Gray's Case

Ingraham, J. The prisoner was committed by a police-justice, on the ground of his having been convicted of being a vagrant, viz.: an idle person not having visible means to maintain himself, and an habitual drunkard. He is now brought before me on habeas corpus, and his discharge asked for on the ground that the commitment is not for any offence provided by statute. The practice of reviewing convictions before justices on habeas corpus is not to be commended. The statute permits another mode for correcting the errors of the justice, which should be resorted to. If the commitment is regular, and the justice has jurisdiction of the matter, no relief should be afforded in this proceeding. It is apparent, therefore, that I should only inquire whether the justice had jurisdiction of the prisoner, for an offence defined in any of the statutes of the State. I think there can be no doubt on both points. The jurisdiction of the justice making the commitment is not disputed. The offence of which the prisoner was convicted is stated as follows, viz.: “Who stands charged before me with being a vagrant, viz.: an idle person, who, not having visible means to maintain himself, and is an habitual drunkard.” The confusion of the sentence arises from the use of a printed form of commitment, and erasing part, so as to insert another grade of the same offence as provided by the statute. By the Revised Statutes (vol. 1, 602), an idle person, who, not having means to maintain himself, lives without employment, is to be deemed a vagrant. In the present case the words “lives without employment,” are erased from the commitment. By the act of 1833 (Laws of 1833, 9, ch. 11), “ A person, who, being an habitual drunkard, is destitute and without visible means of support,” is to be deemed a vagrant. In this case the words “ is destitute ” are stricken out. If it were necessary that all the matters required to be proven should be stated in the commitment, then neither offence is fully [58] stated therein. But I am of the opinion that it is not necessary that the commitment should state all the particulars necessary to make out the offence. The offence is being a vagrant. The justice states that the prisoner has been charged with being a vagrant, and was convicted on competent proof. This is sufficient to show the offence charged and the conviction. (See People a. Moore, 3 Park. Cr., 465.) In a commitment for petit larceny it is enough to state that offence without reciting the goods stolen, or the owner of the property. In The People a. Cavanagh (2 Park. Cr., 660), the general term of the second district held that a commitment which recited that the prisoner was convicted of a misdemeanor was sufficient, and a more particular statement of the offence need not be made. Even if the contrary rule had been adopted prior to 1855, since that time the mode in which the record of conviction is directed to be made up, would render such recital unnecessary. That act (Laws of 1855, ch. 268) directs the form of the record of conviction to be in this respect, as follows : “ That the prisoner was brought before the justice on a charge of being a vagrant, and that upon diligent inquiry, &c., it appearing that the said prisoner is a vagrant within the provisions of the statute, I, the said justice, did so adjudge,” &c. The commitment is sufficient if it follows the record; and when it is not required that the justice should insert in the record the particular grounds on which the charge of vagrancy is based, it cannot be necessary to recite them in the commitment. The words defining the particular causes of vagrancy may therefore be regarded as surplusage, and the charge of being a vagrant, and being committed thereof, is sufficient. The prisoner is not without means of reviewing the judgment appealed from, and I do not feel at liberty under this proceeding to review that trial. At any rate, I am not willing to discharge a prisoner because the parts necessary to be proven are not recited in the commitment. I concur with the views of Mr. Justice Sutherland, in the case of Catharine Forbes, so far as they are expressed as to what is necessary to be proven in order to make out the offence; and unless, on a review of the case, it should appear that all the [59] facts necessary to constitute the offence are proven, the conviction should be reversed; but as I do not consider that all such facts should necessarily be recited in the commitment, I feel bound to remand the prisoner, on the ground that the commitment is regular on its face, and the decision of the justice cannot be reviewed in this proceeding. The prisoner must be remanded.