
    Supreme Court—Special Term, New York.
    April, 1902.
    THE PEOPLE EX REL. LILLIE EDWARDS v. THE WARDEN OF THE CITY PRISON. THE PEOPLE EX REL. STELLA ARLINGTON v. THE WARDEN OF THE CITY PRISON.
    (37 Misc. 635.)
    L. Habeas Corpus—Commitment of Vagrant to Workhouse.
    Although a policeman had no authority to arrest relator for knowingly residing in a house of ill-fame without a warrant, it by no means follows that the magistrate had, therefore, no jurisdiction to hear and determine the matter of the crime with which relators stood charged.
    !. Same—Greater New York Charter, Sec. 710.
    Where relators were committed to the workhouse after January 1, 1902, there must be a statement of the written consent of the committing magistrate endorsed on the order of commitment set forth in the traverse, or that all the requirements of section 710 have been met before any legal detention is shown.
    I. Same.
    Said section does not require the warden of the city prison to serve a prisoner with a copy of any order within twenty-four hours after her commitment, and certainly not with an order of discharge which had not been granted. <,
    Habeas corpus proceedings.
    Philip Cohen, for relators.
    
      William Travers Jerome, District Attorney, for respondents.
   Greenbaum, J.

The relators in both cases have been brought into court upon hateas corpus writs, to which returns have been made that they are held in custody by the respondent by virtue of a commitment made by one of the city magistrates under a conviction upon a charge of vagrancy.

The copy of the commitment forming a part of the return in each case recites that the relator, being charged on oath with being a vagrant, who, in violation of title 3, section 141, of the Greater Yew York charter, did knowingly reside in a house of prostitution in a tenement house in certain premises specifically described, was brought before the magistrate for examination, that the magistrate proceeded in the presence and hearing of the relator to inquire into the matter and that after having heard the proofs and allegations submitted and duly considered the matter, she was convicted on competent testimony of being such vagrant and that she was thereupon committed to the workhouse on Blackwell’s Island pursuant 1» tin provisions of sections 707, 708, 709, 710 and 712 of the Greatei Yew York charter, for the term of six months, unless soonei discharged by due course of law.

Each of the relators traverses the returns by setting forth First. That .she was arrested without a warrant by an offi cer who was not present when the alleged crime was committed Second. That she is entitled to the benefit of section 710 o: the-Greater Yew York charter, “for the reason that she wai not committed to the workhouse, penitentiary or county jai after January 1, 1902, and within two years next preceding the date of- the commitment of said magistrate, for public in toxication, disorderly conduct or vagrancy,” and,

Third. That the relator is unlawfully and illegally detainee for the reason “ that the warden of the workhouse did-not serv the relator within twenty-four hours after her commitment wifi a copy of an order showing the date of her discharge.”

Upon the hearing the district attorney, who appeared for the respondent, demurred to the traverse, so that the questions here presented are upon an assumption of the truth of the facts set forth in the traverse.

Before taking up the points seriatim, it may not he amiss to refer to section 2032 of the Code of Civil Procedure, which provides that the prisoner be remanded, if it appears that he is detained in custody “ By virtue of the final judgment or decree of a competent tribunal, of civil or criminal jurisdiction.” •

The relator contends that the magistrate did not acquire jurisdiction because the cióme charged was not committed in the presence of the police officer who arrested her, without a warrant. It may be conceded that the police officer had no authority to arrest the relators, but' it by no means follows that the magistrate had therefore no jurisdiction to hear and determine the matter of the crime with which the relators stood charged.

It is unnecessary here to outline the course that may be pursued by a person thus unlawfully apprehended.

The general rule is that it is no defense to a criminal prosecution that the defendant was illegally or forcibly brought within the jurisdiction of the court. (People v. Eberspacher, 79 Hun, 410; Matter of Lagrave, 45 How. Pr. 314.)

In the case of People ex rel. Kingsley v. Pratt, 22 Hun, 300, cited in behalf of the relators the court under certiorari proceedings reviewed the proceedings before the magistrate upon an appeal, a practice which, under section 515 of the Code of Criminal Procedure, no longer exists. (See People v. Warden, N. Y. L. J., April 1, 1902, p. 8.)

The act of the magistrate in hearing the case, although the prisoner was unlawfully arrested cannot be attacked in a collateral proceeding. (People ex rel. Kuhn v. P. E. House of Mercy, 133 N. Y. 211.)

Full force and effect must therefore be given to the judgment of the magistrate, and under section 2032 of the Code of Civil Procedure the prisoners should be remanded.

The next point raised is that the relators had not been committed to the workhouse after January 1, 1902, and within two years next preceding the date of the commitment and that under the provisions of section 710 of the Greater blew York charter they are unlawfully detained for the reason that they are entitled to' an order from the commissioner of charities directing their discharge at the expiration of five days from the date of their commitment.

The same section also provides that “ no order for the discharge of said persons before the period fixed by the warrant of commitment shall be made without the written consent, endorsed upon said order of the court or magistrate, by which or whom such vagrant was committed.” There is no statement of such consent set forth in the traverse or that all the requirements of section 710 have been met, and, therefore, no legal detention is apparent.

The final point relied upon by the relators is that the warden did not serve the relators within twenty-four hours after her commitment with a copy of an order showing the date of her discharge.”

There appears to be nothing in section 710 which requires the warden to serve a copy of any order within twenty-four hours after her commitment.

The act provides for the service by the warden upon the prisoner of a copy of an order of discharge, “ whenever the date of discharge named in such order is more than five days from the date of the warrant of commitment.”

The object of this provision seems to be "to afford the prisoner an opportunity for a correction of the date of discharge in case the order of discharge was based upon an erroneous assumption that the prisoner had been previously committed for a similar ofíense, upon more than one occasion.

In the case here presented, it does not appear that any order directing the discharge of the relators before the expiration of the six months for which they stand committed had been made, hence, there was no order that the wardén could have served upon the relators.

The writs must be dismissed and the relators remanded to the custody of the respondent.

Writs dismissed and relators remanded.  