
    In the Matter of the Petition of Margaret Heery for the Discharge of James Maloney.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    Pbactice—Commitment of infant—Penal Code, 1887, § 291.
    Where an infant is taken before a police justice on a charge of not haring any home and destitute of means of support, Be Id, that before a commitment can issue notice of the proceeding must be given to the parent, guardian or custodian of the child.
    Appeal from an order made on return habeas corpus and certiorari.
    
    
      E. T. Gerry, for app’lt; E. G. Delay, for resp’t.
   Brady, J.

The infant James Maloney was taken before a on a appears stated under oath as follows: The James Maloney,, “now present,” aged four years, was found by deponent, not hav- , ing any home or proper guardianship, being in a state of want and suffering and destitute of means of support, the ' child’s mother being dead and the whereabouts of the father . being unknown. This- appears to have been made the subject of enquiry by the justice who became satisfied that it was true and a commitment was issued.

That process does not, however, contain a statement of any notice given of the proceeding which was required by the Penal Code of 1887, § 291. The notice is to be given to the parent, guardian or custodian of the child. It was given to no one. The record shows that the infant was in the custody of a person and whether the possession was obtained rightfully or wrongfully makes no difference; the design of the statute was to protect homeless children and those in .a state of want or suffering from want of proper guardianship and those, also, destitute of support.

The absence of proper guardianship would be by proof of abandonment or neglect resulting from the bad habits of the custodian or parents and by which the infant was permitted to be in a state of want or suffering. The object of the statute was beneficent, however censurable for the power conferred by it or the omission of comprehensive guards against oppression or despotism, if it be subject, to any such criticism. The infant, for example,.may be found on the street alone half-clad, cold, hungry either or all and suffering and without any apparent protection. This condition may arise from gross neglect of guardian or custodian or from the culpable negligence of the parents or from accident, the. child having temporarily strayed away from its home without fault of its custodian. If taken before a magistrate which would be a humane act as well as lawful, the enquiry begins, the design of which is to ascertain whether the circumstances are usual or unusual, and to dispose of the charge accordingly. If the circumstances are unusual and the child have a home and custodian the statute does not apply, but if it be otherwise and the child has neither, then it should be protected by a commitment. In order properly to ascertain whether the circumstances are usual or unusual a notice is provided for and the provision relating to it is comprehensive and sweeping. It is to be given to parent, guardian, custodian, and thus embraces all.

It does not matter how the custody has been obtained, for it might be that the parents are unknown except to the custodian who may have accepted the child as a charge or stolen or found him. It is impossible that for any period, worth consideration an infant should be absolutely without, a custodian, and hence the provision relating to that personage to which reference has been made. The officer taking the child and making the charge in this proceeding, for example, gives the name of the infant. From whom was the information derived ? If from the infant, he could no doubt- have given the name of the person with whom he lived and who had charge of him or state where he lived. And if given by some other person, the further information could no doubt be obtained. There does not appear therefore to be any reason why the salutary and indeed indispensable element of notice should be disregarded, even if a discretion in relation to its use were given to the committing magistrate, but it is not. The legislature must have contemplated that great suffering, if not great wrong, might be entailed or done by hasty and improvident arrests under the provisions of the act. The poor are not destitute of great love of their offspring. Indeed their affection for them is as expressive and inexpressive as that in other spheres, but they may often, as they unfortunately are, be unable to continuously furnish all the necessary comforts to their children. It is not to meet such temporary emergency that the statute was enacted, but as suggested, to provide against the culpable neglect of the parents, their demoralization from bad habits, their unfitness for any cause to he allowed to retain their children and permit them to suffer from any form of exposure.

The language of the section manifestly refers to those waifs who are homeless, having no abiding place and no guardian, and to a permanent and usual condition, and not to a child casually in the street without protection. People ex rel. Van Riper v. N. Y. C. Protectory, 106 N Y., 610; 11 N. Y. State Rep., 155. It is not necessary, however, to pursue this view of reasoning. It is enough that the statute required the notice. The information in these proceedings for summary conviction ought to be precise, and show a case clearly within the statute, and when an essential ingredient or circumstance is omitted and the defect is not supplied by the evidence, the conviction is bad. Case, supra, and as said by Justice Andrews in the case cited: “It is not consistent with the security of personal liberty to indulge in cases of summary convictions in latitude or liberalty of intendment to support them.”

For these reasons the order appealed from should be affirmed.

Van Brunt, Ch. J., and Macomber, J., concur.  