In re Gates ( 1892 )

McGrath, C. J.

This is habeas corpus to inquire into the cause of the detention of Bertha Gates at the State Industrial Home for Girls at Adrian.

The mittimus, .issued by a justice of the peace, recites that she was complained against before said justice for larceny; that a trial was had, and the cause—

“ Submitted to the jury, and, after being out for a time, returned, and said they find that the said Bertha Gates is guilty in the manner and form as charged against her, and is of the age of ten years and eight months.'”

The statute (3 How. Stat. § 9836) provides for the reception at said industrial home of girls over the age of 10 years and under the age of 17 years, and that—

“It shall be the duty of all courts and magistrates •sentencing girls to said home to certify to the keeper of said home the age of the person so committed, as.nearly .as can be ascertained by testimony taken under oath before such court or magistrate, or in such manner as the court •or magistrate shall direct.”

Section 9895 provides that the report of the county agent shall be attached to the mittimus.

The return shows that the detention is upon the naked mittimus, which contains no certificate as to age, nor is the report of the county agent attached thereto. The •statute contemplates a finding as to the age of the person by the magistrate, based upon the testimony taken under oath before him, or taken under oath in such manner as he shall direct, and that he shall certify such age to the keeper. No mere recitation in the mittimus that the jury “said they find” answers the requirement of the statute.

The prisoner must be discharged.

The other Justices concurred.