People v. Nowak — 24 N.Y. St. Rep. 274

Majority

p. 274

The People of the State of New York, Resp’t, v. Anton Nowak, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 18, 1889.)

Headnote

1. Criminal law—Arrest — Sufficiency of affidavit — Code Crim. Pro., §§ 145-148.

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 entirely insufficient to authorize a warrant of arrest.

2. Same.

An affidavit that defendant, on a certain day, “and on divers Sundays since that dot e.has sold and given away intoxicating liquors,” which was not prepared by a magistrate, and under which there was no examination, is not sufficient to authorize the issuance of a warrant.

Appeal from a judgment of the court of sessions of Suffolk county.

At a court of special sessions, before a jury, held at Brentwood, in the town of Islip, in the county of Suffolk, N. Y., the defendant was convicted of the crime of giving away intoxicating liquor; from said conviction and judgment of said court of special sessions, an appeal was taken to the court of sessions of Suffolk county, and said court of sessions affirmed said conviction and judgment, and from said affirmance of said conviction and judgment of said court of sessions, said defendant appeals to this court.

Wilmot M. Smith, District Attorney, for resp’t; Andrew Heyman, for app’lt.

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 informer, and was shown an affidavit, made by one John Seaman, before a notary public of Suffolk county, that “he had. bought liquor 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 145,146,147 and 148, Code of Criminal Procedure. 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.

There 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 it was the duty of the justice to take an examination. Section 148, Criminal Code.

The deposition must tend to establish the commission of the crime, and 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.