Citation Numbers: 13 N.Y. Crim. 553
Judges: Beekman
Filed Date: 3/15/1896
Status: Precedential
Modified Date: 1/11/2022
According to the record before me, the relator has been thrice convicted in this state of the commission of a crime,—on two occasions for grand larceny, and on one for burglary. On the 28th day of February, 1899, he was found in one of the hotels of the city of New York, not being a guest, under circumstances tending to show that he was there for an unlawful purpose. He was arrested and arraigned before a city
It is contended in this proceeding that the magistrate had no jurisdiction to act upon the complaint, on the ground that chapter 357 of the Laws of 1873 was repealed and superseded by certain provisions of the Code of Criminal Procedure and the Penal Code. It therefore becomes necessary to consider both statutes, in so far as they bear upon the subject under consideration.
Chapter 357 of the Laws of 1873 provides that:
“ If any person shall be charged on oath of affirmation before any police magistrate or justice of the peace in this state with being a professional thief, burglar, pickpocket, counterfeiter or forger, or shall have been arrested by the police authorities at any steamboat landing, railroad depot, church, banking institution, brokers’ office, place of public amusement, auction room, store, auction sale in private residences, passenger car, hotel or restaurant, or at any other gathering of people, whether few or many, and if it shall be proven to the satisfaction of any such magistrate or justice of the peace, by, sufficient testimony, that he or she was frequenting or attending such place or places for an unlawful purpose, and that he or she has at some time been convicted of any of the crimes herein named, he or she shall be deemed a disorderly person, and upon conviction after trial shall be committed by the said magistrate or justice of the peace to the penitentiary, in counties where there is a penitentiary, for a term not exceeding one hundred days, there to be kept at hard labor, and in counties where there is no penitentiary, or where no contract exists with any authorities of any penitentiary in the state, then to the county jail of said county, for a term not exceeding one hundred days, or, in the discretion of*555 any such police magistrate or justice of the peace, he or she shall be required to enter security for his good behavior for a period not exceeding one year.”
It will be observed that the essence of the offense cognizable under this act is that of being a disorderly person, and that, before the person so charged can be committed as such, it must appear: First, that he has been previously convicted of one the crimes named in the act; second, such being his status, that he must have been arrested in one of the places specifically mentioned in the act, which he was frequently or attending for an unlawful purpose. People v. McCarthy, 45 How. Prac. 97, where the constitutionality of the act was sustained by the general term of the supreme court First department, and the act itself constructed.
In 1881 the Code of Criminal Procedure and the Penal Code were enacted, which are respectively known as chapters 442 and 676 of the Laws of 1881. The object of these enactments was, substantially, to present a codification of the existing law with respect to penal offenses, and to blend “ into one intelligent and consistent act all the various proceedings necessary in administering the criminal law.” Fraser v. Board, 17 N. Y. St Rep. 872, 875. It is true that they contain in some cases original subjects not covered by pre-existing statutes, but it is plain, upon an examination of these acts, that it was the purpose of the legislature, so far as it was deemed practicable to do so, to set forth a compendium of the criminal law of this state, and to provide an intelligent and consistent system for its orderly administration. Under such circumstances, the rule of construction is. applicable, that, where the subject-matter of previous legislation has been substantially covered by the. Code, the former will be deemed to have been repealed or superseded by the latter. In re Hew York Institution for Instruction of Deaf and Dumb, 121 N. Y. 234, 24 N. E. 378. The rules laid down in the case above cited are correctly expressed in the portion of the official head note which reads as follows :
“ Where a revising statute covers the whole subject-matter of antecedent statutes, and such plainly appears to have been the' legislative intent, it is to be deemed to contain the entire law upon the subject, and it virtually repeals the former enact*556 ments, although there is no express provision to that effect, and although provisions of the former acts are omitted in the revising statute. Where two statutes relate to the same subject-matter, though not in terms repugnant and inconsistent, if the latter is intended to prescribe the only rule which shall govern, it repeals the earlier.”
Bearing in mind these principles, the question for determination is whether the provisions which are contained "in the two Codes with respect to habitual criminals were intended by the legislature to be a substitute for the act of 1873; for, if such was the case, it is plain that the latter was repealed, and ceased to be operative, when the Codes took effect.
Section 690 of the Penal Code provides that:
“ Where a person is hereafter convicted of a felony, who has been, before that conviction, convicted in this state, of any other crime, or where a person is hereafter convicted of a misdemeanor who has been already five times convicted in this state of misdemeanor, he may be adjudged by the court, in addition to any other punishment inflicted upon him to be an habitual criminal.”
By section 691 of the same act it is declared that:
“ The person of an habitual criminal shall be at all times subject to the supervision of every judicial magistrate of the county, and of the supervisors and overseers of the poor of the town where the criminal may be found, to the same extent that a minor is subject to the control of his parent or guardian.”
The subject, however, receives a very much larger and more satisfactory treatment in Code Cr. Proc. §§ 510-514, both inclusive. Section 510 contains provisions expressed in almost the same words as are those of section 690 of the Penal Code, above quoted. Section 512 provides that:
“A person who has been adjudged an habitual criminal is liable to arrest summarily with or without warrant, and to punishment as a disorderly person, when he is found without being able to account therefor, to the satisfaction of the court or magistrate, either, (1) in possession of any deadly or dangerous weapon, or of any tool, instrument or material, adapted to, or used by criminals for, the commission of a crime; or (2) in any place or situation under circumstances giving reasonable*557 ground to believe that he is intending or waiting the opportunity to commit some crime.”
Section 514 prescribes that:
“The person and the premises of everyone who has been convicted and adjudged an habitual criminal shall be liable at all times to search and examination by any magistrate, sheriff, constable, or other officer, with or without warrant.”
Turning now to section 899 of the Code of Criminal Procedure, we find that the legislature has undertaken to define who are disorderly persons, under nine separate and distinct specifications. The ninth subdivision reads, “(9) Habitual criminals within the provisions of this Code.” Subsequent sections provide for the arrest and arraignment of disorderly persons and the powers of magistrates in dealing with and disposing of such cases. A police justice of a city, among other magistrates, can entertain such a charge. Section 900. If the magistrate be satisfied, either by the confession of the defendant, or by competent testimony, that he is a disorderly person, he may require the person so charged to give security that he will be of good behavior for the space of one year, or that the sureties will pay the sum mentioned in the undertaking, which must be fixed by the magistrate. Section 901. If the undertaking be given, the defendant must be discharged, but if not, the magistrate must convict him as a disorderly person (section 902), and, by a warrant signed by him, must commit him, where the complaint is made in the city of Hew York, to the city prison or penitentiary of that city “ for not exceeding-six months at hard labor, or until he gives the security prescribed in section nine hundred and one.” Section 903.
Referring again to section 899, and leaving out of consideration for the moment the case of habitual criminals, it will be found that all of the other classes of persons there enumerated were similarly described as disorderly persons in pre-existing statutes (2 Rev. St. [Bank’s 6th Ed.] 893,— a circumstance which is very significent of an intention on the part of the legislature to bring under one comprehensive classification all of those who had been previously designated as “ disorderly persons,” and, in a general way, all who should be thereafter dealt with as such; and it is therefore natural to infer that where a
Writ sustained, and relator discharged.