same in all things, as are prescribed as to other juvenile delinquents received by them. Provided, however, that any person committed under this act shall have the same right of appeal now secured by law to persons convicted of a criminal offense; but on any such appeal, mere informality in the issuing of any warrant shall not be held to be sufficient cause for granting a discharge. (Id., § 7.)

The Code of Criminal Procedure provides as follows:

Who are disorderly persons.]-The following are disorderly persons:

1. Persons who actually abandon their wives or children, without adequate support, or leave them in danger of becoming a burden upon the public, or who neglect to provide for them according to their means; 2. Persons who threaten to run away, and leave their wives or children a burden upon the public;

3. Persons pretending to tell fortunes, or where lost or stolen goods may be found;

4. Keepers of bawdy houses or houses for the resort of prostitutes, drunkards, tipplers, gamesters, habitual criminals, or other disorderly persons.

5. Persons who have no visible profession or calling, by which to maintain themselves, but who do so, for the most parts by gaming;

6. Jugglers, common showmen and mountebanks, who exhibit or perform for profit puppet shows, wire or rope dancers, or other idle shows, acts or feats;

7. Persons who keep, in a public highway or place, an apparatus or device for the purpose of gaming, or who go about exhibiting tricks or gaming therewith;

8. Persons who play, in a public highway or place, with cards, dice or any other apparatus or device for gaming;

9. Habitual criminals within the provisions of this Code. (§ 899.)

Habitual criminals.]-A person who has been adjudged an habitual criminal is liable to an arrest summarily, with or without warrant, and to punishment as a disorderly person, when he is found without being able to account therefor, to the satisfaction of the court or magistrate, either,

1. In possession of any deadly or dangerous weapon, or of any tool, instrument or material, adapted to, or used by criminals for, the commission of crime, or

2. In any place or situation, under circumstances giving reasonable ground to believe that he is intending or waiting the opportunity to commit some crime. (Id., § 512.)

Not entitled to jury trial. Peo. v. McCarthy, 45 How. Pr., 97.

Who may be adjudged to be an habitual criminal.]—See Code Cr. Proc.,

§§ 510. 511.

Liability to search.]-The person and the premises of every one who has been convicted and adjudged an habitual criminal is liable at all times to search and examination by any magistrate, sheriff, constable or other officer, with or without warrant. (Id., § 514.)

Evidence of character, on subsequent trial. See id., § 513.

*

[ *592 ] Upon complaint (c) (4) made on oath to any justice of the peace, or to any police justice of any city or village, 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. (d) (5)

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. (e) (6) And in default of such

Against disorderly children.]—Upon complaint made on oath to any police magisstrate, or justice of the peace, against any child within his county, under the age of sixteen by his or her parent or guardian, or other person standing to him or her in place of a parent, as being disorderly, such magistrate or justice shall issue his warrant for the apprehension of the offender, and cause him or her to be brought before himself or any other police magistrate or justice of said county, for examination. (Laws of 1865, ch. 172, § 6; 3 R. S., 7th ed., 2658.)

Complaint must be on oath; to whom made.]-The Code of Criminal Procedure requires the complaint, against disorderly persons, to be on oath. It must be made to a justice of the peace, or police justice, of a city, village or town, or to the mayor, recorder, city judge or judge of the general sessions of a city. (§ 900.)

A complaint, before a police magistrate, to the effect that the complainant has heard and believes a person to be a common prostitute, without stating the source of his information, or the grounds of his belief, will not justify the magistrate in proceeding with the trial of the person upon such charge. (People ex rel. Kingsley v. Pratt, 22 Hun, 300.)

(5) WARRANT OF ARREST.

When to issue.]-Upon such complaint being made, to any police magistrate or justice of the peace, against any child within his county, under the age of sixteen, by his or her parent or guardian or other person standing to him or her in place of a parent, as being disorderly, such magistrate or justice shall issue his warrant for the apprehension of the offender, and cause him or her to be brought before himself or any other police magistrate or justice of the said county, for examination. (Laws of 1865, ch. 172, § 6; 3 R. S., 7th ed., 2658.)

Upon complaint on oath, to a justice of the peace or police justice of a city, village or town, or to the mayor, recorder, city judge or judge of the general sessions of a city, against a person, as being disorderly, the magistrate must issue a warrant, signed by him, with his name of office, requiring a peace officer to arrest the defendant, and bring him before the magistrate for examination. (Code Cr. Pro., § 900.)

(6) SURETIES FOR GOOD BEHAVIOR.

When not to be required.]—No security to keep the peace, or to be of good behavior, shall be required, nor shall any person be committed to prison for not giving the same, except such as are prescribed or authorized by statute. (2 R. S., 705, § 14; 3 id., 6th ed., 997.)

After a summary conviction and commitment of an individual as a disorderly person, the justice has no power to take a recognizance for his good behavior. (People v. Duffy, 5 Barb., 205.)

sureties being found, the justice shall make up, sign and file in the county clerk's office, a record of the conviction of such offender as a disorderly person, specifying generally the nature and circumstances of the offense; (ƒ) (7) and shall by warrant, under his hand, com

(ƒ) Idem.

On confession or proof that he is a disorderly person, security to be required.]—If the magistrate be satisfied from the confession of the defendant, or by competent testimony, that he is a disorderly person, he may require that the person charged give security, by a written undertaking with one or more sureties approved by the magistrate, to the following effect.

1. If he be a person described in the first or second subdivision of section 899, that he will support his wife and children, and will indemnify the county, city, village or town, against their becoming, within one year, chargeable upon the public;

2. In all other cases, that he will be of good behavior for the space of one year;

Or that the sureties will pay the sum mentioned in the undertaking, and which must be fixed by the magistrate. (Code Cr. Pro., § 901.)

Not entitled to jury trial. Duffy v. Peo., 1 Hill, 355 id.; 6 id., 75. See Bennac v. Peo., 4 Barb., 164; 23 Wend., 48.

In New York.]—In all complaints before any magistrate in the city of New York, for disorderly conduct, it shall be lawful for such magistrate, if in his opinion such disorderly conduct tends to a breach of the peace, to require the party against whom such conduct may be proved, either by his or her own confession, or by competent testimony, to give sufficient surety or sureties for his or her good behavior, for any term not exceeding twelve months; and the magistrate who may have required such surety or sureties may, in his discretion, at any time discharge the same. (Laws of 1882, ch. 410, § 1461.)

(7) RECORD OF CONVICTION.

If security given, defendant to be discharged. If not, to be convicted. Certificate of Magistrate.]-If the undertaking be given the defendant must be discharged. But if not, the magistrate must convict him as a disorderly person, and must make and sign with his name of office, a certificate in substantially the following form:

"I certify that A. B., having been brought before me charged with being a disorderly person, I have duly examined the charge, and that upon his own confession in my presence [or 'upon the testimony of C. D,' etc., naming the witnesses], by which it appears that he is a [pursuing the description contained in the subdivision of section 899, which is appropriate to the case], I have adjudged that he is a disorderly person. "Dated at the town [or city'] of the day of E. F.,

§ 902.)

of

18

Justice of the peace of the town ,"[or as the case may be]. (Code Cr. Pro.,

Certificate to constitute record of conviction, and to be filed.]-The magistrate must immediately cause the certificate which constitutes the record of conviction to be filed in the office of the clerk of the county. (Id., § 903.)

mit such offender to the common jail of the city or county, there to remain until sureties be found, or such offender be discharged according to law. (h) (8)

It has been decided that the above provisions of the statute, authorizing a magistrate to convict one who abandons or neglects to provide for his wife, &c., of being a disorderly person, and to require sureties for his good behavior, are constitutional, although a trial by jury is not given. (?)

A warrant for the commitment of a person under the above section of the statutes, as a disorderly person, is valid to protect the officer if it describes the offense, and the conviction and sentence, although it does not recite the facts proved. (k)

The statute declares, that it shall be a breach of such recognizance for any person so bound on account of being a gamester, at any one time or sitting, to play or bet for any money, or other thing, exceeding the sum or value of two dollars and fifty cents. In all other cases, the committing any of the acts which constituted the person so bound a disorderly person, is to be deemed a breach of the condition of such recognizance. (1) (9)

(h) 1 R. S., 638, § 2. 3 id., 7th ed., 1948. (i) 6 Hill, 75. See People v. Mitchell, 1 Sandf., 191.

(3) COMMITMENT.

(k) 4 Barb., 31.

(1) 1R. S., 639, § 3. 3 id., 7th ed., 1948.

The Code of Criminal Procedure directs that on the conviction of the defendant, the magistrate must, by a warrant signed by him with his name of office, commit the defendant to the county jail, or in the city of New York, to the city prison or penitentiary of that city, or in the county of Kings to the penitentiary of that county, for not exceeding six months, at hard labor, or until he give the security prescribed in section nine hundred and one. (§ 903, as amended in 1882.)

In re John Wacher, €2 How. P. R., 352; Peo. ». Coffee, id., 445.

(9) BREACH OF RECOGNIZANCE OR UNDERTAKING.

Evidence of.]—To maintain an action upon a recognizance, given upon the conviction of a person as a disorderly person, for neglecting to support his wife and children, it must be made to appear that, subsequent to the giving of the bond, the person has been guilty of such neglect. The conviction is not evidence of a subsequent breach of the condition of the recognizance. (People v. Pettit, 74 N. Y., 320.) In such an action it appeared that the husband and wife were living separate and apart. He then offered to take his wife and children to his father's house where they had formerly lived, and to support them as they had formerly been supported, but refused to support them elsewhere. They had occupied separate apartments, and there was no evidence that the apartments were not comfortable, and the offered support proper and suitable. The defendant had no other house, and had no property of his own. She declined to go with him, or to allow him to take the children, giving as a reason that she would not live in the house with his parents, as it was not a suitable place, because his father was intemperate and abusive. Held, that the evidence failed to establish a breach of the recognizance. (Id.) If the husband

If any breach of such recognizance for good behavior happen, such recognizance shall be prosecuted at the instance of any overseer of the poor, county superintendent of the poor, or justice of the peace, and the penalty, when collected, is to be paid into the county treasury, for the benefit of the poor of such county. (m) Upon a recovery being had on any such recognizance, the court before which it shall be had may, in its discretion, either require new sureties for good behavior to be given, or may commit the [593] offender to the common jail of the city or county, for any term not exceeding six calendar months, (a) (10) Any person thus committed for want of sureties for good behavior, may be discharged

(m) Id., § 4. 3 id., 7th ed., 1949.

(a) Id., 5; 3 R, S., 7th ed., 1919.

offers to support the wife if she will live with him, and she refuse because of alleged fear of personal violence, to make the husband amenable to the statute, there must be a reasonable and substantial apprehension of violence, based upon sufficient facts to enable the court to see that it is well founded. (Id.) It seems that this summary statute was designed to enforce actual physical support, only, not to interfere with the marital relations; and when such support is tendered, the husband can not be made liable under it, although he has been guilty of acts entitling the wife to an absolute divorce. (Id.)

Undertaking, when forfeited.]-The undertaking mentioned in section 901 is forfeited, by the commission of any of the acts which constitute the person by whom it was given a disorderly person, and in the case of a person described in the seventh and eighth subdivisions of section 899, by his playing or betting, at one time or sitting, for money or property exceeding the value of two dollars aud fifty cents. (Code Cr. Pro., § 904.)

(10) PROSECUTING UNDERTAKING.

How prosecuted, and proceeds how applied.]—When an undertaking is forfeited, it may be prosecuted in the name of the county superintendents of the poor, or the overseers of the poor of the town, or in the city of New York, in the name of the corporation of that city, and the sum collected in the action must be paid into the county or city treasury, as the case may be, for the benefit of the poor. (Code Cr. Pro., § 905.)

When new security may be required, or defendant committed after recovery on undertaking.]-Upon a recovery on the undertaking, the court in which it is had may require from the defendant new security, in the manner provided in section 901, or if he fail to give it, may commit him in the manner provided in section 903. (Id., § 906.)

In the city and county of New York, undertakings given by persons charged with being disorderly persons, may be prosecuted in the name of the mayor, aldermen and commonalty; and the amount collected shall be paid into the city treasury, for the benefit of the poor. (Laws of 1882, ch. 410, § 1501.)