5 Barb. 465 | N.Y. Sup. Ct. | 1849
It is insisted, by the plaintiff’s counsel, that the warrant issued by Hart Was void ; because it did not state with certainty the value of the property charged to have been stolen, so as to show whether the offence was grand or petit larceny; and because it did not recite the complaint; and because the complaint did not show that any criminal offence had been committed. The written complaint evidently does not charge the commission of a crimina offence. But the case does not turn upon the defects of the written complaint. It appears that the defendant, before the warrant was issued, was sworn and examined touching such complaint, and in addition thereto, and that thereupon the justice issued the warrant. The revised statutes (2 R. S. 706, §§ 2, 3) do not require that either the complaint, or the examination, should be reduced to writing prior to the issuing of a warrant for the arrest of an offender. Section 2 provides that whenever a complaint shall be made to a magistrate that a criminal offence has been committed, it shall be the duty of such magistrate to examine on oath the complainant, &c.; and section 3 declares that if it shall appear from such examination that any criminal offence has been committed, the magistrate shall issue a proper warrant under his hand, with or without seal, reciting the accusation, &c. In this case it appears that the deféhdant was examined orally on oath by the magistrate, touching the complaint, prior to the issuing of the warrant. The magistrate, on such examination, adjudged that a criminal
But in my judgment the warrant would have been a valid process without an allegation of the value of the property. Independent of that allegation it recited a distinct charge of larceny against the defendant; a charge coming within the pommon law definition of the offence, viz. that the plaintiff had feloniously taken and carried away the personal property of the defendant. (4 Black. Com. 230. 2 Russ. on Cr. 1032,3.) The only effect of an omission to state, in precise terms, the value of the property, is, that the offence charged will be deemed to be petit instead of grand larceny, and a magistrate of the county in which the person accused is arrested, will consequently be authorized to admit the latter to bail under the 8th section of the title of the revised statutes in relation to the arrest of offenders. (2 R. S. 707, §§ 7, 8.) All thatthe revised statutes require, is, that the warrant shall recite the accusation The accusation need only charge, that a criminal offence has been committed. Larceny, whether grand or petit, is a criminal offence. If the complainant, therefore, omitted to state, in
The recital, in the warrant, of the complaint, was presumptive evidence of the fact that such complaint had been made. (1 Barb. Cr. Law, 445. 17 Wend. 181.)
The motion to set aside the nonsuit must be denied.