In re Marceau

New York Supreme Court

In re Marceau

32 Misc. 217, 15 N.Y. Crim. 92, 65 N.Y.S. 717

CourtNew York Supreme Court

DecidedJuly 15, 1900

StatusPublished

Cited by2 cases

This text of 32 Misc. 217 (In re Marceau) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Marceau, 32 Misc. 217, 15 N.Y. Crim. 92, 65 N.Y.S. 717 (N.Y. Super. Ct. 1900).

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Opinion

McAdam, J.

The prisoner was arrested in the city of New York by the chief of police thereof, under a warrant issued by the recorder of the city of Ogdensburg, on the charge of kidnapping. There being no denial by return filed, it must be taken as true, as alleged by the prisoner, that he obtained a divorce from his wife, and was awarded by a competent court the custody of the child, which bears his name and which he is charged with [218]*218kidnapping. It was impossible for the prisoner to be guilty of kidnapping his own child under such circumstances. The warrant was issued before indictment, and the prisoner is, therefore, entitled to have the legality of his detention inquired into and passed upon. Code Civ. Pro., § 2031; People v. Martin, 1 Park. Or. 187, 189; Ex parte Tayloe, 5 Cow. 50, 51; People ex rel. Pickard v. Sheriff, 11 Civ. Pro. 172, 179; 15 Am. & Eng. Ency. of Law (2d ed.), § 161. It cannot be that a mere ex parte complaint before a magistrate deprives the Supreme Court of its power under the writ of habeas corpus of determining whether the imprisonment of the citizen is justifiable or not, particularly where the warrant is to take him to a place remote from his home or friends. The prisoner committed no crime, and is entitled to his liberty.

Application granted.

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McAdam, J.

The prisoner was arrested in the city of New York by the chief of police thereof, under a warrant issued by the recorder of the city of Ogdensburg, on the charge of kidnapping. There being no denial by return filed, it must be taken as true, as alleged by the prisoner, that he obtained a divorce from his wife, and was awarded by a competent court the custody of the child, which bears his name and which he is charged with [218]*218kidnapping. It was impossible for the prisoner to be guilty of kidnapping his own child under such circumstances. The warrant was issued before indictment, and the prisoner is, therefore, entitled to have the legality of his detention inquired into and passed upon. Code Civ. Pro., § 2031; People v. Martin, 1 Park. Or. 187, 189; Ex parte Tayloe, 5 Cow. 50, 51; People ex rel. Pickard v. Sheriff, 11 Civ. Pro. 172, 179; 15 Am. & Eng. Ency. of Law (2d ed.), § 161. It cannot be that a mere ex parte complaint before a magistrate deprives the Supreme Court of its power under the writ of habeas corpus of determining whether the imprisonment of the citizen is justifiable or not, particularly where the warrant is to take him to a place remote from his home or friends. The prisoner committed no crime, and is entitled to his liberty.

Application granted.

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Bluebook (online)

32 Misc. 217, 15 N.Y. Crim. 92, 65 N.Y.S. 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marceau-nysupct-1900.

Opinion

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