Upon the appeal to this court, the relator, as respondent, in the first place, insists that the returns to the writs show upon their face that "the proceedings before the committing magistrate were conducted in such a loose, careless and indefinite manner that it is impossible to determine the nature of the charge against her," or the basis of the magistrate's decision. In the second place, she says there is "no offense known to the law of the state as that of public prostitute." And, further, she insists that the magistrate was without jurisdiction; that he had no power to commit her for the period of three years and that the proceedings before him were void, because of the failure to keep a written record of the evidence upon which the judgment was based. Such was, also, her demurrer to the returns to the writs, in substance.
The return of the magistrate is open to the charge that he was slovenly in his records and careless in his proceedings; but, in my opinion, the proceedings exhibited in the return to the writs were not fatally affected thereby and they disclose a case of the valid exercise of jurisdiction over the person of the relator. If it was made to appear to the Supreme Court, upon the return to the writ, that the relator was held under a valid commitment, it had the force of a final judgment of a competent tribunal and it was the duty of the court to remand her. (Code of Civil Procedure, sec. 2032; People ex rel. Kuhn v. P.E. House ofMercy, 133 N.Y. 207.) The proceeding, upon the return to a writ of habeas corpus, is instituted to determine whether a person, detained in custody, was so detained under legal authority, and is not for the purpose of reviewing the determination of the subordinate tribunal. (People ex rel. Danziger v. P.E. Houseof Mercy, 128 N.Y. 180.) Section 146 of the State Charities Law, (Laws of 1896, chap. 546, as amended by chap. 632, Laws of 1899), provides that "A female, between the ages of fifteen and thirty years, *Page 472 convicted by any magistrate of petit larceny, habitual drunkenness, of being a common prostitute, of frequenting disorderly houses or houses of prostitution, or of a misdemeanor, and who is not insane, nor mentally or physically incapable of being substantially benefited by the discipline of either of such institutions, may be sentenced and committed to * * * the New York State Reformatory for Women, at Bedford;" the term of the commitment being for a period of three years, or until discharged by the board of managers. The complaint, upon which the relator was arrested and brought before the magistrate, charged her with being "a public prostitute," who was soliciting men for the purposes of prostitution, at a certain time and place, and who had been repeatedly arrested and convicted of the charge of disorderly conduct in committing such acts upon the streets. The complaint charged the offense defined by the statute and gave jurisdiction, if it existed. The examination of the relator exhibits her confession of being guilty of the charge which had been made against her. The warrant of commitment of the magistrate recited the charge made; the proceedings had before him upon her arrest and trial; the conviction upon the charge; that she was "not insane, nor mentally or physically incapable of being substantially benefited by the discipline" of the New York State Reformatory for Women at Bedford, and that she was committed to that institution "for the term of three years, unless sooner discharged therefrom by the managers."
I think that there was sufficient before the court, upon the returns to the writs, to demonstrate the jurisdiction of the magistrate over the person of the relator and the subject-matter of the complaint, and that the commitment, in substance and form, was correct and sufficient to show such jurisdiction and the legality of the proceedings. (People ex rel. Danziger v. P.E.House of Mercy, supra.) The loose statements of the magistrate, that the conviction of the relator was for disorderly conduct, cannot alter the facts, nor affect the validity of the relator's commitment; unless the charge of being *Page 473 "a public prostitute" constitutes no offense under the law; or unless the committing magistrate was without power to try and to commit the relator. No other question is raised by the relator, upon this appeal, and no other question is to be considered. However advisable and right that, in such cases, the committing magistrate should reduce and preserve all of the evidence, in writing, (People v. Giles, 152 N.Y. 136) under the present circumstances, it is not material error; inasmuch as the evidence given by the relator herself is returned, showing that she confessed to being guilty of the charge made in the complaint. The affidavit, upon which the writs issued, contains no allegation that the judgment was unsupported by evidence and the demurrer does not raise such a question; nor were the material facts, appearing in the return, controverted. The questions, solely raised and to be considered in this case, are, first, whether the omission to state, in the complaint and commitment, in the words of the statute, that the relator was "a common prostitute" was fatal to the validity of the warrant, and, second, whether an offense was charged upon which the committing magistrate had power to try and to commit.
As to the first question, I entertain no doubt but that the words, "a public prostitute," are the legal equivalents of "a common prostitute." The word "public," in its common acceptation and use, has all the significance of, and is synonymous with, "common." A woman, who prostitutes her person to the public use, prostitutes it to the common use. While the precise language of a penal statute should be employed, it is not, necessarily, substantial error when other words happen to be used, which have the same accepted and popular sense as those used in the statute. No different meaning can be imported into the term "public prostitute" than attaches to that of "common prostitute."
Was there an offense charged and did the committing magistrate have the power to commit, upon proof thereof? I think that to be "a common prostitute" was made a new offense by this statute. It created a new offense, because it provided *Page 474 that, upon conviction of the female for committing the act specified, she might be deprived of her liberty and might be detained in the custody of one of certain state institutions for a period of three years; the sentence being indeterminate, in the sense that she might be sooner discharged by the board of managers. Prior thereto, under section 887 of the Code of Criminal Procedure, a common prostitute was classified with vagrants. In this statute the legislature has exercised its wide police powers, undoubtedly, with the intent of promoting the public health and morals, and this State Charities Law is a scheme for the correction of an evil; whose further aim is the reformation of the offender. It was competent, to that end, to make it an offense to be a public, or common, prostitute and to provide that, where a female was convicted thereof, she should be punished, not in a strictly penal sense, but through a restraint of her person, by being delivered into the custody of one of the reformatory institutions of the state, if she appeared to be morally and physically capable of being benefited by discipline, for a reasonable period of time. The operation of the act was, clearly, not intended to be so much punitive, as preventive, in its aims. The offender was to be withdrawn from the community and confined where she would, not only, be unable to continue her vile conduct to the detriment of the public morals and, possibly, of the public health; but where she might be, herself, reformed and made a fit member of society. The proceeding for her commitment, upon conviction of the offense, was not criminal in its nature; it was preventive and reformatory in the interests of organized society. It is plain to my mind that, in the enactment of these provisions of the State Charities Law, the legislature has made that an offense against the law, which was not such before, and that it has conferred upon "any magistrate," which includes, of course, a city magistrate, jurisdiction to convict a female, charged with the offense, and, in a proper case, having regard to her mental and physical conditions, to commit her to one of the institutions mentioned, for the prescribed period of three years, or until discharged by the board *Page 475 of managers. The earlier acts, of which this general law is a codification and extension, expressly authorized "all justices of the peace, police justices and other magistrates and courts" to sentence and commit (Ch. 187, Laws of 1881; ch. 233, Laws of 1890).
For these reasons I dissent and I think there should be a reversal of the orders below.
PARKER, Ch. J., HAIGHT, VANN and CULLEN, JJ., concur with WERNER, J.; GRAY, J., reads dissenting opinion; MARTIN, J., absent.
Order affirmed.