Opinion
August, 1905.
Thomas F. Byrne, for relator.
Cornelius J. Sullivan, for respondent.
In Matter of Knowack, 158 N.Y. 482, it was held that the commitment of a destitute child to a charitable institution under section 291 of the Penal Code is not a criminal proceeding. In that case it was said that commitments are of three classes, viz., (1) as a punishment for crime; (2), where the proceeding is quasi-criminal and (3), for care and guardianship. In the present instance, which in my opinion falls within the third class above enumerated, the child has been committed to the guardianship of the respondent society under the provisions of subdivision 6 of section 291 of the Penal Code as a witness in a proceeding in which the charge is made that she has been the victim of a revolting assault. The argument of the relator in support of the writ of habeas corpus is twofold; first, that the commitment was made without any compliance with the statutory provisions contained in sections 215, 216 and 218 of the Code of Criminal Procedure, regulating the commitment of witnesses. Section 217, however, expressly provides that "Children under the age of sixteen years, when witnesses, may be committed as provided by section two hundred and ninety-one of the Penal Code, subject to the order of the trial court." This, as I construe it, excludes the applicability, to the cases of children, of sections 215, 216, and 218, which relate only to commitments of adults. The second argument, as I understand it, is that the proceeding in this case taken, even if in full compliance with the legislative provisions, is nevertheless unconstitutional in discriminating against children and depriving them of their liberty without due process of law. The difficulty with this argument is that the child, unlike an adult witness, is held for her own good, as well as in the interests of society and the enforcement of the criminal laws. She is not, within the meaning of the constitutional provisions relied upon, deprived of her liberty at all, but rather, for her own welfare, she is intrusted temporarily to the care and custody of a society organized for such and kindred purposes and recognized as a State agency. The writ should be dismissed and the child remanded to the custody and control of the respondent.
Writ dismissed.