15 Barb. 153 | N.Y. Sup. Ct. | 1853
The return to the certiorari shows that on the 21st of March, 1853, the comptroller of the city of Hew-
The first objection taken upon the argument of the certiorari was, that the court, as then organized, could not entertain jurisdiction of the matter.
The facts upon which this objection was founded are, that at the commencement of the term of the court the justice elected in
The next objection taken was that the district attorney had no authority to procure a certiorari to be issued.
The statute provides that all proceedings commenced under the article relating to writs of habeas corpus may be removed by certiorari into the supreme court, to be there examined and corrected'. (2 R. S. 573, § 84.) It does not say who shall act
It was next contended that there was not such a judicial proceeding pending before the recorder as authorized him to act in the matter at all.
The statute provides that whenever complaint shall be made to any magistrate, having power to issue process for the apprehension of persons charged with any offense, that a criminal offense has been committed, it shall be the duty of such magistrate to examine on oath the complainant, and any witnesses who may be produced by him, and if it shall appear from such examination that any criminal offense has been committed, the magistrate shall issue a proper warrant, under his hand, with or without a seal, commanding the officer to whom it shall be directed forthwith to take the person accused of having committed such offense, and bring him before such magistrate to be dealt with according to law. After the person accused is arrested, the magistrate is bound to proceed as soon as may be to examine the complainant, and the witnesses on the part of the prosecution, and after the examination of the prisoner, his witnesses, if he have any, must be sworn and examined, and he may have the assistance of counsel in such examination ; and if it shall appear that an offense has been committed, and that there is probable cause to believe the prisoner to be guilty thereof, he shall be committed to prison, unless he shall be bailed. (2 R- 'S'. 706, 707.)
It appears from this that there are two distinct stages in the proceedings which are necessary to authorize a final commitment. The one is preliminary to the issuing of a warrant; the other is for the purpose of ascertaining whether the party charged with the offense shall be committed to prison. It will be observed that in both cases it must appear that an offense has been committed, but the statute requires that there shall be probable cause to believe the prisoner guilty only in the last case. The reason of this undoubtedly is, that it was intended to vest the
The question then arises, how much must be proved by the examination of the complainant to authorize further action on the part of the magistrate 1 It is clear that the statute does not contemplate that the complainant shall prove all that is necessary to authorize an arrest; for it declares that the magistrate shall also examine such other witnesses as shall be produced by the complainant. How much then must be proved by his examination 1 It seems to me that all that can be required is that enough shall appear to furnish good grounds to believe that further investigation will lead to the discovery of crime. The preliminary proceeding is instituted entirely for the purpose of investigation; and the whole object of the statute would be defeated if the deposition of the complainant should be required to state facts which would prove what it is the very end and purpose of the investigation to ascertain. If we examine the affidavit of the comptroller by this test, there can be no doubt that a sufficient complaint was presented to the recorder not only to authorize, but to require him, as a faithful magistrate, to investigate the subject matter of 'the complaint. The first officer in the financial department of the city government had made oath that from the examination of documents in his possession, in his official capacity, and from information which he believed to be true, frauds criminal in their nature and character had
But it is said that even if this be so, still that the recorder had no power to examine any other witnesses than such as were produced before him by the complainant; that is, such as voluntarily presented themselves for examination.
The English statute of 1 and 2 Ph. and Mary, ch. 13, § 4, provided that the justices, or any one of them, being of the quorum, when any prisoner was brought before them for manslaughter or felony, should take the examination of the prisoner and information of them that brought him, of the fact and circumstances thereof. And Chitty says that “ the magistrate having by this statute, authority to examine the party bringing the offender, which expression is construed to include as well the accuser as all witnesses in support of the charge, as incident to his authority, has a power to bring before him all persons who appear upon the oath of the informer, or who may occur to the magistrate himself, to be material witnesses for the prosecution, and for this purpose may issue his warrant to a constable, requiring him to cause the witness to appear before the magistrate, and give evidence.” (1 Chit. Cr. L. 76.)
But what would be the practical effect of adopting the construction contended for by the respondent 7 A complaint might be made, and witnesses might be produced in support of it, and there might be sufficient evidence to show that an offense had been committed, if a single additional fact could be proved, and the examination might establish beyond a doubt that a particular" person could prove that fact, but such person would not appear before the magistrate voluntarily. The result would be that the whole prosecution would fail for want of power to compel the attendance of the witness. Or a case might occur in which one
In reference to the question before us the statute states what are the general duties of the magistrate. It does not profess to point out the means by which he is to execute those duties. And it seems to me that the natural and necessary conclusion is that he may use such means as are known to the law, and such as are used in all similar cases, (see The People v. Wyngall, 5 Hill, 19,) and such must have been the intention of the legislature ; for the statute which provides for the fees of justices of the peace in criminal cases, allows a charge “ for a subpoena for each witnessand in a subsequent section it provides, that “ whenever any magistrate shall issue any subpoena in any criminal proceeding or trial, he -shall indorse upon the back thereof a memorandum, showing whether the same-
The statute which makes provision respecting criminal proceedings, gives express power to any magistrate to punish for contempt in the like cases, and in the like manner, as is provided in the second chapter of the third part of the revised statutes, in relation to justices of the peace in civil cases. (2 R. iS. 748.) In the chapter referred to, it is provided that when a witness attending before any justice, shall refuse to be sworn, and the party at whose instance he attended shall make oath that the testimony of such witness is so far material, that without it he cannot safely proceed in the trial of such cause, such justice may by warrant commit such witness to the jail of the county. (2 R. S. 274.) In the case of criminal proceedings there is no cause pending, and no party to a cause to make an affidavit of the materiality of the witness. It was in reference to this difference in the two cases, that the statute provided that the magistrate might punish in the like cases, and in the like manner, and not in the same cases and in the same manner. The object of the statute which requires the oath of the party is, that the justice may have sufficient evidence of the materiality of the witness. In the case before us, the recorder certifies that he had examined the complainant, and certain witnesses produced by him, touching the matters embraced in the complaint, and that upon such examination it satisfactorily appeared to him that the respondent was a material witness. As the letter
* I think that the order discharging the respondent should be reversed, and that he should be remanded to the custody of -the sheriff, to be held by him under the commitment issued- by the recorder.
The witness Hicks was committed by the re- . corder, and discharged by a judge of this court. We are now in effect, under the certiorari which has been issued, called upon . to decide which of these two officers was right. If, on the return of a habeas corpus, sued out by a party alleging himself to be unjustly deprived of his liberty, it shall appear upon examination by the officer, that the prisoner is detained in custody “ for any contempt specially and plainly charged in the commitment, by some court, officer or body having authority to commit for the contempt so charged,” the law makes it his duty “forthwith to remand such party.” (2 R. S. 567.) From this language, as well as from the nature of the case, it is obvious that the legislature, in allowing a habeas corpus, did not intend that the officer issuing it should revise the decision of the committing magistrate, and determine whether the party charged had, or had not, been actually guilty of the contempt alleged. He was simply to determine two questions: first, whether on the face of the commitment, a contempt was specially and plainly charged; and secondly, whether the officer, whose name it bore, had authority to commit in such cases. To remove all doubt, however, the legislature in another section of the same act, (§ 42,) expressly declared that “ nó court or officer, on the return" of a habeas corpus, should have power to inquire into the justice dr propriety of any commitment for a contempt, made- by any court, officer or body, according to law,” provided
Is the recorder, then, an officer having authority to commit for contempts, such as that charged in the commitment now under review 1 The statute, in relation to the arrest and examination of offenders, (2 M. S. 706,) declares that justices of the supreme court, recorders of cities, and sundry other officers designated in it, “ shall have power to issue process for the apprehension of persons charged with any offense, and to execute the powers and duties conferred in that title.” And it further provides . (§ 23) that “ whenever complaint shall be made to any such magistrate that a criminal offense has been committed, it shall be the duty of such magistrate to examine on oath the complainant, and any witnesses who may be produced by him. And if it shall appear, from such examination, that any criminal offense has been committed, the magistrate shall issue a proper warrant, &c., to take the person accused, &c., and to bring him before such magistrate to be dealt with according to law.”
Thus, it will be seen, it is not only the right, but the duty of the recorder, to investigate criminal accusations. But how is he to investigate if he has no power to compel the attendance of witnesses ? It is said he may interrogate on oath the person, preferring the complaint, and the witnesses who may voluntarily submit themselves to his examination. If, however, the witnesses, shown perhaps to have been actually present at the commission of the offense, refuse to volunteer, must the course of criminal justice for that reason stand still ? Has the magistrate, although charged with a duty, no compulsory power to enable him to perform it? If a suit, even between private individuals, be pending in another state, a justice of the peace in this state may compel the attendance of a witness to testify in behalf of either party, (2 JR. /S'. 398.) And yet if a criminal proceeding before a like magistrate be pending in this state, for an offense against the state itself, no such power it is said exists in behalf of the people. To such a length indeed is the proposition carried, that if the magistrate himself, from a window of the city
It would seem from these. provisions, to be perfectly obvious' that the legislature, when they gave to the magistrate the power of examining into offenses and arresting offenders, supposed that, by necessary implication, they had also given him the authority necessary “ to execute the powers and duties conferred,” comprehending in the grant the power “to issue „a subpoena for the people in any criminal proceeding.” It is also a fundamental rule, in the construction of statutes as well as constitutions, that the grant of an express power carries with it, by necessary implication, every other power necessary and proper to the execution of the power expressly granted.
Assuming then that the magistrate had authority to compel the attendance of the witness and to require him to be sworn and testify, had he authority to punish a refusal on the part of the witness to give evidence when actually in the presence of the magistrate ; and, if so, in "what manner ?
Under the head of “ miscellaneous provisions respecting crim-'
Ho doubt then, it seems to me, can remain that the recorder, if he was, as he certifies he was, satisfied of the materiality of the testimony of the witness Hicks, and if a judicial proceeding was lawfully pending before him—in other words if complaint had been made to him that a criminal offense had been perpetrated—was authorized to investigate the charge, and with that view, to compel the witness, on pain of imprisonment, to disclose his knowledge on the subject.
Was then a complaint, such as is contemplated by the statute, duly made to the recorder? Ho particular form, it is conceded, was necessary; not even the use of writing. A mere parol statement, such as any citizen, without professional aid, might make, provided the act charged was a criminal offense, was all the law required. Such we believe is the universal understand
By the 32d section of the general provisions concerning crimes and their punishment, (2 R. S. 702,) it is declared that “ the terms ‘ crime,’ or £ offense,’ when used in this chapter or in any other statute, shall be construed to mean any offense for which any criminal punishment may by law be inflicted.” Frauds, affecting the public, may, in certain cases, be punished criminally, even at common law. (The People v. Stone, 9 Wend. 182.) And under the statute, (2 R. S. 677,) every person who, with intent to cheat or defraud another, (extended by a subsequent section at page 708 to cities and corporations generally) shall designedly by color of any false token or writing, or by any other false pretense, obtain the signature of any. person to any written instrument, or obtain from any person, any money, personal property, or valuable thing,, upon conviction thereof shall be punished by imprisonment, &c. There is then a class of frauds, which are not only criminal in their nature, but criminal in law, and punishable by the courts as “ criminal offenses,” and a class, therefore, of which the recorder, and the other magistrates referred to, had jurisdiction so far at least as to inquire into their probable commission, and their probable-perpetrator, and to order his arrest and trial.
Again, it is objected, that the comptroller, in his complaint, accuses no particular persons by name. The law, to set the proceeding in. motion, requires no such specification. It simply..
Much has been said of the supposed inquisitorial character of the proposed examination; and the recorder, in the rhetorical language of counsel, has been painted as boring or attempting to bore a sort of judicial auger into the bosom of the witness, to extract from that sacred repository the secret thoughts and purposes, which its owner, as an American freeman, had a right to vail from the eyes of all but the Omniscient. The history of the long since buried and justly execrated court of star chamber has also been cited by way of warning. Were this court to yield to such appeals, every party and every witness, in civil
Edwards, Edmonds and Roosevelt, Justices.]
Having arrived at the conclusion that the recorder had the lawful authority to require the witness to testify, and to enforce his decision, if necessary, by imprisonment, nothing is left for us but to remand the witness to the custody of the sheriff, there to remain until he shall submit to be sworn and to testify. As a consequence, the order appealed from, discharging the said John J. Hicks, should be reversed.
Edmonds, J. concurred.
Order reversed. .