the same offence; 2. For protection of the magistrate, a proper record being conclusive evidence in his favor in cases within his jurisdiction; 3. In the absence of an appeal, the only mode by which the accused can obtain a review of the sentence, is by habeas corpus or certiorari, founded on the record. Greater certainty is required in such records than in indictments, because they are taken as true against the accused, and nothing will be presumed in favor of the commitment, but the presumption will be against it.

The record is designed to show the regularity of the preceedings, and that the sentence is supported by legal evidence; there. fore, everything necessary to support a conviction, must appear upon it. It must set forth:

1. The particular circumstances constituting the offence, to show that the magistrate has conformed to the law, and has not exceeded his jurisdiction. A mere statement of the offence in the terms of the statute is insufficient.

2. The plea of the defendant, whether confession or denial. 3. The names of the witnesses, to show their competency.

4. That the evidence was given in the presence of the accused, that it may appear that he had an opportunity of cross-examination.

5. The whole evidence, both for the prosecution and defence -so far as applicable to the charge, to show that every material allegation was sustained by proof.

6. An adjudication of the guilt of the accused, which must be exact and precise; judgment for too little being as bad as for too much.1 But since the making of such decision, the Legislature have authorized a more general form of record of conviction in cases of conviction for vagrancy in the city of New York.2

All records of conviction by the magistrates of the several police courts, and all bail bonds and papers taken in said courts, are required to be filed by the clerks designated to keep record books of said courts, and arranged according to law.3

Peo. v. Phillips, 1 Park, 95.

• Laws 1853, ch. 183, p. 353; vide Morris v. Peo., 1 Park, 44. Vol. 2, Laws 1867, ch. 961, § 2, p. 2450.

SECTION VII.

EXECUTION AND COMMITMENT.

The statute, in cases where a pecuniary penalty is imposed, usually directs the collection of the same by execution, by distress, and sale of the goods and chattels of the offender. In other cases, in case the costs and penalty is not paid forthwith or in case the execution cannot be collected, the magistrate is authorized to commit the offender to the common jail. This is done by a warrant of commitment. The general rules, applicable to the form of a warrant of commitment of the accused upon an examination of persons charged with offences of a higher nature, will apply to this class of offences.1 The warrant should carefully recite the conviction on which it is granted, and should not be in any respect repugnant thereto; for, when there has been a good and valid conviction, but on the face of the commitment no offence was disclosed, or an error was made, so as to make the description of the offence vary from that stated in the conviction, it was held that the magistrate was liable to an action of trespass on account of such omission or variation.2

In relation to the form of commitments for vagrancy there are conflicting decisions. In one case it was held, that it was not necessary that the record of the commitment should state the grounds on which the charge of vagrancy was based; that it was enough that they show that the prisoner had been charged with being a vagrant and was convicted of that offense.3

In another case it was held, that, where a person is committed as a vagrant, the record and commitment should set forth the grounds upon which the charge of vagrancy was based.*

1 Vide post.

1

2 Bing. R., 483; Barb. Cr. L., 2d ed., 632.

Peo. v. Grey, 4 Park, 616; Gray's Case, 11 Abb., 56.

• Peo. v. Forbes, 4 Park, 611; Forbes' Case, 11 Abb., 52; Vide Mullins v. Peo., 24 N. Y., 399; Cited post.

SECTION VIII.

REVIEW OF PROCEEDINGS.

In regard to a review of these proceedings, no method of appeal is pointed out by the statute, and, unless a power of appeal is expressly given by the Legislature, there is no appeal.1

A common law writ of certiorari, however, lies to review the proceedings, as that is the proper process for correcting any error that may have occurred in the proceedings of an inferior court, when such proceedings are in any stage of them different from the course of the common law, unless some different process is given by statute; and the application of the writ is not confined to the decisions of courts properly so called, nor to proceedings in actions, but comprehends the determination of magistrates and officers exercising judicial powers affecting the property or rights of the citizen, and who act in a summary way, or in a new course, different from the common law.3

Ordinarily, upon common law writs of certiorari, the record is examined only to see if the subordinate tribunal has kept within the limits of its jurisdiction, but in these cases, the superior tribunal may examine into the record to see if there was no evidence tending to establish the main facts. Thus, on a common law certiorari for the removal of summary convictions before magistrates, the power of review is not confined to the jurisdiction or the regularity of the proceedings, but extends to all other legal questions, and unless it appears upon the face of the record that there was evidence sufficient to warrant the conviction, it will be quashed. The magistrate, in these cases, must insert the evidence in the record of the conviction itself, for the express purpose of enabling the superior court, upon a certiorari, to determine upon the face of the conviction whether it was lawful, and although the court would not interfere upon the mere weight of the evidence, yet a conviction without any evidence to support it should be reversed or quashed as erroneous.1

A conviction as a disorderly person, and a commitment there

16 East., 514; Wightw., 22; 4 M. & S., 421; 8 T. R., 218, note 6; Id., 542. U. S. Dig., Certiorari, 1, 2, 3; et seq., 2 Burr. Pr., 195.

25 Wend., 167; 2 Hill, 9, 14.

Mullins v. Peo., 24 N. Y., 399. Vide 4 Barb., 164; 6 N. Y., 309; 20 Wend., 103; 16 Abb., 473; 40 Barb., 626; 26 How., 152; 15 Barb., 286.

for, is not affected by suing out a certiorari, or giving a recognizance. Certiorari is no supersedeas to an execution already issued.1

In conclusion, it may be said that all summary proceedings are watched with extreme jealously by the common law. The slightest error is fatal. Thus, under the vagrant act, it is not sufficient to say the party is charged upon oath, but the magistrate must state that the oath was believed, and that he was thereupon convicted.2

SECTION IX.

DISORDERLY PERSONS.

All persons who shall abandon or neglect to support their wives or children, or who threaten to run away and leave their wives or children a burthen on the public; all persons pretending to tell fortunes, or where lost or stolen goods may be found; all common prostitutes; all keepers of bawdy houses, or houses for the resort of prostitutes, drunkards, tipplers, gamesters, or other disorderly persons; all persons who have no visible profession or calling to maintain themselves by, but who do for the most part support themselves by gaming; all jugglers, common showmen and mountebanks, who exhibit or perform for profit; any puppet show, wire or rope dance, or other idle shows, acts, or feats; all persons who keep in any public highway or place, or in any place where spirituous liquors are sold, any keno table, wheel of fortune, thimbles, or other table, box, machine, or device for the purposes of gaming; all persons who go about with such table, wheel, or other machine or device, exhibiting tricks or gaming therewith; all persons who play in any public streets or highways with cards, dice or any other instrument or device for gaming, are, by our statutes, deemed disorderly persons.3

Where the charge was made that the prisoner had abandoned his wife, and neglected and refused to provide for her, and that for two weeks he had refused to pay her board and support her, and that he had refused, for several months, to permit her to

1 Matter of Goodhue, 1 City H. Rec., 153.

'Rose v. Cooper, 6 Term., 509. Matter of Stephen, 1 Whee. Cr. Cas., 327.' 1 R. S., 638, § 1, as Amended Laws 1861, ch. 127, p. 244.

reside with him and to associate with her children, and retained her clothing, and refused to let her have the same, and that he was a disorderly person; held that, no threats of running away or leaving his wife or children a burden to the public having been alleged in the case, the specifications did not come within the statute.1

So it was also held, that refusing to live with one's wife or to support her, on the ground that her former husband is still living, was not a ground of conviction.2

But, since the making of the decisions above referred to, the Legislature have amended the Revised Statutes by inserting in the first line of the statute, after the word persons, as follows: "who shall abandon or neglect to support their wives or children, or."3

SECTION X.

PROCEEDINGS AGAINST THEM.

Upon complaint being made, on oath, to any justice of the peace, against any person as being disorderly, he shall issue his warrant for the apprehension of the offender, and cause him or her to be brought before such justice for examination.*

In order to warrant the conviction of the offender, the complaint must bring the offender within some of the specifications enumerated in the statute, as constituting the offence.

SECTION XI.

SURETY FOR GOOD BEHAVIOR.

If it shall appear by the confession of the offender, or by competent testimony, that he or she is a disorderly person, the justice may require of the offender sufficient sureties for his or her good behavior, for the space of one year."