Riper v. New York Catholic Protectory

• Decision Date: 04 October 1887
• Citation: 106 N.Y. 604,13 N.E. 435
• Parties: PEOPLE ex rel. VAN RIPER v. NEW YORK CATHOLIC PROTECTORY.
• Court: New York Court of Appeals Court of Appeals

106 N.Y. 604

13 N.E. 435

PEOPLE ex rel. VAN RIPER

v.NEW YORK CATHOLIC PROTECTORY.

Court of Appeals of New York.

October 4, 1887.

Appeal from general term, supreme court, First department.

Elbridge T. Gerry, for appellant.

Dennis McMahon, for respondent.

ANDREWS, J.

Florence Van Riper, a female child of the age of 14 years, was on the fifth day of October, 1886, brought before a police justice of the city of New York, charged with having been found on that day ‘improperly exposed and neglected, and wandering in the public park, to-wit, the Union Square park, in said city, without any proper guardianship; that the said child was found in the company of one Mary Ryan, who is a reputed prostitute,-in violation of the provisions of the Penal Code.’ The justice on the same day examined the charge, and, after hearing the witnesses,adjudicated that the charges set forth in the complaint were true; and he therefore issued a commitment committing the said Florence Van Riper to the custody of the New York Catholic Protectory, ‘to be and remain under the guardianship of said corporation until therefrom discharged pursuant to law.’ Pursuant to the commitment the child was put into the custody of the institution named therein, and was produced, on the return of the writs of habeas corpus and certiorari, by its officers. The only evidence in the record of the proceedings before the justice is found in the written complaint upon which the proceeding was initiated, and in the commitment itself. These papers show that the complaint was founded upon an assumed violation of section 291 of the Penal Code; that the accused was brought before the justice for examination on the charge stated in the complaint; that a hearing was had and witnesses examined; and that Elizabeth Van Riper, the mother of Florence, was present during the trial. The return of the appellant to the writs of habeas corpus and certiorari consisted simply of an averment that it was incorporated under the act of May 5, 1863, and the acts amendatory thereof, and that Florence Van Riper, by virtue of said act and of section 292 of the Penal Code, as amended by chapter 31 of the Laws of 1868, was committed to its custody by a police justice of the city of New York, under a commitment, a copy of which was annexed to the return, and that she was there held by the appellant there-under. The evidence taken before the justice has not been returned, and is not before us. The writs were not directed to the magistrate, but to the House of the Good Shepherd, by whom it was alleged the said Florence was detained, and they called simply for the production of her body before the court, and that the institution detaining her should certify the time and cause of her imprisonment. The commitment, while it does not set forth the evidence, recites, in substance, that the material allegations and matters set forth in the complaint were established, to the satisfaction of the justice, by ‘competent testimony and evidence.’

The relator relies upon several grounds to sustain the order of the special term sustaining the writs and discharging the said Florence.

1. It is insisted that the complaint before the justice did not bring the case within section 291 of the Penal Code. This ground is, we think, well taken as to the first charge in the complaint, viz., that the said Florence was found ‘improperly exposed and neglected, and wandering in the public park, to-wit, Union Square park, in said city, without any proper guardianship.’ The only subdivision of section 291 to which this charge has any relation is the second, which specifies one of the conditions under which a child being so found is subjected to this summary jurisdiction, viz.: ‘Not having any home or other place of abode or proper guardianship, or who has been abandoned or improperly exposed or neglected by its parents, or other person or persons having it in charge, or being in a state of want or suffering.’ The charge that the child was found ‘improperly exposed or neglected, and wandering in the public park,’ did not, as observed by the general term, warrant her arrest, unless she had been so exposed by her ‘parents, or other person or persons having her in charge,’ and there is no allegation to this effect. It must appear that the child was abandoned and neglected by the fault of her parents or custodians, to justify taking the child from their custody on the ground of abandonment, or improper exposure or neglect. The information in these cases of summary conviction ought to be precise, and show a case clearly within the statute. It is the foundation of the jurisdiction of the justice, and when it omits an essential ingredient or circumstance to bring the case under the statute, and the defect is not supplied by the evidence, the conviction is bad. It is not consistent with the proper security of personal liberty to indulge, in cases of summary convictions, in latitude or liberality of intendment to support the proceedings. They are conducted contrary to the course of the common law, without the intervention of a jury, usually before magistrates of limited experience, and are often attended with the gravest consequences. This summary jurisdiction is doubtless most necessary to be maintained in the public interest, but at the same time the proceedings should be carefully scrutinized to see whether they are fully warranted by the statute. ‘I would fain know,’ said Lord HOLT in King v. Whistler, Holt, 215, ‘when a penalty is inflicted and a different manner of trial from magna charta instituted, and the party offending, instead of being tried by his neighbors in a court of justice, shall be convicted by a single justice in a private chamber upon the testimony of one witness, if on a consideration of such a law we ought not to adhere to the letter.’

That part of the complaint which charges, in connection with the circumstance that the child was wandering in the public park, the further circumstance, ‘without proper guardianship,’ is not sufficient to bring the case within the second subdivision of section 291. That language of the subdivision manifestly refers to those waifs who are homeless, having no abiding place and no guardian, and to a permanent and usual condition, and not to a child casually in the street without protection. In this case we cannot assume that the evidence was broader than the formal accusation. The finding or adjudication of the justice was in the exact language of the complaint.

But the second charge in the complaint, viz., ‘that the said child was found in the company of Mary Ryan, who is a reputed prostitute,’ follows substantially the language of the fourth subdivision of section 291. This, according to the general rule governing accusations in criminal or quasi criminal proceedings, as matter of pleading is sufficient. People v. Taylor, 3 Denio, 91. Whether the evidence brings the particular case within the statute is another question. What constitutes ‘being in the company of reputed thieves or prostitutes' may not always be easily determined. I agree with the counsel for the relator that the mere fact of a child meeting a prostitute in a public park, and unwittingly walking and being in her company on a single occasion, would not make a case within the statute. But the...