The People, ex rel. William Van Houton, Appellant, v. Ambrose Sadler, as Superintendent, etc., Respondent

The People, ex rel. William Van Houton, Appellant, v. Ambrose Sadler, as Superintendent, etc., Respondent. The common-law remedy by indictment against a person keeping a bawdy-house was not abolished or superseded by the provision of the Code of Criminal Procedure as to disorderly persons (§ 899). It is not essential to the validity of a sentence to imprisonment in a county penitentiary, under the statute authorizing such imprisonment (Chap. 209, Laws of 1874, as amended by chap. 108, Laws of 1876), that it shall state that the prisoner is “to be received, kept and employed in the manner prescribed by law and the rules of the penitentiary.” That provision of the statute is no part of the sentence, but is simply directory to the keeper of the penitentiary. (Submitted October 7, 1884; decided October 21, 1884.) Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made March 27,1884, which affirmed an order of a justice of the Supreme Court, made upon return to a writ of habeas corpus remanding the petitioner to the custody of defendant, the superintendent of the Onondaga county penitentiary. The petitioner was indicted in November, 1882, for keeping a bawdy-house, was tried, convicted and sentenced to one year’s imprisonment in said penitentiary and to pay a fine of $250. J. L. Baker for appellant. Defendant should have been sentenced to the county jail instead of the penitentiary, the offense with which he was charged having been committed before the Penal Code went into effect. (Penal Code, §§ 15, 727; 2 R. S. 697; 2 Edm. Stat. 719, § 40.) A certified copy of the entry of the judgment upon the minutes, and no other warrant or authority, is necessary for the commitment. (Criminal Code, § 486.) The sentence is the final judgment. (Manke v. People, 74 N. Y. 415.) Clarence L. Smith, district attorney, for respondent. If a warrant of conviction, when prisoners are sent to a penitentiary, was not necessary, the copy of the minutes, certified by the clerk, was all that was required, the instrument signed by Judge Lyon has worked no injury, nor has it prejudiced in any way the rights of the prisoner. (People, ex rel. Trainor, v. Baker, 89 N. Y. 460, 465; People, ex rel. Catlin, v. Neilson, 16 Hun, 214; People, ex rel. Devoe, v. Kelly, 32 id. 536.) As no term of punishment is prescribed by statute defining disorderly houses, the term of imprisonment may be one year, or a fine of not more than $500, or both. (Penal Code, § 15.) [MAJORITY — Earl, J.] Earl, J. The Revised Statutes (Vol. 1, p. 638) contained provisions for dealing with disorderly persons, among whom were persons keeping a bawdy-house, and those provisions were'substantially re-enacted in the Code of Criminal Procedure (§ 899). The main purpose of those provisions is to arrest the disorderly practices named, by compelling a disorderly pei'son to give security for his good behavior. If he will give the security required, he cannot be punished. If the security be not given, he may be committed to the county jail for not exceeding six months, from which he may be discharged at any time upon giving security. (Code of Crim. Pro., §§ 902, 903, 907, 910.) The keeping of a bawdy-house was also a misdemeanor at common law, and is now made so by the Penal Code (§ 322), which took effect December 1, 1882. The defendant was indicted November 24, 1882, for keeping a bawdy-house between June 12, 1882, and the day of the indictment, and hence the case is governed by the common law. (Penal Code, § 719.) There was, therefore, this state of things when this offense was committed. The relator while he kept the bawdy-house could have been arrested and dealt with as a disorderly person, or he could have been indicted and punished for keeping such a house. The two proceedings have different ends in view, and could both be taken against any person who kept such a house. Such person could be arrested as disorderly, and compelled to give the security required, and then afterward he could be indicted and punished for having kept a bawdy-house. Therefore the common-law remedy by indictment against the relator was not abolished or superseded by, or inconsistent with, the provisions of the Code of Criminal Procedure as to disorderly persons. The relator was not, as he claims, sentenced under section 15 of the Penal Code, as that was not applicable to this crime committed before that Code took effect. But he was sentenced under a similar section of the Be vised Statutes (Vol. 2, p. 697, § 40) which provides “ that every person who shall be convicted of any misdemeanor, the punishment of which is not prescribed in this or some other statute, shall be punished by imprisonment in a county jail not exceeding one year, or by a fine not exceeding $250, or by both such fine and imprisonment.” When this crime was committed there was no other statute providing for its punishment. Therefore the court did not err in sentencing the relator to be confined in the Onondaga penitentiary for the term of one year, under chapter 209, Laws of 1874, as amended by chapter 108, Laws of 1876. A further objection is made that the sentence was invalid because it did not conform to the latter statute, which provides that the judge may “ sentence such person to imprisonment in such penitentiary, there to be received, kept and employed in the manner prescribed by law <md the rules cmd discipline of such penitentiary.” The objection is that the words italicized are not contained in the sentence. Those words are no part of the sentence, but are simply directory to the keeper of the penitentiary, prescribing what shall be done with the prisoner and how he shall be kept after he reaches there. We are, therefore, of opinion that the relator was properly sentenced, and that the order appealed from should be affirmed. All concur. Order affirmed.