Opinion
April, 1902.
Philip Cohen, for relators.
William Travers Jerome, District Attorney, for respondent.
The relators in both cases have been brought into court upon habeas 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 New 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 to the provisions of sections 707, 708, 709, 710 and 712 of the Greater New York Charter, for the term of six months, unless sooner 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 officer who was not present when the alleged crime was committed.
Second. That she is entitled to the benefit of section 710 of the Greater New York Charter "for the reason that she was not committed to the workhouse, penitentiary or county jail after January 1st, 1902, and within two years next preceding the date of the commitment of said Magistrate, for public intoxication, disorderly conduct or vagrancy," and,
Third. That the relator is unlawfully and illegally detained for the reason "that the Warden of the Workhouse did not serve the relator within twenty-four hours after her commitment with 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 be 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 crime 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 ex rel. Edwards v. Warden, 37 Misc. 639.
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 New 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 offense, 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 warden 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.