123 N.Y.S. 497 | N.Y. App. Div. | 1910
The plaintiff, a reputable citizen, for over fifty years a resident of Hew York county, and for five years residing in the same election district, presented himself for registration on October 9, 1905,
Upon the receipt of such cards, and upon securing the affidavit of Charles W. Turner that the plaintiff did not reside at 634 West End avenue, and without any claim that any serious effort was made to ascertain the real facts, the information verified -by Augustus L. Dominick, a Deputy State Superintendent of Elections and an affidavit. of said Charles W. Turner, were presented to a police magistrate who, solely upon the affidavits, and without any further hearing or investigation, issued a warrant for the arrest of plaintiff which was executed when he appeared to exercise his right of suffrage. Plaintiff’s proper address appeared in the New York City Telephone Directory in use at the time that he registered, as well as in the Directory of the City of New York for 1905; yet it does not appear that any examination was. ever made of the original entry in the registration books of the election district in question, nor that the slightest effort was made to ascertain whether or not there was any reason to believe that a crime had been committed, as á result of which this citizen was subjected to the humiliation of an unjustified arrest.
The question presented by this appeal, however, refers solely to the responsibility of the defendant Morgan to plaintiff for his arrest, for at the close of plaintiff’s case the complaint was dismissed
• Under no fair or reasonable interpretation can the admissions in ■ the answer of the defendant Morgan be held to connect him in'any' way with the acts of the. defendant Dominick in the receipt or in the execution of the warrant of arrest after the same had been issued by the- magistrate. It sufficiently appears that the magistrate was without, jurisdiction to issue the warrant for plaintiff’s arrest. All that was before him was the information verified by defendant Dominick, which was only in. effect- an information aiid was insufficient to justify , him in issuing a warrant or to confer jurisdiction upon him. This information verified on a day. in ■ November, 1905,. which is left blank, contained no statement, of fact which justified the issuance of a Warrant. It is based entirely upon information and belief, the sourcés of which aré not given. It , amounted to no more than a statement of Dominick’s conclusion that a crime had been committed.. -
The affidavit .of Turner to' the effect that the plaintiff did not reside at No.- 634 West End avenue did not aid in conferring juris
The provisions of law applicable to the issuance of warrants as-contained in the Code of Criminal Procedure at that time were as follows: '
“§ 148. Examination of the prosecutor' and his witnesses, upon'" the information. — When'an information is laid before a magistrate, of the commission of a crime, he must examine on oath the informant and prosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them.”
“ § 149. Depositions, what to contain. — 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.”
" § 150. In what case warrant, of arrest may be issued. — If the magistrate be satisfied therefrom,.that the crime complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest.”
It is apparent from these provisions that there was before the magistrate in this case no deposition .-within the meaning of the Code, and that the paper sworn to by Dominick was only an iuformation. Upon the filing of such information, it became the duty of the magistrate to examine under oath,Dominick and his witnesses. Upon such an examination it would have appeared at once that Dominick had no knowledge upon which a charge of crime could be based, and the production of any one of the board of election officers, together with the original records, would have demonstrated immediately the error which they had made, and the utter lack of any foundation for a charge against the plaintiff.
The failure of the magistrate to comply with the plain provisions of the law, and his acceptance of an information without probative
It is apparent that in this case the warrant was a nullity: It has been repeatedly held that mere statements upon information and . belief, without giving any sufficient grounds upon which to' base a-belief, -are insufficient to confer jurisdiction on the magistrate. (Blodgett v. Race, 18 Hun, 132; Swart v. Rickard, 148 N. Y. 264; McKelvey v. Marsh, 63 App. Div. 396; Matter of Peck v. Cargill, 167 N. Y. 391; People ex. rel. Livingston v. Wyatt, 186 id. 383.)
The Court of Appeals in People ex rel. Perhins v. Moss (187 N. Y. 418) reiterated this conclusion in. the following language: “ If the magistrate issued the warrant of arrest without sufficient evidence in the particular-case, the process is a nullity. The question, always, must be whether the magistrate acquired jurisdiction localise an arrest of the person, and the court upon the habeas-corpus, proceeding will look back of his warrant and see if the facts stated in the depositions of the prosecutor and his witnesses support his warrant. (Code Crim. Proc. sec. 149; Church Hab. Corp. sec. 236.) -If-.they did. not furnish, reasonable-and just- ground for a conclusion that the crime.charged had been committed and that the defendant committed it, then jurisdiction was lacking to hold the prisoner in-custody for any time. (Code Crim. Proc. sec. 150.)”
The magistrate being without jurisdiction and his warrant being a nullity, it does not, however, follow that the defendant Morgan is liable because of the acts which lie concededly directed the defendant Dominick to-perform. Under liis ’ admissions in liis answer, all that he did was to direct the latter to present to the- magistrate an ' information in the form prescribed by the board of. magistrates.
The defendant Morgan could not assume that the magistrate' ■ would act without jurisdiction, or would fail to comply with the law. If the magistrate had followed the plain provisions of tlie . Code of Criminal Procedure-.-there-would have been no warrant ■ issued; when he. failed to comply with the law and issued the warrant, which was á nullity, it .does not appear that the defendant Morgan had any knowledge of his action, or authorized-any further
The judgment, however, improperly recites that the dismissal was upon the merits. This recital should ■ be amended by striking out the words “ on the merits,” and the judgment thus modified affirmed, with costs to the respondent.
Ingraham, P. J., McLaughlin, Clarke and Scorr, JJ., concurred.
Judgment modified as directed in opinion, and as modified affirmed, with costs to respondent,