12 A.D. 495 | N.Y. App. Div. | 1896
On the 20th day of June, 1896, a complaint was made before a city magistrate that the two persons named as- appellants here, being children under the age of sixteen years, one of them being five years of age and the other seven, were found improperly exposed and neglected by their parents and in a reputed house of assignation and prostitution and without any proper guardianship, in violation of' the Penal Code of the State of Hew York. The complaint further contained allegations that the mother of said children was, on the aforesaid 20th day of June, 1896, charged upon the' complaint of the same deponent with keeping and maintaining a disorderly house, and that the said mother was then confined in the city prison upon the said complaint. The complainant further said that the father of the children had full knowledge of the character of the premises maintained by the mo.ther.
Upon that complaint the magistrate issued his warrant, requiring that the children should be brought before him ; and thereupon a hearing was had, and, on the 21st- day of June, 1896, the magistrate made his judgment of commitment, by which the children Avere committed to the Missionary Sisters of the Third Order of St. FranciSj where they are now detained..
From the judgment of commitment, made by the magistrate, the mother took an appeal to the Court of General Sessions, pursuant to the right given to her by section 749 of the Code of Criminal Procedure. • That appeal was based upon an affidaAÚt, upon which it was allowed by thé recorder. The affidavit is .inartificially drawn, and contains many allegations of fact not germane to this proceed
It is evident from the complaint and from the return that, up to the time of the arrest of Mary Giles, the mother of these children, they had been in her charge and sheltered in her house, and it is quite evident from the complaint that the basis of the charge against them, upon which the arrest was made, was that, the mother having been arrested upon a charge of keeping and maintaining a disorderly house, and being in prison upon that charge, the necessary inference followed that - the children, being inmates .of. that house, were liable to the charge upon which they were arrested. It is fairly to be inferred from that complaint that these are the grounds upon which the magistrate acted; because, not only must there have been present in his mind a knowledge of the fact that the mother was arrested upon the charge of keeping a disorderly house, for which he had just before issued a warrant against her, but the allegation of that same fact was made by the complainant here the basis of his charge in this proceeding. So that the charge against the children could stand only if Mrs. Giles was guilty of the offense alleged against her, because, if she was innocent of that offense, and the house in which these children were was not a disorderly house, then there was no foundation for any charge against the children that the)r were improperly neglected or that they were inmates of a reputed house of assignation and prostitution. The charge that they were without proper guardianship could only stand if it was made to appear that this woman and her husband, their natural protectors, were not proper persons to take care of them. This was found by the magistrate, and the correctness of this finding as matter of fact is fairly challenged by the affidavit upon which the appeal was allowed.
Why the testimony taken before the magistrate was not reduced to writing we are unable to conceive. This proceeding was had Hinder the statute, for the purpose of obtaining a judgment which should deprive the parents of these children and of their right to control them, and commit them to the care of a society; and the propriety of doing that was based upon charges, criminal in their nature, which it- was the duty of the complainant to establish by proof before a judgment of commitment could be rendered. In every trial, whether summary or not, especially when the charge upon Which the defendant is tried is criminal in its nature, it is the duty of the court or magistrate before whom the trial is had to reduce the evidence to writing. That this should be done is essential to the rights of the parties who are put upon their trial and who may possibly be convicted by the judgment; otherwise it would be impossible for them in any case to have a review of their conviction and sentence.
It is said, however, that the magistrate was only required to reduce this testimony to writing when a demand ■ to that effect was ■ made either by the district attorney or the defendant, and as authority for that proposition is cited section 204 of the Code of Criminal Procedure. That section is contained in part IY of the.Code of Criminal Pro
When the papers upon • which this appeal was taken were served upon the magistrate it was his duty to make a return of the evidence, as we have said; and if the return was not sufficient, the'court had power to order an amended return which .should contain the evidence. This was necessary in this proceeding, because, otherwise, the correctness of the determination of the magistrate upon a question of fact could not be reviewed. But it is apparent in this case that the magistrate was unable to return the evidence, because it was not taken down before him. He did .return all that he could return, and that was his conclusion that the ■evidence was sufficient to prove the charge made against these chil
From the judgment; of the Court of General Sessions an appeal lies to this court, and there is no question but that we have the power, upjon review--of the judgment -of the General Session's, to direct such a judgment to be had as that court should have rendered; It' should have directed a new trial. Its failure to do this was error, for whichf its judgment must be reversed, and the., case must be remitted tp the Court pi General Sessions, with directions to order a new trial, which should be had in. that court under the provisions, of the Gójie,
Yan Bkünt, P. J,, Barrett:, ' Williams and Patterson, J J., concurred! •-.
■Judgment reversed and the case, remitted to the Court of General Sessions, with directions to order a, new trial to be had in that court .under thei provisions of the Code; ■ ;