Bennac v. People

| N.Y. Sup. Ct. | Jul 3, 1848

By the Court, Willard, J.

The counsel for Bennac did not traverse the return of Crossett, the constable, to the habeas corpus, or allege any fact aliunde the return to show either that the imprisonment was illegal, or that he was entitled to his discharge. The 48th section of the habeas corpus act, (2 R. S. 569,) was doubtless mainly intended for cases where the party is restrained of his liberty without the authority of legal process. (Per Bronson, Ch. J. in The People v. Cassels, 5 Hill, 168.) “ In such cases,” he observes, “ the return is usually made by a person having an interest in the question, and who has exercised the restraint upon his own responsibility, as the parent, husband, master, or guardian of the person imprisoned ; and it is very proper that the facts which they state in the return should be open to investigation. But it is other wise when the return is made by an officer having legal pro-, cess.” In such case, when the return says that the party is, detained on process, the existence and validity of the process| are the only facts upon which issue can be taken. (3 Hill, 658, 659, note 30.) These are the “ material facts" within the 48th section, not whether the process was founded on sufficient evidence, or any evidence at all. (Id. Matter of Clark, 9 Wend. 212, 220. The People v. McLeod, 1 Hill, 377. 25 Wend. 483. Case of the Sheriff of Middlesex, 11 Ad. & Ellis, 273.) The better opinion seems to be that the denial or avoidance authorized by the 48th section of our habeas corpus act gives no greater right to inquire into the merits on which the process of commitment is founded, than was allowed by the common law. Yet ample room is left for the operation of the section. (See 3 Hill, 660, note. Matter of Prime, 1 Barb. Sup. Court Rep. 340.)

/ Conceding that the prisoner was restrained of his liberty by /a public officer, by virtue of process issued by a magistrate of / competent jurisdiction, his counsel contended that he was enti- | tied to his discharge for the reason that the warrant, on its face, = showed that no offence had been committed for which he was j liable to be imprisoned. If this be true, no doubt the circuit ft # ; judge erred in remanding him. It was for the prisoner to make. \ out the jurisdictional defects, either by testimony aliunde the return, or by the process itself. He took the latter course alone. If then, there is enough on the face of the process to protect the party who issued it, or the officer who served it, from an action of trespass or false imprisonment; in short, if it is not absolutely void, the decision of the circuit judge should be affirmed.

ft #

A warrant issued for the arrest of a party on a criminal charge, before trial, must be issued under the hand, with or. without the seal, of the magistrate, reciting the accusation, and commanding the officer to whom it shall be directed forthwith to take the person accused of having committed such offence, and to bring him before the magistrate to be dealt with according to law. (2 R. S. 706, § 3.) No more, it is presumed, than the substance of the accusation need be recited. • A warrant issued upon the conviction of a party as a disorderly person, is not required to recite any fact but such conviction. The magistrate is required to sign and file in the clerk’s office, a record of the conviction of such offender as a disorderly person, specifying generally the nature and circumstances of the offence. (1 R. S. 638, § 2.) On the commitment by final process upon a summary conviction by a subordinate magistrate, the court or officer, it is said, may examine, on habeas corpus, the record of conviction, and if it be void, may discharge the prisoner. (3 Hill, 665, note. Matter of Sweatman, 1 Cowen, 144.) But even this seems to be doubted in the recent case of the Matter of Prime, (1 Barb. Sup. Court Rep. 340,) though that precise point was not before the court. That course was not adopted in this case; the record was not before the circuit judge, nor was it pretended that the magistrate had not jurisdiction both of the person and of the subject matter. It was insisted, however, that the recital in the warrant of commitment afforded evidence of the testimony before the justice upon which the conviction was founded, and that that testimony did not authorize the conviction.

In answer to this, it may be said, that the warrant was complete, without reference to the facts recited. It described the offence, conviction and sentence, and this is all that was necessary to its validity. It thus appears that the magistrate had jurisdiction both of the person and the crime. The recital of facts proved before the justice, was not required; nor can they be regarded, on a habeas corpus. It does not appear that the facts recited were all the facts proved or admitted. To discharge the accused because the recited facts would not warrant a conviction, would be to re-try the cause on the merits in this collateral way. And it would be a re-trial without any assurance that the whole facts were spread out in the warrant. This cannot be done.

If the justice convicts upon insufficient evidence, the remedy of the party injured, if any, is not by habeas corpus. If, then, we are to regard the facts recited, as affording the evidence on which the magistrate acted, still they present no ground for a discharge. While the conviction remains in force, and is not absolutely void, the warrant will authorize the arrest and imprisonment of the accused. And the conviction cannot be attacked but bjf a direct proceeding, such as a writ of error, certiorari, motion to quash, &c. according to the nature of the case.

On the whole, we see no error in the decision of the circuit judge, and think the proceeding must be affirmed.

Proceedings affirmed.