1 N.Y. Crim. 58 | N.Y. Sup. Ct. | 1883
The prisoner was brought before me on a writ of habeas corpus, and her discharge asked for on the ground that it appears from the commitment, that having been convicted of disorderly conduct, she was ordered to find surety, in the sum of $300, for her good behavior for the term of one month, and that having failed to find such surety she was committed to the city prison for the term of one month.
It is urged that, under the provisions of the Code of Criminal Procedure, the police justices are deprived of the power which it is conceded they possessed under the former Statutes, to order persons convicted of disorderly conduct to find surety for their good behavior for a period not exceeding
The question involved is a serious one, as a large number of the summary convictions in this city are in cases of disorderly conduct. Upon examining the Code of Criminal Procedure and the Penal Code, I have been unable to find, any allusion in either Code to the offense of disorderly conduct. Counsel conceded on the argument that they'had been similarly unsuccessful. Prior to the passage of the Codes there were three classes of persons who might under the law be summarily convicted before a magistrate without a jury, to wit: first, vagrants; second, disorderly persons; third, persons guilty of disorderly conduct. The distinction between these different offenses and the difference in the mode of procedure for their punishment under the Eevised Statutes and the act of 1833 (Laws of 1833, page 9, chap. 11), the act of 1859 (chap. 491, page 1129), and the act of 1860 (chap. 508, page 1013), and other acts upon the same subject, was most clearly pointed out and explained by chief justice Daly, in his elaborate and exhaustive opinion in the case of the Twelve Commitments (19 Abb. Tr., pages 394, 396, 397, 400), and it would be unnecessary if it were possible to add anything to what the learned justice there says in regard to those offenses.
I have said that there is no direct mention of the offense of disorderly conduct either in the Penal Code or in the Code of Criminal Procedure. But persons who come under the head of vagrants and disorderly persons are distinctly referred to in each of the Codes. Section 887 of the Code of Criminal Procedure, which consists of eight subdivisions, declares who shall be considered as vagrants. This section is contained in title 6 of part 6 of that Code, and the remaining sections of that title provide for the apprehension, conviction and punishment of vagrants.
By the 291st section of the Penal Code, certain acts or conduct on the part of children render them liable to be arrested and dealt with as vagrants, and by section. 724 it is
It is argued in favor of the validity of the commitment, that section ninety-nine is not "to be interpreted literally, nor
The Code of Criminal Procedure is divided into six parts. The first relates to the courts having original jurisdiction in . criminal actions, the second relates to the prevention of crime, the third relates to the judicial proceedings for the removal of public officers by impeachment or otherwise, the fourth relates to the proceedings in criminal actions prosecuted by indictment, the fifth relates to proceedings in the special sessions -and police courts, and the sixth to special proceedings of a criminal nature. Section 99 is in that part of the Code which relates to the prevention of crime, and it is argued that when the statute says that security to keep the peace, or to be of good behavior, cannot be required except as prescribed in this chapter, it means security to keep the peace and to be of good behavior as to the crimes specified in that chapter.
The point is not free from doubt, but after much deliberation I have satisfied myself that it must be sustained for several reasons.
In the first place there is at least one section of the Code of Criminal Procedure which expressly authorizes a magistrate to require an offender to give security to be of good behavior. By section 901 if a magistrate convicts one of being a disorderly person he may require that the person charged give security by a written undertaking with one or more sureties; that,
First. If he be a person described in the first or- second subdivisions of section 899, he will support his wife and children and will indemnify the county, city, village or town against their becoming within one year chargeable upon the public.
Second. In all other cases, that he will be of good behavior for the space of one year. This section is contained in the*289 title of the Code of Criminal Procedure which relates to disorderly persons. The first and second subdivisions relate to persons who have abandoned their- wives or children or who threaten to run away and leave them, and the-remaining seven subdivisions to the numerous other persons who are declared to be disorderly. Again, by section 64 of the Code of Criminal Procedure, which is contained in part 1, relating to courts having original jurisdiction in criminal actions, it is provided that the court of special sessions in the city and county of New York has jurisdiction * * * (subd. 6): “To require the principal in a recognizance to appear at the court and enter into a further recognizance to keep the peace or to be of good behavior, or both, toward the people of the state for a period not exceeding one year, and on default thereof to commit him to prison till he be discharged therefrom according to law.” The statute is silent as to the officers by whom or the offenses for which the recognizances therein referred to may have been taken; but it is claimed by the police justices, and I think correctly, that this section recognizes the fact that, under chapter 508 of the Laws of 1860, they had the power to take recognizances for good behavior and to keep the peace, which recognizances were required to be forthwith filed in the office of the clerk of the court of special sessions (Laws of 1860, page 1007).
Furthermore, by the seventy-fourth section of the Code of Criminal Procedure, “ police justices have such jurisdiction, and such only, as is specially conferred upon them by statute. The courts held by police justices are called police courts, and courts of special sessions are also called police courts and are so designated in different parts of the Code.” This provision is contained in chapter 4 of title 6 of part 1 of the Code of Criminal Procedure. Upon turning to the other titles and chapters of this part, it will be found that the jurisdiction of all the other courts is specifically defined. But the police justices are to have such jurisdiction, and such only (not -as may be), specially conferred upon them by statute. I have ’not.
I have already pointed out that in neither of the Codes is disorderly conduct mentioned. It is well known that in this city cases of disorderly conduct constitute a large portion of the matters which come before the police magistrates. Could it have been the intention of the legislature to have allowed that class of offenders to go free, or in other words, to say that persons who would formerly have been adjudged guilty of disorderly conduct in the future should be considered guiltless ? Such a result is not to be reached in construing the Codes unless it is unavoidable, and,if we take the Codes together it is not unavoidable.
Section 724 of the Penal Code, as I have before observed, preserves the statutes in regard to vagrants and disorderly persons, except so far as their provisions may be inconsistent with the Code. Uow by the next section (725) it is provided that “ nothing in this Code affects any of the provisions of the following statutes, but such statutes are recognized as continuing in force notwithstanding the provisions of the Code, except so far as they have been repealed or affected by subsequent laws.”
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CFourth. “All acts defining and providing for the punish
And by section 962 of the Code of Criminal Procedure it is provided that “ this Code applies to criminal actions, and all other proceedings in criminal cases, which are herein provided for,” &c.
Inasmuch as in neither of the Codes are cases of disorderly conduct provided for, the conclusion is irresistible that the acts defining that offense are not inconsistent with either Code, and that they are therefore retained.
Finally, I cannot presume that the legislature intended to abolish disorderly conduct from the statute book as an offense, and while the omission to refer in either Code to that offense is peculiar, it seems to me that the sections of the two Codes to which I referred save the prior statutes relating thereto.
The writ is therefore dismissed and the prisoner remanded.