74 N.Y.S. 731 | N.Y. Sup. Ct. | 1902
John Wilson was charged with violating section 344a of the Penal Code, and was committed to jail by a city magistrate to answer to the Court of General Sessions, and bail was fixed at $1,000. The relator obtained a writ of habeas corpus. The complaint, upon which the commitment was made, is submitted with papers, and is worded as follows, viz.: “ Edward J. Reardon, of No. 175 East Nineteenth street, aged 23 years, occupation, superintendent, being duly sworn, deposes and says, that on the 18th day of December, 1901, at 4 o’clock in the afternoon, at the City of New York, in the County of New York, at No. 11 Coenties slip, in store on ground floor, John Wilson (now here) did have in his possession a certain writing paper or document representing or being a record of chance, share or interest in numbers, commonly called policy, or a certain paper, print, writing, numbers, device, policy slip, or article of a kind such as is commonly used in carrying on, promotion of or playing the game commonly called policy. All of which deponent charges was a violation of the statute in such case made and provided, and deponent prays that said John Wilson may be dealt with according to law.” The relator claims that the charge did not constitute a crime, and that the magistrate was without jurisdiction to make the commitment. I think there can be no serious doubt that, by habeas corpus, this court is not entirely limited to a review of the regularity of the commitment, but may go back of the commitment and inquire into the jurisdiction of the magistrate, notwithstanding the commitment appears on its face regular, where the question of jurisdiction depends upon the wording of the charge set forth in the complaint, and no controverted question of fact is presented, as in this case. If the charge above quoted did not constitute a crime, it is clear that the magistrate had no jurisdiction and was without authority to grant the commitment in question. Section 344a of the Penal Code provides for the punishment, by imprisonment for not more than two years and, in the discretion of the court, by a fine of not more than $1,000. of one who shall have in his possession, “ knowingly,”
Ordered accordingly.