
    SUPREME COURT.
    In the Matter of Sarah Moses and Betsy Moses.
    
      Mew York {city of)—Children as vagrants—Habeas corpus — Its purpose not to review trials before a magistrate on question of vagrancy — Penal Code, section 291 — Code of Criminal Procedure, section 887.
    Where warrants were granted by a police justice committing two children, under fourteen years old as being vagrants, namely, “ engaged in the occupation of begging under the pretext of peddling, to wit, Bowery, in said city, at ten forty-five p. m. on the 5th day of April, 1888, and frequenting the company of prostitutes, concert saloons, dance-houses and places of entertainment where .spirituous liquors were sold,” upon an affidavit made at the hearing before the magistrate, stating the ages of the children, respectively, eleven and thirteen, and that they were found by the affiant committing-acts of alleged vagrancy, described . substantially in the same language as that used in the warrants, and the children wore afterwards discharged upon habeas corpus :
    
    
      Meld, that the return of the commitment in answer to the habeas corpus, and the admission of the facts it contained by the failure to take issue thereon, presented a case, under section 291 of the Penal Code, upon which the court should have remanded the children.
    The purpose of the writ of habeas eorpus is not to review trials before a magistrate on questions of vagrancy.
    
      First Department, General Term, October, 1883.
    
      Before Davis, P. J., Beady and Daniels, JJ.
    
    
      . Appeal from order of special term in proceeding for habeas C0?]pus.
    
    
      
      Demid Levy, for respondent.
    
      John McKeon, district attorney; Robinson, Scribner & Bright, attorneys for Society for Reformation of Juvenile Delinquents, appellants.
    
      John B. Pine, attorney for Society for Prevention of Cruelty to Children.
    
      Elbridge T. Gerry, of counsel for appellants.
   Per Curiam.

— Section 291 of the Penal Code declares under what circumstances children shall be regarded as vagrants, and, amongst other things, it provides that a female child under the age of fourteen years 'who is found begging, or receiving or soliciting alms in any manner, or under any pretense frequenting the company of prostitutes, “ must be arrested and brought before the proper court or magistrate as a vagrant, disorderly or destitute child.” It also declares that such court or magistrate may commit the child to any charitable, reformatory or other institution authorized by law to receive and take charge of minors, or make such disposition of the child as is now, or may hereafter be, authorized in the case of vagrants, truants, paupers or disorderly persons.

Section 887 of the Code of Criminal Procedure, in defining who are vagrants, provides that any child between the ages of five and fourteen, having insufficient bodily health and mental capacity tó attend public schools, found wandering in the streets of any city or incorporated village a truant without any lawful occupation, shall be deemed a vagrant.

The children in the case before us were arrested as vagrants and taken before one of the police justices of the city, and by him committed to the House of Refuge, which is in the care of the Society for the Reformation of Juvenile Delinquents. The warrants of commitment recite in substance that theso children, being under the age of fourteen years, were charged on the oath of George II. Young with being vagrants, namely, “ engaged in the occupation of begging under the pretext of peddling, to wit, Bowery, of said city, at ten forty-five o’clock p. m., on the 5th of April, 1883, and frequenting the company of prostitutes, concert saloons, dance houses and places of entertainment where spirituous liquors were sold.” It further recited that the magistrate caused the children to be brought before him for examination on the charge, and proceeded to inquire into the matter in their presence, and having read the proofs and allegations submitted to him and duly considered said matter, the child named in each one respectively was duly “ convicted on the competent testimony of George H. Young of being such vagrants,” and was adjudged by the magistrate to be a proper object to be committed to the house of refuge.

By certiorari in the proceedings, addressed to the police justice, the clerk returned to the court the affidavit of George H. Young, and certified that that comprised all the record of the case then on file in that court. This affidavit, which was sworn to before the police justice who convicted the children of vagrancy, states their ages to be repectively eleven and thirteen years, and that they were found by him doing the acts of alleged vagrancy, which are described substantially in the same language as that used in the warrants. It is apparent on the face of the affidavit that it was made at the hearing before the magistrate.

The learned judge in the court befow fell into the error of supposing that the children had been arrested under the provisions of section 887 of the Code of Criminal Procedure, and he held that the offense was not properly charged to .bring them within that section, because it was not alleged that they were found wandering and begging in the streets. But it is obvious that the complaint was made under section 291 of the Penal Code already referred to, under which it is not necessary to show that the children were found wandering in the streets. The act of begging or receiving or soliciting alms makes children under the ages named in the section vagrants, and so when found frequenting the company of reputed thieves or prostitutes. Those offenses are sufficiently charged both in the affidavit and in the warrant of commitment. If it were necessary to recite the particular act of vagrancy, which was held not to be the case in Gray's case (11 Abb., 56), where it is said that the words defining the particular acts of vagrancy may be regarded as surplusage, yet in this case the acts are specifically and sufficiently well defined. The word “ Bowery,” as used, is a sufficient indication of the place where the alleged offense was committed; the omission of the words in the” can have no effect upon its validity.

The return of the commitment in answer to the habeas corpus, and the admission of the facts it contains by the failure to take issue thereon, presented a case upon which, we think, the court should have remanded the children. For that purpose the commitments should be regarded as final judgments under the provisions of the habeas corpus act, and, being prinia facie valid, the jurisdiction of the magistrate making the commitment is the only question presented to the justice at special term for review. But, assuming that the court had authority to go behind the commitments, regular on their face and showing such fact as gave the magistrates jurisdiction, nothing was brought up by the writ of certiorari that would justify interference with the conviction. The clerk of the court returned the only record of the case then on file in that court. The testimony on which the conviction was had may well have been taken orally by the court, and it must be assumed that it was sufficient to justify the commitment where the question arises in the present form. The purpose of the writ of habeas corpus is not to review trials before a magistrate on questions of that character. "Where that is the intention, other process is provided by law, under which an appellate court may pass upon the sufficiency of the evidence before the magistrate and the correctness of his decisions.

It is the duty of the magistrate to observe with great care the provisions of the several statutes in such cases, and tó see that their records are properly made, and the certificate of conviction' duly filed, and that their warrants of commitment are in due form. Section 4 of chapter 359 of the Laws of 1873, which relates to commitments, to the house of refuge, provides in very general terms a remedy for the failure to file certificates, and for any irregularities, misdescriptions, defects or imperfections in the proceedings where persons aré committed to the house of refuge; and this section would require, if there were any defect or imperfection in matters of form, that it. be corrected by order of the court before which the writ of habeas corónos was returnable.

The order of the court below should be reversed, and the writ discharged, and the children remanded.  