On the 16th of February, 1900, the appellant, .Roland B. Molineux, was adjudged guilty of murder in the first degree and sentence of death was pronounced against him. A warrant was at once issued to the warden of the state prison at Sing Sing commanding him to keep the said Molineux in solitary confinement until the time appointed for his execution and to then put him to death in the manner provided by law. Before that time arrived enforcement of the sentence was stayed by the service of a notice of appeal to this court, which afterward reversed the judgment of conviction and ordered a new trial. The second trial resulted in an acquittal. During his imprisonment at Sing Sing a photograph was taken of Molineux and he was measured according to the Bertillon system under the direction of the warden, who forwarded the negative, photograph and measurements to the superintendent of state prisons at Albany, in whose office they have ever since remained as part of a collection which embraces similar data relating to criminals who have been lawfully convicted under the laws of the state.
Upon an affidavit setting forth these facts and alleging that said Molineux was unlawfully convicted, that the photograph was taken and measurements made against his wishes and without his consent, and that he is thus held out as a lawfully convicted criminal, a motion was made at Special Term for a peremptory writ of mandamus commanding the superintendent of state prisons “to remove the plates, photographs and measurements * * * from the records of
The Code of Criminal Procedure provides that when a death warrant is delivered to the agent and warden of a state person he is required to keep the defendant named therein “in solitary confinement at the said state prison’’ until the infliction of the punishment of death upon him or he is lawfully discharged. (§ 491.)
By the Prison Law the superintendent of state prisons is authorized to “make rules and regulations for a record of photographs and other means of identifying each convict received into said prisons. ” (L. 1889, ch. 382, §40.)
By an act passed in 1896, “to facilitate the identification of criminals,” the superintendent of state prisons is required to “cause the prisoners in the state prisons therein confined at the time this act takes effect, and all prisoners therein-after received under sentence, to be measured and described in accordance with the system commonly known as the.Bertillon system for the identification of criminals. ” He is also required to “prescribe rules and regulations for keeping accurate records of such measurements at such prisons and in duplicate at his office in Albany and for classifying and indexing the same. ” (L. 1896, ch. 440, §1.)
The appellant claims that neither of the acts authorizing these methods of identification applied to him, because he was not a “ convict” within the meaning of the earlier, nor a prisoner “received under sentence,” within the meaning of the later. The Criminal Code, however, expressly refers to a prisoner confined in state prison under sentence of death as a “convict” and requires the warden to keep him “in
The measurements and record, therefore, were made by authority of law and became the property of the state, which paid “the necessary expenses incurred” for the purpose. (L. 1896, ch. 440, §2.) They were public records and were beyond the control of the superintendent of prisons, except for preservation and use. He had no power to destroy them or give them away, or surrender them even to one who, although under judgment of death when they were made, was finally adjudged not guilty. The custodian of a public record cannot deface it or give it up,'without authority from the same source which required it to be made. The statute directed the superintendent to make the record, and when he made it the state made it, and it has not authorized him to destroy it under any circumstances, not even to relieve a citizen from an unjust refiec
While the courts can command the superintendent of prisons to do his duty, it is not his duty to give up a record made under the authority of a statute, and until the legislature makes it his duty to surrender the record in question it should remain in his custody, because the state put it there and has not authorized its removal. An innocent man accused of crime is sometimes compelled to make sacrifice and undergo suffering for the benefit of society. Like payment of taxes and service upon juries, it is part of the price paid for the privilege of living in a country governed by law. One, for the good of all, may be required to submit to imprisonment, incur expense and endure mental distress, because the state cannot exist without the preservation of order and order cannot be preserved without the punishment of the guilty, which necessarily involves, sometimes, the trial of the innocent. There is no relief for this apparent injustice except through the. legislature and to that body alone the appellant should look for relief from the annoy
The order appealed from should be affirmed, with costs.
Parker, Ch. J., Gray, O’Brien, Haight, Martin and Cullen, JJ., concur.
Order affirmed.