Majority
p. 348In the Matter of the Application of Charlotte Ewer for Writs of Habeas Corpus and Certiorari.[1] (Supreme Court, General Term, First Department, Filed June 30, 1893.)
Headnote
Constitutional law—Penal Code, § 292—Children.Section 292 of the Penal Code, which prohibits the employment or-exhibition of a child under fourteen as a dancer, is not unconstitutional as; inf ringing on the rights of parents or those of the child.
p. 349
Appeal from an order dismissing writs of habeas corpus and certiorari, which were granted to review the legality of the detention of the appellant, she having been arrested upon a warrant .and taken before a police magistrate in the city of New York, charged with a misdemeanor in violating § 292 of the Penal Gode by unlawfully exhibiting, using, procuring and consenting to the exhibition of her daughter, Mildred Ewer, aged seven, as a dancer in the Broadway Theatre, in said city.
Charlotte Ewer, the appellant, was arrested upon a warrant, and taken before a police magistrate in the city of New York, June 16, 1892, charged with a misdemeanor in volating § 292 of the Penal Code, by unlawfully exhibiting, using, procuring and consenting to the exhibition of her daughter, Mildred Ewer, aged seven, as a dancer in the Broadway Theatre in said city. She demanded an examination, upon which the charge was fully sustained, and she was thereupon held to await the action of the grand jury in default of $500 bail. Immediately, writs of habeas corpus and certiorari were issued out of this court. The warden returned the body of the prisoner with the commitment, and the magistrate returned the complaint, warrant of arrest, and testimony taken on the hearing. Thereupon the appellant demurred specially to the returns, alleging that the statute was unconstitutional, and that, upon the conceded facts, no offense had been committed. After hearing argument, Justice Andrews dismissed the writs, and remanded the prisoner, upon the grounds stated in his opinion.
A. J. Dittenhoefer and David Gerber, for app’lt; De Lancey Nicoll, dist. att’y, and Elbridge T. Gerry, for resp’ts.
As the only ground assigned for assailing the proceedings before the police magistrate is that § 292 of the Penal Code is in conflict with the provisions of the constitution, I deem it sufficient to say that, under numerous decisions of the court of appeals, the position taken by the appellant cannot be sustained. The opinion of Mr. Justice Andrews, at the special term, fully covers the case, and it is unnecessary to add anything to the reasoning therein contained. It therefore results that the orders appealed from should be affirmed.
Van Brunt, P. J., and O’Brien, J., concur.