People Ex Rel. Clark v. Keeper of New York State Reformatory for Women

Werner, J.' On the 31st day of May, 1902, the relator was sen-tended by a New York city magistrate to the State Reformatory at Bedford, N. Y., under the authority of section 146 of the State Charities Law (Chap. 26, Gen. Laws), ' which provides, in substance, that a female between the ages of fifteen and thirty years, who has been convicted by a magistrate of petit larceny, habitual drunkenness, of being a common prostitute, of frequenting disorderly houses or houses of prostitution, or of a misdemeanor, and who is not insane nor mentally or physically incapable of being benefit-, ed by disciplinary treatment, may be sentenced to the several reformatory institutions for women therein mentioned. The learned district attorney has favored us with a most elaborate and instructive brief on the constitutionality of the section of the State Charities Law above referred to, but as that question is not distinctly raised by the respondent’s counsel, and as there are other obvious infirmities in the record which require the affirmance of the order discharging the ' relator, we shall not now discuss or decide the constitutional question, for that may be of sufficient gravity and importance to merit the most serious consideration when presented by a record that is not so fatally defective as the one before us. The complaint made by the officer who arrested the relator charges her with importuning and soliciting men for the purpose of prostitution, and with having been repeatedly arrested and convicted of the charge of disorderly conduct, in that she was in the habit of soliciting and importuning men for the purpose of prostitution upon the street at all hours of the, *23 night, and with being “a public prostitute.” The record of conviction recites that the relator was brought before the magistrate and charged with “ disorderly conduct” in importuning and soliciting men upon the street for the purpose of prostitution. The warrant of commitment states that the relator was charged with ‘ ‘ being a public prostitute, ” and that she was convicted upon that charge. • The magistrate’s return to the writs of habeas corpus and certiorari issued herein sets forth that the relator was convicted of ‘ ‘ such disorderly conduct charged in said complaint, and as in my opinion tended to and might provoke a breach of the public peace.” The relator demurred to this return, and, upon the issue thus joined, the Supreme Court at Special Term sustained the demurrer and the writs and discharged the relator from custody. At the Appellate Division this order was affirmed. There are several reasons why this decision should be sustained. To begin with, the magistrate had no jurisdiction to sentence the relator to the reformatory at Bedford, because she was not convicted of any of the offenses enumerated in the statute which confers upon magistrates the power to sentence convicted women to that institution. The relator was not convicted of petit larceny, habitual drunkenness, of being a common prostitute, of frequenting disorderly houses or houses of prostitution, and those are the only offenses specified by name in section 146 of the State Charities Law. It is urged that the terms “ public prostitute” and “commonprostitute” are practically synonymous, so that a conviction under either designation amounts to one and the same thing, but even if that be conceded for the purposes of the argument, there still remains the practical difficulty of determining whether the relator was convicted of being a prostitute or for disorderly conduct, In the complaint the substance of the charge is *24 that the relator was a “public prostitute,” and her previous arrests and convictions for disorderly conduct are recited apparently as matter aggravating the charge. In the record of conviction the offense named is “ disorderly conduct,” and the reference to the soliciting of men for immoral purposes seems to be purely explanatory and incidental. The only offense referred to in the warrant of commitment is that of being a “public prostitute,” but the magistrate’s return to the writs ignores that charge and asseverates that the relator’s conviction was had on the charge of “disorderly conduct.” So palpable and confusing are these contradictions of the magistrate’s record that it is impossible to say that any offense has been charged and set forth with the convenient certainty which the law requires. While it is not necessary that the offense should be charged with the precision required in an indictment, the record should show that the relator is charged with some offense known to the law by some statutory or legal definition (People ex rel. Allen v. Hagan, 170 N. Y. 52), and this is particularly true in cases where an alleged offender may, by a single act, lay himself liable to either one of several charges. We have referred to the offenses mentioned by name in section 146 of the State Charities Law, upon conviction of either of which a woman of the prescribed age and condition may be sentenced to a state reformatory. To this category should be added the general designation of “misdemeanor” which appears at the end of the enumeration. We mention this because it is argued for the appellant that if there is no such offense as that of being “ a public prostitute” the conviction herein should be upheld on the ground that “disorderly conduct” is a misdemeanor which brings the relator within the class of women who may be committed to state reformatories. Upon this point it is enough to say that, even if it were reasonably certain that the magistrate intended to convict the relator of “ disorderly conduct,” it would not necessarily follow that *25 the conviction would be valid, for the case would then turn upon the question whether the charge of “disorderly conduct,” as recited in the complaint, record of conviction and warrant of commitment, is one which, under other statutes, is defined as an offense or a misdemeanor. In the abstract there is no such offense as “disorderly conduct,” but by section 1458 of the Consolidation Act, which seems to have been incorporated into the charter of the Greater New York city, ‘ ‘ every person in said city and county shall be deemed guilty of disorderly conduct that tends to a breach of the peace, who shall in any thoroughfare or public place in said city and county commit any of the following offenses, that is to say : (2) Every common prostitute or night walker loitering or being in any thoroughfare or public place for the purpose of prostitution or solicitation, to the annoyance of the inhabitants or passers by,” and by section 675 of the Penal Code “ any person who shall, by any offensive' or disorderly act or language, annoy or interfere with any person or persons in any place * * * shall be deemed guilty of a misdemeanor.” The most cursory comparison of the language of these statutes, with the verbiage of the magistrate’s record herein, will disclose the essential insufficiency of the latter in the very particulars which go to make up the statutory offense of disorderly conduct. Taken as a whole, this record gave the magistrate no jurisdiction to render the judgment which is here the subject of inquiry. The writs of habeas corpus and certiorari were, therefore, the proper remedy (People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People ex rel. Van Riper v. N. Y. C. Protectory, 106 N. Y. 605), and we think the case has been correctly'disposed of by the courts below. We quite agree with the learned district attorney that there is no more important branch of our criminal jurisprudence than that which relates to the reformatory treatment of offenders who are not to be classed as criminals ; but since the jurisdiction to administer such treatment is purely statutory, it is *26 equally clear that in its exercise the forms of law should be observed, at least with reasonable approximation, for otherwise the rights of such offenders would be subjectto invasions that will not be tolerated even in dealing with hardened criminals. The errors of record in this case are not mere matters of form but go to the very substance of right and, therefore, the order herein must be affirmed.