People v. Angie — 74 A.D. 539

Majority

p. 539

The People of the State of New York, Respondent, v. Florence Angie, Appellant.

Headnote

Arrest without a wa/rramt of a child under sixteen found in a drinking saloon—.a police justice has jurisdiction of the case—the statute authorizing it is reformatory rather than criminal and does not constitute it a crime.

Section 291 of the Penal Code, providing that “ any child actually or apparently under the age of sixteen years, who is found * * * frequenting or being in •x * * places where wines, malt, or spirituous liquors are sold, without being in charge of its parent or guardian * * * must be arrested' and brought before a proper court or magistrate who may commit the child to any incorporated charitable reformatory, or other institution, and when practicable to such as is governed by persons of the same religious faith as the parents of the child, or may make any disposition of the child such as now is or hereafter may be authorized in the .cases of vagrants, truants, paupers or disorderly persons, but such commitment shall, so far as practicable, be made-to such • charitable or reformatory institutions,” is purely reformatory in its nature, designed not so much for the punishment as for the prevention of crime, and consequently does not fall within the rigid rules of criminal procedure.

A police officer who discovers a child under the age of sixteen years, unaccompanied by her parents or guardian, in a place where spirituous liquors are being sold and drunk, may arrest such child without a warrant. The direction contained in such section requiring the child so arrested to be brought before “ a proper court or magistrate ” includes a police justice.

Semble, that the offense described in such section does not constitute a crime.

'Appeal by the defendant, Florence Angie, fróm a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 17th day of April, 1902, affirming a judgment of conviction and commitment under section 291 of the Penal Code, rendered by a police justice of the city of Rochester.

W. H. Sullivan, for the appellant.

p. 540

Howard H. Widener, Assistant District Attorney, for the respondent.

John P. Morse, for St. John’s Catholic Protectory and Rochester Society for the Prevention of Cruelty to Children.

It is provided by section 291 of the Penal Code (Subds. 4, 5) that “ any child actually or apparently under the age of sixteen years, who is found * * * frequenting or being in * * * places where wines, malt, or spirituous liquors are sold, without being in charge of its parent or guardian * * * must be arrested and brought before a proper court or. magistrate who may commit the child to any incorporated charitable reformatory, or other institution, and when practicable to such as is governed by persons of the samé religious faith as the parents of the child, or may make any disposition of - the child such as now is or hereafter may he authorized in the cases of vagrants, truants, paupers- or disorderly persons, but such commitment shall, .so far as practicable, be made to such charitable or reformatory institutions.”

On the 11th' day of December, 1901, the appellant, who was then under sixteen years of age, was found by a police officer of the city of Rochester in a place where wines, malt and spirituous liquors were being sold, in company with another girl of about, the same age, and was arrested and taken before the police justice of the city, where, after an examination, she was duly committed to St. John’s Catholic .Protectory in the city of Buffalo.

The place where the appellant was arrested was kept by an-Italian named Jannoni, and when discovered she was-sitting at ,a table with her girl companion and a number of men of various ages.. She had been in this' place once before on the day of her arrest, and several times prior thereto.

From the judgment of the County Court affirming the judgment and-commitment an appeal has been taken to this court, and several assignments of error are relied upon for a reversal of such judgments and commitment. -. Apparently the one to which more importance is attached than to any other is that the appellant was. arrested without a warrant and without any information having been first filed.

p. 541

This court, in the case of People v. James ( 11 App. Div. 609 ), held that before a party is placed on trial in a Court of Special Sessions or in a Police Court he should be charged by an information, clear and definite, and that the charge should be followed by a warrant specifically stating the crime alleged. That case, however, has no application to the one now under consideration, for the reason that the offense for which the appellant in this proceeding was arrested is not a crime; and if it were, it is one which was committed in the presónce of the officer making the arrest. (Matter of Knowack, 158 N. Y. 482 ; Code Crim. Proe. § 177.)

As was well said by the court below, the primary object of the statute in question is to save children from evil and debasing influences. It is purely reformatory in its nature, and designed not so much for the punishment of crime as for its prevention. Consequently it is one which does not fall within the rigid rules of criminal procedure. Moreover, the very language of the statute repels any idea of such formalities as are required in proceedings which are of a strictly criminal character, for it provides that “ any child actually or apparently under the age of sixteen years who is found ” in certain places therein mentioned “ must be arrested,” etc.

The appellant, who, at the time of her arrest, confessedly was not sixteen years of age, was found in a place where liquors were sold without being in charge of her parents or guardian, and some of the persons in the room where she was found were then actually engaged in drinking liquor which had been served to them by the proprietor of the place. She was, therefore, liable to arrest, and by the provisions of sections 291 and 293 of the Penal Code it became the duty of any peace officer who saw her in these circum-. stances to make such arrest.

The contention that the police justice of the city of Rochester was without jurisdiction to entertain this proceeding does not, in our opinion, merit serious consideration. The statute directs that a child found frequenting places where liquors are sold shall be arrested and “ brought before a proper court or magistrate.” That a police justice is entitled to such designation is made plain by section 147 of the Code of Criminal Procedure, which expressly declares that “ the police and other special justices appointed or elected in a city, village or town,” are magistrates; and it is equally

p. 542

clear that such officer is a “ proper • * * * magistrate,” for section 394 of the charter of second class cities (Laws of 1898, chap. 182, as amd. by Laws of 1899, chap. 581) which applies to the city of Rochester, gives to its police justices the jurisdiction conferred by section 56 of the Code of Criminal Procedure upon Courts of Special Sessions, which includes, among other powers, the right to hear and determine charges involving .cruelty to animals or chih dren; and’chapter 3 of title 10 of the Penal Code, of which sections 291 and 293 form a part, is entitled, “Abandonment and other acts of cruelty to children.”

While we do not wish to be understood as asserting that a proceeding under this particular statute may be conducted arbitrarily, and without any regard to the legal rights of the offender, we think that its enforcement in accordance with the obvious design of the law-making power of the State requires that considerable latitude in procedure should be allowed, and in this view of the case we fail to discover any assignment of error which is sufficiently serious and prejudicial to require a reversal of the judgment of the committing magistrate. The judgment appealed from should, therefore, be affirmed.

McLennan, Spring, Williams and Hisoock, JJ.., concurred.

Judgment of County Court and judgment of the Police Court affirmed, and case remitted to the Police Court of the city of Rochester, pursuant to section 547 of the Code of Criminal Procedure.

Cases cited

People v. James 11 App. Div. 609 N.Y. App. Div. 1896-12-19 p. 541
In re Knowack 158 N. Y. 482 N.Y. 1899-04-18 p. 541