People Ex Rel. Van Houter v. Sadler

Earl, J. The Revised Statutes (vol. 1, p. 638) contained provisions for dealing with disorderly persons, among whom were persons keeping a bawdy house, and those provisions were substantially re-enacted in the Code of Criminal Procedure, § 899. The main purpose of those provisions is to arrest the disorderly practices named, by compelling a disorderly person to give security for his good behavior. If he will give the security required, he cannot be punished. If the security be not given, he may be committed to the county jail for not exceeding six months, from which he may be discharged at any time upon giving security. Code of Crim. Pro. §§ 902, 903, 907, 910. The keeping of a bawdy house was also a misdemeanor at common law, and is now made so by the Penal Code, § 322, which took effect December 6, 1882. The defendant was indicted November 24, 1882, for keeping a bawdy house between June 12, 1883, and the day of the indictment, and hence the case is governed by the common law. There was, therefore, this state of things, when this offense was committed. The relator, while he kept the bawdy house, could have been arrested and dealt with as a disorderly person, or he could have been indicted and punished for keeping such a house. The two proceedings have different *474 ends in view, and could both be taken against any person who kept such a house. Such person could be arrested as disorderly, and compelled to give the security required, and then afterward he could be indicted and punished for having kept a bawdy house. Therefore the common law remedy by indictment against the relator was not abolished or superseded by, or inconsistent with, the provisions of the Code of Criminal Procedure as to disorderly persons. The relator was not, as he claims, sentenced under section 15.of the Penal Code, as that was not applicable to this crime committed before that Code took effect. But he was sentenced under a similar section of the Bevised Statutes (vol. 2, p. 697, § 40), whicli provides “ that every person who shall be convicted of any misdemeanor, the punishment for which. is not prescribed in this or any other statute, shall be punished by imprisonment in a county jail not exceeding one year, or by a fine not exceeding' $250, or by both such fine and imprisonment.” When this crime was committed, there was no other statute providing for its .punishment. Therefore the court did not err in sentencing the relator to be confined in the Onondaga penitentiary for the term of one year, under chapter 209, Laws of 1874, as amended by chapter 108, Laws of 1876. A further objection is made that the sentence is invalid because it did not conform to the latter statute, which provides that the judge may “ sentence such person to imprisonment in such penitentiary, there to be received, hept and employed in the ma/nner prescribed by law and the rules and discipline of such penitentiary? The objection is that the words italicized are not contained in the sentence. Those words are no part of • the sentence, but are simply directory to the keeper of the penitentiary, prescribing what shall be done with the prisoner and how lie shall be kept after he reaches there. We are, therefore, of the opinion that the relator was properly sentenced, and that the order appealed from should be affirmed. All concur. Order affirmed.