131 N.Y.S. 693 | N.Y. App. Div. | 1911
This is an appeal from an order made at Special Term in Kings county dismissing a writ of habeas corpus and remand
An information is defined by section 145 of the Code of Criminal Procedure as follows: “The information is the allegation made to a magistrate that a person has been guilty of some designated crime.” Where the mformation laid before a magistrate is insufficient, it cannot in itself confer jurisdiction to issue a warrant nor even to issue a subpoena for the examination of witnesses in support of it. (People ex rel. Livingston v. Wyatt, 186 N. Y. 383.) The question of the sufficiency of an information under the Code of Criminal Procedure has been considered with so much detail and clearness in People ex rel. Livingston v. Wyatt (supra) as to require no further consideration here. That court said, as to the contents of an information: “ Suspicion is not enough, and information and belief, are not enough, unless facts are stated showing the source of the information and the grounds of belief. The information should fairly warrant the inference by the magistrate that in good faith and on reasonable grounds the complainant believes that a definite crime has been committed by a designated person.”
The essence of the crime Attempted to be charged by this information was. evil intent to deceive a court. The naked facts recited in the information did not constitute a crime without such evil intent. They were of such a nature that they could easily have been the result of mere ignorance and stupidity, The informant did not state expressly that he believed these acts were done with evil intent. He merely declared that Brown had got himself into trouble with the courts in other matters, and suggested, and vaguely at that, that Brown was probably not acting in good faith in this matter. I think the information was not sufficient in itself to support a warrant of arrest. Evidently the magistrate thought; so, as did
Now, all these provisions of the statute are jurisdictional, as a magistrate has no arbitrary power to issue a warrant of arrest, but must rest his authority to do so on provisions of law. (McKelvey v. Marsh, 63 App. Div. 396.) As before stated, the magistrate issued a warrant of arrest in this case, without having caused the witnesses to sign their depositions in support of the information, although the statute expressly' directed him to do so. When the defendant was brought into court on this warrant, he immediately urged this objection but was overruled. In People v. Winness (3 N. Y. Cr. Rep. 89) it twas held that where one had been- arrested on the strength of a warrant issued upon an unsigned complaint or deposition, and made no objection at the time, and raised the point for the first time on an appeal from a judgment of conviction, he must be deemed to have waived the objection. Here, however, the objection was made hi due time and there is no question of. waiver: .
I am of opinion that the failure to cause the depositions to be signed by the witnesses deprived the magistrate of power to issue the warrant of arrest, and .that the subsequent proceedings were without jurisdiction. I recommend, therefore, that the order of the Special Term be reversed and the writ of
Jenks, P. J., Thomas, Woodward and Rich, JJ., concurred..
Order reversed^ writ of habeas corpus sustained, and relator discharged from custody, with ten dollars costs and disbursements.