People ex rel. Lichtenstein v. Hodgson — 37 N.Y. St. Rep. 132

Majority

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The People ex rel. Isaac Lichtenstein, App’lt, v. Thomas C. Hodgson, as Sheriff, Resp’t.^[1]

(Court of Appeals,

Filed April 21, 1891.)

Headnote

1. Disorderly person—Jurisdiction—Conviction when not a bar to SECOND PROCEEDING.

Where a defendant is adjudged a disorderly person and directed to give a bond for his wife’s support or be imprisoned, and he fails to give the bond and appeals, giving an undertaking thereon and is discharged pending the appeal, the first conviction is not a bar to a second proceeding of the same character and to the issuance of a warrant therein, and these proceedings could be repeated until he consents to support his wife, or gives an undertaking for her support or until he is actually in prison under some conviction.

2. Same—Question of marriage.

Where a husband is proceeded against under the statute the justice has jurisdiction to try every question involved in the complaint, including that of ascertaining whether the defendant is the husband of the complainant.

Appeal from judgment of the supreme court, general term, fifth department, affirming order of special term, dismissing writ of habeas corpus and remanding relator to custody of sheriff.

On the 12th day of May, 1890, Dora Lichtenstein made complaint before a police justice of Rochester, charging the relator, her alleged husband, with being a disorderly person, in that he

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neglected to provide for her a support according to his means. Such proceedings were had that on May 16th he was adjudged a disorderly person'and directed to give a bond for his wife’s support, or failing in that' to be imprisoned in the Monroe county penitenitiary for six months. An appeal by the relator to the court of sessions was immediately perfected, and he gave an undertaking and was discharged pending the appeal. On June 30th, thereafter, while the appeal was pending and undetermined, upon complaint of his wife, another warrant for the same cause was issued by the police justice against the relator, and on the following day he was arrested and brought before the justice, who, not being ready to proceed with the case, issued a warrant directed to the sheriff requesting him to receive and detain the relator to answer the charges pending before him. In order to be relieved from imprisonment and detention under the last two warrants the relator procured a writ of habeas corpus from a justice of the supreme court returnable before him at a special term, and in obedience to the writ the relator was produced and the sheriff returned that he held him by virtue of the warrant last named. The relator traversed the return and a hearing upon the petition, return and traverse was had, and a final order was made dismissing the writ and remanding the relator to the custody of the sheriff. He then appealed to the supreme court, and from affirmance of the order » there to this court.

J. B. M. Stephens, for app’lt; George A. Benton, for resp’t.

It is claimed on behalf of the relator that his conviction upon the first complaint was a bar to the subsequent proceedings, and that the justice had no jurisdiction to issue the second warrant. If he had been imprisoned in pursuance of the first conviction, or had given an undertaking for the support of his wife, as was required by the statute, and the decision of the police justice, he could not, during the pendency of his imprisonment, or the life of the undertaking, have been proceeded against again for not supporting his wife. But he did not give the undertaking, and was not imprisoned. He was at large and in a condition where it was possible for him to discharge the obligations cast upon him by the law, to support his wife according to his means, and for his neglect to provide for her support he committed a new offense and exposed himself to the new complaint and conviction, and the previous conviction for his neglect and refusal at that time to support his wife furnished no defense to the second proceeding. At any time subsequent to his first conviction when he neglected to support his wife according to his means, he committed a new offense for which he could be 'arrested and tried, and these proceedings could be repeated until he consented to support his wife, or gave an undertaking for her support, or until lie was actually in prison under some conviction.

The further ground for questioning the jurisdiction of the police justice is that the relator denied that he was the husband of the complainant, and that therefore the police justice had no jurisdiction to try the question of marriage and thus ascertain whether he

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was in fact her husband. If this claim be well founded, then in all cases where a husband is proceeded against for neglecting to suppoi’t his wife before any magistrate he may oust the magistrate of jurisdiction by simply putting in isssue his lawful marriage. Where a husband is proceeded against under the statute the justice has jurisdiction to try every question involved in the complaint, and there is nothing in the law or in reason that should prevent him from ascertaining whether the defendant is the husband of the complainant. It is a general rule, with no exceptions that occur to us, that where jurisdiction is given to a magistrate to try an offense, he may determine every question necessary to the finding of the guilt or innocence of the person -on trial.

For these reasons, and also for the more technical reasons specified in the opinion below, we think the order should be affirmed.

All concur, except Gray, J., absent.