30 N.Y.S. 396 | N.Y. Sup. Ct. | 1894
The petitioner was convicted by a Police Court, or Court of Special Sessions, of Brooklyn, for selling a ticket or chance in a lottery, which is made a misdemeanor by section 326 of the Penal Code. He now sues out the writ of habeas corpus, and asks for his discharge from the judgment of conviction on the ground that the court never had jurisdiction of his person, and, therefore, had no power to render judgment against him. If the claim of want of jurisdiction were true, the petitioner would have to be discharged. The written complaint against the defendant was by a police officer. It charges the defendant with selling a lottery ticket on a specified day, but concludes as follows: “ Deponent further says that he makes this complaint upon information and belief as a police officer of the city of Brooklyn.” A police officer, nor any other person, may not cause the arrest of any one on a mere allegation of information and belief. Human liberty was never so cheap as that under our law, or the system from which we derived the main body of our law. The commission of a crime must be shown by facts positively stated before a magistrate has jurisdiction to issue a warrant of arrest. This is guaranteed by the bill of rights (R. S. part 1, chap. 4, § 11), which provides that “ The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures ought not to be violated, and no warrants can issue but upon probable cause supported by oath or affirmation.” Ho one who knows the history of this guaranty to individual liberty, and the struggles of the people for it against despotic power, and out of which it came, can see it infringed without a feeling of resentment. It is important that crime should be ¡3unished, but far more important that arbitrary power should not be tolerated. The
The writ is dismissed.