99 N.Y.S. 114 | N.Y. App. Div. | 1906
The petitioner was served with a paper in the form of a subpeena. signed by William E. Wyatt,, justice of the Court of Special Sessions . of the first division of the city of Mew York, commanding him to 'appear before said justice at a time and place therein specified and be examined on an investigation which was to be made,- by said magistrate, for . the purpose pf ascertaining whether an offense, which he had reason to suppose had been conhnitted, had in fact been committed, and to bring with, him and produce certain books, papers and records,' in his possession or .undpr his-control, of thefirm of. Flaw* & Erlanger, and also the originals and.copies of certain and all theatrical agreements entered into between '.Marc Flaw, Abraham L. Erlanger, Samuel F. Meidlinger, J. Fred Zimmerman, Charles Frohman and Al Hay man, and between them or any of them and the firm of Flaw & Erlanger and certain other persons therein
If, as the relator claims, the magistrate was proceeding without jurisdiction or the subpoena was void — a question which need not now be decided — he could have disregarded it and have shown the lack of jurisdiction or invalidity of the subpoena as a defense should any attempt be made to punish him for contempt, and could have-obtained his release on habeas corpus. (People ex rel. Ballin v. Smith, 184 N. Y. 96.) Other witnesses should be left to stand upon or waive their rights. It might be that the magistrate had jurisdiction even though the subposna served on him were void, and that subpoenas served upon others were valid, or that the’ subpoenas served upon him or them, if void, would be superseded by-others which would be valid. On the presentation of a sufficient information the magistrate is given jurisdiction to take depositions, issue subpoenas, and if the evidence be sufficient to issue a warrant of arrest. (Code Crim. Proc. §§ 148-150 ; People v. Hicks, 15 Barb. 167 ; Blodgett v. Race, 18 Hun, 132 ; State ex rel. Long v. Keyes, 75 Wis. 288.) The extraordinary writ of prohibition by means of which through the courts the people assert their dignity to stop proceedings, without or in excess of jurisdiction, may not be invoked to prevent an injury or injustice apprehended on the theory that a court or magistrate may erroneously decide that an invalid subpoena is valid, or that an information is sufficient to give him jurisdiction to proceed if it be not. Some. necessity must be shown -for the issuance of this high writ. When jurisdiction exists it will not issue to correct or prevent efrors of law or procedure, and it will only issue to redress a grievance for which there is no other adequate remedy at law, in in equity or by appeal. (People ex rel. Burbank v. Wood, 21 App. Div. 245 ; People ex rel. Patrick v. Fitzgerald, 73 id. 339 ; People ex rel. Hummel v. Davy, 105 id. 598; affd., sub nom. People ex rel. Hummel v. Trial Term, 184 N. Y. 30 ; People ex rel.
Section 145 of the Code of Criminal Procedure defines an information as follows: “ The information is the allegation made to a mag- . istrate, that a-person has been guilty of some designated crime.” It is the duty of a magistrate when an information is laid before him “ of the commission, "of -a crime ” to examine on oath the “informant or prosecutor and any witnesses "he may produce, and take their depositions in writing, and cause them to be subscribed' by the parties making them.” (Code Crim. Proc. § 148.) Section . 149 provides that “ the depositions must set forth the facts- stated by the prosecutor and his witnesses, tending to establish the commission -of the crime and the guilt of .the -defendant.”' I-t' then - becomes the duty of' the magistrate, if he be satisfied,, from the depositions “.that the crime complained of has been committed, and. that there is reasonable ground to believe that the defendant has,committed it ” to issue a warrant, for the arrest of the defendant. ' (Code Crim. Proc, § 150.) After a defendant has. been arrested under • such-a warrant and brought before a magistrate the subsequent pro- -
If the defendant be held to answer the charge the magistrate or his clerk is required On payment of the fees prescribed to'furnish a copy of the depositions to the defendant or his counsel or to permit either of them to take a copy. ' (Code Crim. Proc. § 206.) It is quite plain from these provisions that the information, although it must be in writing and must charge the commission of a crime by some particular individual or corporation, need not be a deposition sufficient to justify the issuance of a warrant thereon,,for if such were the requirement the Legislature would not have provided that the magistrate instead of acting "on the information must take depositions and from them and" not upon the information decide whether a warrant should be issued. It has been held that the information may be made wholly on information and belief which of course would be no legal evidence 'of the commission of a crime but' was deemed sufficient by the Legislature to set the law in
It is manifest that the ends of justice would often be defeated by the flight of the .accused, if the talcing of depositions following the filing of an information and before sufficient evidence is adduced •to warrant the arrest, should -be public; and the- provisions of the Code of Criminal Procedure, to ydiich reference has been made, clearly contemplate, I think, such faking of’ depositions should he conducted- in secret. (See People ex rel. Kenney v. Cornell, 6 Misc. Rep. 568 ; People ex rel. Lewisohn v. Wyatt, 39 id. 456.) The learned counsel for the relator urges that there has been an abuse, of power and judicial process and that, therefore, the writ should issue. ' > '
’ If a magistrate should proceed unfier-these provisions of the Code of Criminal Procedure without jurisdiction or in excess, of his jurisdiction a remedy will be found and afforded by the courts to witnesses or parties prejudiced thereby. If there should be'no appropriate and adequate remedy perhaps the writ of prohibition would : issue but we see no necessity or . propriety therefor on the record ■ presented in the case at bar. - - •'
.For the reasons stated the relator was not entitled to the writ and .. - the order should he affirmed.. ■' ,
Ingraham, McLaughlin,. Clarke and Houghton, JJ.,. concurred.
Order affirmed.. Order filed.