People ex rel. Robert Simpson Co. v. Kempner

• Decision Date: 25 March 1913
• Citation: 101 N.E. 794,208 N.Y. 16
• Parties: PEOPLE ex rel. ROBERT SIMPSON CO. v. KEMPNER et al.
• Court: New York Court of Appeals Court of Appeals

208 N.Y. 16

101 N.E. 794

PEOPLE ex rel. ROBERT SIMPSON CO.

v.KEMPNER et al.

Court of Appeals of New York.

March 25, 1913.

Appeal from Supreme Court, Appellate Division, Second Department.

Prohibition proceedings by the People, on the relation of the Robert Simpson Company, against Hon. Otto Kempner, individually and as chief magistrate, etc., and the Magistrate's Court of the City of New York. From an order of the Appellate Division (154 App. Div. 674,139 N. Y. Supp. 440) reversing an order of the Special Term denying a motion for an absolute writ and granting the motion as a matter of law, respondents appeal. Order affirmed.Hersey Egginton, of Brooklyn, for appellants.

Franklin Taylor, of New York City, for respondent.

CHASE, J.

The relator is a domestic corporation engaged in business as a licensed pawnbroker. On and prior to January 26, 1912, it was in possession of two diamond rings which it held as security for a loan of $15 made to the person who delivered the rings to it. A woman claims that she is the owner of said rings and that they were stolen from her by her maid and pawned by said maid to the relator. No one has been convicted of the alleged theft. On January 27th an information was filed with a magistrate charging said maid with the crime of grand larceny in stealing said rings and a warrant was issued for her arrest, but it was not executed because she was then in custody serving a sentence after pleading guilty to a charge of committing another crime. On January 26th said woman, claiming. to be the owner of the rings, submitted to a magistrate an affidavit, upon which he issued a search warrant, in the form provided by the Code of Criminal Procedure, directing that search be made for said rings . The warrant was served January 27th, and the rings were found and taken by the officer serving the warrant from the relator, and he held them for production before said magistrate upon the return of the warrant. A voluntary and informal notice was given to the relator, by the officer serving the warrant, of the time when the return to said warrant would be made to the magistrate. At the time mentioned the relator appeared by counsel and asserted its right to the possession of said rings and its constitutional authority to have its property rights in said rings and the possession thereof determined in a civil action. The magistrate threatened to hear and determine the validity of the relator's alleged lien on the property taken pursuant to the search warrant, and, in the event of its being determined upon such hearing that the relator's alleged lien is invalid, that the said property would be delivered to whoever was found to be the owner and entitled to the possession thereof . An adjournment was then taken. Application was thereupon made for an absolute writ of prohibition, which was denied by the Special Term and granted upon appeal to the Appellate Division.

A search warrant is an order in writing, in the name of the people, signed by a magistrate, directed to a peace officer, commanding him to search for personal property and bring it before the magistrate. Code of Criminal Procedure, § 791. It may be issued upon one of three grounds: (1) When the property was stolen or embezzled; (2) when it was used as the means of committing a felony; (3) when it is in the possession of any person with the intent to use it as the means of committing a public offense. Code Criminal Procedure, § 792. In each of the cases last mentioned it is provided from whom the property may be taken under the warrant.

A search warrant cannot be issued for any purpose, except as stated. Its legitimate use is, and always has been, to aid in the detection and punishment of crime. As such it has been in common use since the days of Lord Coke. It was mentioned by him in the Institutes (Book 4, pp. 176, 177). Referring to search warrants, he says: ‘For justices of the peace to make warrants upon surmises for breaking the house of any suspect to search for felons or stolen goods is against Magna Charta.’ Sir Matthew Hale in his History of the Pleas of the Crown (volume 2, p. 149) does not fully agree with Lord Coke, but explains the business of a search warrant and the purposes for which it is used, and says: ‘I thought fit to insert this business in this place: (1) Because it is a business preparatory to the discovery of felons, and preparing evidence against them, and to the helping of persons robbed to their goods. (2) Because it is found by experience of great use and necessity, especially in these times where felonies and robberies are so frequent. And therefore this means of discovering them is now grown common and usual, much more than in ancient times; and, if it should be disused or discountenanced, it would be of public inconvenience; and therefore I can by no means subscribe to that opinion of my Lord Coke's, 4 Inst. cap. 31, p. 176, as it is there generally set down ‘that justices of peace have no power upon a bare surmise to break open any man's house to search for a felon or stolen goods either in the day or night.’' Referring to the goods found, Sir Matthew Hale says (page 151): ‘As touching the goods brought before him, if it appears they were not stolen, they are to be restored to the possessor; if it appears they were stolen, they are not to be delivered to the proprietor, but deposited in the hands of the sheriff or constable, to the end the party robbed may proceed by indicting and convicting the offender to have restitution.’ See, also, Burns' Justices of the Peace, pp. 176, 179; Chitty's Criminal Law (5th Amer. Ed. from 2d London Ed .) vol. 1, p. 67.

There were formerly three means of restitution of goods to the party from whom they were stolen: (1) By appeal of robbery or larceny. It the party were convicted thereupon, restitution of the goods contained in the appeal was to be made to the appellant, for it is one of the ends of that suit. (2) By the statute 21 Henry VIII, c. 11. And (3) by the course of the common law. But after the felon is convicted it can be no color of crime to take his goods again when he (the owner) finds them, because he hath pursued the law upon him and may have his writ of restitution if he pleases. Burns' Justices of the Peace, vol . 4, pp. 111, 115; Hale's Pleas of the Crown, vol. 1, pp. 538, 546. After goods were taken into the possession of the court, restitution to the owner was at least to an extent dependent upon his prosecuting the thief. The prospect of restitution was thus made an incentive to the performance of public duty in bringing the criminal to justice. Until the person charged with the theft was convicted or acquitted, the courts would not sustain an action even by a third person for the possession of the goods.

[1] It thus appears with reasonable certainty that in England and the American colonies the search warrant was a process used preparatory to the discovery of felons in preparing evidence against them and to help persons robbed to recover their goods, and not to try the title of or right to the possession of goods and chattels. There did not exist at the time of the adoption of our state Constitution in 1777 any right by the common or statute law of England and Great Britain to try the title to goods and chattels before a magistrate upon the return of a search warrant. Such right did not form a part of the law of the colony of New York on the 19th day of April in the year of our Lord 1775.

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