People ex rel. Better v. McLaughlin — 28 N.Y. Crim. 82

Majority

p. 82

SUPREME COURT—APP. DIV.—SECOND DEPT.,

June, 1912.

THE PEOPLE ex rel. WILLIAM BETTER v. WILLIAM H. McLAUGHLIN.

' (151 App. Dir. 916.)

Headnote

Habeas Cobptjs*—Defendant must be connected with cbime chabged.

Where defendant was neither directly or indirectly shown to have been connected with the transaction charged as a crime—dismissal of a writ of habeas corpus held to be error.

Appeal by the relator from an order of the Special Term, entered in the office of the clerk of the county of Kings on the 29th day of March, 1912,' dismissing a writ of habeas corpus.

See Notes 15-152, 23-55.

The relator appeals from an order dismissing a writ o± habeas corpus. The relator was arrested on a warrant issued by. a magistrate upon the complaint of Kracke, Assistant Commissioner of the Department of Agriculture, for having in his possession, offering and exposing for sale, and selling, oleomargarine, and upon arraignment the defendant demanded an examination, whereupon the testimony of two witnesses was taken, Kracke and Geisler, a chemist. It appears that Kracke did not see the relator; that the latter made no representations to him with reference to the sale of the article; that the relator was not present at the sale; that the witness did not see any sale; and that what was given to the chemist was no part of what was offered for sale. In other words, the defendant is neither directly nor indirectly shown to have been connected with the transaction, or to have been related to it in any form or to the

p. 83

substance that was given to and analyzed by the chemist. The order dismissing the proceeding should be reversed and the relator discharged.

Burnt, Woodward and Rich, JJ., concurred; Jerks, P. J., not voting.

Order reversed, writ sustained, and relator discharged from custody.