#### The People ex rel. Edward E. Sloane, Relator, *v.*John J. Fallon, Warden, etc., Defendant.

(Supreme Court, New York Special Term,

March, 1899.)

Crimes — Habitual criminals as disorderly persons — Repeal by implication of chapter 357 of the Laws of 1873.

The provisions of the Code of Criminal Procedure (§§ 510-514) de- ' daring adjudged habitual criminals to be liable to summary arrest and to punishment as disorderly persons were intended to cover the whole subject-matter of the previous legislation in this regard and therefore repeal, by implication, chapter 357 of the Laws of 1873 declaring that a professional thief, burglar, pickpocket, counterfeiter or forger, who has previously been convicted of any of those crimes and who is proved to have been frequenting or attending any hotel, or any of the other places named in the latter statute, for an unlawful purpose, shall be deemed a disorderly person and be punishable as such.

A professional thief, burglar and pickpocket, twice convicted in the state óf New York for grand larceny and once for burglary, and found in 1899 in a city hotel, not being a guest, under circumstances tending to show that he was there for an unlawful purpose, cannot now be prosecuted under chapter 357 of the Laws of 1873, nor convicted under the Code of Criminal Procedure where he has never been adjudged an habitual criminal by the court which tried the indictment for which he was originally convicted.

Rétübw to writs of certiorari and habeas corpus. The facts, of the case are stated in the opinion.

James W. McLaughlin, for relator.

Asa Bird Gardiner, district attorney (Thomas F. Byrne, of counsel), for People. ’

*17Beekman, J.

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 Hew 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 magistrate upon a sworn complaint that he was a professional thief, pickpocket and burglar; that he had been convicted of the offenses above referred to, and stating the circumstances under which he had been found in the hotel, and the charge was then made that he was a disorderly person within the meaning of chapter 357 of the Laws of 1873. A trial was thereupon had before the magistrate, which resulted in the conviction of the relator of the offense so charged, and he was thereupon committed to the penitentiary for one hundred days at hard labor.

It is contended in this proceeding that the magistrate had no-jurisdiction to act upon the complaint, on the ground that chapter 857 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 or 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 *18the State, then to the county jail of said county, for a term not exceeding one hundred days, or, in the discretion of any such police magistrate or justice of . the peace, he or she shall be required to enter security for his or her 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 of 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 frequenting or attending for an unlawful purpose. People v. McCarthy, 45 How. Pr. 97, where .the constitutionality of the act was sustained by the General Term of the Supreme - Oourt, fijst department, and the act itself construed.

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 of Auditors, 17 N. Y. St. Repr. 872, 875. It is true that they contain in some ca.ses 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 Oode, the former will be deemed to have been repealed Or superseded by the latter. " Matter of the Petition of the New York Institution for the Instruction of the Deaf and Dumb, etc., 121 N. Y. 234.

The rules laid down in the case above cited are correctly expressed in the portion of the headnote which reads as follows: “ Where a revising statute covers the whole subject-matter of antecedent statutes, and such plainly appears to have been the legis- ■ lative intent, it is to be -deemed to contain the entire law upon the subject, and it'virtually repeals the former enactments, although there is no express provision to that effect and although provisions of the former acts are omitted in' the revising statute. Where two *19statutes relate to the same subject-matter, though not in terms repugnant and inconsistent, if the later 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 a 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 the Code of Criminal Procedure, sections 510 to 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 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.”

*20Turning 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. § 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 góod 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. § 901. If the undertaking be given, the defendant must be discharged, but if not, the magistrate must convict him as a disorderly person (§ 902), and by a warrant signed by him must commit him, where the complaint is -made in the city of New 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.” § 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 R. S, [Bank’s 6th ed.] 893), a circumstance which is very significant 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 former statute is found dealing-with habitual criminals, although not under that precisé title, and declaring them under certain conditions to be *“*disorderly persons ”, the legislature intended to cover the ground of such statute when, under the new enactment, it declared habitual criminals to be disorderly persons under substantially similar conditions. '

Under the Act of 1873 the persons there referred to are characterized as “ professional ” thieves, burglars, pickpockets, counterfeiters or forgers, which necessarily implies, that the commission of such crimes is habitual, and that those who so" commit them are habitual criminals. It will also be observed that the conditions' which determine" whether any such" person is a disorderly person *21under the Act of 1873, are that he must have been previously convicted of one of the offenses named in the act, and that he must have been arrested under circumstances sufficient to warrant the conclusion that he was attending one of the places specifically enumerated therein for an unlawful purpose. A comparison of these provisions with those which are contained in the Code of Criminal Procedure will show that these same elements must also concur in order to support a prosecution thereunder of an habitual criminal as a disorderly person, with these differences, however: 1. That under the Code the defendant in such a case must have been adjudged to be an habitual criminal by the court which tried the indictment for which he was originally convicted; 2. That in addition to his being “ in any place or situation under .circumstances giving reasonable ground to believe that he is- intending or waiting the opportunity to commit some crime,” he also becomes subject to the provisions of the Code if he is found “ in possession of any deadly or dangerous weapon, or of any tool, instrument or material, adapted to, or used by criminals for, the eommissiori of crime.”

It is beyond all reason to suppose that the legislature did not have in mind the provisions of the Act of 1873 at the time wdien the Code provisions upon this subject were enacted. The marked similarity between the two statutes forbids any such conclusion. The new provision that to be an habitual criminal the convicted person must have been so adjudged by the court in which such conviction was had, was undoubtedly intended to meet what seems to me to have been an obvious defect of the Act of 1873. As that act was framed, a magistrate could adjudge a person to be a professional thief upon the production of the record of a single conviction for larceny. That such injustice might result from this is plain when we consider the fact that individual crimes are sometimes committed under peculiar circumstances of overwhelming temptation, so that the mere fact of conviction would not properly be indicative of a general disposition to commit crime, much less of a purpose to make it a means of livelihood. ' The one person of all others who is in a position to determine such a question. is the judge who presided at the trial of the indictment, who heard-all the evidence, saw the prisoner, and was fully possessed of all the surrounding facts and circumstances. This additional provision is, in my opinion, a wholesome one, and might well have been included originally in the Act of 1873. Other differences between the two statutes may be noted. The Act of-1873 is *22confined to persons who have been convicted of stealing, burglary, ■ picking pockets, counterfeiting or forging. The Code contains no such limitation, requiring only that the trial court must have adjudged the offender to be “ an habitual criminal,” regardless of ' the nature of the crime for which he had been convicted. But these differences are in a sense subordinate to the main object of both statutes, namely, to protect the community against a class of persons habituated to the commission of crime, and involve details evidently intended to improve the original legislation upon the » subject with respect-to both public and private interests.

It will be observed that the power of the magistrate entertaining the proceeding is much the same under both statutes. Under the Act of 1873 he is authorized, upon conviction of the defendant as a disorderly person, to commit him to jail for a term not exceeding one hundred days, or, in his.discretion,-to require the person to enter security for his or her good behavior for a period not exceeding one year. The only difference between the two is that in one case the period of imprisonment is one hundred days and in the other, six months, a difference that naturally arises out of .a disposition that there should be uniformity -in dealing with all classes of disorderly persons.

If the two acts are to be regarded as coexistent, the result would be contradictory and inharmonious in the extreme. The same person, if he has been adjudged “an habitual criminal,” might-be subject to prosecution under either one of the two acts. Furthermore, two persons associated together at the same place,- under circumstances giving reasonable ground to believe that they were intending or waiting the opportunity to commit the same crime, might be subject to prosecution, one under the Act of 1873, because, while he had been convicted of an offense named in that . act, he had not been adjudged an habitual criminal, while the other, who . had. been adjudged an habitual criminal, would also be subject to prosecution under the provisions of the Code of Criminal Procedure. The' former would be subject to imprisonment for one hundred days; the other to imprisonment for the period of six months, each being equally guilty, so far as the foundation for the charge was concerned, and the offense in each case being identical.

I confess myself unable, on any assumption of intelligent action, by the legislature, to reconcile the coexistence of these two statutory provisions. There is no- doubt in my mind that'the legislature in enacting the Code of Criminal Procedure intended to deal with *23the subject-matter of the Act of 1873 and to revise and improve it, and that when it placed habitual criminals within the class of disorderly persons, as defined in the Code of Criminal Procedure, it referred to the class of crimhials who were intended to be dealt with under the Act of 1873, and gathered them in, together with others • who had been previously characterized in various statutes as disorderly persons, under a comprehensive scheme for a more scientific and convenient restatement of the law concerning such persons and their treatment — a conclusion which is reinforced by the fact that in no other part of the Code can any provision be found which bears upon the subject.

I am, therefore, of the ópinion, as I have already stated, that - chapter 357 of the laws of 1873 was in effect repealed by the provisions of the Code of Criminal Procedure to which I have referred; and that inasmuch as it nowhere' appears that the relator was an habitual criminal within the Code definition, the commitment was void.

The writ must, therefore, be sustained, and the relator discharged.

Writ sustained, and relator discharged.