
    SUPREME COURT.
    The People ex rel. Eliza Perkersoen, respondent, agt. The Sisters of the Order of St. Dominick, appellants.
    
      Rabeas corpus—Reaving before committing magistrate not to be reviewed upon — Evidence — Penal Oode, section 291 — Sufficiency of evidence to justify commitment under this section.,
    A female child, under fourteen years, who was committed by a police magistrate for violation of section 297 of the Penal Code, to an institution authorized by law to receive and take charge of minors, was discharged on writs of habeas corpus and certiorari by the judge issuing the writs, though the commitment was not claimed to be either informal or defective:
    
      Held, That .the judge issuing the writs could not, by means. of them, review the hearing had before the committing magistrate, and determine whether he had or had not acted upon sufficient evidence in making the order of commitment.
    Evidence taken in writing, subscribed and sworn to by the witness, that a certain female child “ actually and apparently under the age of fourteen years, to wit, aged twelve years, was found begging, receiving and soliciting alms ” in a specified street, established all that was required to justify the commitment.
    
      First Department, General Term, January, 1885.
    
      Before Davis, P. J., Beady cmd Daniels, JJ.
    Appeal from an order discharging Annie Holton from the custody of the Sisters of the Order of St. Dominick.
    
      John B. Pine, for appellant.
    
      F. T. Gerry, of counsel, for the New York Society for the Prevention of Cruelty to Children.
    
      James Oliver, for respondent.
   Daniels, J.

Annie Holton, the person discharged, had been committed to the custody of the Sisters of the Order of St. Dominick by a commitment of one of the police justices of the city of ¡New York. She was so committed for violating subdivision 1 of section 291 of the Penal Code of the State. By that section a female child, actually or apparently under the age of fourteen years, who is found begging, or receiving or soliciting alms in any manner or under any pretense, may, by subdivision 5, be arrested and brought before a court or magistrate as a vagrant, disorderly or destitute child, and the court or magistrate is authorized to commit the child to any charitable reformatory or other institution authorized by law to receive and take charge of minors. ¡No controversy has been made as to the authority of the sisters of the order to receive the custody of the child under these provisions of the Penal Code. ¡Neither was the commitment under which she was consigned to their custody in any manner informal or defective in carrying out these directions of the law. But still, an application was made by the petitioner for a writ of habeas corpus and certiorari to discharge the child from the custody of the sisters. These writs were each issued, the habeas corpus to the sisters themselves, and the certiorari to the police justice before whom the child had been taken and who had committed her to the custody of the order.

The habeas corpus was returned with the commitment as the authority under which the child was detained, and the police justice returned the sworn complaint, or evidence produced before him, upon which he determined the case to be within this section of the statute. Upon the hearing before the judge issuing the writ, an order was made discharging the child from custody, and it is from that order that the appeal has been taken.

The proceedings seem to have been instituted and the hearing afterwards had upon the supposition that the judge issuing the writs could by means of them review the hearing had before the justice, and determine whether he had or had not acted upon sufficient evidence in making the order resulting in the commitment of the child. It was, in other words, designed that the judge should review the hearing, not by means of an appeal, or a cerworari, bringing it before the court for that purpose, but through a collateral application, and to consider and decide whether the justice had or had not erred in the conclusion adopted by him.

The proceedings authorized by the statute were not designed for this purpose. Another and an entirely different course has been prescribed to review a hearing which may have taken place in the course of legal proceedings under a statutory authority of this déscription. The law regulating the proceedings by habeas corpus has neither in terms, nor by implication, authorized or sanctioned the consideration of the evidence submitted to the magistrate upon which he may have finally decided a case of this description to have been made out and proved. The provisions contained in the habeas corpus act furnish authority, after a final determination, has been made by the magistrate for requiring him in answer to a writ of certiorari to certify and return the evidence taken before him to a judge or court proceeding under the authority of this act. What is to be done under and by virtue of the writ of habeas corpus when it may be lawfully issued has been clearly defined and prescribed, and a certiorari has only been provided for in place of the habeas corpus itself, and when that writ may not prudently be issued (■Code, sec. 2041). When the writ of certiorari is issued it is to be directed in b'ke manner as the habeas » corpus itself to the person having the custody of the individual whose discharge is the object of the application (Code, secs. 20, 21,22), and the object designed to be accomplished by each writ is precisely the same, that is, to require a statement of the time and cause of the imprisonment and detention of the individual whose discharge is to be applied for. In this respect the form of each writ as well as the directions and authority given concerning them are the same as were, previous to the Code, contained in the Revised Statutes of the state (3 R. S., [6th ed.] 877, secs. 41, 42.)

By no provision and no construction has any authority been given to the judge to issue a certiorari for the purpose of bringing before himself, or before the court where the hearing is to take place, the evidence upon which a final determination may have been made by the court, or officer, before which the proceeding has taken place. And that such a review was neither contemplated nor intended, clearly results from the directions contained in section 2032 of the Code. For that has directed that the court or judge must forthwith make a final order to remand 11 prisoner if it appears that he is detained in custody by virtue of a mandate issued by a court or judge of the United States having exclusive jurisdiction of the case; or second, by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction, or the final order of such a tribunal made in a special proceeding instituted for any cause, except to punish him for a contempt, or by virtue of an execution or other process issued upon such judgment, decree, or final order. This direction excludes, by necessary and clear implication, the authority to inquire into the force and effect of the evidence upon which the determination may have been made. They are no more than a repetition of those previously contained in the Revised Statutes. And this construction is further sustained by those contained in section 2033 of the Code, declaring the cases in which the person may be relieved from imprisonment, neither of which includes or justifies a review of the evidence resulting in the judgment or order of the court or officer. Even the much criticised case of People agt. Liscomb (60 N. Y., 559), does not permit an inquiry into the effect of the evidence to be made. For by that it was held that the court, or officer, could not go behind the judgment and inquire into errors or irregularities preceding it, to determine whether it had been properly entered or not, but was confined to the judgment and process itself in the hearing and decision which might be made.

The point whether a court, or officer, could go beyond the commitment or order set forth in its recital, to determine whether it was justified by the evidence, has been often examined in other cases, where it has been held that such a proceeding was wholly unauthorized (Stewart's case, 1 Abb., 210; Matter of Prime, 1 Barb., 340; Gray's case, 11 Abb., 50; Bennac agt. People, 4 Barb., 31; Case of Twelve Commitments, 19 Abb., 394; Case of Williamson, Id., 413.)

The statute required no more to take place before the magistrate than appears by the commitment to have been done, for it has simply provided that when a child shall be brought before him for a hearing he may commit it to such an institution as is maintained by the appellant. No other of more formal proceeding than that which took place has been provided, and by the recitals in the commitment all the requirements contained in the statute appear to have been observed. '

If, however, any investigation under the habeas corpus act can be made into the sufficiency of the evidence before the magistrate, then that which was taken was sufficient to comply with the requirements of the statute. The form in which it should be taken has not been prescribed, and it has accordingly, in an uncontested case, been left very much to the discretion of the magistrate. It was taken by him in writing, subscribed and sworn to by the witness, and established all that was required to justify the commitment which was made. It was in the following form:

John E. Potter, of Earl’s Hotel, Canal and Centre streets, being duly sworn, deposes and says that on the 14th day of J anuary, 1884, at the city of New York, in the county of New York, one Annie Holton, a female child actually and apparently under the age of fourteen years, to wit, aged twelve years, was found begging, receiving and soliciting alms in Centre street in violation of section 291 of the Penal Code.

Wherefore deponent prays said child may he committed to some institute.

JOHN F. POTTER.

Sworn to before me, this 30th I day of January, 1884. f

P. G1. Duffy,

Police Justice.

and fully sustained the conclusions of the magistrate and justified the commitment which was issued by him.

The order should be reversed, both writs dismissed, and the child recommitted to the custody of the appellant.  