People ex rel. Greenberg v. Warden of the City Prison

Majority

p. 456

The People of the State of New York ex rel. Isadore Greenberg, Appellant, v. The Warden of the City Prison and Joseph Pool, City Magistrate, Respondents.

Headnote

Detainer of a fugitive from justice under section 830 of the Oode of Onminal Pro cedure— when proper.

An information sworn to before a magistrate of the city of New York alleged upon information and belief that one Greenberg was a fugitive from justice; that he hired a horse and wagon from the deponent at the livery stable of the deponent’s father in Newark, N. J., and that he failed to return the same; that he was duly indicted for the larceny of the horse and wagon in the State of New Jersey and that after the commission of the crime he fled from the State of New Jersey and was then in the city of New York.

Greenberg, when taken into custody, was duly examined before the magistrate, but refused to answer any questions or to sign his examination.

Held, that the verified information was sufficient to justify the magistrate in detaining Greenberg as a fugitive from justice under section 830 of the Code of Criminal Procedure.

p. 457

Appeal by the relator, Isadore Greenberg, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of April, 1903, as directs that the writs of habeas, corpus and certiorari theretofore issued in behalf of the relator be dismissed and that said relator be remanded to the custody of the warden of the city prison.

Charles Goldzier, for the appellant.

Henry G. Gray, for the respondents.

The relator presented to the Supreme Court a petition alleging-that he was arrested charged .with being a fugitive from justice of the State of New Jersey, and was taken before a city magistrate, where he demanded an examination, which was refused, and he was committed to the custody of the warden of the city prison for thirty days. The return of the warden of the city prison showed that the relator was held under an order of the magistrate, which recited that on the 6th day of April, 1903, the relator was apprehended and brought before the magistrate under a warrant issued by him as a fugitive from the justice of the State of New Jersey, charged with having committed the crime of grand larceny in said State, whereupon the magistrate duly proceeded to examine, under the said warrant, the accusation against the relator, and from said examination it appeared probable to the magistrate that the relator had committed the said crime in the State of New Jersey and was charged in that State with the commission of said crime, and had fled from justice to this State ; therefore, the warden of the city prison was commanded to receive the relator in custody and to detain him for the period of thirty days to enable an arrest of the relator to be made under a warrant of the Governor of this State on the requisition of the executive authority of the State of New Jersey

The return of the city magistrate alleges that he proceeded to examine into the facts and circumstances of the charge under the warrant of arrest, as required by section 830 of the Code of Criminal Procedure, and it appearing probable to the city magistrate from the examination under such warrant that the relator had committed the crime alleged, the city magistrate did commit the relator to the

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warden and keeper of the city prison for the period of thirty days under the provisions of section 830 of the Code of Criminal Procedure. The information and papers upon which the magistrate acted are annexed to his return. The information is upon oath of one Mullin, a resident of Newark, N. J., who stated upon information and belief that the relator was charged with the crime of grand larceny in the city of Newark, State of New Jersey; that after the commission of said crime the relator fled from the State of New Jersey and is now in the city and county of New York; that on the 19th day of September, 1902, the relator hired a horse and wagon of the value of $250 from the deponent at the livery stable of the deponent’s father in Newark, N. J., with the understanding that he would return the property on the night of the same date, which he failed to do, and has not since returned the property or accounted for it in any way; that complaint was made against the relator charging him with the larceny of the said property.

When the relator was arrested and taken before the city magistrate he was duly examined, but refused to answer any question, and refused to sign his examination.

The relator filed a traverse to this return, whereupon the court dismissed the writ.

I think there was sufficient evidence before the magistrate to justify him in holding the relator. There was evidence that the relator had been charged in the State of New Jersey with the crime of grand larceny. The oath of the complainant was sufficient to justify the magistrate in holding the relator under section 830 of the Code of Criminal Procedure. That section provides that “ if from the examination under such warrant it appears to the satisfaction of the magistrate that the person under arrest is charged in such other State or territory with treason, felony or other crime, and has fled from justice, the magistrate, by warrant reciting the accusation, must commit him to the proper custody in his county for a time specified in the warrant, to enable an arrest of the fugitive to be made under the warrant of the Governor of this State.” The essential facts which must appear to justify the warrant are that the person under arrest has been charged in another State or territory with the commission of a crime, and has fled from justice. The information upon which this warrant was granted is under oath, sworn tc

p. 459

before the magistrate, and alleges that the relator, on a day named, hired a horse and wagon in the city of Newark, State of New Jersey ; that he failed to return that horse and wagon; that a complaint was made against the relator charging him with the larceny of the property, upon which charge the relator was duly indicted by the grand jury of Essex county, State of New Jersey, and that after the commission of the crime the relator fled from the State of New Jersey and is now in the city of New York. There was no denial of any of these facts, and this information, under oath, was sufficient to give the magistrate jurisdiction and to justify the warrant. The court below, therefore, properly refused to discharge the relator, and the order appealed from is affirmed.

O’Brien, McLaughlin and Laughlin, JJ., concurred; Patterson, J., concurred in result.

Order affirmed.