THE PEOPLE OF THE STATE OF NEW YORK ex rel. LILLY ST. CLAIR, Appellant,
KATHERINE BEMENT DAVIS, Superintendent of the New York State Reformatory for Women at Bedford, New York, Respondent, Impleaded with ROBERT C. CORNELL, City Magistrate.
APPEAL by the relator, Lilly St. Clair, from an order of the Supreme Court, made at the Kings County Special Term and
entered in the office of the clerk of the county of Kings on the 9th day of May, 1910, dismissing a writ of habeas corpus.
The complaint or affidavit of Officer T., upon which the relator was arraigned, stated that she was a 'common prostitute and night walker, and that she was on the night of the 20th day of March, 1909, loitering in Bowery, that being a public thoroughfare and public place, soliciting and importuning men passing in and along said thoroughfare or place, for the purpose of prostitution, to the great annoyance of the People, * * * in violation of the statute in such case made and provided, and did then and there stop and solicit two men for such purpose at the hour of 11 o'clock P. M.' This complaint was indorsed: 'Affidavit--Disorderly Conduct (Soliciting).' The relator's formal statement recited that she had been duly examined 'according to law on the annexed charge,' etc. The minutes of the proceedings before the magistrate, after reciting the above complaint, stated that the magistrate informed the defendant therein named that she was 'charged with disorderly conduct, loitering in the public streets and soliciting men for the purpose of prostitution,' and that she was found guilty and committed to the Bedford Reformatory. The affidavit of error upon the ensuing appeal to the Court of General Sessions recited that the relator had been 'arrested and charged with the crime of disorderly conduct,' and arraigned, tried, convicted and sentenced to the Bedford Reformatory. The magistrate's return upon that appeal recited that the relator had been brought before him 'charged upon complaint of T. with disorderly conduct, which complaint is hereto annexed and made a part of this return; ' and further recited that she had been thereupon tried and that the magistrate 'did thereupon convict her of being guilty of such disorderly conduct charged in said complaint, and as in my opinion tended to and might provoke a breach of the public peace,' and that he thereupon committed her to the Bedford Reformatory, etc. The extract from the minutes of the Court of General Sessions showing the affirmance of the magistrate's judgment recited that the appeal was 'from a judgment of conviction for disorderly conduct.' The warrant of commitment annexed to the return in these habeas corpus proceedings recited that the relator had been brought before the magistrate 'charged upon the oath of T. with having been, on
the 20th day of March, 1909, in said City and County, a common prostitute, and did solicit men for the purpose of prostitution on the Bowery at the hour of 11 P. M. said date; ' that the charge was distinctly read; that she pleaded not guilty; that she was duly tried, and that the magistrate 'did convict and adjudge the said Lilly Sinclair to be guilty of the charge thus made against her.'
Philip Wohlstetter, for the appellant.
Robert C. Taylor, Assistant District Attorney [Charles S. Whitman with him on the brief], for the respondent.
The relator was arrested and brought before a magistrate of the city of New York charged with 'disorderly conduct--soliciting.' The information was that, being a common prostitute, she was on the night of March 20, 1909, loitering on the Bowery, which is a public thoroughfare, soliciting and importuning men passing in and along said thoroughfare, for the purpose of prostitution, to the great annoyance of the People of the State of New York residing in the neighborhood and passing thereby. After a plea of not guilty, evidence was introduced before the magistrate, she was convicted and committed to the State Reformatory for Women at Bedford, to be there confined for a term not to exceed three years, unless sooner paroled or discharged therefrom, pursuant to the provisions of section 146 of the State Charities Law. (See Gen. Laws, chap. 26 [[Laws of 1896, chap. 546], § 146, as amd. by Laws of 1899, chap. 632, and Laws of 1904, chaps. 169, 453; revised by Consol. Laws, chap. 55 [Laws of 1909, chap. 57], § 226.) An appeal from the judgment of conviction was allowed to the Court of General Sessions of the Peace, and from its judgment of affirmance an appeal was taken to the Appellate Division of our Supreme Court sitting in the First Department, where the judgment was again affirmed (People ex rel. Treiber v. Sinclair, 133 A.D. 944). Relator then sued out a writ of habeas corpus, and from an order dismissing the writ and remanding her to custody, this appeal is taken.
Three grounds of reversal have been urged upon our attention: First, that the offense with which the relator is charged is not set forth with definite certainty; second, that the magistrate exceeded his jurisdiction in sentencing her to the Bedford Reformatory; and,
third, that the statute under which he assumed to exercise such power is unconstitutional.
At the threshold of the case we are met by a contention on the part of the district attorney that the precise questions here presented were involved in the appeal taken to the Appellate Division of the First Department, and that its decision is final until reversed upon appeal. That these questions were argued before that court is not disputed. The appellant contends that some at least of said alleged grounds of error were not set forth in the affidavit upon which the appeal was allowed, and that, therefore, the appellate court was precluded from considering them. (Code Crim. Proc. § 751; People v. Jewett, 69 Hun, 550; People v. Giles,152 N.Y. 136.) The first one certainly was, and we need give it no further consideration. As to the others, it is not so clear. But the district attorney contends that if the previous decision is not conclusive, the second question cannot be raised on habeas corpus, for the reason that relator is held upon a commitment which is in the nature of a final judgment. (People ex rel. Kuhn v. Protestant Episcopal House of Mercy,133 N.Y. 207.) The point is well taken, unless there was total lack of jurisdiction, either of the person of defendant or of the offense charged, or want of power to pronounce judgment after conviction. It is not enough that such power may have been erroneously exercised. (People ex rel. Scharff v. Frost,198 N.Y. 110.) The jurisdiction of the person of defendant is not in question. The statute defining what shall constitute disorderly conduct tending to a breach of the peace in the city and county of New York specifies several things which shall be deemed offenses thereunder if committed in any thoroughfare or public place therein. (Consol. Act [Laws of 1882, chap. 410], § 1458; Greater N.Y. Charter [Laws of 1901, chap. 466], § 1610.) One of these offenses is thus described: 'Every common prostitute ...