People v. Fitzgerald

• Decision Date: 23 February 1927
• Citation: 244 N.Y. 307,155 N.E. 584
• Parties: PEOPLE v. FITZGERALD.
• Court: New York Court of Appeals Court of Appeals

244 N.Y. 307

155 N.E. 584

PEOPLE

v.FITZGERALD.

Court of Appeals of New York.

Feb. 23, 1927.

James Fitzgerald was convicted of being a delinquent child in the Children's Court of the City of Buffalo. The conviction was affirmed by the County Court of Erie County, and an appeal allowed directly to the Court of Appeals by a certificate of a judge of the Appellate Division of the Fourth Department, pursuant to Code Cr. Proc. § 520 (see Laws 1926, c. 456).

Judgment reversed, and rehearing ordered.

Appeal from Erie County Court.

Thomas J. McKenna, of Buffalo, for appellant.

Guy B. Moore, Dist. Atty., of Buffalo, for the People.

CRANE, J.

[1] James Fitzgerald, appellant, a boy under 16 years of age, was arrested and tried on an information charging him with being a delinquent child, within the provisions of chapter 385 of the Laws of 1925, in that on the 10th day of January, 1926, in the city of Buffalo, he committed burglary and larceny by entering the home of one Edward Hammersmith and taking money therefrom. He was tried in the Children's Court of the city of Buffalo, convicted and committed to the State Agricultural and Industrial School, at Industry, Monroe county, N. Y., until discharged in manner prescribed by law, not to exceed the period of his minority. An appeal was taken to the County Court, which on June 28, 1926, affirmed the conviction in these words:

‘Adjudged that the judgment of conviction herein be and the same is hereby affirmed.’

Having obtained a certificate from a justice of the Appellate Division that questions had arisen which ought to be reviewed by the Court of Appeals, the case has been brought here without passing through the Appellate Division. This procedure is new and is the result of amendments to the Code of Criminal Procedure by chapter 465 of the Laws of 1926. Section 520 now provides:

‘Every person convicted in a criminal action or proceeding shall have the right to have such judgment of conviction or order reviewed on appeal by an appellate tribunal as herein provided, but there shall be only one such appeal and the decision of the appellate court shall be final, and no appeal shall lie from that court to any other court except as hereinafter provided.’

Subdivision 2 reads:

‘Elsewhere than in the city of New York, such appeals shall be taken as follows: From a conviction by a Court of Special Sessions, Police Court, police magistrate, or justice of the peace to the County Court of the county in which the conviction was had.’

Appeals, therefore, to the County Court are final unless an appeal is allowed as provided in subdivision 3, in which case further review is in the Court of Appeals. Subdivision 3 reads:

‘Where an appeal has been taken and has been decided by any of the appellate tribunals hereinabove referred to [which includes the County Court as an appellate tribunal], a further right of appeal of the Court of Appeals shall lie as hereinafter prescribed, but not otherwise. If a judge of the Court of Appeals or a justice of the Appellate Division of the Supreme Court of the department in which such conviction was had certifies that a question of law is involved which ought to be reviewed by the Court of Appeals, then a further appeal on such question of law may be taken to the Court of Appeals.’

That appeals may be taken from the Children's Court or Court of Special Sessions, denominated minor courts, to the County Court is further provided by section 749 of the Code of Criminal Procedure, which reads:

‘A judgment upon conviction, rendered by a Court of Special Sessions, Police Court, police magistrate, or justice of the peace, in any criminal action or proceedings or special proceeding of a criminal nature, including a judgment of commitment made under section four hundred and eighty-six of the Penal Law, may be reviewed by the county court of the county, upon an appeal as prescribed by this title.’

Commitments under section 486 of the Penal Law (Consol. Laws, c. 40) are those made of neglected and delinquent children, as therein defined, which provisions are almost identical with those defining delinquency, contained in chapter 385 of the Laws of 1925, creating the Children's Court of Buffalo. This latter act also provides in section 344-bb:

‘A judgment upon conviction rendered by the judge of this court sitting as a Court of Special Sessions, Children's Court or magistrate may be reviewed by the County Court of the county as prescribed in title three, part five, of the Code of Criminal Procedure.’

This refers to section 749 of the Code of Criminal Procedure and the following sections.

This appeal, therefore, was properly taken to this court under the procedure as it now exists, a justice of the Appellate Division of the Fourth Department having certified questions of law for our review.

[2] The next point which arises is whether the defendant has been legally convicted. The district attorney concedes that the defendant has not been convicted according to the rules of evidence applicable to criminal trials, but he insists that the defendant has not been charged with crime, and that the rules of evidence are not applicable to proceedings against children under 16 years of age for the offense of delinquency.

The charge against this boy was that of burglary for having entered the house of Edward Hammersmith on the 10th of January, 1926, and stolen money therefrom. The boy was tried for this offense, whatever we may call it, and was convicted on the testimony of an alleged accomplice, 12 years of age, uncorroborated, and on his own confession produced by threats. The confession was given by a police officer, who testified that after taking the boy to the police station he was questioned in the sergeant's room, as follows:

‘Q. Did you make any threats to him? A. I think I possibly did. I said, ‘You ought to get a good licking right here’; and one time he didn't answer me just right and I said, ‘I would like to punch you in the nose myself’, but I didn't mean anything like that.

‘Q. You threatened to punch him in the nose unless he told you about the burglary? A. I said that; yes.

‘Q. He became frightened and started to cry? A. Yes.

‘Q. After that he told you about being connected with the burglaries? A. Yes.’

It seems rather queer that the protection which is given to adults by section 395 of the Code of Criminal Procedure, excluding from evidence their confessions produced by threats, should be withdrawn from young children more easily frightened than adults, and that such confessions should be considered of any weight. However this may be, the record in this case shows that the defendant was not properly convicted of the charge. There was no legal or proper evidence introduced against him. The alleged accomplice was not corroborated as required by section 399 of the Code of Criminal Procedure, and the alleged confession was procured by threats of a police officer. This is all there is to the case. What was there, therefore, of proof of any kind warranting the magistrate to hold this boy?

[3] No doubt both under section 486 of the Penal Law and under chapter 385 of the Laws of 1925 there are many occasions for disposing of children under the so-called neglect and delinquency provisions which do not involve any crime or acts of a criminal nature. Gerak v. State (Ohio App.) 153 N. E. 902. In such cases the formal proceeding of proof according to a trial cannot always be followed. For instance, a neglected child is one under 16 years of age without proper guardianship, or who has been abandoned, or deserted by both parents, or who is in such a condition of want or suffering as to injury his health. Such a child can be sent by the judge to a private home or public institution to be cared for. So, too, an incorrigible and ungovernable child, one habitually disobedient and beyond the control of his parents can be properly disciplined, or one who is habitually a truant from school, or who, without the consent of his parents deserts his home, may be brought before the judge and submitted to proper control. None of these charges against the child involve a crime or are of a criminal nature, and the proceedings must be and always have been more or less informal. While proper records must be kept (People v. New York Catholic Protectory, 106 N. Y. 604, 13 N. E. 435), yet we cannot expect from the very nature of such cases that the strict rules of evidence shall be applied as they would and should be in cases dependent entirely upon a charge involving an act of a criminal nature.

The act creating the Children's Court of Buffalo recognizes this practical and important distinction, important both for the welfare of the child and for the safety of society. Under subdivision...