Upon an information verified by Cecelia Young on March 5th, 1912, charging the relator with the crime of abduction in violation of subdivision 2 of section 70 of the Penal Law the relator was held by a city magistrate to answer to the County Court of Kings county and was committed to the custody of the warden and keeper of the city prison in Brooklyn. The relator sued out a writ of habeas corpus on the ground that the depositions before the magistrate were insufficient to justify the issue of the warrant. The sufficiency of the commitment on its face was not questioned, *Page 362 but it was alleged in behalf of the relator that the evidence did not suffice to establish reasonable ground to believe that he had committed the crime of abduction or any other crime within the county of Kings. Although the courts have repeatedly deprecated a resort to habeas corpus proceedings as a substitute for a writ of error or appeal except in cases involving questions of constitutional law where the facts cannot be changed (People exrel. Collins v. McLaughlin, 194 N.Y. 556), I suppose the present proceeding is maintainable under the authority of Peopleex rel. Perkins v. Moss (187 N.Y. 410). The learned judge before whom the writ was returnable at Special Term sustained the position of the relator, holding that the information and depositions before the magistrate did not make out a primafacie case of abduction under the statute.
The prosecution was sought to be sustained under subdivision 2 of section 70 of the Penal Law which provides that a person who "inveigles or entices an unmarried female, of previous chaste character, into a house of ill-fame or of assignation, or elsewhere, for the purpose of prostitution or sexual intercourse," is guilty of abduction, and punishable by imprisonment for not more than ten years or by a fine of not more than ten thousand dollars, or both. In the view adopted at the Special Term a charge of abduction under this enactment is not maintainable upon proof of enticing a woman into a lonely field at night for the purpose of a single individual act of sexual intercourse. It was held that the place into which the female is inveigled "must to some extent be a place for purposes of prostitution or assignation, and unless it has been previously so used the offense does not come within the subdivision."
I am not inclined to construe subdivision 2 of section 70 of the Penal Law as narrowly as this. It matters not, in my opinion, what has been the previous character of the place to which the woman is enticed provided the *Page 363 purpose of taking her thither is to compel her to become a prostitute or to have indiscriminate sexual intercourse with men for money. As was held of a similar statute in Miller v.State (121 Ind. 294) the offense defined by the provision under consideration consists in alluring a female of chaste character to a house of ill fame or elsewhere "for the purpose of prostitution, that is, for the purpose of having common, indiscriminate, meretricious commerce with men, and not merely for the purpose of having sexual intercourse with the party who enticed or took her away." If this construction be correct, and I think it is, the proofs before the magistrate did not suffice to establish a case of probable cause in support of the charge of abduction, for it appears plainly from the depositions that the sole purpose of the relator was to compel the complainant to have sexual intercourse with himself.
It is provided by section 2035 of the Code of Civil Procedure that if it appears upon the proceedings on the return of a writ of habeas corpus that the prisoner has been legally committed for a criminal offense, or if he appears by the testimony offered with the return or upon the hearing thereof to be guilty of such an offense, although the commitment is irregular, the court or judge must forthwith make a final order to discharge him upon his giving bail if the case is bailable or if it is not bailable to remand him. Having reached the conclusion that the commitment in this case was irregular so far as the charge of abduction was concerned, it was incumbent upon the court at Special Term to inquire whether the prisoner appeared by the testimony to be guilty of any other criminal offense and if so to hold him to bail therefor; and accordingly we find in the order of discharge a recital to the effect that there were no facts showing the commission of or intention to commit the crime of abduction orany other crime within the county of Kings.
I think that this conclusion to the effect that there was *Page 364 no evidence in the depositions tending to prove the commission of any other crime within Kings county was erroneous. The facts sworn to by the complainant were ample to sustain a charge of attempted rape committed in Queens county; and I think that they also sufficed to make out a case of conspiracy to commit that crime cognizable by the courts in Kings county. When a crime is committed partly in one county and partly in another the jurisdiction is in either county. (Code Crim. Pro. § 134.) Without reviewing the painful and shocking details of the narrative which the complainant was compelled to give it is enough to say that the facts disclosed in the depositions and the inferences which might fairly be drawn therefrom if believed by a jury would sustain a finding that the relator and his male companion on the occasion of the alleged offense entered into a conspiracy in Kings county to entice the complainant and another young woman named Ruth Wollman to take an automobile excursion into Queens county for the purpose of compelling the young girls to have sexual intercourse with them and to that end if necessary exercising force sufficient to constitute rape. If this view be correct it seems to me that it was the duty of the court at Special Term to hold the relator to bail to await the action of any court having jurisdiction in Kings county upon a charge of such conspiracy.
WERNER, CHASE, COLLIN and HOGAN, JJ., concur with HISCOCK, J.; CULLEN, Ch. J., concurs with WILLARD BARTLETT, J.
Order affirmed. *Page 365