People ex rel. Lichtenstein v. Hodgson — 35 N.Y. St. Rep. 981

Majority

p. 981

The People ex rel. Isaac Lichtenstein, App’lt, v. Thomas C. Hodgson, Sheriff, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed January 23, 1891.)

Headnote

1. Disorderly persons—Jurisdiction—Commitment.

A police justice has jurisdiction of proceedings against a disorderly person, and may, in his discretion, make a reasonable postponement of the hearing to enable the complainant to be notified and her witnesses summoned, or the necessary accommodation of other business, and may commit the accused to the custody of the sheriff in default of bail pending such postponement.

2. Same—Habeas corpus—Questions not reyiewable on appeal.

The petition for a writ of habeas corpus alleged that the justice had no jurisdiction because of the pendency of an appeal from a former conviction for the same charge, and that one of the issues to be tried was the marriage of relator and the complainant, and in his traverse relator denied that he ever had a wife or family. No evidence was given at special term to support these allegations, nor did it appear that such issue had been made before the justice. Held, that these questions were not presented by the record for review on appeal.

Appeal by the relator from an order of Monroe special term dismissing a writ of habeas corpus and remanding him to the custody of the sheriff.

J. M. B. Stevens, for app’lt; G. A. Benton, district attorney, for resp't.

The principal questions argued by counsel for the relator on this appeal are not in any manner presented by the record before us. He was committed to the custody of the sheriff by the police justice of Rochester, pending a hearing on a warrant issued by that magistrate charging him with being a disorderly person in that he refused to support his family. He sued out a writ of habeas corpus alleging in his petition that he had been previously arrested and convicted on the same charge and, having appealed from the judgment of conviction, had been let to bail pending such appeal, which was still pending and undetermined. He also alleged that a principal question upon which the appeal was brought was whether the police justice had jurisdiction of the proceeding, one of the facts of issue being the marriage of the parties, and that the same questions would arise upon any subsequent trial of the case. The petition set out the warrant and commitment of the police justice which it alleged were the cause or pretense of the imprisonment complained of, and it charged that such imprisonment was illegal because the magistrate had no jurisdiction to issue such process, by reason of the facts before recited, among others.

The return of the sheriff set up the same commitment as that alleged in the petition as his authority for the detention of the relator. The relator by way of traverse of the return alleged that the commitment was null and void for want of jurisdiction of the magistrate to issue the same ; reaffirmed the allegations of his petition, and denied that he ever had a wife or children, or a family within the meaning of the statute relating to disorderly persons.

p. 982

No evidence seems to have been given by the relator in support of any of the allegations of his petition or traverse, and the final order of the special term discharged the writ of habeas corpus and remanded the relator to the custody of the sheriff. .

The relator seeks to argue here the two questions, (1) of the effect of the previous proceeding against him on the same charge, his conviction thereupon and his appeal from such conviction still pending, and (2) whether the magistrate has jurisdiction to try the issue of the marriage of the relator and the complainant. But these questions are plainly not presented by the record on this appeal, because there is no evidence of such previous conviction and appeal, nor is it even alleged that the issue of the marriage of the parties had been made in the proceeding in which the commitment in question was issued. On the contrary* that commitment was to answer the charge made in that proceeding and so far as appears no plea had yet been made to such, charge.

We are bound therefore to assume that the only question before the special term was one which might have been raised by a demurrer to the return of the sheriff, viz., of the sufficiency and validity of the commitment on its face. That inquiry, no doubt, involved the two questions, 1, whether the police justice had jurisdiction to entertain the proceeding, and 2, whether he had authority to commit the relator to the custody of the sheriff pending the hearing before him.

Such being the case before the special term there can be no doubt of the correctness of the order appealed from. Jurisdiction of the particular offense with which the relator was charged is expressly given to the police justice by §§ 900e<seg'. of the Code of Criminal Procedure, as well as by §§ 263 et seq. of the charter of the city of Rochester as amended by chapter 561 -of the Laws of 1890. That it was in the discretion of the magistrate to make a reasonable postponement of the hearing of the charge in order to enable the complainant to be notified and her witnesses to be summoned,, or for the necessary accommodation of other business before him, cannot be questioned; and that he may commit the accused to the custody of the sheriff pending such postponement, and in default of bail, follows of necessity. There was no evidence before the special term that such discretion was abused in this case, nor that bail was offered and refused. y

There seems to have been no ground shown for impugning the jurisdiction of the magistrate to issue the commitment nor to question that the same was valid and sufficient on its face.

The order of the special term should be affirmed, with costs.

Macomber and Corlett, JJ., concur.