In re Haller

inal. The absence of a proper return, however, prevents the court from taking.any action on the writ of habeas corpus until such return shall be made.

The papers under the writ of certiorari are also defective. That writ is addressed to the county clerk (amongst others) for the purpose, it is supposed, of bringing up the record of conviction of vagrancy, if one has been filed. There is, however, no return from the clerk, and it does not appear, therefore, whether there is any record on file in his office or not. In the absence of such return, it must be presumed that if such record be necessary, it has been filed by the magistrate, because (if it be necessary), it. would be his duty to file it.

The only return to the certiorari is made by the police justice by whom the commitment was made, and the only question made by the counsel for .the petitioner upon such return is whether there was evidence sufficient to establish that the child was found begging in a street of the city. It appears that Frank Haller is a boy about ten years of age, and a cripple, unable to stand, and obliged to move on his hands and legs. At. the time of his arrest, he had been moving down Broadway on the sidewalk, from John street to Wall street, thence down Wall to Hew street, and had gone a short distance down Hew street when he was stopped and taken into custody by the officers. As he passed along the sidewalk the officer saw him holding out his hand to several persons, and receiving money from them, but he did not hear him speak to any of them. It is claimed that this silent action on his part was not “ begging alms” or “ soliciting charity,” within the meaning of the statutes. The language of the Revised Statutes is, “If any child shall be found begging for alms, or soliciting charity from door to door or in any street, highway or public place of any city or town,” &c., &c. (2 R. S. p. 837, § 5, Delafield's Laws re

lating to Children, p. 90). The words of section 18 of chapter 11, of the Laws of 1833, are, “soliciting charity in any street, highway, or public place of said city.” There is nothing in either of these statutes that, necessarily requires proof of spoken words to constitute begging for alms or soliciting charity, although such words might in many instances be the best evidence of the offense. The act of begging alms or soliciting charity is the offense condemned by the law, in whatever form that act may be committed, and in many instances words are far less effective to accomplish the end than simple acts. The deaf and dumb man, real or pretended, who stands with a placard on the breast, and with extended hat or hand, is a solicitor of charity as completely as though he spoke to the passers by. And so is every one whose diseased or crippled condition appeals to sympathy, if he places himself in a position to attract attention, or passes along the street, calling attention by sign, act or look to his unhappy condition, and receives from those who observe him the charity which he is obviously seeking. Indeed, the class of silent beggars who exhibit deformities, wounds or injuries which tell plainer than words their needy and helpless condition are the most successful of solicitors for charity, and especially is this so when the object of alms is a young- and helpless child.

The intention of the law is not to punish such children, but to protect and provide for their necessities with tender care, and it' would be a great mistake to hold that the statute does not include such as by reason of their appalling misfortunes, need do nothing but silently attract attention to themselves to receive gifts of charity, unasked for in words, but really solicited by far more touching appeals. The poor boy in this case, while creeping through the throng of people on Broadway and Wall street, and raising his hand to re

ceive their alms, was accomplishing the purpose of begging in a mode far more effective than to have sat at a corner and cried out to every passer by for charity. It is a mistake, therefore, to suppose that the evidence-was- not sufficient to justify his being taken into custody and committed to the public charities of the city. The magistrate was right in finding that he was within the provisions of the statute. His crippled condition brought him within the exception of the statute of 1875 (See Laws of 1875, chap. 173, § 1). And it was. proper to place him in the custody of the commissioners of charities and correction. In the present condition of the papers, the court can do nothing else than remand him without prejudice to any further proceeding upon a proper return to the writ of habeas corpus or any further proceeding by certiorari. The court thinks-proper, however, to suggest that his custody be restored by the commissioners (who are clothed with full discretion) to his parents, who seem anxious to receive him, with suitable admonition that if they suffer him to be again found begging in the streets, he will be arrested and permanently placed in a charitable institution.