§ 146. Magistrate defined.—A magistrate is an officer having power to issue a warrant for the arrest of a person charged with crime. § 147. Who are magistrates-The following persons are mag istrates: 1. The judges of the supreme court; 2. The judges of any city court; 3. The county judges and special county judges; 4. The city judge of the city of New York and the judge of the court of general sessions in the city and county of New York: 5. The justices of the the peace; 6. The police and other special justices, appointed or elected in a city, village or town; 7. The mayors and recorders of cities. 3 R. S., 998, § 1. People v. Bates, 38 Hun, 180. CHAPTER. II. THE WARRANT OF ARREST. SECTION 148. Examination of the prosecutor and his witnesses, upon the infor mation. 149. Depositions, what to contain. 150. In what case warrant of arrest may be issued. 151. Form of the warrant. 152. Name or description of the defendant, in the warrant and state ment of the offense. 153. Warrant to be directed to and executed by a peace officer. 154. Who are peace officers. 155. Warrant issued by certain judges. 156. Warrant issued by other magistrates. 157. Indorsement on the warrant, for service in another county, how and upon what proof to be made. 158. Defendant, arrested for felony. 159. Defendant arrested for misdemeanor. 160. Proceedings on taking bail from the defendant, in such case. 161. Proceedings, where he is admitted to bail in such case, but bail is not given. 162. Prisoner carried from county to city. 163. Power and privilege of officer. 164. When magistrate issuing the warrant is unable to act. 165. Defendant in all cases to be taken before a magistrate, without delay. 166. Defendant, before another magistrate than the one who issued the warrant. § 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. (a) Irregularity when waived.-The omission of a complainant or his witnesses to sign the deposition taken before a committing magistrate, is an irregularity which will be held to be waived, unless the defendant has interposed the objection at the first available opportunity. (People v. Miners, 3 N. Y., Cr. R., 89.) A person who is charged with the commission of a criminal offense, may waive any irregularity which exists in the case. (Pierson v. People, 79 N. Y., 424). (b) Must have accused before him.-A magistrate has no authority to order a person accused of a criminal offense to be committed until a subsequent day for examination without having first the accused brought before him. (Pratt v. Hill, 16 Barb., 303.) (e) May issue subpoenas.-Where the complaint is made on information the magistrate has power to issue subpoenas for witnesses. (People v. Hicks, 15 Barb., 153.) The same strictness is not required in an information as on an indictment. (People v. Robertson, 3 Wh. C. C., 180.) (d) Not evidence.-That original information and depositions taken before the warrant was issued, however formally drawn up, are not in themselves evidence against the accused at the trial. (People v. Restell, 3 Hill, 290.) (e) What sufficient complaint.-A written complaint made before a magistrate alleging that certain goods had been stolen, and that the complainant has probable cause to suspect and does suspect that A. stole them, is insufficient to justify the issuing a warrant for the arrest of the accused. (Blodgett v. Race, 18 Hun, 132.) § 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. (a) What must be set forth. (People v. Pratt, 22 Hnn, 300.) Must be strict.-The same strictness is not required in an information as in an indictment. (People v. Robertson, 3 Wh. C. C., 180.) (c) Information not evidence. The original information and depositions taken before the warrant was issued are not in themselves evidence against the accused on trial. (People v. Restell, 3 Hill, 290.) (d) Information and belief.-The deposition upon which a warrant of arrest is issued, may be upon information and belief, when the acts and circumstances upon which such information and belief are founded, are given. (People v. McIntosh, 5 N. Y., Cr. R., 38.) § 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. (2) Not to grant warrant needlessly.-It is the duty of the magistrate well to consider what is sworn to, and not to grant any warrant groundlessly or maliciously, or without such reasonable cause as might lead a discreet and impartial man to suspect the party to be guilty. Barb. Cr. Law, page 1036. (b) Must be reasonably certain.-It is enough when a magistrate is reasonably certain that a crime has been committed. (Pratt v. Bogardus, 49 Barb., 89; Abbott v. Booth, 50 id., 551.) (c) Need not set forth circumstances.--Not necessary that, in a criminal warrant, to set out the circumstances of the offense. (Atchinson v. Spencer, 9 Wend., 62.) (i) Just ground of suspicion enough.—Just grounds of suspicion sufficient. (Halley v. Mix, 3 Wend., 350.) (e) Must be reasonably certain.-A justice of the peace, before he is authorized to issue a warrant for the arrest of a person, inust be satisfied, by examination upon oath of the complainant, that a crime has been committed. (Wilkinson v. Robinson, 6 How., 110.) (f) The magistrate should not regard mere allegations of suspicion, but the grounds; the facts and circumstances should be sufficient to make it appear that a crime had been actually committed, and there is probable cause for charging the individual complained of therewith. Barb. Cr. Law, page 1036. § 151. (Amended 1882.) Form of the Warrant.-A warrant of arrest is an order in writing in the name of the people, signed by a magistrate, commanding the arrest of the defendant, and may be substantially in the following form: "COUNTY OF ALBANY [or as the case may be.] "In the name of the people of the state of New York. To any peace officer in the state [or in the county of Albany, or as the case may be, as provided in sections one hundred and fiftyfive and one hundred and fifty-six.] "Information upon oath having been this day laid before me, and the crime of [designating it,] has been committed, and accusing C. D. thereof. "You are therefore commanded, forthwith to arrest the abovenamed C. D., and bring him before me, at-[naming the place,] or in case of my absence or inability to act, before the nearest or most accessible magistrate in this county. "Dated at the city of Albany, [or as the case may be,] this day of eighteen hundred "E. F., § 152. Name or description of the defendant in the warrant and statement of the offense. The warrant must specify the name of the defendant, or if it be unknown to the magistrate, the defendant may be designated therein by any name. It must also state an offense in respect to which the magistrate has authority to issue the warrant, and the time of issuing it, and the city, town or village where it is issued, and be signed by the magistrate with his name of office. Not necessary in a criminal warrant to set out the circumstances of the offense. (Atchenson v. Spencer, 9 Wend., 62.) (a) Amount of certainty required in warrant.-It is sufficient if a criminal warrant indicate with reasonable certainty the offense sought to be charged. (Pratt v. Bogardus, 49 Barb., 87.) (b) As to time and place.-Requisites of a criminal warrant as to time, place and the description of the offense. (2 Abb., 468. (c) As to value in larceny.-Warrant for larceny good though it omit to state the value of the property stolen. (Payne v. Barnes, 5 Barb., 465.) (d) What omission in warrant allowed.—A clerical error in a warrant of arrest which does not mislead any one," will not render such warrant invalid. (Payne v. Barnes, 5 Barb., 465.) § 153. Warrant to be directed to and executed by a peace officer. The warrant must be directed to, and executed by, a peace officer. (a) When returnable.-The warrant must be made returnable forthwith. (Barb. Cr. Law., 1052.) () Must be properly directed.-Warrant not directed to the proper officer is void. (Russell v. Hubbard, 6 Barb., 654.) (c) How directed.-A warrant legally issued can only be directed to an officer of the county in which the justice of the peace who issued it was a magistrate. (People v. Shaver, 4 Park., 45.) (d) Warrant must be served by person to whom directed.-Where a warrant is issued, directed to the sheriff or any constable of the county, the justice cannot, by indorsement thereon, authorize a private person to make the arrest; the warrant itself must be directed to the person by whom the arrest is made, or it is no protection. (Abbott v. Booth, 51 Barb., 546.) § 154. (Amended 1882.) Who are peace officers.--A peace officer is a sheriff of a county, or his under-sheriff or deputy, or a constable, marshal, police constable or policeman of a city town or village. § 155. (Amended 1882.) Warrant issued by certain judges.— If the warrant be issued by a judge of the supreme court, or of the superior court, or court of common pleas, recorder, city judge or judge of a court of general sessions in the city and county of New York, or by a county judge, or by a judge of the city court, it may be directed generally to any peace officer in the state, and may be executed by any of those officers to whom it may be delivered. 3 R. S., 999, § 4. § 156. (Amended 1882.) Warrant by other magistrates.-If it be issued by any other magistrate, it may be directed generally to any peace officer in the county in which it is issued, and may be executed in that county; or if the defendant be in another county, it may be executed therein, upon the written direction of a magistrate of such other county indorsed upon the warrant, signed by him with the name of office, and dated at the city, town or village where it is made, to the following effect: "This warrant may be executed in the county of Monroe," [or as the case may be.] (a) Warrant under § 2054 Civ, Code.-A warrant issued under section 2054, Code of Civil Procedure, must be returned with the prisoner to the magistrate issuing the order, who has exclusive jurisdiction, unless the arrest is for a misdemeanor, when semble the prisoner may be admitted to bail by a magistrate residing in the county where the arrest was made. (People v. Navagh and Milne 4 N. Y. Cr. R., 290. (b) Justice cannot arrest out of his jurisdiction.-A justice of the peace, for a misdemeanor committed within his view, cannot pursue the offender and arrest him outside the justice's jurisdiction. (Butolph v. Blust, 5 Lans, 84; 4 How. Pr., 481.) (c) When released on bail cannot be again arrested on old warrant.— When a person arrested by virtue of a criminal warrant, indorsed pursuant to statute, is discharged from arrest by a justice of the peace of the county where he is arrested, on giving a recognizance, the warrant has spent itself, and the officer has no right to arrest the prisoner again without new process. (Doyle v. Russell, 30 Barb., 300.) (d) Want of jurisdiction.-A justice of the peace has no power to issue process of arrest for a crime committed in another country, though the offender be in the county where the justice resides. (People v. Cassels, 5 Hill, 167; Id., 607.) (e) Must be taken to county where crime was committed for bail.A person arrested by virtue of warrant, indorsed pursuant to statute, for an offense punishable by imprisonment in the State prison, cannot be let to bail in the county where the arrest is made, but must be taken to the county in which the warrant was issued. (Clark v. Cleveland, 6 Hill, 344; see People v. Clews, 77 N. Y., 39; also, Garstone's case, 10 Abb., 182; People ex rel. Chapman, 30 How., 202.) § 157. Indorsement on the warrant, for service in another county, how and upon what proof to be made.-The indorsement mentioned in the last section cannot, however, be made, unless upon the oath of a credible witness, in writing, indorsed or annexed to the warrant, proving the handwriting of the magistrate by whom it was issued. Upon this proof, the magistrate indorsing the warrant is exempted from liability to a civil or criminal action, though it afterward appear that the warrant was illegally or improperly issued. See cases cited under last section. § 158. Defendant, arrested for felony.-If the crime charged in the warrant be a felony the officer making the arrest must take the defendant before the magistrate who issued the warrant, or some other magistrate in the same county, as provided in section 164. (a) Arrest under § 2054, Civ. Code.-A warrant issued under section 2054 Code of Civil Procedure for a felony, the magistrate issuing it has exclusive jurisdiction, except in case of his absence or disability to act, to examine, commit, bail or discharge the prisoner arrested under such warrant. (People v. Navagh and Milne; 4 N. Y., Cr. R., 290. The warrant must be returned with the prisoner to the magistrate issuing it. (Id.) (b) If the offense charged in the warrant be punishable with death or imprisonment in a state's prison, the officer making the arrest shall convey the prisoner to the county where the warrant was originally issued before some magistrate thereof, etc. (People v. Chapman,30 How., 202; People v. Clews, 77 N. Y., 39; and cases cited under section 156, ante.) § 159. Defendant, arrested for a misdemeanor.-If the crime charged in the warrant be a misdemeanor, and the defendant be arrested in another county, the officer must, upon being required by the defendant, take him before a magistrate in that county, who must admit the defendant to bail, for his appearance before the magistrate named in the warrant, and take bail from him accordingly. See also People v. Navagh and Milne 4 Cr. R. 289. If the offense charged in the warrant be not punishable by death or by imprisonment in a state's prison, the prisoner may let to bail by a magistrate of the county in which he is arrested. (People v. Chapman, 80 How., 202; People v. Clews, 77 N. Y., 39.) $160. Proceedings on taking bail from the defendant in such case. On taking bail the magistrate must certify that fact on the warrant, and deliver the warrant and undertaking of bail to the officer having charge of the defendant. The officer must then discharge the defendant from arrest, and, without delay, deliver the warrant and undertaking to the magistrate before whom the defendant is required to appear. |