p. 239(Supreme Court, General Term, Second Department.Headnote
T. Abrest—Sufficiency of Affidavit.An affidavit made before a notary public that affiant bought liquor of defendant “ at his saloon on one Sunday in the month of May, 1888, ” is insufficient to authorize the issuance of a warrant of arrest, under Code Crim. Proc. N. T. § 145, defining in-formations as the allegations made to a magistrate that a person has been guilty of some designated crime; sections 146 and 147 declaring who are magistrates, but not naming notaries among them, and section 148 providing that when an information is laid before a magistrate he must examine the informant and his witnesses on oath.
Section 148 provides that, when an information is laid before a magistrate, he must examine the informant and his witnesses under oath. B.'eld, that an affidavit that defendant on a certain day, “and on divers Sundays since that date, has sold and given away intoxicating liquors, ” which was not prepared by a magistrate, and under which there was no examination, was not sufficient to authorize the issuance of a warrant of arrest.
Appeal from court of sessions, Suffolk county.
Anton Nowak was convicted of selling intoxicating liquor on Sunday, by a ■court of special session, which conviction was affirmed by the court of sessions, and defendant appeals to this court. Code Crim. Proc. N. Y. § 145, defines an information as “the allegation made to a magistrate that a person has been guilty of some designated crime;” sections 146 and 147 declare who •are magistrates, but do not include notaries public in the enumeration; and section 148 provides that, when an information of the commission of a crime is laid before a magistrate, the latter shall examine the informant and his witnesses under oath.
Argued before Barnard, P. J., and Pratt, J.Andrew Heyman, for appellant. Wilmot M. Smith, Dist. Atty., for the People.
There is no evidence returned in this case, and it must therefore be assumed that sufficient evidence was given to support the verdict of the jury, based upon a charge of selling intoxicating liquors on Sunday. The return shows that the warrant was issued on the 15th of September, 1888; it was made returnable on the 21st of September, 1888. The accused then asked for the information, and was shown an affidavit made by one John Seaman, before a notary public of Suffolk county, that “he had bought
p. 240liquor of him [defendant] at his saloon on one Sunday, in the month of May, 1888.” The defendant made a motion to discharge the arrest, because this affidavit was insufficient under sections 145-148, Code Crim. Proc. This motion should have been granted, as this paper is entirely insufficient to authorize a warrant.
The return shows that there was another paper of which the defendant was entirely ignorant when the motion to discharge was made. This was an affidavit of one George W. Jeffrey, that defendant, on the 20th day of May, 1888, and on divers Sundays since that date, has sold and given away intoxicating liquors. This affidavit was not prepared by the justice, and is in no sense on its face a statement of facts which prove a criminal offense. It was the duty of the justice to take an examination. Section 148, Crim. Code. The deposition must tend to establish the commission of the crime,—that is, it must state the particulars of a specific offense,—and it is only when the magistrate is “satisfied therefrom that the crime complained of has been committed,” and that there is reasonable ground to believe that the defendant committed it, that he must issue the warrant. The affidavit of Seaman is a nullity as a deposition of a witness preliminary to a warrant. The affidavit of Jeffrey does not pretend to set forth a particular crime. A general charge of guilt is made, but no facts showing a criminal offense are stated. It was a sufficient basis for an examination of the complainant and of his witnesses; none was offered or taken. The justice was therefore without jurisdiction, and the judgment of the justice, and of the county court affirming the same, should be reversed. All concur.