People ex rel. Gordon v. Supt. Hart's Isl. Ref.

The defendant return® that the relator is held under a commitment hy a police magistrate for three years, unless sooner discharged or paroled, as provided in section 698 of the charter. The original commitment and a deposition hy a police officer, hut without other evidence, are also returned. As the commitment is written on a printed blank, with alternative clauses arranged so that it may be rendered certain by striking out one of the two alternatives, and as none are stricken" out, it cannot be learned whether the relator was brought or voluntarily came before the magistrate, whether he was charged .by information under oath or upon his own confession, or

If the commitment shows that the relator was convicted of disorderly conduct tending to a breach of the peace, it warranted a commitment under section 698 of the charter. Matter of Jacobs, 57 Misc. Rep. 655 . The case of People ex rel. Frank v. Davis, 80 App. Div. 448 , does not apply, for the decision there was that a conviction under section 1458 of the Consolidation Act does, not warrant a commitment under section 146 of the State Charities Law; and the provisions of the State Charities Law, prescribing the offenses under which commitments under that law may be made, differ from the provisions of section 698 of the charter. A police magistrate has no jurisdiction to convict for a misdemeanor hut may for the minor offenses defined in section 1458 of the Consolidation Act; -and, even if the facts found would have warranted the -conviction for a crime under section 120 of the Penal Law, yet, if they are also -sufficient to show an offense under section 1458, the magistrate has jurisdiction. People ex rel. Smith v. Van De Carr, 86 App. Div. 9 .

The commitment states that the relator was charged with “ pushing and jostling passing pedestrians for the purpose of plying’ his vocation of pickpocketing” -and that he was convicted of such offense. It is suggested by the district attorney that that is a statement of a -conviction for disorderly conduct tending to a breach of the peace, as -defined in the said section 1458 of the Consolidation Act. The definition referred to is contained in subdivision 3 of that section, which is as follows: “ Every person who shall use any threatening, abusive or insulting behavior with intent to provoke a breach of the peace

Does the information state a charge, or does the commitment state an offense, as defined by the language of section 1458, above quoted ? I think not. Both an information and commitment should plainly state the crime with which the prisoner is charged or convicted. People ex rel. Allen v. Hagan, 170 N. Y. 48 . No one by reading the statement of the offense in the -commitment, unaided by the suggestion of the district attorney, would recognize the offense called “ Disorderly conduct tending to produce a breach of the peace. It is true that the facts so stated might be admissible in evidence as tending to show, although not alone proof of, that offense; but a statement that the magistrate bad found that these facts, were established is- not equivalent to adjudging that the relator was guilty of the offense defined in said section 1458. “ Pulling and jostling ” in an attempt to commit larceny is not “ threatening, abusive or insulting behavior.” This implies an intent to arouse anger or resentment ¡and so to provoke a breach of the peace. Neither does the information distinctly charge the offense. It read-s more like a charge of disorderly conduct defined in section 720 of the Penal Law, which is a misdemeanor. People ex rel. Clark v. Keeper, 176 N. Y. 465 . The case of People v. Mansi, 129 App. Div. 386 , is cited to establish the proposition that, under section 1459 of the Consolidation Act,

I therefore cannot find that the relator has been convicted of any offense which justifies commitment under section 698 of the charter. In other words, the return does not show a commitment within the jurisdiction qf the magistrate.

Writ sustained and the relator discharged.