People ex rel. Mengione — 24 N.Y. Crim. 502

Majority

p. 502

SUPREME COURT—APP. DIV.—FOURTH DEPT.,

May 4, 1910.

THE PEOPLE EX REL. GUISEPPE MENGIONE, Franklin H. Briggs, Supt.

(138 App. Div. 386.)

Headnote

Infant—Petit Larceny—Presence of Parent Not Necessary at Trial.

It is not necessary that the parent, guardian or custodian of a child under sixteen years of age, accused of petit larceny, have notice of or be present when he was examined before the magistrate or committed to the State Agricultural and industrial School.

Appeal by the relator, Guiseppe Mengione, from an order made by the County Court of Monroe county, and entered in the office of the clerk of said county on the 2d day of February, 1910, dismissing a writ of habeas corpus and remanding one Angelo Mattruccio to the custody of the respondent.

Smith O'Brien, for the appellant.

Charles B. Bechtold, Assistant District Attorney (Howard H. Widener, District Attorney), for the respondent.

Angelo Mattruccio, the relator’s nephew, was convicted of the crime of petit larceny on the 16th day of June, 1909, by a justice of the peace in Montgomery county, and committed by the magistrate to the State Agricultural and Industrial School, under the provisions of the statute relating, to that institution. At the time of his conviction and commitment the boy was fifteen years of age. Neither of his parents, nor any guardian or custodian of the child was present at the examination before the magistrate, and none of them had any notice thereof.

p. 503

It is contended on his behalf that the magistrate did not have jurisdiction to proceed with the examination and convict and commit the boy in the absence of either of his parents or a guardian or custodian of the boy, without such notice. That contention seems to be based upon certain provisions of section 486 of the penal law* relating to children. The section provides among other things that any child actually or apparently under the age of sixteen years, who is found doing certain prohibited acts, or comes within certain descriptions therein referred to must be arrested and brought before a proper court or magistrate, and may be committed to any incorporated charitable reformatory or other institution, as therein provided. The particular provisions in that section to which counsel for the relator calls attention, are contained in subdivisions 5 and 8, and are as follows:

“ 5. . . .

“ Whenever any child shall be committed to an institution under this chapter, and the warrant or commitment shall so state, and it shall appear therefrom that either parent, or any guardian or custodian of such child, was present at the examination before such court or magistrate, or had such notice thereof as was by such court or magistrate deemed and adjudged sufficient, no further or other notice required by any local or special statute, in regard to the committal of children to such institution, shall be necessary, and such commitment shall in all respects be sufficient to authorize such institutions to receive and retain such child in its custody as therein directed. . . .

“ 8. . . . Any such child convicted of any misdemeanor shall be finally committed to some such institution and not to any prison or jail or penitentiary longer than is necessary for its transfer thereto.”

Those provisions do not contain any requirement at all making it necessary that a parent or guardian or custodian of the

p. 504

child shall be present or have notice of the examination, but simply provide that such presence or notice, as therein stated, shall be sufficient, without regard to the provisions of any local or special statute.

As is pointed out by the learned county judge in his able opinion, the charters of certain institutions require such notice to be given, but no such requirement exists in the charter of this institution. No statute containing such a requirement, applicable to the institution to which the boy was committed, has been called to our attention, and we know of none. In the absence of any such statute, the magistrate could proceed with the trial of the accused and convict and commit him, without one of his parents or other legal custodian of the boy being present, or having any notice of the proceedings.

The learned county judge has so fully discussed the question in its various aspects that further discussion upon our part is unnecessary. We agree with him that the boy was properly committed. The writ of habeas corpus was, therefore, properly dismissed, and the order to that effect should be affirmed.

All concurred.

Order affirmed.