People ex rel. Kuhn v. Protestant Episcopal House of Mercy

Majority

p. 420

The People ex rel. Michael G. Kuhn, Resp’t, v. The Protestant Episcopal House of Mercy, App’lt. In the Matter of the custody of Josephine Kuhn.

(Supreme Court, General Term, First Department,

Filed December 31, 1891.)

Headnote

Vagrants—Commitment—Laws 1883, chap. 410; Laws 1886, chap. 353.

The recital of the child's age in a commitment, under § 1466 of the consolidation act, as amended by the act of 1886, is conclusive only so fares the jurisdictional fact that the child was over twelve and under twenty-one is concerned. The statutory judgment, committing the child during her minority, must stand by itself and is not qualified by a videlicet, “ to-wit, of the age of seventeen years” attached to the recital of the jurisdictional fact, and the child is entitled to he discharged on actually arriving-at majority, notwithstanding such statement.

Appeal from a final order of the special term directing the-release and discharge of Josephine Kuhn from the custody of the appellant; also from an interlocutory order overruling the demurrer interposed by the appellant to the traverse to the return to the writ of habeas corpus issued herein.

Courtland V. Anadie and E. T. Gerry, for app’lt; Andrew Corn- stock, for resp’t.

Josephine Kuhn was committed under the consolidation act as amended in 1886. Laws 1882, chap. 410;; Laws 1886, chap. 353. One of the jurisdictional facts therein specified is, that when brought before the committing magistrate the female child shall be “ over the age of twelve years.” It is also provided that every commitment made: under the act shall state the name and age of the female so convicted ; also the term of commitment, which, if the female so-convicted is an adult, shall be six months, or if a minor, during-her minority.

The commitment in the present case states the age of the child as follows: “ Over the age of twelve years and under the age of twenty-one years; to wit, of the age of seventeen years.” The-writ of habeas corpus was here issued and the child discharged upon the ground, admitted as matter of fact by the demurrer to-the traverse, that the child attained her majority on the 27th of May, 1891, and that, consequently, her period of restraint under the commitment had expired. The appeal is based upon the-contention that the recital of the child’s age in the commitment:

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is conclusive and cannot be reviewed upon habeas corpus. So far as the jurisdictional fact that the child when committed was over the age of twelve years and not an adult is concerned, we entirely agree with the appellant The court has no authority upon habeas carpus to review an adjudication on that head lawfully made by the committing magistrate. We could not, for instance, discharge the child upon proof that she was really but eleven years of age when brought before the magistrate. That would be an attack upon his judgment foreign to the office of a writ of habeas corpus. See People v. The Superintendent, 8 Abb., N. S., 112; People v. The Keeper, 37 How., 494 . But the present application is not in hostility to the commitment. It concedes the correctness of the judgment and asks for the child’s freedom upon the sole ground that her term of commitment under the judgment has expired. The judgment was not that she stand committed for four years, but during her minority. If the judgment had directed her commitment for four years, it would have been void as unauthorized by the statute and as indefinite with regard to the date of her majority. The magistrate, it is true, is directed to state in the commitment the age of the female child, but an inaccuracy on that head would not vitiate the proceedings even upon certiorari, so long as the jurisdictional fact that she was over the age of twelve years and under twenty-one was correctly found. The object of the provision which requires that every commitment shall state the name and age of the female so committed,-together with the cause of her commitment, was undoubtedly to enable the institutions designated for the reception of such persons to classify them as required by the act, § 1466, subd. 2, and to keep those of the first class separate from those of the second ; also, in a general way, to guide such institutions as to the probable period of discharge, and, consequently, as to their capacity from time to time to receive fresh subjects.

It could not have been for the purpose of fixing the precise term of restraint by years, months and days, for there is nothing in the act requiring a specification either of the date of birth or the date when majority will be reached. Indeed, in the case at bar, it would be impossible, on the face of the commitment, to specify the precise date when the child would be entitled to her discharge. That would clearly require evidence aliunde the commitment. For assuming that the adjudication that she was “of the age of seventeen years ” was conclusive, still, when would she be discharged ? The recital is, not that she was seventeen years of age on the 13th day of January, 1889, the day when the commitment was signed, or any other particular day. The recital in question might, indeed be true if she had attained her seventeenth year on the 12th day of January, 1889, or even on *he 14th day of January, 1888. It is apparent that the statutory judgment must stand by itself; that such judgment simply commits the female child during her minority, and that it is in no wise qualified by the videlicet, “ to wit, of the age of seventeen years,” attached to the recital of the jurisdictional fact. 11 The office of the videlicet,” says Bouvier, “is to mark that the

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party does not undertake to prove the precise circumstances alleged.” Its office in this commitment is plainly to mark that the magistrate does not undertake to recite or to find the precise age of Josephine Kuhn.

We think the respondent should have had final judgment on the demurrer to the traverse. The statement in the traverse with regard to the proceedings before the magistrate standing alone would, of course, have been demurrable. But the allegation that Josephine Kuhn “ was born on the 27th day of May, 1870, and, consequently, was twenty-one years of age on the 27th day of May, 1891, was a statement which, being conceded' by the demurrer, established the fact that she had attained her majority, and, consequently, that the term for which she was committed had expired.

Both orders should, therefore, be affirmed.

Van Brunt, P. J., and Andrews, J., concur.