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People ex rel. Barone v. Fox

Supreme Court of New York, Appellate Division

May 12, 1911

THE PEOPLE OF THE STATE OF NEW YORK ex rel. ADELINA BARONE, Respondent,
v.
FRANK FOX, Warden of the Workhouse, Defendant. THE PEOPLE OF THE STATE OF NEW YORK, Appellant.

Page 612

APPEAL by the People of the State of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of December, 1910, sustaining a writ of habeas corpus and discharging the relator from custody.

COUNSEL

Robert S. Johnstone, Deputy Assistant District Attorney, for the appellant.

Bertha Rembaugh, for the respondent.

INGRAHAM, P. J.:

The question presented on this appeal is whether section 79 of the act in relation to inferior courts of criminal jurisdiction in the city of New York (Laws of 1910, chap. 659) is void as a violation of the Constitution of this State.

To clearly present the question an analysis of this act will be useful. The act itself is entitled 'An act in relation to the inferior courts of criminal jurisdiction in the city of New York, defining their powers and jurisdiction and providing for their officers.' By section 2, two courts of criminal jurisdiction are established: First, the Court of Special Sessions, and,second, the City Magistrates' Courts. Article 2 provides for the organization of the Court of Special Sessions, and article 4 for the organization of the City Magistrates' Courts. By section 50 the City Magistrates' Courts in the city of New York are divided into two divisions, the first division to embrace the boroughs of Manhattan and The Bronx. Provision is then made for the appointment of magistrates, and article 5 relates to the jurisdiction and procedure of the City Magistrates' Courts. By section 88 it is provided that upon a charge of vagrancy, if the person so convicted be a prostitute between the ages of sixteen and twenty-one, the magistrate may commit such person, for not exceeding one year, to certain institutions named in the act; that all other persons convicted upon a charge of vagrancy, including persons convicted as prostitutes except those committed under section 79 of this act (the section

Page 613

in question) and not committed to a reformatory as herein above provided, shall be committed in the boroughs of Manhattan, Brooklyn and The Bronx to the workhouse on Blackwell's Island, and in the other boroughs of said city to a county jail for the term of six months. Section 77 provides for night courts and a separate court for women. Section 78 provides for the identification of prostitutes, and section 79 contains the provision under which the relator was committed, and which it is claimed violates the Constitution. In considering this section we must bear in mind that the proceedings provided for are proceedings in a court of justice, the powers thereby granted are to be exercised by a judicial officer sitting in court, and the judgment therein rendered is the judgment of a court administering justice.

The proceedings respecting vagrancy are regulated by title 6 of part 6 of the Code of Criminal Procedure. Section 887 of that Code, subdivision 3, provides that 'a person who has contracted an infectious or other disease, in the practice of drunkenness or debauchery, requiring charitable aid to restore him to health,' and (subdivision 4) 'a common prostitute, who has no lawful employment whereby to maintain herself,' are vagrants, and, therefore, are persons coming under the jurisdiction of the inferior criminal courts, and subdivision 2 of section 1458 of the Consolidation Act (Laws of 1882, chap. 410) provides that a common prostitute loitering or soliciting in a public place is a disorderly person. By section 79 of the act of 1910 it is provided that 'Any person who is a vagrant, as defined in subdivision four of section eight hundred and eighty-seven of the Code of Criminal Procedure, or who is convicted of a violation of subdivision two of section fourteen hundred and fifty-eight of the Consolidation Act, or of section one hundred and fifty of the Tenement House Law, shall after conviction be taken to a room adjacent to the court room, and there be physically examined by a woman physician of the department of health detailed for such purpose. After such examination the physician making the same shall promptly prepare and sign a written report to the court of the prisoner's physical condition, and if it thereby appears that the prisoner is afflicted with any venereal disease, which is contagious, infectious or

Page 614

communicable, the magistrate shall commit her to a public hospital having a ward or wards for the treatment of the disease with which she is afflicted for detention and treatment for a minimum period fixed by him in the commitment, and for a maximum period of not more than one year; provided, that in case a prisoner so committed to any institution shall be cured of her venereal disease, which is contagious, infectious or communicable, after the expiration of the minimum period and before the expiration of the maximum period for which she was committed to such institution, she shall be discharged and released from custody upon the written order of the officer in charge of the institution to which she was committed upon the certificate of a physician of such institution or of the department of health that the prisoner is free of any venereal disease which is contagious, infectious or communicable. If, however, such prisoner shall be cured prior to the expiration of the minimum period for which she was committed she shall be forthwith transferred to the workhouse and discharged at the expiration of said minimum period.'

The court at Special Term held that this act violated the Constitution in that it directs the detention of the accused without due process of law, in that the nature of the sentence after conviction is made to depend upon the report of a physical examination without an opportunity for a hearing upon the facts entering into the report. (69 Misc. 400.)

There would be force in this objection if the construction placed upon section 79 of the act of 1910 by the learned judge at Special Term was required, but I think, without a violation of its provisions, a construction can be given to the act which will obviate these objections.

The conditions which by section 1458 of the Consolidation Act are characterized as disorderly conduct and by section 887 of the Code of Criminal Procedure as vagrancy are not of the character which are usually followed by imprisonment in the nature of punishment for an offense. It would not be said that a person who had contracted a contagious or infectious disease in the practice of drunkenness and debauchery requiring charitable aid to restore him to health should be subjected to punishment for his condition, but rather that medical assistance be extended

Page 615

and his reformation attempted; yet by section 887 of the Code of Criminal Procedure such a person is a vagrant. It is recognized by those who have made a study of criminalogy that prostitution is evidence of insanity or degeneracy, and the offenses or conditions specified in these sections require more the supervision of the health and reformatory authorities of the State than commitment to penal institutions. The detention of a person within these provisions of the statute is not so much a punishment for a crime as a means for the reformation or protection of the individual who has become a vagrant or disorderly person and for the conservation of the public health, and the jurisdiction given to these courts of inferior criminal jurisdiction over vagrants and disorderly persons is, therefore, more reformatory than penal. When a person is brought before a judicial tribunal charged with this condition he is to be subjected to such detention or treatment as will be best calculated to accomplish the end in view, and the statute should be considered in view of what seems to me to have been the evident intention of the Legislature in enacting the provisions in question.

Section 88 of the act now under review, to which attention has been called, requires the court or a magistrate to either commit a person who is convicted of disorderly conduct or vagrancy, unless committed under section 79 of the act, to one of the reformatory institutions mentioned in the section or to the workhouse on Blackwell's Island for the term of six months. Section 79, however, provides for a different commitment in case the person arrested should be suffering from a venereal disease which is contagious, infectious or communicable, and whose presence either in the workhouse or after discharge from detention would be a menace to the health of the inmates of the institution to which she might be committed or to the public health after her discharge. In the case of an unfortunate afflicted with such a disease the person is to be committed not to either of these institutions or to the workhouse but to a public hospital maintained for the cure of diseases, to be detained in such hospital for a period not exceeding a year or until the disease shall have been cured. The authority of the Legislature to provide for the committal of a vagrant or a person convicted of disorderly conduct to a workhouse for

Page 616

a period of six months is not disputed, nor do I imagine it could be seriously contended that the Legislature was without power to commit a vagrant suffering from a contagious, infectious or communicable disease to a hospital rather than to a workhouse or other public institution. The objection taken to this statute is that the question of whether or not the convicted person was suffering from this disease is one that such person had the right to have determined by the magistrate as a matter of fact and that under this act the magistrate is bound by the report of the physician who has made the examination and has found the existence of the disease which justifies the magistrate in sending such person to a hospital rather than the workhouse. But it seems to me this is a misconception of the duty imposed upon the magistrate and not required by the language used in the section in question. The relator was brought before the court charged with disorderly conduct under subdivision 2 of section 1458 of the Consolidation Act, and the first question presented was whether the relator was a disorderly person within this provision. That question having been determined by the conviction of the relator as a disorderly person the question then was presented as to the extent of the detention and the institution in which the relator should be detained. To ascertain that fact the statute required that there should be a physical examination by a woman physician connected with the department of health and detailed for such purpose. This was clearly a provision directly connected with the public health and it seems to me was amply justified and clearly within the power of the Legislature. Certainly if it had appeared that the relator was suffering from smallpox, cholera or typhus fever or any other infectious disease the court would not have been bound nor would it have been justified in committing the relator to a public institution ...


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