People v. Giles

• Decision Date: 02 March 1897
• Citation: 152 N.Y. 136,46 N.E. 326
• Parties: PEOPLE v. GILES et al.
• Court: New York Court of Appeals Court of Appeals

152 N.Y. 136

46 N.E. 326

PEOPLE

v.GILES et al.

Court of Appeals of New York.

March 2, 1897.

Appeal from supreme court, appellate division, First department.

Annie Giles and Dora Giles were committed to a reformatory as exposed and neglected children without proper guardianship. From a judgment (42 N. Y. Supp. 749) reversing a judgment of the court of general sessions, and remitting the case for a new trial, the New York Society for the Prevention of Cruelty to Children appeals. Reversed.

The following is a copy of the affidavit of appeal mentioned in the opinion:

‘Mary Giles, being duly sworn, deposes and says that she resides at No. 311 West Twenty-Fifth street, New York City; that she is the mother of Dora Giles, aged seven years, and Annie Giles, aged five years, above mentioned; that on or about the 20th day of June, 1896, deponent was arrested upon a warrant issued by Herman C. Kudlich, a city magistrate, upon complaint, alleging that deponent kept and maintained a disorderly house and house of ill repute at No. 311 West Twenty-Fifth street, New York City; that on or about the 20th or 21st day of June deponent was arraigned upon said complaint before said city magistrate at the Second district magistrate's court, and held for trial at the court of special sessions; that at the time of the holding of deponent for trial upon said complaint the said magistrate took a written complaint from Police Officer Feess, of the Sixteenth precinct station, subscribed and sworn to by him, alleging that said Dora and Annie Giles were inmates of the alleged house of prostitution, in violation of section 291 of the Penal Code, and that thereupon the said magistrate committed the said children to the Missionary Sisters of the Third Order of St. Francis indefinitely; that on the 25th day of June, 1896, the case against deponent upon the complaint for keeping and maintaining a disorderly house, came up for trial in the court of special sessions, and after a full presentation of the evidence in the case your deponent was acquitted upon said charge. Your deponent further says that she never kept any improper house, or intentionally violated any law, and that she has always endeavored to care for her children in every way a mother should; that she is now capable of taking care of and providing a home for her children and bringing them up properly; that she has applied to Supt. Jenkins, the superintendent of the Society for the Prevention of Cruelty to Children, as has her counsel, James D. McClelland, as deponent has been informed and believes, for the possession of said children, and that the said Jenkins has refused to accede to said request; that deponent has asked the authorities of the said Missionary Sisters for the custody of said children, but is informed that she must apply to the Society for the Prevention of Cruelty to Children; that the said commitment and detention of the said Dora and Annie is illegal, and without warrant of law, for the reason that the trial of your deponent in the court of special sessions, June 25th, has, in its result, adjudicated that the said house, 311 West Twenty-Fifth street, was not, on the date alleged in the complaint of Officer Feess, upon which the said Dora and Annie were committed, a disorderly house or house of ill fame, nor that deponent kept and maintained any such place; that the evidence on the trial showed that your deponent kept what is known as a house in which tenants leased rooms furnished for light housekeeping by the week; that no rooms were leased to single women, but to married people; that on one or two occasions people whom deponent found were not proper persons, proved to deceive deponent and obtained rooms, but on the discovery of their doings, deponent promptly ejected them from said house; that deponent lived in said house with her children and her husband, earning a scanty sustenance from renting said rooms; that your deponent has been a good, affectionate, and dutiful mother to her children. Deponent further says that in all her relations as wife, mother, and woman she has conducted herself in a faithful, upright manner, and that no one will nor can say aught against her as a chaste and virtuous woman. Mary Giles.

‘Sworn to before me this 8th day of July, 1896. C. M. Meilson, Commissioner of Decds, N. Y. County.’

Bartlett, J., dissenting. 42 N. Y. Supp. 749 , reversed.

Elbridge T. Gerry, for appellant.

Hugh O. Pentecost, for respondents.

HAIGHT, J.

On the 21st day of June, 1896, the respondents, being children under the age of 16 years, and of the age of 5 and 7 years, respectively, were arrested, and brought before a magistrate for the city of New York, upon a complaint charging that they were found improperly exposed and neglected by their parents, and in a reputed house of assignation and prostitution, and without any proper guardianship, in violation of the Penal Code of the state of New York. Thereupon a hearing was had before the magistrate, resulting in a commitment of the children to the Missionary Sisters of the Third Order of St. Francis. From the judgment so entered, the mother of the children took an appeal to the court of general sessions, pursuant to section 749 of the Code of Criminal Procedure. The magistrate, in his return, among other things, certified that the testimony and evidence taken by him upon such hearing was not reduced to writing, except in so far as the same was contained in the complaint and papers, of which copies were annexed and made a part of his return. It was upon this certificate that the appellate division reversed the judgment of the court of general sessions, which affirmed the commitment of the children. Upon this review it was earnestly argued that the preservation of the testimony taken by the magistrate was not necessary or required, and that such failure to preserve the testimony furnished no ground for reversal. The children were committed pursuant to the provisions of section 291 of the Penal Code. The appeal was brought under the provisions of section 749 of the Code of Criminal Procedure. This section in included in part 5 of the Code, which provides for a complete system of procedure, independent of that provided for in part 4, except in so far as the...