
    The People ex rel Mamie Smith, Relator, v. The State Reformatory for Women, at Bedford, Respondent.
    (Supreme Count, Kings Special Term,
    June, 1902.)
    New York city — City magistrate has no jurisdiction of a misdemeanor — Construction of L. 1899, ch. 632 — A statutory offense, not defined as a felony, is a misdemeanor.
    A woman in the city of New York, between the ages of fifteen and thirty years, duly charged with violating L. 1882, ch. 410, § 1458, in that she was “ loitering on Mott street, that being a public thoroughfare and public place, soliciting and importuning men passing in and along said thoroughfare or place, for the purpose of prostitution, to the great annoyance of the people ”, etc., and convicted by a magistrate of the city of New York after pleading not guilty, cannot be held in custody by the State Reformatory at Bedford. N. Y., as the magistrate had no jurisdiction to try for the offense, the same being a misdemeanor.
    The contention of the people that, because the warrant recited that the information charged the woman with “ disorderly conduct and being a prostitute and soliciting men for the purpose of prostitution in the public street ”, she must have been convicted of being a “ common prostitute ”, under L. 1899, ch. 632, and that such an offense is not made by that statute and is not a misdemeanor, but is only a quasi criminal offense to be summarily dealt with, is not tenable.
    Where an offense is created by statute it must be classed as a misdemeanor unless by its definition it comes under the head of a felony. It cannot be classed as either a felony or misdemeanor but as only a quasi criminal offense to be summarily dealt with, unless the statute expressly so authorizes.
    Heabing on return to a writ of habeas corpus and a writ of certiorari to the magistrate.
    Isidor Cohn for relator.
    Henry GJ-. Gray opposed.
   Gaynor, J.:

The relator was tried and convicted by a magistrate of the city of Hew York, and sentenced to imprisonment in the above mentioned institution for three years. The written information or complaint against the relator was by a police officer that she was “ loitering on Mott street, that being a public thoroughfare and public place, soliciting and importuning men passing in and along said thoroughfare or place, for the purpose of prostitution, to the great annoyance of the people ”, etc. This was a charge of a misdemeanor defined by section 1458 of the charter of the former city of Hew York, which section is still in force, and city magistrates have no jurisdiction to try charges of misdemeanors (People ex rel. Frank V. Reformatory for Women, 38 Misc. Rep. 233; People ex rel. Clark v. Reformatory for Women, 38 Misc. Rep. 241).

The warrant of commitment recites that the written information charged the relator with “ disorderly conduct and being a prostitute and soliciting men for the purpose of prostitution in the public street ”, and that the magistrate tried her on her plea of not guilty and convicted her. It is therefore claimed by the district attorney that the relator was not convicted of the misdemeanor defined in the said section 1458 of the former city charter, but of being “ a common prostitute ” under chapter 632 of the laws of 1899, which provides that females between the ages of 15 and 30 years “ convicted by any magistrate of petit larceny, habitual drunkenness, of being a common prostitute, of frequenting disorderly houses and houses of prostitution, or of a misdemeanor ”, may be sentenced to the state reformatory for women at Bedford for a term of three years. The said statute is not applicable to the city of Hew York alone, but is general, and uses the term magistrate ” in its general sense. I do not understand that the purpose of such act was to confer jurisdiction on magistrates. It has reference to convictions by magistrates who have jurisdiction to convict, or to the extent of their jurisdiction to convict. Hor was its purpose to create new criminal offenses. We have a Penal Code to contain and define criminal offenses. The phraseology and terminology of the said act as quoted above are very loose. It first mentions convictions for petit larceny, which is a misdemeanor, and then for habitual drunkenness, being a common prostitute, and frequenting disorderly houses or houses of prostitution, and finally for a misdemeanor ”, which includes all misdemeanors. It certainly does not confer jurisdiction on magistrates of the city of Hew York tó try for misdemeanors generally, and commit to the said institution therefor. They have no such jurisdiction. And if it does not refer to the section of the Code of Criminal Procedure which makes a common prostitute within certain limitations a disorderly person, and gives magistrates summary jurisdiction over her (§ 899, et seq.), but was intended to make being a common prostitute a misdemeanor, then a magistrate of the city of Hew York cannot try and convict therefor, as he cannot try charges of misdemeanor.

A suggestion is made, however, that the said act does not make it a misdemeanor, but only an offense which is not a crime, and to be dealt with summarily, and not by a regular trial. When an offense is created it must be classed as a misdemeanor unless by its definition it comes under the head of felony; and no magistrate or court may take summary jurisdiction of and summarily deal with persons Avho offend under it on the theory that they are not guilty of a crime but are only disorderly persons to be so dealt Avith, and not charged Avith a misdemeanor, and regularly tried according to the course of the common law. Ho such summary jurisdiction can exist unless specifically conferred by statute, as in the case of section 899 of the Code of Criminal Procedure. The said act does not profess to provide for any such case or summary poAver. If it makes being a common prostitute a misdemeanor, then the case of People ex rel. Duntz v. Coon (51 N. Y. St. Repr. 339) was correctly decided, for the magistrate there had jurisdiction to try misdemeanors; hut here the magistrate had no such jurisdiction.

It is also now suggested by the learned assistant district attorney that the offense of disorderly conduct tending to a breach of the peace defined by the said section 1458 is not a misdemeanor, but only a quasi criminal offense to be summarily dealt with by magistrates, as aforesaid. If' that were so, the said statute enumerating the offenses for which women may be committed to the said reformatory does not enumerate it.

The relator is discharged.  