The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1846-09-25
NEW YORK, FRIDAY MORNING, SEPTEMBER 25 1916
Supreme Court.
Before Judge Edmonds Circuit Judge Of the rs circuit


Supreme Court.
Before Judge Edmonds Circuit Judge Of the hrst circuit
Sept l6, 1886.
In the matter Of Eliza Phiiips convictsd as ra-
srant-On the 3lst Of August 1916. Eliza Philips pre-
sented to the Circuit Judge petition for writ OF cer
orar to certify the cause Of her detention in the penten-
On the Cd of September the keeper made q return to
the certo.ari that she detained in his custody by
virtue OF Commitments by one of the police magistrates
in the following words -
Osborne, ESQ., Of the special justices for preserving
the peace in the city Of New York:
To consabes aud policemen of the said city, and
Of the city of New York:
York, to command you TIE said constabes and police
men, to convey to the said penentiary the body OF Eliza
rhiiips' VINO stands charged before me with being va
OF living, being commsn prostitute, having lawful
employment whereby to maintain herself and whereof
the said keeper hereby commanded to receive into
your custody in the said penentiary the body of the
said Eliza Philips and her safely keep for the space Of
sixty days until she shall thence delivered by due
course OF law.
Given under my hand and SEAL this 4th day of August
in the year OF our Lord, lS46
Signed B.w OSBORN. IL. 81
Messrs. Nash, Morrill, and SDonohue controverted the
return and set forth the record Of conviction in the fol-
City and County of Nsw York. ss-Be ii Remembered
that on this 4tl day Of August, ls46. Alexander Nc
Barnabss W. Osborne, of the special justices forpre
serving the peace in the city and county of Now York.
one Eliza Philips, and did complain unto me and give me
to be informed that this present day. the said city
and county, the said Eliza Philips a common prosti
tue who had no lawful employment whereby to main,
meaning of the statute Which complaint and information
being heard by me at the city and county aforesaid
and county aforesaid upon the oath of said Alexander
McDougal, well upon the examination of the said
Eliza Philips, taken before the undersigned having urs
dicon in the matter being satisfied that the said charge
and accusation were in all respects just and true, and
Una; Ihe sod ~, hnss rniPs was within ,ne ae
did therefore convict the said Eliza Philips of being such
vagran and appearing to that the said Eliza Phil
was an improper person to be sent to the aims house.
the undersigned thereupon sentenced him to the peni
B. W. OSBORNE.
Mr. j. D. Phillips Assistant District Attorney, demur.
red thereto, and MIR Nash joined in demurrer
Mr. Nash claimed that the record was void for the fol-
lowing reasons
lst The act of the Legislature requires the justice
who sentences the vagran to make up and sign record
of conviction thereof which shall be filed in the office
of the Clerk of the Court of Sessions. 1t passed
January 23d, ls33-Sec. III.
ID Tho record Of conviction in this cause is insult.
Ssn because does mot set out the evidence upon
view can determine whether the evidence II admissible
| o not. Term Rep. 1853
evidence upon which the conviction founded, was
given in the presence Of the prisoner Term Rep u.s.
4h. The record OF conviction does not negative the
defence which the act gives the defendant, true
Term Rep. 544
record COnvctlOn does contain 0ufClent
certainty the face Of it. And for the want Of this
tanty it is void. Is East IS,
9th The record of conviction does not show that the
party convicted by the confession Of the offender
by competent testimony and the evidence not appearing
to be proved, the conviction ought to be quashed.
Lord Raymonds Rep. 1887
It'll The record Of conviction having out the
evidence generally or particularly stated the facts
to which the witnesses dePosed bad on the face OF
IT, and cannot be supported by extraneous evidencethe
court being summary and the judgment conclusive,
the defendant without opportunity of pleading to the
NJ .oll,v
void, and the prisoner ought to be discharged.
9Th. This accusation is in the nature of a criminal
prosecution, and it does not appear the face Of the
record OF conviction that the accused while before the
magistrate informed OF the nature and of
the witnesses against her. or that she informed
her rights upon the examination that she in
formed that she had right to obtain witnesses in her
favor to have the assistance OF counsel her de-
fence For the above reasons the prisoner ought to be
discharged.
| whereupon after hearing the arguments of the re
specve counsel upon the demurrer the learned Judge
| gave the following
OPINION AT LENGTH
have been frequently called upon to discharge
from the pententary prisoners committed summary
convictions, on the ground of alleged defect
regularity in the proceeding of the sitting magistrate
that have deemed advisable this occasion to give
the subject full examination in the hope that the mat
being thoroughly understood the corrective for the
evil may for all be applied Our Rev Stat vol D 633
declares that if magistrate be satisfied by the comics
sion OF offender OF by competent testimony that the
statute he shall make and sign record of conviction
thereof which shall be filed in the Office of the clerk
the county and shall by warrant under his hand com
NIT such vagrant, &c. Under this law, and one subse
queny passed. Claws of ls3s) somewhat enlarging the
description Of the offence, and varying the punishment
the magistrates mainly in the class Of cases
under consideration And the mode of proceeding
by formal trial by jury but is bya summary convc-
tion which is described to be the examination and pun
ishment of offences in summary manner by Justices OF
the Peace out of their sessions and without the inter.
venton OF jury or an open trisl-Paiey on Conrie-
| tons l.
The power thus exercised is not in confor.
| nifty to, but is in derogation Of, the common law
| is derived solely from the statutes, and all the
proceedings under the authority created must be
strictly confoImabe to the special law in each instance
from which all their force Is derived Coles case, Sir
W. Jones, 1885, ITO; Showers H. The earliest statute
upon which summary conviction is record, is that
OF 80 Henry VIII, CHI o. This was in 1914 From that
time the present. statutes have been enacted extend
ing the jurisdiction to other and regulating its
ercse. great has been its extension that in Eng.
land and Wales, the number of summary convictions In
year Qsi2) was 1928. Immediately after the
alton of this new judiciary dangers became manifest
officer going TO execute writ against justice of the
peace Tor debt, and taking with him hand gun Iom
obeypg the writ apprehended convicted and imprisoned
the officer until he paid fine Of ei0 under color Of the
act of parame against carrying days or short guns
The necessity OF putting under restraint power
summary arbitrary, materially affecting person
and required tom the courts great
watchulness and Hence frequent decisions
made by the higher Courts in regard to them, and sys
tenn of regulations and restrictions grew up and became
incorporated into the law. Those regulations
and restrictions were part of the common law at tie
adoption OF our Constitution which made the common
law the law Of our land, dwhen by statutes
adopted this peculiar mode Of trial. necessarily sub
ected to the principles already established in regard to
it, and must therefore in examining the question be.
fore me- go back to the law existed at the adoption
Of Constitution, and be governed by the rules then
established unless in the language Of Constitution,
they have since been repealed altered And is the
more important that those rules should be well under
stood and rgdly enforced because Constitution in
securing to trial by jury, it only in those
ses in which it had been heretofore used-Arcle 7,
Section O.
Tho British Statutes alive to the dangers Of
this extraordinary Jurisdiction, have and prin-
cipaly since our revolution, given appeal to
the accused, by which he review the judg-
ment which may deprive him Of his property, his
liberty and his character But our statute provides no
such remedy our Constitution deprves him of the pro-
lection of trial by jury and he has other protection
left to him the arbitrary exercise wanton abuse
of this extraordinary power except what he find lin
such parts OF the law and Of the acts Of the egsa