People ex rel. Rial v. Katner

• Decision Date: 08 July 1964
• Citation: 43 Misc.2d 450,251 N.Y.S.2d 270
• Parties: PEOPLE ex rel. Ethel D. RIAL, v. Theodore F. KATNER, Sheriff of the County of Steuben, Defendant.
• Court: New York Supreme Court

Page 270

251 N.Y.S.2d 270

43 Misc.2d 450

PEOPLE ex rel. Ethel D. RIAL, v. Theodore F. KATNER, Sheriff of the County of Steuben, Defendant.

Supreme Court, Steuben County.

July 8, 1964.

Joseph J. Nasser, Corning, for relator .

Lurton G. Whiteman, Hornell, for respondent.

DOMENICK L. GABRIELLI, Justice.

This is an application for a Writ of Habeas Corpus in which the petitioner asks that it be sustained upon several grounds, the main one of which is that the detention is illegal in that the information is defective and that the magistrate had no jurisdiction to issue the warrant of arrest.

It is well to here point out that the sole and primary question in a Habeas Corpus proceeding is whether the detention is lawful. There is no room nor authority in this proceeding to determine whether the accused is guilty of any crime. Such a determination is only for the trial court after the basic constitutional requirements are met. These requirements were laid down by the founding fathers many decades ago, in order that there be orderly processes of the law and that anyone and everyone would be charged with the commission of a crime, of whatever degree, only after the legal and statutory requirements were met.

In general, it may be stated as well settled that the purpose of the Writ of Habeas Corpus is to relieve directly and speedily against actual restraint upon a person's liberty under process which is void by reason of lack of power or want of jurisdiction in the court or officer issuing it. (People ex rel. Livingston v. Wyatt, 186 N.Y. 383, 79 N.E. 330, 10 L.R.A., N.S., 159.)

So also, our State's highest court in Morhous v. Supreme Court, 293 N.Y. 131, 56 N.E.2d 79, has once again aptly described the nature of a Writ of Habeas Corpus, when it decreed that, the Writ of Habeas Corpus is a high prerogative writ, summary in its character, and is directed to a person detaining another, commanding him to produce the body of the person detained at a certain time and place, to explain the time and cause of the caption and detention, and to do, submit to, and receive whatever the court or judge awarding the writ shall determine. Such writ is the traditional process devised centuries ago to safeguard the right of persons deprived of liberty to challenge in the courts the legality of their detention.

Therefore, in cases involving alleged unlawful detention or commitment, the sole and main issue is whether or not the committing magistrate acted with jurisdiction; and whether or not he had authority to issue a warrant.

Fred Rial, Jr. was arrested upon a charge of Murder in the First Degree upon a warrant issued by Justice of the Peace Herbert Johnston. The information upon which the warrant was issued, was laid by Sheriff Theodore F. Katner.

The pertinent and critical part of the information under attack here recites the following:

'Be it remembered that I, Theodore F. Katner, Sheriff of the County of Steuben * * * give information under oath as follows:

'That, upon information and belief, one Fred Rial, Jr., on or about the 30th day of January, 1964, at the premises known and described as the Chappelle Farm * * * did commit the crime of Murder first degree * * *.

'That the sources of your deponent's information and the grounds of his belief are based upon your deponent's own personal investigation and further investigation conducted by police agencies, all of which investigation conducted by such police agencies was under the personal control and supervision of your deponent.' (emphasis supplied)

At the time of the return of the Writ, the prisoner was produced by the Respondent-Sheriff and upon a showing that the prisoner was being held under a commitment, the proceeding was adjourned, pursuant to Sec. 7009 CPLR, in order to permit a written notice to be served upon the District Attorney. At the time of the original return of the Writ, the District Attorney waived further written notice, but requested an adjournment. The proceeding was thereafter set down for further hearing on July 8th, at which time issues were raised and the hearing concluded.

The Code of Criminal Procedure contemplates a written information upon which the magistrate before whom it is laid may examine witnesses, take depositions, and from which he must be satisfied not only that a crime was committed but in addition that there are reasonable grounds to believe the defendant committed it before he should issue a warrant of arrest.

Section 145 of the Code of Criminal Procedure, provides as follows: 'The information is the allegation made to a magistrate, that a person has been guilty of some designated crime'.

Section 148 of the Code of Criminal Procedure also provides as follows: 'When an information is laid before a magistrate, of the commission of a crime, he must examine on oath the informant or prosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them.'

Section 149 thereof provides that: '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.' (emphasis supplied.)

Section 150 of the Code states, in part, that: 'If the magistrate be satisfied from such depositions 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.' (emphasis supplied)

The question involved in this proceeding is: Did the information contain sufficient facts to give the Justice of the Peace 'reasonable ground to believe that the defendant committed the crime'?

It has been held in People v. Menzel, 148 Misc. 916, 267 N.Y.S. 23, that the provisions of Sections 148 and 150 of the Code of Criminal Procedure, relating to the contents and filing of an information, are jurisdictional in their application; and that Habeas Corpus will lie to inquire into the question of jurisdiction of a court which has committed the defendant.

The law, from time immemorial, has been that before a magistrate can assume any jurisdiction in issuing a warrant, there must be an information and/or depositions which set forth facts that supply the two requirements mentioned in Sections 149 and 150 of the Code of Criminal Procedure, viz.: (a) that a crime has been committed, and (b) that there are facts therein from which the magistrate can be satisfied that 'there is reasonable ground to believe that the defendant has committed it.'

We shall first direct our attention to that portion of the information which states that the sources of the deponent's information and the grounds of his belief are based (in addition to his own investigation) upon 'further investigation conducted by police agencies'. The basic question in this regard is simply this: May the information be based upon information and belief and then be buttressed by hearsay? It would seem that a reading of Sections 148 and 149 of the Code of Criminal Procedure would permit but one answer. They provide for the taking of the depositions of witnesses as to the incriminating facts. This naturally assumes witnesses who have been sworn and are competent to testify to the facts. It precludes hearsay and the courts have repeatedly held that such an assertion is just that. People ex rel. Perkins v. Moss, 187 N.Y. 410, 418, 80 N.E. 383, 385, 11 L.R.A.,N.S., 528; People ex rel. Livingston v. Wyatt, 186 N.Y. 383, 392, 79 N.E. 330, 333, 10 L.R.A.,N.S., 159, supra; People v. Cramer, 22 App.Div. 189, 47 N.Y.S . 1039; People v. Menzel, 148 Misc. 916, 267 N.Y.S. 23, supra; People v. Gade, City Ct., 6 N.Y.S.2d 1018, 1021.)

We now come to the only remaining portion of the information bearing upon the question of whether there was a...