53 How. Pr. 515 | N.Y. Sup. Ct. | 1877
To the writ of habeas corpus issued and served upon him, the warden of the city prison returns that he holds the prisoner, Nelson A. Gessner, under two warrants of commitment, one of Patrick G. Duffy, a police magistrate of the city of New York, committing said Gessner pending an examination upon a complaint charging him with the crime of forgery, and the other a bench warrant from the court of sessions of the county of New York, issued upon an indictment found by the grand jury of said court, and accusing him of the'same crime.
The proof shows that on the 22d day of August, 1877, a complaint was made to the said Mr. Justice Duffy, charging the prisoner with forging and uttering a check upon the Third National Bank of New York, bearing date December 8, 1876, purporting to be made by Winslow, Lanier & Co., for the sum of $26,668.75, and payable to the order of H. C. Friedman & Co. Upon this charge a warrant was issued, and the prisoner was brought before the justice. On the thirtieth day of August the examination before the magistrate was commenced, and, against the protest of the prisoner’s counsel, such examination was postponed from said day (Thursday) to the following Monday morning. The adjournment was made at the request of Mr. Herring, the assistant district attorney, who represented the people before the magistrate. On Monday morning the prisoner and his counsel again appeared before the justice, when Mr. Leary, also an assistant of the district attorney, asked, on account of the alleged official duties of Mr. Herring, a further adjournment of the examination until the afternoon of that day. Although the prisoner’s counsel objected, the application was granted, the justice declaring, however, that he would then continue the examination “ as long as it was sunlight, and go on from
The course of procedure before an officer authorized to issue a warrant for the arrest and apprehension of criminal offenders is clearly defined by statute (3 R. S. [5th ed.], 993, &c.). When the" prisoner is brought before him by the warrant, which he issues upon a proper complaint and supported by evidence, he is commanded (the word used in statute is “ shall ”) to “ .proceed as soon as may be to examine the complainant and the witnesses produced in support of "the prosecution, on oath, in the presence of the prisoner, in
It will be observed that the statute is mandatory in all its requirements. A duty is thereby devolved upon the officer who issues the warrant, which he must discharge. Ho person, after 'a complaint is made and warrant issued, so represents the people as to be able to withdraw the proceeding and the complaint. The magistrate is directed to do certain things, and he must do them, unless some statute direction relieving him from their performance can be found. The counsel for the people do not claim that there is any express provision of our statute law which makes the finding of an indictment a swpersedeas of the powers and duties of the magistrate; but they argue because a grand jury can indict, it follows that the magistrate cannot further proceed. If the indictment is conceded to be regular, it is not seen how the further conclusion follows. It is true, that the discharge of the prisoner by the magistrate is no bar to an indictment, but the effect of the decision, when made, and even its confessed uselessness, if that be conceded, does not and cannot absolve a magistrate from doing what the law in plain terms declares
Conceding, then, the mandatory terms of the statutes under which Mr. justice Duffy was acting when his proceedings were arrested by the service of the bench warrant from the court of sessions, it follows that the stoppage of sjich examination was unauthorized and illegal. That an official duty once begun, which the plain terms of the written law require to be continued up to a certain result, must be so continued, is too clear for argument. It is equally clear that he who is so charged with official duty has full power to execute and discharge ■ it, and he must so execute and discharge it. If he must, then how can any court, or process issued thereby, arrest his action and deprive him of his jurisdiction, unless the right so to do is expressly or by necessary implication conferred ? The finding of a bill of indictment by a grand jury is certainly, as conceded, not an express supersedeas of the examination by the magistrate, and it is not so inconsistent with a continuance thereof as so to operate by necessary implication. For these reasons, hastily penned, the prisoner, Nelson A. Gessner, must be relieved from the imprisonment on the bench warrant and remanded to the custodj of the warden upon the warrant of Mr. justice Duffy, to the end that such magistrate may discharge the duty devolved upon him by law.
In the absence of any such case, my own convictions must be followed, which are entirely clear, and lead me to the conclusion already announced. By the course which has been-directed, every right of the people is preserved, and it is but just, that every fair and legitimate opportunity of defense which the law affords should be given to the accused. It is true the guilty should be punished, but to do so, the legal safeguards, which oftentimes shield the innocent, should not be broken down, that summary punishment may be inflicted in accordance with popular clamor or the fiery zeal of interested accusers.
Application has also been made to this court to admit the prisoner to bail pending the examination before Mr. justice Duffy, which it has been held must proceed. The act of 1876 (chap. 21) confers that power upon the magistrate, and it is the only one, so far as I have discovered, which provides for bail pending the examination. The provisions of section 58, of page 879 of 3 Revised Statutes (5th ed.), apply only to the case of a party “legally committed for any criminal offense,” (meaning a commitment after examination) and