People ex rel. Clark v. Keeper of New York State Reformatory for Women

On the 31st day of May, 1902, the relator was sentenced by a New York city magistrate to the State Peformatory at Bedford, N. Y., under the authority of section 146 of the State Charities Law (Chap. 26, Gen. Laws), which provides, in substance, that a female between the ages of fifteen and thirty years, who has been convicted by a magistrate of petit larceny, habitual drunkenness, of being a common prostitute, of frequenting disorderly houses or houses of prostitution, or of a misdemeanor, and who is not insane nor mentally or physically incapable of being benefited by disciplinary treatment, may be sentenced to the several reformatory institutions for women therein mentioned.

The learned district attorney has favored us with a most elaborate and instructive brief on the constitutionality of the section of the State Charities Law above referred to, but as that question is not distinctly raised by the respondent’s counsel, and as there are other obvious infirmities in the record which require the affirmance of the order discharging the relator, we shall not now discuss or decide the constitutional question, for that may be of sufficient gravity and importance to merit the most serious consideration when presented by a record that is not so fatally defective as the one before us.

The complaint made by the officer who arrested the relator charges her with importuning and soliciting men for the purpose of prostitution, and with having been repeatedly arrested and convicted of the charge of disorderly conduct, in that she was in the habit of soliciting and importuning men for the

The record of conviction recites that the relator was brought before the magistrate and charged with “ disorderly conduct ” in importuning and soliciting men upon the street for the purpose of prostitution.

The warrant of commitment states that the relator was charged with “ being a public prostitute,” and that she was convicted upon that charge.

The magistrate’s return to the writs of habeas corpus and certiorari issued herein sets forth that the relator was convicted “ of such disorderly conduct charged in said complaint, and as in my opinion tended to and might provoke a breach of the public peace.”

The relator demurred to this return, and, upon the issue thus joined, the Supreme Court at Special Term sustained the demurrer and the writs and discharged the relator from custody. At the Appellate Division this order was affirmed. There are several reasons why this decision should be sustained.

To begin with, the magistrate had no jurisdiction to sentence the relator to the reformatory at Bedford, because she was not convicted of any of the offenses enumerated in the statute which confers upon magistrates the power to sentence convicted women to that institution. The relator was not convicted of petit larceny, habitual drunkenness, of being a common prostitute, of frequenting disorderly houses or houses of prostitution, and those are the only offenses specified by name in section 146 of the State Charities Law. It is urged that the terms “ public prostitute ” and “ common prostitute ” are practically synonymous, so that a conviction under either ' designation amounts to one and the same thing, but even if that be conceded for the purposes of the argument, there still remains the practical difficulty of determining whether the relator was convicted of being a prostitute or for disorderly conduct. In the complaint the substance of the charge is that the relator was a “ public prostitute,” and her previous

We have referred to the offenses mentioned by name in section 146 of the State Charities Law, upon conviction of either of which a woman of the prescribed age and condition may be sentenced to á state reformatory. To this category should be added the general designation of “misdemeanor” which appears at the end of the enumeration. We mention this because it is argued for the appellant that if there is no such offense as that of being “ a public prostitute ” the conviction herein should be upheld on the ground that “ disorderly conduct ” is a misdemeanor which brings the relator within the class of women who may be committed to state reformatories. Upon this point it is enough to say that, even if it were reasonably certain that the magistrate intended to convict the relator of “ disorderly conduct,” it would not necessarily follow that the conviction would be valid, for the case would then turn upon the question whether the charge of “ disorderly conduct,” as recited in the complaint, record of conviction and

The most cursory comparison of the language of these statutes, with the verbiage of the magistrate’s record herein, will disclose the essential insufficiency of the latter in the very particulars which go to make up the statutory offense of disorderly conduct. Taken as a whole, this record gave the magistrate no jurisdiction to render the judgment which is here the subject of inquiry. The writs of habeas corpus and certiorari were, therefore, the proper remedy (People ex rel. Tweed v. Liscomb, 60 N. Y. 559 ; People ex rel. Van Riper v. N. Y. C. Protectory, 106 N. Y. 605 ), and we think the case has been correctly disposed of by the courts below. We quite agree with the learned district attorney that there is no more important branch of our criminal jurisprudence than that which relates to the reformatory treatment of offenders who are not to be classed as criminals; but since the jurisdiction to administer such treatment is purely statutory, it is equally'clear that in its exercise the forms of law should be observed, at least with reasonable approximation, for otherwise the rights of such offenders would be subject to invasions that will not be tolerated even in dealing with hardened criminals.

(dissenting). Upon the appeal to this court, the relator, as responden t, in the first place, insists that the returns to the writs show upon their face that “ the proceedings before the committing magistrate were conducted in such a loose, careless and indefinite manner that it is impossible to determine the nature of the charge against her,” or the basis of the magistrate’s decision. In the second place, she says there is “ no offense known to the law of the state as that of public prostitute.” And, further, she insists that the magistrate was without jurisdiction; that he had no power to commit her for the period of three years and that the proceedings before him were void, because of the failure to keep a written record of the evidence upon which the judgment was based. Such was, also, her demurrer to the returns to the writs, in substance.

The return of the magistrate is open to the charge that he was slovenly in his records and careless in his proceedings; but, in my opinion, the proceedings exhibited in the return to the writs were not fatally affected thereby and they disclose a case of the valid exercise of jurisdiction over the person of the relator. If it was made to appear to the Supreme Court, upon the return to the writ, that the relator was held under a valid commitment, it had the force of a final judgment of a competent tribunal and it was the duty of the court to remand her. (Code of Civil Procedure, sec. 2032; People ex rel. Kuhn v. P. E. House of Mercy, 133 N. Y. 207 .) The proceeding, upon the return to a writ of habeas corpus, is instituted to determine whether a person, detained in custody, was so detained, under legal authority, and is not for the purpose of reviewing the determination of the subordinate tribunal. (People ex rel. Danziger v. P. E. House of Mercy, 128 N. Y. 180 .) Section 146 of the State Charities Law, (Laws of 1896, chap. 546, as amended by chap. 632, Laws of 1899), provides that “A female, between the ages of fifteen and thirty years,

I think that there was sufficient before the court, upon the returns to the writs, to demonstrate the jurisdiction of the magistrate over the person of the relator and the subject-matter of the complaint, and that the commitment, in substance and form, was correct and sufficient to show such jurisdiction and the legality of the proceedings. (People ex rel. Danziger v. P. E. House of Mercy, supra.) The loose statements of the magistrate, that the conviction of the relator was for disorderly conduct, cannot alter the facts, nor affect the validity of the relator’s commitment; unless the charge of being

As to the first question, I entertain no doubt but that the words, “ a public prostitute,” are the legal equivalents of “ a common prostitute.” The word ‘public,” in its common acceptation and use, has all the significance of, and is synonymoxis with, “common.” A woman, who prostitutes her person to the public use, prostitutes it to the common use. While the precise language of a penal statute should be employed, it is not, necessarily, substantial error when other words happen to be xxsed, which have the same acce2>ted and popxilar sense as those used in the statute. No different meaning can be imported into the term “ public prostitute ” than attaches to that of “ common prostitute.”

Was there an offense charged and did the committing magistrate have the power to commit, upon proof thereof ? I think that to be “ a common prostitute ” was made a new offense by this statute. It created a new offense, because it provided

For these reasons I dissent and I think there should be a reversal of the orders below.

Parker, Ch. J., Haight, Vann and Cullen, JJ., concur with Werner, J.; Gray, J., reads dissenting opinion; Martin, J., absent.

Order affirmed.