19 N.Y. St. Rep. 485 | Superior Court of Buffalo | 1888
The relator was heretofore, and on or about the 23d day of October, 1888, convicted of the offense of petit larceny, by Thomas S. King, a police justice of the city of Buffalo, and by him committed to the care of the Society for the Protection of Destitute Roman Catholic Children. The commitment of the relator was made under and by virtue of chapter 364 of the Laws of 1864, and of the acts amendatory thereof. It is claimed upon the part of the relator that the act of 1864 does not authorize the commitment of a ■child to the custody and care of the said society for the offense of petit larceny. This claim overlooks the amendment by the act of 1868, which provides in terms for a commitment to said society for the offense of petit larceny. Laws 1868, c. 891, (found in 1 Sess. Laws 1869, p. 12.) The relator also makes ■claim that no record of conviction for the offense was filed within 20 days after said conviction, as required by section 723, Code Grim. Proc. The statute under which this conviction was had does not require that any record of conviction shall be filed, but, if we hold the provisions of the Code applicable, the relator does not become entitled to his discharge by reason of such failure to file. In People ex rel. McCourt v. Baker, decided by this court at general term, in 1881, (not reported,) a similar statute was held directory, and that where the record was made in due form it was sufficient, even though not filed at the time required by the statute. See MS. opinion of Smith, J. This view is in harmony with the decision of other courts construing like statutes. Hall v. Tuttle, 6 Hill, 39; People v. Allen, 6 Wend. 486. By section 724, Code Grim. Proc., the certificate required to be filed, or a certified copy thereof, is made conclusive evidence of the facts therein stated. This is substantially a re-enactment of the Revised Statutes. 3 Rev. St. 6th Ed. § 51, p. 1012. Under this section it was held that the object of the certificate was to afford evidence in the event the accused should commit a second offense. Bennac v. People, 4 Barb. 167. As the filing of the certificate forms no part of the judgment or the commitment by which a defendant is removed to the place of imprisonment, and received, its only object and purpose would seem to be to furnish evidence of the offense of which the defendant is convicted, which record may be resorted to for any purpose, either to show the conviction and sentence, to authorize the detention of a person seeking to be discharged from imprisonment, or available evidence for the public prosecutor to prove a second offense; and a failure to file the certificate is therefore not such a defect as entitles the relator to his discharge.
The claim is also made that the magistrate had no authority to commit to the care of the society, without his giving notice of the proceeding to the father of the child; thereby giving him an opportunity to be heard. This statute is similar in all respects, so far as it relates to the notice to be given after the magistrate has made his order or warrant committing the child to the house of reception, to the statute which was the subject of construction in People v. Catholic Protectory, 101 N. T. 195, 4 N. E. Rep. 177. And it is there held that such notice is a prerequisite to the right of the magistrate to give the final order for the removal of the child so committed to the asylum of the corporation. It is admitted upon this hearing that the notice to the parent was not given, but it is claimed that, inasmuch as the offense for which the child was committed is that of petit larceny, the statute, so far as it relates to the notice,' has no application. It is not claimed that the commitment was made by virtue of any authority, except such authority as is conferred by the statute creating this corporation. The purpose of the statute, as gathered from its title and its terms, is clear and distinct, to-wit; To create a “Society for the Protection of Destitute Roman Catholic Children.” The acts amendatory continue the purpose of the original act. Ho authority is conferred upon the magistrate to commit, unless the child be of Roman Catholic parentage, not over 14 or under 7 years of age; and, for the purpose of establishing such facts, the statute requires that the magistrate shall first be
It is thus seen that the primary facts to be established before jurisdiction is-conferred upon the magistrate to commit are that the child is of Roman Catholic parentage, and between the ages of 7 and 14. Without this there is no-authority to commit, receive, or detain; and in any stage of the proceeding, or after commitment, these facts appearing, it is made the duty of either magistrate or management to discharge. The statute confers no other or different authority in the case of petit larceny than in beggary or vagrancy. The statute also provides that other facts maybe proved which may entitle a discharge^ which are that the child was not suffering from want, and that the circumstances under which it was found were not occasioned by the misconduct or habitual neglect of the parents, etc. These circumstances, which may be thus-proved, are evidently not applicable to a commitment for petit larceny, which is a'personal offense, and in the eye of the law not dependent upon any act. of the parent. But the language of the act is in the disjunctive, “that said, child is not of Roman Catholic parentage, or that the circumstances of want,” etc.,—thus showing that more than one fact was contemplated which might-be established; but before the commitment, even though all the other facts-were established, the essential one must be that the child was of Roman Catholic parentage, and between the ages of 7 and 14. The opportunity which the statute thus provided for has been disregarded. In People v. Catholic Protectory, 106 N. Y. 604, 13 N. E. Rep. 435, the court construed section 291 of the Penal Code, which provided that, if it should appear that the parent, guardian, or custodian of the child was present at the examination before the court, or magistrate, and had notice thereof.no other or further notice was required. The court held that the father was entitled to notice, even though the mother was present at the examination. 106 E. Y. 613,614,13 E. E. Rep. 438. The case also holds that these statutes, being in derogation of the common law, are to be strictly construed, and every step which the statute requires must-be observed. Applying that rule here, it follows that the police justice never acquired jurisdiction to make the commitment.
The claim is also made that the judgment and certificate of conviction are. void for a failure to comply with the statute authorizing the commitment. It was held in People v. Catholic Protectory, 101 N. Y. 195, 4 N. E. Rep. 177, that these statutes were not repealed by the Penal Code; that, being special in their character, they should stand, when not in conflict with the general law.
It is, however, insisted that the child is not held by virtue of the commitment, but by the authority of a judgment. It is well settled that the officer detaining may, at any time, invoke the aid of a judgment, and, upon showing a valid judgment of conviction, it is sufficient, as that is the authority by virtue of which the person is held. People v. Baker, 89 N. Y. 460. But here no judgment pronounced by a magistrate or jurisdictional facts are shown to-have existed which warranted the commitment, and the bare allegation that he is held by virtue of a judgment, without proof of one, is not sufficient. People v. Warden, etc., 100 N. Y. 20, 2 N. E. Rep. 870.
It follows from these views that the relator should be discharged, and the defendant superintendent is directed to discharge him from custody and imprisonment, and deliver him to the care of his father.