
    MATTER OF MOSES.
    
      N. Y. Supreme Court, First Department, First District; General Term,
    October, 1883.
    Habeas corpus.—Sufficiency of Return.—Commitments to House of Refuge.—Infant Vagrants.—Penal Code.
    The return, in answer to a writ of habeas corpus, of a warrant of commitment to a House of Refuge by a police justice of the city of Mew York, reciting in substance a trial and a conviction of a child within the age of fourteen as a vagrant (under section 391 Penal Code), is a sufficient return, and, together with the admission of the facts stated in such commitment by a failure to take issue thereon in any way, presents a case upon which the person thus committed should be remanded to custody. Such commitments to a House of Refuge are to be regarded as final judgments uuder the provisions of the Habeas Corpus Act, and being prima fade valid, the jurisdiction of the committing magistrate is the only question presented for review by the return.
    The purpose of the writ of habeas corpus is not to review trials before a magistrate on questions of this character. When such is the intention, other process is provided by law under which the appellate court may pass upon the sufficiency of the evidence.
    
      It seems that section 4 of chapter 3159 of Laws of 1873 constitutes a special statute of “jeofails” in regard to commitments to a House of Refuge.
    Section 291 of the Penal Code and scciion 887 of the Code of Criminal Procedure, examined and considered.
    Appeal from an order made at Special Term, Chambers, directing the discharge of two children committed to the House of Refuge.
    On the 5th of May, 1883, a writ of habeas corpus was granted by the supreme court, directed to and requiring the House of Refuge to produce Sarah and Betsey Moses, and to show cause for their detention ; and on the same day a writ of certiorari was granted requiring the police magistrate to produce the record of the commitments.
    The House of Refuge made the following return in the case of Sarah Moses ; the return in the case of the other child being substantially the same :
    “New York House of Refuge, [ Harlem, N. Y., April 14, 1883. ) “To the Honorable Justice of the Supreme Court, N. Y.:
    
    The undersigned, to whom the writ of habeas corpus in the case of Sarah Moses is directed, respectfully returns in answer to the same that the said Sarah Moses is held in custody by The Managers of the New York House of Refuge, on Randall’s Island, on the authority of the accompanying warrant of commitment, and that the said Sarah is now present in court in obedience to said writ. “Respectfully,
    Israel 0. Jones,
    
      Super in tendent, <£c.”
    
      “ THIRD DISTRICT POLICE COURT.
    I
    “ State oe New York, ) gg City and County of New York, Í
    “By Hugh Gardner, Esq., one of the Police Justices in and for the City of New York.
    “ To the Policemen of said city, or any one of them; and to ‘ The Managers of the Society for the Reformation of Juvenile Delinquents in the said City:
    
    “ These are, in the name of the People of the State of New York, to command you, the said policemen, or any one of you, to take and convey to the House of Refuge for the Reformation of Juvenile Delinquents, in said city of New York, the body of Sarah Moses, aged 13 years, who being charged, on oath of George H. Young, with being a vagrant, namely : Engaged in the occupation of begging, under the pretext of peddling, to wit: Bowery, in said city, at 10.45 o’clock P. M., on the 5th of April, 1883, and was frequenting the company of prostitutes, concert saloons, dance houses, and places of entertainment where spirituous liquors were sold.
    “I caused said Sarah Moses to be brought before me for examination on said charge, and I proceeded to inquire into the matter in her presence ; and having read the proofs and allegations submitted to me, and duly considered the said matter, she was convicted, on competent testimony of George H. Young, of being such vagrant, and was adjudged by me to be a proper object to be committed to said House of Refuge.
    “And you, the said managers, are therefore hereby authorized to receive said Sarah Moses, who is committed by me to your care; to be employed and instructed, and otherwise dealt with according to the provisions of the statute of the State of New York, entitled ‘An Act to incorporate “The Society for the Reformation of Juvenile Delinquents in the city of New York,” ’ passed March 29th, 1824, and the several acts amending the same.
    “ Given under my hand and seal, at the First District Police Court, in the said city of New York, the sixth day of April, in the year of our Lord one thousand eight hundred and eighty-three.
    “Hugh Gardner,
    
      Police Justice.”
    The magistrate made the following return :
    ‘ ‘ To the Supreme Court:
    
    “ In pursuance of the within writ I- hereby return the affidavit in the case, and certify that it comprises all the record of the case now on file at this court. “Dated April 10, 1883. Charles Riley,
    
      Police Cleric.”
    
      City and County of New York,
    
    “George II. Young, of No. 100 East Twenty-third street,, being duly sworn, deposes and says, that on the fifth day of April, 1883, at the city of New York, in the county of New York, one Betsey Moses, age eleven years, one Sarah Moses, age thirteen years (both now present), were found by deponent at 10.45 o’clock P. M., engaged in the occupation of begging under the pretext of peddling, to wit, Bowery in said city, and were frequenting the company, of prostitutes, concert saloons, dance houses, and places of entertainment where spirituous liquors were sold.
    “Wherefore cleponent prays that said Betsey and Sarah may be dealt with according to law.
    Geo. H. Young.
    “Sworn before me this sixth day of April, 1883.
    Hugh Gardner,
    
      Police Justice.”
    
      Upon these returns Mr. Justice Barrett discharged the children. The following was his opinion :
    “ The case does not come within section 887 of the Code of Criminal Procedure (sub. 5), as it is not charged that the children were “ wandering abroad and begging.” As to section 291, Penal Code, the return to the certiorari shows that the magistrate was wholly without evidence to justify the commitment. There was an affidavit, but no examination and no testimony, and the affidavit even is confused and somewhat meaningless, e. g., the statement that the children were engaged ‘ in the occupation of begging, to wit, Bowery,’ and the other statements that they were ‘ frequenting the company of concert saloons.’ The children must be discharged.”
    
      Ethridge T. Gerry, of counsel.
    
      John McKeon, district attorney.
    
      Robinson, Scribner & Bright, attorneys, for Society for the Reformation of Juvenile Delinquents.
    
      John B. Bine, for Society for Prevention of Cruelty to Children, appellants.
    
      David Levy, for respondents.
   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 sufficient bodily health and mental capacity to 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 these children, being under the age of fourteen years, were charged on the oath of George H. Young with being vagrants, namely, “ engaged in the occupation of begging under the pretext of peddling, to wit, Bowery, in said city, at 10.45 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 is 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 respectively 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 below 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 Cray’s case, 11 Abb. Pr. 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 prima 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 facts 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 to see that their records are properly made, and the certificate of conviction duly filed, and that their warrants of commitments 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 are 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 corpus was returnable.

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