133 N.Y.S. 936 | N.Y. Sup. Ct. | 1911
To say of these complaints that they state a canse of action means that a second arrest of one believed by the prosecution to be guilty of a crime is unlawful where the accused has theretofore been discharged on habeas corpus upon the ground that the information upon which the former arrest was made “ did not state facts sufficient to constitute a crime.” The words just quoted are taken from the complaints now demurred to, and are there alleged as the reasons
The second information, set forth in full in the complaints, alleges the commission of the same offense, but it is materially broader and very much more complete than the first one. I am not required rto determine its sufficiency on this motion, but may, in view of the fact that the magistrate exercised jurisdiction and issued a warrant for the arrest of the accused thereon, assume that the second information is sufficient, at least until it is directly attacked, either on habeas corpus or in the proceeding itself. That attack has not been made. Ho proceeding seeking to set it aside has been taken, so far as the face of these complaints show. Hence, we have for decision the plaintiff’s contention that a second arrest for the same offense upon a new complaint or information is per se unlawful, after a discharge on habeas
The complaints on their face show a second arrest on a new information which, unattacked, stands as a legal right to make that arrest; and the penalty sought cannot, in my opinion, be recovered where the second arrest is not disposed of.
The demurrers are sustained in both actions, with costs, with leave to plaintiff to amend within twenty days on payment of the costs.
■ "Demurrers sustained, with leave to plaintiff to amend within twenty days on payment' of costs.