135 N.Y.S. 841 | N.Y. App. Div. | 1912
The relator is held in custody in the city prison in the borough of Brooklyn under a commitment issued by one of the city, magistrates, directing that she be held to answer to the Court of Special Sessions upon the charge of keeping a disorderly house in said borough on the 27th day of February, 1912. She sued out a writ of habeas corpus, and on its return the respondent justified her detention by the committal proceedings, the return of which was traversed by her on the ground' that the' commission of the crime charged against her was not legally
It seems to me that the commitment by the magistrate was clearly invalid, and that he was without jurisdiction on the papers as presented. By sections 148 and 149 of the Code of Criminal Procedure it is provided in substance that when an information is laid before a magistrate of the commission of a crime, he must examine on oath the informant and any witnesses produced, and must take depositions subscribed by them setting forth the facts tending to establish the commisison of the crime. The informant in the case at bar was a police officer, and he presented to the magistrate an information duly signed and sworn to on the 5 th day of March, 1912, charging the relator, under the name of Jane Doe, in general terms with the commission of the offense of keeping a disorderly house. Ho facts are stated in the information, the allegation in relation to the facts in the case being stated therein as follows: “Deponent further states that he makes this complaint based upon the facts set forth in the accompanying affidavit which is hereto annexed and made part of this complaint.” The warrant for the apprehension of the relator was issued on March 5, 1912, and was dated that day, and by virtue of it she was arrested and committed as hereinbefore stated. Ho affidavit, however, accompanies the information. There is a paper apparently annexed thereto, signed by the police officer who made the complaint. It is not verified, but purports to have been sworn to on the 1th day of March, 1912, two days after the presentation of the information and the issue of the warrant. The jurat is unsigned. There is no statement or explanation of the time when the paper was signed other than its date affords, and it must be presumed that it was signed on. the day it bears date. (Jackson v. Hill, 5 Wend. 532; Robinson v. Wheeler, 25 N. Y. 252, 260.)
Assuming that the paper sets forth facts sufficient to justify the inference of the existence of the crime charged, such facts
Jenks, P. J., Thomas, Carr and Woodward, JJ., concurred.
Order reversed, writ sustained, and relator discharged.