market Floor Creates Inference of Storekeeper's Negligence (Case Note) TAXATION 375 Placing Plaintiff in a Situation Where See also Bankruptcy; Estate Tax Injury to His Reputation Is Forsee- Business League Exemption-Bottlers' able Held Actionable (Case Note) Association Held to Qualify for In- 380 come Tax Exemption as a Non-Profit Business League (Case Note) 738 UNEMPLOYMENT INSURANCE Deductibility of Treble Damage Pay- Suspension of Benefits-Signing of ments As an Ordinary and Necessary Memorandum of Understanding Ter- Business Expense-The Future of minates Strike and Thereby Entitles Revenue Ruling 64-224 (Comment) Workers to Unemployment Benefits 677 Until Full Plant Operations Resume -Introduction 677 (Case Note) 148 -The Penal-Remedial Dichotomy 678 -Public Policy 685 UNFAIR COMPETITION -Proposed Legislation 689 Advertisements Which Identify "Brand -Conclusion 694 X": A Trialogue on the Law and The Tax Treatment of Voluntary Death Policy 445 Benefits (Comment) 696 Utilization of News Taken From De- -Introduction 696 fendant's Wire Service Held To Be -Gift Treatment for the Widow 697 Actionable as an Appropriation (Case -Developments Under the 1939 Code Note) 385 697 -Internal Revenue Code of 1954 700 UNIONS -The Duberstein Decision 701 See Labor Law -Post-Duberstein Decisions 703 -The Tax Court 703 WRONGFUL DEATH -The District Courts 705 Recovery for Wrongful Death, A Book -The Circuit Courts 707 Review 751 1966-67] INDEX TO VOLUME XXXV TABLE OF CASES Case names prefixed with an asterisk are the subjects of Case Notes Aaron, Cooper v ...... 762 Boosey, Jefferys v ...... 492 Abram, Breithaupt v. .. 131-33, 135-36 Boteler v. Ingels ...... 549-SO *Acquisto, Matter of ...... 148 Boyd v. United States A.G. Spalding & Bros. v. FTC .... 437 134, 137, 325-26, 580, 604 Alabama, Powell v ...... 182, 766 Brady v. Maryland ...... 245, 329-30 A.L.A. Schechter Poultry Corp. v. Brain v. United States United States ...... 160 203, 585, 587, 589-91, 604, 606 Albert Lindley Lee Memorial Hos- Breithaupt v. Abram ... 131-33, 135-36 pital, In re ...... 62 Bridges v. California ...... 767 Allen Bradley Co. v. Local 3, Int'l Brown v. Allen ...... 2S0 Bhd. of Elec. Workers ... 368-71, 373 Brown v. Mississippi .... 182, 184, 209, Allen, Brown v ...... 250 591, 595-96, 603 Allen, People v...... 226 Brown Shoe Co. v. United States Alltmont v. United States ...... 117 425-27, 432-33 Almon, King v...... 767 Buckley v. New York Times Co... 727 Anglo-Norwegian Fisheries Case Budd v. California ...... 9 418, 422-23 Burger, Matter of ...... 151-52 Attrill, Huntington v ...... 680 Button, NAACP v...... 42, 728-29 American Code Co. v. Bensinger Cahan, People v ...... 221 497-98, 300 California, Bridges v ...... 767 American Press Co., Grosjean v. 728-29 California, Buddv ...... 9 Apex Hosiery Co. v. Leader .. 368, 373 California, Griffin v ...... 253 Arizona, Miranda v .... 169-262, 606, California, Lisenba v ... 598, 604, 618 608-09, 617-18, 724-25, 766 California, Robinson v...... 11, 766 Arizona, Southern Pacific Co. v. ... 351 California, Rochin v .... 132-33, 135-37 Arthur W. Hellstrom, Estate of .... 700 *California, Schmerber v ...... 131 Associated Press, International News Capital Transit Co. v. Newell ...... 119 Serv. v...... 385-92 Capital Records, Inc. v. Greatest Athas v. Day ...... 308 Records, Inc ...... 390 Auten v. Auten ...... 348 Caplin, Reisman v ...... 69 Baird v. Koerner ...... 62-64 Cardilli, Italian Book Co. v. 496-99 Barca v. Daitch Crystal Dairies, Inc. Carlisle & Jacquelin, Eisen v. 310-12 377-78 Carte v. Duff ...... 492 Basevi v. Edward O'Toole Co. Central Hanover Bank & Trust Co., 498, 500-01 Mullane v ...... 310 Beechwood Music Corp. v. Vee Jay Chappell v. Purday ...... 491 Records, Inc...... 500-01 Chasis v. Progress Mfg. Co .... 526-27 Benrus Watch Co., Hamilton Watch Chattanooga Foundry & Pipe Co, Co. v ...... 437 City of Atlanta v...... 682 Bensinger, American Code Co. v. Chenery Corp., SEC ...... v 163 497-98, 500 Chillingworth v. Eastern Tinware *Blau v. Lamb ...... 143 Co ...... 348 Blau v. Max Factor & Co ...... 146 Chrzanawska v. Corn Exchange Blodgett v. Silberman ...... 349 Bnk ...... 714-18 Board of Wardens, Cooley v .... 351 Church v. Hubbart ...... 417 Bogardus v. Commissioner ...... 697 Citizens Nat'l Bank v. United States Bolich v. Rubel ...... 62 558-59 *Bond Buyer v. Dealers Digest Pub- City of Atlanta v. Chattanooga lishing Co ...... 385 Foundry & Pipe Co ...... 682 FORDHAM LAW REVIEW [Vol. 35

Clark v. Dodge ...... 635, 637 Day-Brite Lighting, Inc., Compco Cleary, Goesaert v ...... 508, 515 Corp. v ...... 385, 387-92 Clementi v. Walker ...... 490-91 *Dealers Digest Publishing Co., Bond Colourpicture Publishers Inc., New Buyer v ...... 385 York World's Fair 1964-1965 Dean v. Eastern Shore Trust Co. .. 715 Corp. v ...... 389, 391 Dean Foods Co., FTC v... 353, 433-35 Colton v. United States .... 63, 64, 67 Defore, People v ...... 582 Columbia Broadcasting Sys., Inc. v. Dennis v. United States ...... 766 Documentaries Unlimited, Inc ... 390 Denno, Jackson v ...... 253 Commissioner, Bogardus v...... 697 De Witt, Palmer v ...... 492, 500 Commissioner v. Duberstein ... 701-08 Diebold, Inc., United States v .... 433 Commissioner, Gelb v ...... 555-59 Di Lorenzo v. Di Lorenzo ...... 126 Commissioner v. Glenshaw Glass District of Columbia, Easter v. 9, 10, Co ...... 684, 690 12, 13 Commissioner, Jerry Rossman Corp. Ditson, People v...... 615, 617 v ...... 682 Documentaries Unlimited, Inc., Co- Commissioner v. La Bue ...... 701 lumbia Broadcasting Sys., Inc. v. 390 Commissioner, Poyner v ...... 707-08 Dodge, Clark v...... 635, 637 Commissioner v. Sullivan .... 688, 695 Dorado, People v .... 221-22, 231-32, Commissioner, Tank Truck Rentals, 255-57, 259-60, 262 Inc. v...... 683, 688-90, 695-96 Dornier Werke, Elkhart Eng'r Corp. Commissioner v. Tellier ...... 688, 695 v ...... 727-30 Compco Corp. v. Day-Brite Light- Dowd, Irwin v ...... 767 ing, Inc ...... 385, 387-92 *Dresher, Cummings v ...... 559 Conley, Fanning v ...... 706 Driscoll Hotel, Inc., Schmidt v. 155, 158 Connecticut, Culombe v ...... 589 Driver v. Hinnant ...... 9, 10, 12 Connecticut, Griswold v...... 109 Duberstein, Commissioner v .... 701-08 Connecticut, Palko v ...... 249 Duff, Carte v ...... 492 *Connor, New York Times Co. v. .. 726 Duffy, Simpson v ...... 376 Consolidated Foods Corp., FTC v. Dunne, Texas Continental Life Ins. 430, 432 Co. v ...... 568 Cooley v. Board of Wardens ...... 351 Durham v. United States ...... 403 Cooper v. Aaron ...... 762 Easter v. District of Columbia Copperman, Universal Film Mfg. 9, 10, 12, 13 Co. v ...... 495-96, 498, 500 Eastern Shore Trust Co., Dean v. .. 715 Corn Exchange Bank, Chrzanawska Eastern Tinware Co., Chillingworth v ...... 714-18 v...... 348 Counselman v. Hitchcock ...... 134 Edward O'Toole Co., Basevi v. Craig v. Harney ...... 767 498, 500-01 *Crocker-Anglo Nat'l Bank, United Eisen v. Carlisle & Jacquein ... 310-12 States v ...... 541 Elkhart Eng'r Corp. v. Dornler Cronan v. Schilling ...... 717-18 W erke ...... 727-30 Crown Zellerback Corp. v. FTC El Paso Natural Gas Co., United 437-39, 441 States v ...... 438-39 Culombe v. Connecticut ...... 589 Engel v. Vitale ...... 762 *Cummings v. Dresher ...... 559 English, Milone v ...... 340-41 Dailey, Garratt v ...... 569 Erie R.R. v. Tompkins ...... 59 Daitch Crystal Dairies, Inc., Barca Erie Sand & Gravel Co. v. FTC 438, 440 v ...... 377-78 Escobedo v. Illinois .. 184-85, 191, 209, Daly v. Terpening ...... 562 220-21, 232, 235-36, 251-55, 605-09 Day, Athas v ...... 308 Estes v. Texas ...... 767 1966-67] INDEX TO VOLUME XXXV

Evening News Ass'n, Smith v. Gariepy v. United States ...... 54 517-19, 529 Garmon, San Diego Bldg. Trades F.J. Young & Co., Oppenheimer v. 301 Council v ...... 138, 142 Falsone v. United States ...... 61-63 Garratt v. Dailey ...... 569 Fanning v. Connelly ...... 706 Gelb v. Commissioner ...... 555-59 Farnsworth Radio & Television General Film Co., O'Neill v ...... 500 Corp., Joseph v ...... 566 General Petroleum Corp., Leh v..... 683 Feathers v. McLucas ...... 364-67 George, Matter of ...... 150-51 Federal Baseball Club of Baltimore, Gerdes v. Reynolds ...... 399 Inc. v. National League of Pro- Gibbons v. Ogden ...... 350 fessional Baseball Clubs ...... 351-52 Gibbs, UMW v ...... 373-74 FCC v. Schreiber ...... 338 Gideon v. Wainwright 182-83, 185, 252, FTC, A.G. Spalding & Bros. v .... 437 532, 605 FTC v. Consolidated Foods Corp. Gitiow v. New York ...... 766 430, 432 Glenshaw Glass Co., Commissioner FTC, Crown Zellerbach Corp. v. v ...... 684, 690 437-39, 441 Goesaert v. Cleary ...... 508, 515 FTC v. Dean Foods Co. v. 353, 433, 435 Goldsmith v. United States ...... 217 FTC, Erie Sand & Gravel Co. v. Gomez, Bluebird Undergarment 438, 440 Corp. v ...... 717 FTC, International Shoe Co. v. Gonzales, International Ass'n of 427, 432 Machinists v ...... 139-41, 143 FTC v. St. Regis Paper Co ...... 63 *Grand Union Stores, Inc., Woller- Ferebee v. Hungate ...... 562 man v...... 375 Ferguson, Ings v...... 719 Granquist, Simonson v ...... 552 Ferris v. Frohman Greatest Records, Inc., Capital 490, 495, 498, 500-01 Records, Inc. v ...... 390 Ferrailo v. Newman ...... 144-46 Greely v. United States ...... 706 Finegold v. Lewis ...... 120 Griffin v. California ...... 253 First City Nat'l Bank, United States Griffin v. Illinois ...... 252 v...... 547 Griswold v. Connecticut ...... 109 First Natl City Bank v. Internal Grosjean v. American Press Co. .. 728-29 Revenue Service ...... 719 Guaranty Bank & Trust Co. v. Flamingo Telefilms Sales, Inc. v. Town of Amite City ...... 713 United Artists Corp ...... 390-91 Guaranty Trust Co., York v. ... 307-08 Florence S. Luntz ...... 707 Guss v. Utah Labor Relations Bd. 141 Florida Antennavision, Inc., Herald Harney, Craig v ...... 767 Publishing Co. v ...... 389 Hallock, Helvering v ...... 353 Florida, Pennekamp v ...... 767 Hamilton Watch Co. v. Benrus Fournier v. Rosenblum ...... 343 Watch Co ...... 437 Franchard Corp., Lichtyger v .... 736 Hansberry v. Lee ...... 309 Frederick J. Meyer, Estate of ..... 710 Harris, In re ...... 718-19 Froehlinger v. United States ...... 705 Harris v. Palm Springs Alpine Es- Frohman, Ferris v...... 490, 495, 498, tates, Inc ...... 300-01 500-01 Hartman v. United States ...... 32S Frothingham v. Mellon ...... 162-63 Hartshorn, Williams v ...... 733 Fuller v. Highway Truckdrivers & Haskell v. Perkins ...... 683 Helpers, Local 107 ...... 526-27 *Havermeyer, Matter of ...... 346 G. & C. Merriam Co., United Dic- Haynes v. United States Pipe & tionary Co. v ...... 482, 494, 499 Foundry Co ...... 527 G.P. Putnam's Sons v. Lancer Haynes v. Washington ...... 251 Books, Inc ...... 477-78 Hearst Publications, Inc., NLRB v. 163 FORDHAM LAW REVIEW [Vol. 35 Heim v. Universal Pictures Co. 481, International Life Insurance Co., 489, 498-501 M cGee v ...... 727 *Heit v. Weitzen ...... 565 International Organization Masters, Heli-Coil Corp. v. Webster 144-45, 147 International Organization Mas- Helvering v. Hallock ...... 353 ters, Local 2 v...... 141 Helvering, Produce Exch. Stock International Organization Masters, Clearing Ass'n v ...... 740 Local 2 v. International Organi- Henry v. United States ...... 209, 357 zation Masters ...... 141 Henry Holt & Co., Rolland v .... 500 *ILGWU, Spica v...... 137 Herald Publishing Co. v. Florida International News Serv. v. Associ- Antennavision Inc ...... 389 ated Press ...... 385-92 Hess v. Pawloski ...... 730 International Shoe Co. v. FTC 427, 432 Hickman v. Taylor .. 115-117, 122-24 International Shoe Co. v. Washing- *Higashi, SEC v ...... 337 ton ...... 728 Highway Truck Drivers & Helpers, Irwin v. Dowd ...... 767 Local 107, Fuller v ...... 526-27 Irving B. Cooper, Estate of ...... 704 Hildreth v. Union News Co. 518-19, Italian Book Co. v. Cardilli .... 496-99 522, 527-28 Jackson v. Denno ...... 253 Hill & Range Songs, Inc. v. London Jackson v. United States ...... 217 Records, Inc ...... 499-500 Jeffreys v. Boosey ...... 492 Himmelfarb v. United States .... 54, 55 Jerry Rossman Corp. v. Commis- Hinnant, Driver v ...... 9, 10, 12 sioner ...... 682 Hitchcock, Counselman v ...... 134 Johnson v. New Jersey .. 249, 252, 253 Hoffa, International Bhd. of Team- Johnson v. Zerbst ...... 213, 228 sters v...... 341-42 Jones v. Superior Court ...... 331, 333 Hogan, Malloy v ...... 133, 185, Joseph v. Farnsworth Radio & Tele- 603-06, 617, 766 vision Corp ...... 566 Holt v. United States ...... 134 Judson, United States v ...... 55 Howard v. Levine ...... 566, 569 Kandel v. Tocher ...... 120 Hubbart, Church v ...... 417 Karameros v. Luther ...... 564-65 Humphrey v. Moore 519, 521-27, 529-30 Katzenbach, South Carolina v..... 96 Hungate, Ferebee v ...... 562 Kelsey-Hayes Wheel Co., United Huntington v. Attrill ...... 680 States v ...... 117-18 Hutcheson v. United States ... 368, 373 Killough v. United States ...... 217 Idaho Microwave, Inc., Intermoun- King v. Almon ...... 767 tain Broadcasting & Television v. 389 Kirkendall, Quong Wing v ...... 508 Illinois, Escobedo v. 184-85, 191, 209, *Kober v. Kober ...... 125 220-21, 232, 235-36, 251-55, 605-09 Koerner, Baird v ...... 62-64 Illinois, Griffin v...... 252 Kovel, United States v .... 54, 55, 69 *Kulis, People v ...... 723 Inge v. United States ...... 724 Ingels, Boteler v...... 549-50 Kyne, Leedom v...... 161 Labor Board v. Miranda Fuel Co. 523 Ings v. Ferguson ...... 719 *Lamb, Blau v ...... 143 Intermountain Broadcasting & Tele- Lancer Books, Inc., G. P. Putnam's vision v. Idaho Microwave, Inc. 389 Sons v...... 477-78 Internal Revenue Service, First Leader v. Apex Hosiery Co... 368, 373 Nat'1 City Bank v...... 719 Lee, Hansberry v ...... 309 International Ass'n of Machinists v. Leedom v. Kyne ...... 161 Gonzales ...... 139-41, 143 Leh v. General Petroleum Corp. ... 683 International Bhd. of Teamsters v. Lever Bros., United States v. .. 435-36 Hoffa ...... 341-42 Levine, Howard v ...... 566, 569 1966-67] INDEX TO VOLUME XXXV

Lewis, Finegold v ...... 120 Mountain States Tel. & Tel. Co., *Lewis v. Pennington ...... 367-68 Reynolds v ...... 514 Lichtyger v. Franchard Corp ...... 736 Mullane v. Central Hanover Bank & Linkletter v. Walker ...... 253 Trust Co ...... 310 Lisenba v. California .... 598, 604, 618 Muller v. Oregon ...... 507-09, 515 La Bue, Commissioner v ...... 701 Murphy v. Washington Am. League Local 3, Int'l Bhd. of Elec. Workers, Base Ball Club, Inc ...... 340 Allen Bradley Co. v ..... 368-71, 373 Mutual Broadcasting Sys., Inc. v. Lockhart, Rex v ...... 613 Muzak Corp ...... 389 London Records, Inc., Hill & Range Muzak Corp., Mutual Broadcasting Songs, Inc. v ...... 499, 500 Sys., Inc. v ...... 389 Louise K. April[ ...... 698-700 Nardone v. United States ...... 209 Louisiana, Rideau v ...... 767 NAACP v. Button ...... 42, 728-29 Luther, Karameros v ...... 564-65 *National Broadcasting Co., Morrison Maddox, Republic Steel Corp. v... 523 V...... 380 Madison, Marbury v ...... 198, 249 National City Bank, Sokoloff v. Mallory v. United States .. 211, 215-18 716-17, 721 Malloy v. Hogan ...... 133, 185, NLRB v. Hearst Publications, Inc. 163 603-06, 617, 766 NLRB, Packard Motor Car Co. v. 163 Mapp v. Ohio 135, 192, 208-09, 213, 222 National League of Professional Marbury v. Madison ...... 198, 249 Baseball Clubs, Federal Baseball Marshall v. United States ...... 767 Club of Baltimore, Inc v .... 351-52 Martin Kuntz, Sr., Estate of ...... 704 National Sur. Co., Martin v ...... 344 Martin v. National Sur. Co ...... 344 Near v. Minnesota ...... 766 Newell v. Capital Transit Co Maryland, Brady v ...... 245, 329-30 ...... 119 New Jersey, Johnson v. ... 249, 252-53 Massachusetts, Snyder v...... 594-95 New Jersey, Twining v. 132, 593-94, 603 Max Factor & Co., Blau v ...... 146 NeVman, Ferraiolo v ...... 144-46 Maxwell, Sheppard v ...... 767 Newspapers of New England, Inc., McGee v. International Life Insur- Union Leader Corp. v...... 431 ance Co ...... 727 New York, Gitlow v...... 766 McLaughlin v. Raphael Tuck Co... 493 New York Merchandise Co., Ross McLoughlin v. Shaw ...... 348 Prods., Inc. v .... 477, 489, 498, 501 McLucas, Feathers v ...... 364-67 New York, Radice v...... 508 McNabb v. United States New York, Spano v .... 182, 184, 251 209, 215-18, 229 New York Times Co., Buckley v... 727 Meinhard v. Salmon ...... 736 *New York Times Co. v. Connor .. 726 Mellon, Frothinghain v...... 162-63 New York Times Co. v. Sullivan .. 766 Mervin G. Pierpont, Estate of .... 704 New York World's Fair 1964-1965 Mildred W. Smith ...... 704 Corp. v. Colourpicture Publishers Milone v. English ...... 340-41 Inc ...... 3S9, 391 *Milwaukee Braves, Inc., State v. ... 350 New York Yankees, Inc., Toolson v. Minnesota, Near v...... 766 352, 355 Miranda v. Arizona ..... 169-262, 606, *Nicholas v. United States ...... 548-49 608-09, 617-18, 724-25, 766 Nickolopoulos v. Sarantis Miranda Fuel Co., Labor Board v... 523 628-29, 631, 638 Mississippi, Brown v .... 182, 184, 209 *Northeastern Pa. Nat'l Bank & Trust Moore, Humphrey v. 519, 521-27, 529-30 Co. v. United States ...... 553-54 *Morrison v. National Broadcasting Northwestern Municipal Ass'n v. Co ...... 380 United States ...... 740 FORDHAM LAW REVIEW [Vol. 35

Ogden, Gibbons v ...... 350 Provident Nat'l Bank, United States Ohio, Mapp v. 135, 192, 208-09, 213, 222 v ...... 544 O'Neill v. General Film Co ...... 500 Purday, Chappel v ...... 491 Oppenheimer v. F. J. Young & Co. 301 Quong Wing v. Kirkendall ...... 508 Oregon, Muller v ...... 507-09, 515 Radice v. New York ...... 508 Pabst Brewing Co., United States v. Rager, Ruzicka v ...... 732 431, 434 Raphael Tuck Co., McLoughlin v. 493 Packard Motor Car Co. v. NLRB 163 Reed v. United States ...... 701 Palko v. Connecticut ...... 249 Republic Steel Corp. v. Maddox ... 523 Palm Springs Alpine Estates, Inc., Rex v. Waricksball ...... 612, 614 Harris v...... 300-01 Reynolds v. Mountain States Tel. & Palmer v. De Witt ...... 492, 500 Tel. Co ...... 514 Park & Tilford v. Schulte ...... 144-45 Reynolds, Gerdes v...... 399 Pawloski, Hess v ...... 730 Richmond, Rogers v...... 600, 615-16 Pennekamp v. Florida ...... 767 Rideau v. Louisiana ...... 767 *Pennington, Lewis v...... 367, 370 Rios v. United States ...... 357 Pennington, UMW v ...... 370-72 Rivera, People v ...... 361 Pennsylvania v. Nelson ...... 762 *Riviera Congress Associates v. Yassky 731 People v. Allen ...... 226 Robinson v. California ...... 11, 766 People v. Cahan ...... 221 *Rochelle, Segal v ...... 342 People v. Defore ...... 582 Rochin v. California ...... 132, 135-37 People v. Ditson ...... 615, 617 Rogers v. Richmond ...... 600, 615-16 People v. Dorado .... 221-22, 231-32, Rogers v. Stanley, People ex rel. 255-57, 259-60, 262 531-36, 539-40 *People v. Kulis ...... 723 Rolland v. Henry Holt & Co ...... 500 *People v. Peters 355-56, 359-60, 362-63 Rosenblum, Fournier v...... 343 People v. Schade ...... 326 Ross Prods., Inc. v. New York People ex rel. Rogers v. Stanley Merchandise Co. .. 477, 489, 498, 501 531-36, 539-40 Ruzicka v. Rager ...... 732 *Pepsi-Cola Bottlers' Ass'n v. United Sain, Townsend v ...... 250 States ...... 739 St. Regis Paper Co., FTC v...... 63 Pepsi-Cola Gen. Bottlers, Inc., Serra Salmon, Meinhard v ...... 737 v ...... 528 Sanders, Wesberry v ...... 763 *Peters, People v. 355-56, 359-60, 362-63 San Diego Bldg. Trades Council v. People v. Rivera ...... 361 Garmon ...... 138, 142 *People v. Sibron ...... 355-56, 362-63 Sarantis, Nickolopoulos v. 628, 631, 638 Perkins, Haskell v ...... 683 Savell, Walker v ...... 728 Philadelphia Nat'l Bank, United Schade, People v ...... 326 States v ...... 542, 544 Schempp, School District of Abing- Pickman v. Weltmer ...... 149-50 ton Township v ...... 762 Pioneer Display Fixtures Co., Wolf Schenck v. United States ...... 766 & Vine, Inc. v ...... 390-91 Schilling, Cronan v ...... 717-18 *Platt Corp. v. Platt ...... 363 *Schmerber v. California ...... 131 *Platt, Platt Corp. v ...... 363 Schmidt v. Driscoll Hotel, Inc. 155, 158 Poe v. Ullman ...... 107 School District of Abington Town- Pointer v. Texas ...... 766 ship v. Schempp ...... 762 Powell v. Alabama ...... 182, 766 Schreiber, FCC v ...... 338 Poyner v. Commissioner ...... 707-08 Schulte, Park & Tilford v...... 144 Produce Exch. Stock Clearing Ass'n Sears, Roebuck & Co. v. Stiffel Co. v. Helvering ...... 740 385, 387-92 Progress Mfg. Co., Chasis v .... 526-27 SEC v. Chenery Corp ...... 163 1966-67] INDEX TO VOLUME XXXV

*SEC v. Higashi ...... 337 Tompkins, Erie R.R. v...... 59 *Segal v. Rochelle ...... 342 Toolson v. New York Yankees, Inc Serra v. Pepsi-Cola Gen. Bottlers, 352, 355 Inc ...... 528 Town of Amite City, Guaranty Bank Shaw, McLoughlin v ...... 348 & Trust Co. v ...... 713 Sheppard v. Maxwell ...... 767 Townsend v. Sain ...... 250 Shonfeld v. Shonfeld ...... 126-28 Tucker v. United States ...... 324 *Sibron, People v. .. 355-56, 359, 362-63 Twining v. New Jersey Silberman, Blodgett v ...... 349 132, 593-94, 603 Silverthorne Lumber Co. v. United Ullman, Poe v...... 107 States ...... 209, 609, 612 Ullman, Tileston v ...... 107 Simmons v. Union News Co... 517, 519 Union Leader Corp. v. Newspapers Simonson v. Granquist ...... 552 of New England Inc ...... 431 Simpson v. Duffy ...... 376 United Artists Corp., Telefilm Sales, Smith v. Evening News Ass'n 517-19, 529 Inc. v ...... 390-91 Smith v. United States ...... 324 Union News Co., Hildreth v. .. 518-19, Snyder v. Massachusetts ...... 594-95 522, 527-28 Snyder v. United States ...... 118 Union News Co., Simmons v. .. 517, 519 Sokoloff v. National City Bank United Dictionary Co. v. G. & C. 716-17, 721 Merriam Co ...... 482, 494, 499 Sophian v. Von Linde ...... 127-28 UMV v. Gibbs ...... 373-74 South Carolina v. Katzenbach ...... 96 UMW v. Pennington ...... 370-72 Southern Pacific Co. v. Arizona .... 351 United States, A.L.A. Schecher Spano v. New York...... 182, 184, 251 Poultry Corp. v ...... 160 *Spica v. ILGWU ...... 137 United States, Alltmont v ...... 117 Standard Oil Co. v. United States .. 429 United States v. Bayer ...... 217 Stanley, People ex rel. Rogers v. 531-36, United States, Boyd v...... 134, 137, 539-40 325-26, 580, 604 *State v. Milwaukee Braves, Inc .... 350 United States, Brain v... 203, 585, 587, State v. Stump ...... 327 589-91, 604, 608 Steel, United States v ...... 339 United States, Brown Shoe Co. v. Stiffel Co., Sears, Roebuck & Co. v. 425-27, 432-33 385, 387-92 United States, Citizens Nat'l Bank v. Stump, State v ...... 327 558-59 Sullivan, Commissioner v.... 688, 695 United States, Colton v .... 63, 64, 67 Sullivan, New York Times Co. v... 766 *United States v. Crocker-Anglo Nat'l Superior Court, Jones v...... 33, 333 Bank ...... 541 Sussman, In the Matter of ...... 343 United States, Dennis v ...... 766 Tank Truck Rentals, Inc. v. Com- United States v. Diebold, Inc...... 433 missioner ...... 683, 688-90, 695-96 United States, Durham v...... 403 Tate v. United States ...... 218-19 United States v. El Paso Natural Taylor, Hickman v .... 115-17, 122-24 Gas Co ...... 438-39 Tellier, Commissioner v...... 688, 695 United States ex rel. Shott, Tehan v. 253 Terpening, Daly v ...... 562 United States, Falsone v...... 61-63 Texas Continental Life Ins. Co. v. United States v. First City Nat Dunne ...... 568 Bank ...... 547 Texas, Estes v ...... 767 United States, Froehlinger v...... 705 Texas, Pointer v...... 766 United States, Gariepy v ...... 54 Tileston v. Ullman ...... 107 United States, Goldsmith v...... 217 Titchener v. United States ...... 706 United States, Greely v ...... 706 Tocher, Kandel v ...... 120 United States, Hartman v...... 325 Xviii FORDHAM LAW REVIEW

United States, Henry v ...... 209, 357 United States, Wong Sun v ...... 209 United States, Himmelfarb v .... 54, 55 United States, Ziang Sung Wan v. United States, Holt v ...... 134 203, 209, 589 United States v. Hutcheson .... 368, 373 Universal Film Mfg. Co. v. Copper- United States, Inge v ...... 724 man ...... 495-96, 498, 500 United States, Jackson v ...... 217 Universal Pictures Co., Heim v. .. 481, United States v. Judson ...... 55 489, 498-99, 500-01 United States, Killough v ...... 217 Utah Labor Relations Bd., Guss v. .. 141 United States v. Kelsey-Hayes Wheel Vee Jay Records, Inc., Beechwood Co ...... 117-18 Music Corp. v ...... 500-01 United States v. Kovel ...... 54, 55, 69 Vingoe, Matter of ...... 150-51 United States v. Lever Bros .... 435-36 Vitale, Engel v ...... 760 United States, Mallory v. .. 211, 215-18 Von Linde, Sophian v...... 127-28 United States, Marshall v ...... 767 Von's Grocery Co., United States v. United States, McNabb v. 209, 215-18, 426, 443 229 Wainwright, Gideon v. .. 182-83, 185, United States, Nardone v ...... 209 252, 532, 605 *United States, Nicholes v ...... 548-49 Walder v. United States 218-19, 723-25 United States, Northwestern Munic- Walker, Clementiv ...... 490-91 ipal Ass'n v ...... 740 Walker, Linkletter v ...... 253 *United States, Northeastern Pa. Nat'l Walker v. Savell ...... 728 Bank & Trust Co. v ...... 553-54 Warickshal, Rex v ...... 612, 614 United States v. Pabst Brewing Co. Washington American League Base 431, 434 Ball Club, Inc., Murphy v ...... 340 *United States, Pepsi-Cola Bottlers Washington, Haynes v ...... 251 Ass'n v ...... 738-39 Washington, International Shoe United States v. Philadelphia Nat'l Co. v...... 728 Bank ...... 542, 544 Watkins v. United States ...... 249 United States Pipe & Foundry Co., Webster, Hell-Coil Corp. v. 144-45, 147 Haynes v...... 527 Weeks v. United States United States v. Provident Natl 209, 579-82, 609-10 Bank ...... 544 *Weitzen, Heit v ...... 565 United States, Reed v ...... 701 Weltmer, Pickman v ...... 149-50 United States, Rios v ...... 357 Wesberry v. Sanders ...... 763 United States, Schenck v ...... 766 Westover v. United States .... 216, 229 United States, Smith v ...... 324 William Goldman Theatres, Inc... 684 United States, Silverthorne Lumber Williams v. Hortsharn ...... 733 Co. v ...... 209, 609, 612 *Wollerman v. Grand Union Stores, United States, Snyder v ...... 118 Inc ...... 375 United States, Standard Oil Co. v. 429 Wolf & Vine, Inc. v. Pioneer Display United States v. Steel ...... 339 Fixtures Co...... 390-91 United States, Tatev ...... 218-19 Wong Sun v. United States ...... 209 United States, Titchener v ...... 706 Woronzoff-Daschkoff v. Woronzoff- United States, Tucker v ...... 324 Daschkoff ...... 127-28 Co. United States v. Von's Grocery York v. Guaranty Trust Co .... 307-08 426, 443 *Yassky, Riviera Congress Associates United States, Weeks v...... 731 209, 579-82, 609-10 v Zerbst, Johnson v ...... 213, 228 United States, Walder v. 218-19, 723-25 United States, Watkins v ...... 249 Ziang Sung Wan v. United States United States, Westover v .... 216, 229 203, 209 ARRESTS FOR PUBLIC INTOXICATION JOHN M. MURTAGH* D AY in, and day out, the police pick up drunks on the street-filthy, battered, sick, unutterably pathetic-and lock them up in the "drunk tank." They are then released or sentenced to a short term in jail, only to be picked up again soon after their release. At any one time, more than half of the inmates of county jails are persons committed for public intoxication.1 It has been urged that we abandon the indiscriminate arrest of drunken derelicts.2 Is this desirable? Is it enough? Would we be solving a problem -or would we be ignoring one?

I. ARRESTS THROUGHOUT THE UNITED STATES Wholesale arrests of any kind have a destructive effect on the ad- ministration of justice. This is what Dean Edward L. Barrett, Jr., of the University of California Law School at Davis had in mind when he in- quired whether or not the quality of justice can be maintained in view of "mass-production enforcement of the criminal law."3 "Mass-production enforcement" is nowhere more evident than in arrests for public intoxication. Annually, in the United States, some two million, or fully one-third of all arrests, are for drunkenness. 5 "The re- sulting crowding in courts and prisons affects the efficiency of the entire criminal process." 6 And, "aside from a few notable exceptions, the 'revolving door jails' to which most alcoholic offenders are sent in the United States are a national disgrace." Many of the arrests are made on skid row-the blocks of misery where society's derelicts collect in cities across the nation-on Mission Street * Administrative Judge, N.Y.C. Criminal Court. 1. McCormick, Correctional View on Alcohol, Alcoholism and Crime, 9 Crime & Delin- quency 1, 19-20 (1963). 2. Pittman & Gordon, Revolving Door; A Study of the Chronic Police Case Inebriate 1, 42, 51-52, 139-41 (1958) ; Address by Presiding Justice Botein, Conference on the Handling of Offenders in the City of New York, January 26, 1965; Address by Judge Murtagh, Annual Conference of the National Committee on Alcoholism, March 29, 1956; Rubington, The Chronic Drunkenness Offender, 315 Annals 65, 66-67 (1958). 3. American Assembly, Columbia University, The Courts, the Public and the Law Ex- plosion 85 (1965). 4. Id. at 103. 5. Hearings on S. 1792 and S. 1825 Before an Ad Hoc Subcommittee of the Senate Com- mittee on the judiciary, 89th Cong., 1st Ses. 9 (1965) (statement of Attorney General Katzenbach); Federal Bureau of Investigation, Uniform Annual Crime Reports 120 (1965). 6. Hearings on S. 1792 and S. 1825, supra note 5. 7. McCormick, supra note 1, at 15. FORDHAM LAW REVIEW [Vol. 35 in San Francisco; on Ninth Street in Washington, D.C.; on West Madison Street in Chicago; on the Tenderloin in Philadelphia; and on the Bowery in New York. II. ARRESTS IN NEw YORK CITY For more than a century, New York's Bowery has been a kind of mag- net for the inadequate person, for men and women seeking a dark place of escape. Stretching from Chatham Square, in Chinatown, to Cooper Square, near East 8th Street, the Bowery is perhaps the most miserable mile in the United States. This dingy, tawdry, hopeless street is dotted with scores of mouldering flophouses, some dating back a hundred years.' Its name has become a symbol for drabness and despair. On its lonely beat live thousands'" of grimy unfortunates in almost every stage of decay. Scores of arrested Bowery derelicts have until recently been arraigned in Part 10 of the criminal court during the day, and Part 11 (night court) during the evening." The arraignments took place in a modern Criminal Courts Building in lower Manhattan, a little to the south and west of the Bowery and within a stone's throw of the historic Five Points area, in imposing, mahogany-walled, air-conditioned courtrooms. One cannot reflect on night court without thinking of a platoon of derelicts from the Bowery, some twenty in number, making their ap- pearance. The procession was slow and solemn and sad. The court officer read the complaint: ". . . and that the said defendants did annoy and disturb pedestrians." He recited in detail the words that accused the defendants of disorderly conduct. 2 The tragic figures lined up before the bench. They were unshaven, dirty, and down-and-out. Most of them were still drunk. Notwithstanding the impressive judicial setting, one was aware only of a compound of smell, noise, dirt, drunkenness, and sweating people packed into a large but crowded courtroom. "You have a right to an adjournment to secure counsel or witnesses." The court officer slowly recited the usual formula. "How do you plead, guilty or not guilty?"

8. Berger, The Bowery Blinks in the Sunlight, N.Y. Times, May 20, 1956, § 6 (Maga- zine), p. 14. 9. Ibid. 10. The number is usually estimated to be between 12,000 and 20,000. Bendlner, "Im- movable Obstacle" in the Way of a New Bowery, N.Y. Times, January 21, 1962, § 6 (Maga- zine), p. 22. 11. N.Y.C. Crim. Ct. Rule I. This rule became effective September 1, 1962. 12. "Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct . . . 2. Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others . . . ." N.Y. Pen. Law § 722. 1966] PUBLIC INTOXICATION They all pleaded guilty, one after another, and were sent out to be fingerprinted. An hour later they returned to the courtroom. Several received suspended sentences. The others, who had a number of previous convictions, received a short workhouse sentence and went on their way to jail like a shadow parade of the hulks of sunken ships. Sunken men. Gone, their collective smell still fouled the air. Night court was a dumping ground for derelicts. It could have served as the inspiration for another Erewhon,"3 the satirical narrative of an imaginary land in which sick people are sentenced to jail terms, and criminals receive sympathy and medical treatment. New York City's penal approach to the problem began in the 1800's.14 A law proscribing public intoxication was enacted in 1833.Y At that time, when Cooper Square marked the outskirts of town and Times Square was a wilderness, members of the City Watch (New York City did not yet have a police department) spent much of their time rounding up derelicts in the Five Points area of the old Sixth Ward.1" In 1845 a police department was created, 7 in good measure to deal with Bowery derelicts."8 Originally an amusement center, the Bowery had de- clined and by this time was well on its way to becoming the city's skid row.'" In the first ten years of the department, the number of drunk arrests totaled almost 150,000.20 By 1874 the number exceeded 40,000 a 13. "Erewhon" is an approximate reversal of the letters in the word "nowhere." In this book, English author Samuel Butler satirized the cruelty of punishing the sick. One victim of the practice was convicted of "pulmonary consumption" and sentenced to "imprisonment, with hard labor, for the rest of your miserable existence2' The judge reproached him: " 'It is intolerable that an example of such terrible enormity should be allowed to go at large unpunished. Your presence in the society of respectable people would lead the less able- bodied to think more lightly of all forms of illness; neither can it be permitted that you should have the chance of corrupting unborn beings who might hereafter pester you ... But I will enlarge no further upon things that are themselves so obvious. You may say that it is not your fault. .. . I answer that whether your being in a consumption is your fault or no, it is a fault in you, and it is my duty to see that against such faults as this the commonwealth shall be protected. You may say that it is your misfortune to be criminal; I answer that it is your crime to be unfortunate.'" Butler, Erewhon 96-98 (1872). 14. Costello, Our Police Protectors 78-79 (1884). 15. "Any person who shall be intoxicated, under such circumstances, as shall, in the opinion of any such magistrate, amount to a violation of public decency, may be convicted of such offense by any such magistrate, upon competent testimony, and fined for such offense, any sum not exceeding five dollars; and in default of payment of such fine, may be committed to prison by such magistrate, until the same be paid; but such imprisonment shall not exceed five days." N.Y. Sess. Laws 1833, ch. 11, § 4. 16. Costello, op. cit. supra note 14, at 77-79. 17. N.Y. Sess. Laws 1844, ch. 315. 18. Costello, op. cit. supra note 14, at 116. 19. Berger, supra note 8. 20. 22 N.Y.C. Bd. of Aldermen, Doc. No. 14, pp. 6-7 (1855). FORDHAM LAW REVIEW [Vol. 35 year; 21 one out of every three of the derelicts arrested was a woman; 22 children as young as eleven years of age were arrested;23 the maximum 2 4 penalty was ten dollars or ten days in jail. In his memorable vice crusade of the early 1890's, the fabulous re- former, Reverend Dr. Charles H. Parkhurst, called upon the police to make even more drunk arrests. He was shocked by the widespread inebriety that prevailed on the Bowery. One evening in 1892 he gained admittance to a flophouse and beheld dozens of drunks asleep on bare canvas cots, breathing heavily in the foul air. He put his handkerchief to his nose and exclaimed: "My Godl To think that people with souls live like this! ,125 In November 1935, a 32-year-old derelict, Louis Schleicher, was arraigned in the old magistrates' court in the Bronx. 20 The charge was public intoxication. The defendant was still drunk. He was a defeated man; he had no desire to fight constituted authority, and was ready to plead guilty in the traditional fashion. Magistrate Frank Oliver, a foe of social injustice, scrutinized the defendant. Schleicher was long unshaven, dirty beyond belief, and clad literally in rags. He had a faraway look in his eyes. Judge Oliver read the charge: "... and that the said defendant did then and there commit the offense of public intoxication in that he was lying on the sidewalk while under the influence of liquor." The judge then made and granted a motion on behalf of the defendant to dismiss the complaint as being insufficient on its face.28 In an oral opinion, he ruled that the police must allege and prove not only that the defendant was drunk in public, but that he was disorderly and that his conduct tended to cause a breach of the peace. Schleicher left the court- house, a bit bewildered.2 9 21. 1874 N.Y.C. Bd. of Police Justices Ann. Rep. 16. The City then had some 1,000,000 residents as compared to 8,000,000, the approximate present population. 22. Ibid. These mass arrests of women for public intoxication appear to reflect the vigorous use of the statute to deal with the human inadequacy among hoardes of Immi- grants who were fleeing from a society that was not capable of sustaining them to a society that was not capable of receiving them. 23. The docket books of the New York City Police Justice Courts for the decade of the 1870's reflect the arrests of such children. 24. N.Y. Sess. Laws 1859, ch. 491, § 5. 25. Crusade, That Was New York, The New Yorker, Nov. 19, 1955, pp. 201, 207-08. 26. Bronx Arrest Ct. No. 22811, N.Y.C. Magistrates' Ct., November 7, 1935. 27. For the procedure in the magistrates' court, see N.Y.C. Crim. Ct. Act § 120, N.Y. Sess. Laws 1910, ch. 659, as amended. This section was repealed by N.Y. Sess. Laws 1962, ch. 697. 28. Bronx Arrest Ct. No. 22811, N.Y.C. Magistrates' Ct., November 7, 1935. 29. This incident was but an interlude in a typical skid row life. Schleicher's first arrest was in 1933 and he was sentenced to thirty days on a charge of disorderly conduct. Seventh Dist. Ct., Manhattan, No. 7800, N.Y.C. Magistrates' Ct., September 9, 1933. When 1966] PUBLIC INTOXICATION Some five years later, Chief Magistrate Henry H. Curran attempted to effect general compliance with Judge Oliver's ruling. He directed the court clerks to discontinue the use of forms dealing with public intoxication, and to return all unused forms to judicial headquarters where they were destroyed ° He sought thereby to limit drunk arrests to instances in which the derelict could properly be charged with disorderly conduct. As a result, no one has ever since been charged with public intoxication in 3 New York City. 1 The police did not welcome the new judicial attitude. To a degree, they even proceeded to evade it. In the years that followed, they frequently made arrests on a charge of disorderly conduct when drunks were not in fact disorderly; and the derelicts seldom had the initiative to plead other than guilty. But even with a limited police program of arrests, New York City over the years acquired a reputation for relative tolerance of drunken derelicts. The late Police Chief William H. Parker of Los Angeles was referring to this reputation when, in arguing against a proposed reduction in the annual budget of his department for the year 1959, he suggested wryly that perhaps Los Angeles should abandon its policy of harassing drunks in favor of the "New York system, where drunks are left to lie in '32 the gutter. New York City, with a population of almost 8,000,000, has averaged only 30,000 drunk arrests annually in recent years,' in marked contrast with Los Angeles, with a population of 2,500,000, where each year there are nearly 100,000 such arrests3 4 Similarly, the arrest rate for public drunkenness in New York City is decidedly lower than in just about every other city throughout the United States.3 5 on August 13, 1950, his body was received at the City Morgue, Bellevue Hospital, Box C,248, he had amassed over fifty arrests under a half dozen aliases-all for drunkenness or disorderly conduct. His death certificate, No. 156-50-117626, was filled out under the alias of Jack Kelly. Nothing further was known about him. 30. Order of Chief Magistrate, No. 77, N.Y.C. Magistrates' CL, November 1940. 31. See, e.g., 1940-1942 N.Y.C. Magistrates' Ct. Ann. Reps. When, in 1962, the New York City Criminal Court Act was revised, the section dealing with public intoxication was deleted. N.Y. Sess. Laws 1962, ch. 697. 32. N.Y. Times, May 3, 1959, p. 46, col. 3. 33. No statistics differentiate between arraignments for types of disorderly conduct in New York City. In 1964 there were 80,299 disorderly conduct arraignments, 1964 N.Y.C. Crim. Ct. Ann. Rep., and there were 75,977 such arrests in 1965. 1965 N.Y.C. Crim. Ct. Ann. Rep. A reliable estimate is that some 30,000 of these in each year involved drunken derelicts. 34. E.g., Analysis Section, Planning and Research Division, Los Angeles Police Dep't, Annual Statistical Digest (1965). 35. In 1963 the total of city arrests for drunkenness was 1,419,533. This figure is computed on the basis of 2,914 cities with a combined population of 94,085,000. Federal Bureau of Investigation, Uniform Annual Crime Reports 104-05 (1963). The total of city drunkenness arrests for the year 1964 was 1,360,290 computed on the basis of 3,012 cities FORDHAM LAW REVIEW [Vol. 35 And in the past several months, even this limited program has been terminated in New York City. Under a state law effective on January 1, 1966,11 New York courts are required to make available free counsel to the indigent in all but traffic cases. As a result, legal aid counsel began to be assigned to derelicts who requested counsel, and the attorneys proceeded to enter pleas of not guilty. After trial, the charge of disorderly conduct was almost invariably dismissed. A bulletin was then sent to the judges3 7 urging them not merely to offer counsel in such cases but actually to assign counsel in every case where the derelict was indigent. When in over 3,000 cases it developed that after trial only a small fraction of one per cent of such cases resulted in conviction, an order was sent to the court clerks under date of May 13, 1966.8 The order pointed out that derelicts who stood trial for disorderly conduct were almost never convicted and directed the court clerks to comply with Rule 4 of the Rules of the New York City Criminal Court in all such cases. Rule 4 provides that whenever the facts stated for inclusion in a complaint appear to be insufficient to make out the offense charged, the clerk is to note the facts on Form 343 and send the parties interested before the judge presiding in the part. The judge causes the officer to be sworn, hears his testimony and any other relevant testimony or evidence and determines whether a complaint should issue. When the clerks proceeded to comply with the rule in all such cases, the judges almost invariably dismissed the cases, refusing to order com- plaints. The Police Department followed with a commendable display of cooperation. Chief Inspector Sanford D. Garelik, at the instance of Police Commissioner Howard R. Leary, issued an order39 calling attention to the opinion of the judges and directing that an officer shall only make an arrest of a derelict for disorderly conduct when the facts and evidence are sufficient to sustain the charge. As a result, the indiscriminate arrests of drunken derelicts in New York City have at long last ceased.4" Night court is no longer the inspira- with a combined population of 99,326,000. Federal Bureau of Investigation, Uniform Annual Crime Reports 106-07 (1964). The estimated New York City rate would be 375 per 100,000. Note 34 supra. The overall city rate, however, would be 1,508.8 per 100,000 in 1963, Federal Bureau of Investigation, Uniform Annual Crime Reports 104-05 (1963), and 1,369.5 per 100,000 in 1964. 36. N.Y. County Law art. 18B, N.Y. Sess. Laws 1965, ch. 878, art. 18B. 37. 1966 Bulletin of the Administrative Judge No. 1, N.Y.C. Crim. Ct., April 25, 1966. 38. See 1966 Bulletin of the Administrative Judge No. 2, N.Y.C. Crim. Ct., May 13, 1966. 39. Order re: Arrest of Vagrants Charged With N.Y. Pen. Law § 722(2) from Sanford D. Garelik, Chief Inspector, N.Y.C. Police Dep't, to All Commands, June 10, 1966 (T.O.P. No. 206). 40. Since the issuance of the order by Chief Garelik, there have been no drunk arrests in New York City. This has been most evident in the absence of such arraignments In Parts 10 and 11 of the N.Y.C. Criminal Court where virtually all such arraignments were held. 1966] PUBLIC INTOXICATION tion for another Erewkon; it now resembles a court of justice. Part 10, which is exclusively for the arraignment and trial of derelicts, will soon be discontinued.

III. MODEL PENAL CODE This same subject, the matter of limiting drunk arrests to occasions when the defendant is disorderly, was thoroughly considered by the American Law Institute in preparing a Model Penal Code. After due consideration, it was regrettably decided to include a provision providing for the continuance of such arrests. The Model Penal Code contains the following section as to public intoxication: A person is guilty of an offense if he appears in any public place manifestly under the influence of alcohol, narcotics or other drug, not therapeutically administered, to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity.41 There was, however, considerable sentiment for discontinuing such arrests. The following appears in the commentary to the above section: The Advisory Committee favored deleting Section 250.11 [now 250.5] so as to pre- clude the handling of non-disorderly drunks through the usual facilities of law enforcement, i.e., police station and jail, and to require that such persons be taken to their homes or to hospitals, where drunkenness can be differentiated from epileptic attacks or other pathological conditions. Council was 42 divided on the issue, but a majority favored retaining the section.

IV. RECENT FEDERAL DECISIONS Two recent decisions by federal circuit courts of appeals are at long last seriously challenging our right to continue to make indiscriminate arrests of derelicts on a charge of public intoxication anywhere in the United States. Joe B. Driver was convicted of public intoxication in the Durham County court in North Carolina. He had a prior record of some 200 similar convictions, and had consequently spent 25 of his last 36 years in jail. Having been convicted three times within the year, he was sentenced to the statutory maximum of two years in jail. On appeal, the conviction and sentence were affirmed. 3 Driver petitioned for a writ of habeas corpus in the United States district court for the Eastern District of North Carolina. The court found as a fact that Driver was a "chronic alcoholic," but denied the petition.44 41. Model Penal Code § 250.5 (Off. Draft, 1962). 42. Model Penal Code § 250.11, comment at 56 (Tent. Draft No. 13, 1961) (now Model Penal Code § 2505 (Off. Draft, 1962)). 43. State v. Driver, 262 N.C. 92, 136 S.E.2d 208 (1964) (per curiam). 44. Driver v. Hlinnant, 243 F. Supp. 95 (E.D.N.C. 1965). FORDHAM LAW REVIEW [Vol. 35 On appeal, the United States court of appeals for the Fourth Circuit unanimously reversed the judgment of the district court, and returned the case to the district court "with directions to order Driver's release from the impending detention by North Carolina unless, within 10 days, 4 the State be advised to take him into civil remedial custody.) 6 The court said: This addiction-chronic alcoholism-is now almost universally accepted medically as a disease. The symptoms, as already noted, may appear as "disorder of behavior". Obviously, this includes appearances in public, as here, unwilled and ungovernable by the victim. When that is the conduct for which he is criminally accused, there can be no judgment of criminal conviction passed upon him. To do so would affront the Eighth Amendment, as cruel and unusual punishment in branding him a criminal, irrespective of consequent detention or fine. Although his misdoing objectively comprises the physical elements of a crime, never- theless no crime has been perpetrated because the conduct was neither actuated by an evil intent nor accompanied with a consciousness of wrongdoing, indispensable in- gredients of a crime. Morissette v. United States, 342 U.S. 246, 250-252 ... (1952). Nor can his misbehaviour be penalized as a transgression of a police regulation- malum prohibitum-necessitating no intent to do what it punishes. The alcoholic's presence in public is not his act, for he did not will it. It may be likened to the movements of an imbecile or a person in a delirium of a fever. None of them by attendance in the forbidden place defy the forbiddance.40 In the District of Columbia court of general sessions, criminal division, Dewitt Easter was tried by the court without a jury on an information charging that, "... on or about the 23rd day of September, 1964... on 4th Street, Northwest, [he] was then and there drunk and intoxicated ." in violation of D.C. Code Ann., section 25-128 (1961). He had 4 seventy previous arrests for public intoxication, 7 including twelve in 1963. The trial judge ruled that whether Easter was a chronic alcoholic was irrelevant. Accordingly, he refused a request for a finding that Easter was in fact a chronic alcoholic and found him guilty as charged. A sentence of ninety days in jail was suspended.4 On appeal to the District of Columbia court of appeals, the conviction was affirmed.49 On appeal to the circuit court of appeals for the District of Colum- bia, the court, sitting en banc, unanimously reversed Easter's conviction and remanded the case with directions to dismiss the information."0 All eight judges accepted Easter's claim that he was a chronic alcbholic, and agreed that, under the law in the District of Columbia, 45. Driver v. Hinnant, 356 F.2d 761, 765 (4th Cir. 1966). 46. Id. at 764. (Footnotes omitted.) 47. Easter v. District of Columbia, 209 A.2d 625, 626 (D.C. Ct. App. 1965). 48. Ibid. 49. 209 A.2d 625 (D.C. Ct. App. 1965). 50. Easter v. District of Columbia, 361 F.2d 50 (D.C. Cir. 1966). 19661 PUBLIC INTOXICATION he could not be convicted for behavior that was the involuntary product of his disease.5 While four of the judges found it unnecessary to reach Easter's contention that his conviction contravened the eighth amendment's prohibition of cruel or unusual punishment,12 the remaining four unanimously concluded that Easter's conviction for public intoxication was unconstitutional: "We hold, therefore. . that the public intoxication of a chronic alcoholic lacks the essential element of criminality; and to convict such a person of that crime would also offend the Eighth Amendment." 3 A petition for a writ of certiorari, dated April 6, 1966, is pending in the Supreme Court of the United States in Budd v. California."4 If the petition is granted, the Supreme Court of the United States will shortly rule on the same issue decided by the Driver and Easter decisions.

V. RATIONALE OF THE DRIVER AND EASTER DECISIONS Those who are opposed to the indiscriminate arrest of drunken derelicts cannot but agree with the judgments in the Driver and Easter cases. But what of the rationale of the opinions? Should the results in such cases depend on whether a derelict is a "chronic alcoholic?" Do not the opinions reveal a lack of perception of the nature of the skid row derelict? Do they not particularly fail to distinguish between chronic alcoholism and other forms of pathological drinking? It is not strange that the Easter and Driver opinions reflect an inability to identify with the derelict. The learned judges of those courts had probably been spared the experience of socializing with, or even meeting, a skid row derelict. Moreover, the derelict has been largely ignored by the behavioral sciences and is as yet almost a complete enigma. Most of the observations of the authors of the standard studies on skid row derelicts 5 are impressionistic. Even the excellent study of Pittman and Gordon5" at best sets forth hypotheses and theories, based on limited research. Nowhere is the lack of scientific data more evident than in the consideration of the derelict's involvement with alcohol. This is best expressed by McCarthy and Straus: 51. Id. at 55; id. at 60 (McGowan, J., concurring); id. at 61 (Danaher, J, concurring, joined by Burger and Tamm, JJ.). 52. Id. at 60 (McGowan, J., concurring); id. at 61 (Danaher, J., concurring, joined by Burger and Tamm, JJ.). 53. Id. at 55. (Footnote omitted.) 54. Thomas F. Budd, petitioner v. People of the State of California, October Term 1965. 55. E.g., Anderson, The Hobo (1923); Bogue, Skid Row in American Cities (1963). The generally accepted impression of a skid row derelict is perhaps best portrayed by Eugene O'Neill in "The Iceman Cometh." 56. Pittman & Gordon, Revolving Door-A Study of the Chronic Police Case Inebriate (1958). FORDHAM LAW REVIEW [Vol. 35

The impression still prevails . . . that the inhabitants of Skid Row or Bowery districts are nearly all addicted to alcohol. This belief is based on seemingly over- whelming evidence .... Despite impressive external evidence of widespread excessive drinking among Bowery populations, data are not available for determining whether the drinking patterns of homeless men are consistent with clinical criteria of alcohol addiction. Few of these men seek or accept sustained professional treatment and nearly all resist personal questioning by an investigator. Psychological data on this population group are scant. Certain observations, necessarily impressionistic, suggest that some factors in the drinking behavior of many homeless men may be significantly different from those of persons who are classified clinically as addictive drinkers and that the com- monly assumed synonymity of homelessness, vagrancy (and all equivalent terms) with alcohol addiction may be technically erroneous. ....57 Although pathological drinking is characteristic of a majority of the so-called homeless man population, a substantial portion of these men should not be classified as addictive drinkers.... 58 This interesting hypothesis of McCarthy and Straus has been widely accepted. Bendiner states: [T]he Bowery Man's drinking style is less formidable than that of the respectable alcoholic. The Bowery Man rarely drinks alone with the singleminded objective of a quick knockout. He is a social drinker. And not only does he pass the bottle, but he must combine with his fellows to raise the price of one. He drinks to achieve a pleasant plateau from which he can survey the world and his fellows with some equanimity. He craves an illusion of friendship without the responsibilities that friends impose. His alcoholic haze fragments the harsh light of the world and diffuses it so that edges are blurred and the world is soft.50 After getting involved in the issue of alcoholism, the courts in the Driver and Easter cases appear to have assumed, contrary to the hypothesis of McCarthy and Straus, that all pathological drinkers are chronic alcoholics or addictive drinkers. If their reasoning were followed, the rulings would be limited to the percentage of derelicts who are addictive as distinguished from plateau and other problems drinkers. Moreover, the courts failed to recognize the fundamental invalidity of virtually all public intoxication arrests. Whatever his drinking pattern, the pathological drinking of the derelict would seem to be but a part of a total pathology that includes his inadequacy, his under-socialization, his pathological drinking and varying pathological conditions. It is this total pathology that affronts society, and leads to arrests for public drunkenness.0 0 These are "status" offenses;"' the offense consists in 57. McCarthy & Straus, Nonaddictive Pathological Drinking Patterns of Homeless Men, 12 QJ. Studies on Alcohol 602-03 (1951). 58. Id. at 609. (Emphasis added.) 59. Bendiner, supra note 10. 60. See Committee on Prisons, Probation and Parole in the District of Columbia, April 1957 Report 131. This report pointed out what the Committee believed to be "the real judicial concern, i.e., not a specific offense of intoxication, but the chronic condition of human deterioration." Ibid. 61. Robinson v. California, 370 U.S. 660 (1962). The dissenting opinion of Mr. Justice 1966] PUBLIC INTOXICATION being a derelict.62 The immediate condition of inebriety may be the occasion, but is not the fundamental reason for an arrest. Thomistic philosophy tells us that the function of criminal law is limited, that it should implement the moral law only where violations thereof affect the common good, and that sanctity will ever remain an individual affair.63 John Stuart Mill expressed the same thought when he said that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."" In Robinson v. California,5 the Supreme Court of the United States, by a 6-to-2 vote, struck down a state statute making it a misdemeanor for a person to "be addicted to the use of narcotics," the penalty being a man- datory jail term of not less than ninety days. 6 Speaking for four members of the court, Mr. Justice Stewart invalidated the statute as a "cruel and 6 7 unusual punishment. 1 He stated that: "'We can only take the statute as the state courts read it.' "" As such, he continued, "we deal with a statute which makes the 'status' of narcotic addiction a criminal offense, for which the offender may be prosecuted 'at any time before he reforms.' California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there."69 As he viewed it, the statute was in the same category as one purporting to make it a criminal offense "for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease."" Significantly, in one of the two dissenting opinions, Mr. Justice Clark observed that "'status' offenses have long been known and recognized in the criminal law. . . . A ready example is drunkenness, which plainly is as involuntary after addiction to alcohol as is the taking of ' drugs."7 Mr. Justice Clark is correct in asserting that " 'status' offenses have long been known and recognized in the criminal law." But is this a reason for

Clark is especially relevant. Id. at 684. 62. Committee on Prisons, Probation and Parole in the District of Columbia, op. cit. supra note 60. 63. 2 Farrell, A Companion to the Summa 393-411 (1945); Connery, A Theologian Looks at the Wolfenden Report, America, Jan. 25, 1958, p. 485. 64. Mill, On Liberty 13 (Liberal Arts Press ed. 1956). (Emphasis added.) 65. 370 U.S. 660 (1962). 66. Id. at 660 n.1. 67. Id. at 667. 68. Id. at 666, quoting from Terminiello v. Chicago, 337 US. 1, 6 (1948). 69. Id. at 666. 70. Ibid. 71. Id. at 684. (Emphasis added.) FORDIJAM LAW REVIEW [Vol. 35 continuing the error? As Mr. Justice Holmes has said: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."72 A prosecution for public intoxication "has no relationship to the curing of an illness. Indeed, it cannot, for the prosecution is aimed at penalizing an illness, rather than at providing medical care for it. We would forget the teachings of the Eighth Amendment if we allowed sickness to be made a crime and permitted sick people to be punished for being sick. This age of enlightenment cannot tolerate such barbarous action."" The results in the Driver and Easter cases could better have been reached by interpreting the public intoxication statute as having been intended to proscribe public drunkenness only insofar as it interferes with peace and tranquility (the reasoning used by Judge Oliver and reasoning consistent with both Thomistic philosophy and the reasoning of John Stuart Mill), and by ruling that the statute, if otherwise interpreted and applied, would be in violation of the United States Constitution.74 The decisions would then have been properly applicable to the arrests of all drunken derelicts regardless of the nature of their pathological drinking.

VI. PRACTIcAL APPLICATION OF THE DPrVER AND EASTER DECIsIoNs The circuit court of appeals in Driver v. Hinnant returned the case to the district court "with directions to order Driver's release from the impending detention by North Carolina unless, within ten days, the State be advised to take him into civil remedial custody."" Similarly, in the District of Columbia, the court of general sessions is substituting a civil proceeding for the criminal prosecution. This appears from an unreported opinion of Judge Harold H. Greene dated August 16, 1966.70 Judge Greene clearly sets forth both the procedures adopted in that court and the experience of the court to the date of the opinion. When the court has reason to believe that the defendant is a chronic alcoholic, a hearing is held pursuant to D.C. Code Ann., section 24-504, to determine whether the defendant is in fact an alcoholic. The court considers all relevant evidence, including expert testimony. After an adjudication has been made that an individual is a chronic

72. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). 73. Robinson v. California, 370 U.S. 660, 677-78 (1962) (Douglas, J., concurring). Mr. Justice Douglas used this language in relation to a prosecution for drug addiction, but It is believed to be equally applicable to a prosecution for public intoxication. 74. See Robinson v. California, 370 U.S. 660 (1962). 75. 356 F.2d 761, 765 (1966). 76. District of Columbia v. Walters, Crim. Nos. DC 18150-66, DC 21836-66, DC 18770- 66, DC 22873-66, DC 21639-66, DC 21904-66, D.C. Ct. Gen. Sess., Aug. 16, 1966. 1966] PUBLIC INTOXICATION alcoholic, he is committed to a "classification and diagnostic center for observation, examination and classification" pursuant to D.C. Code Ann., section 24-505. The facility presently being used for this purpose is located on the grounds of the Occoquan Workhouse. After severely criticizing the center, Judge Greene stated that the court would nonethe- less continue to commit defendants to the institution for diagnosis and classification, but would require them to be returned with an appropriate recommendation in a period of not more than seven days. Those determined to be chronic alcoholics are sent for out-patient treatment to a clinic. They are not sent to a hospital because no appropriate facility has been provided. Defendants classified as alcoholics are continued in that status for ninety days. If re-arrested during this period, they are not again sent for diagnosis and classification but are placed once again on out-patient status. Judge Greene cited the case of Robert B. Moore who has been arrested fourteen times since his chronic alcoholism adjudication in May. Since the ruling of the circuit court of appeals in the Easter case, over 2,000 derelicts have been classified as chronic alcoholics. 77 Daily arrests include as many as 150 derelicts who have already been adjudged chronic alcoholics. It would appear that this is a broad classification that includes all pathological drinkers, not merely chronic alcoholics, and that the reasoning of the Easter case is being disregarded and the ruling being applied to all pathological drinkers, whether they are of the compulsive variety or not. Primarily because of the reasoning of the circuit court of appeals, the court of general sessions continues to be a court beset by "mass production enforcement of the criminal law." VII. CONCLUSION The plight of the derelict is a grave public health problem. It is not a penal problem. It deserves a high priority in the development of the anti- poverty program. We can help some derelicts by the techniques of modern therapy. Alcoholics Anonymous appears to have the answer for some of those who are chronic alcoholics. We can help all derelicts by a more humane program of day-to-day care and relief. We must seek the fundamental and ultimate answer in an improved society-a society that will produce fewer misfits, fewer inadequate human beings. The late Chief Parker might well have asked, "In the meantime, would you then continue to permit the derelicts to lie in the gutter?" The answer is simple. I would arrest the unfortunate who is a menace to the community, such as the derelict who is loud and boisterous or 77. Index of Chronic Alcoholics, D.C. Ct. Gen. Sess., Crim. Div. (1966). FORDHAM LAW REVIEW assaultive. I would have the police escort others for their own safety to a public shelter. I would abandon the indiscriminate arrests of drunken derelicts. There is provision for this approach in the Penal Law of the State of New York. Section 246 reads in part as follows: Use of force not unlawful in certain cases. To use or attempt, or offer to use, force or violence upon or towards the person of another is not unlawful in the following cases:

6. When committed by any person in preventing an idiot, lunatic, insane person, or other person of unsound mind, including persons temporarily or partially deprived of reason, from committing an act dangerous to himself or to another, or in en- forcing such restraint as is necessary for the protection of his person or for his restoration to health, during such period only as shall be necessary to obtain legal 78 authority for the restraint or custody of his person. I believe that the police have not only the right, but also the duty to escort drunken derelicts to a shelter in appropriate cases. There is no moral justification for the present program of wholesale arrests of drunken derelicts. We will neither solve nor ameliorate the skid row problem by more vigorous police enforcement or sterner justice. The only function of a penal approach is to keep depravity from becoming too assertively public. Once we appreciate these almost self-evident truths, we must realize how farcical our primitive justice is and has been over the years. Today we recoil at the manner in which past generations used burning and whipping to curb crime. Is it not likely that future generations will read of our imprisonment of drunken derelicts with a similar sense of shock and outrage? 78. The New York State Penal Law has been completely revised by laws already enacted which will become effective September 1, 1967. N.Y. Sess. Laws 1965, chs. 1030-31, 1037-39, 1046-47. The Revised Penal Law has no provision equivalent to present § 246. It does, however, have a section dealing with public intoxication which reads as follows: "A person is guilty of public intoxication when he appears in a public place under the influence of alcohol, narcotics or other drug to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity." Public intoxication is a "violation." N.Y. Sess. Laws 1965, ch. 1030, § 240A0. Unless the Legislature amends the Revised Penal Law before its effective date, the reform taking place in New York City may come to an abrupt end.