Mayo v. Hanley

109 Misc. 591, 38 N.Y. Crim. 167

• Court: New York Supreme Court
• Decided: December 15, 1919
• Status: Published

Opinion

Hendrick, J.

Relator has been committed for trial upon an indictment of the New York county grand jury alleging bigamy in Kings county on April 2,1904. He was arrested upon that charge in this county last March upon a warrant issued by a city magistrate in this county. The New York county grand jury’s jurisdiction is claimed by reason of this arrest by virtue of the provisions of Penal Law, section 342, which reads as follows: ‘ ‘An indictment for bigamy may be found in the county in which the defendant is arrested * * *

Relator upon habeas corpus contends (1) that this statute is unconstitutional; and (2) that since no evidence to avoid the bar of the five-years’ Statute of Limitations (Code Grim. Pro. § 142) was before the magistrate the grand jury failed to acquire jurisdiction because the warrant upon which he was arrested was illegally issued.

Now that relator is under indictment for the crime, I think it is too late to raise a question of the Statute of Limitations upon habeas corpus and that the mere physical apprehension of relator by the peace officer was enough to confer jurisdiction upon the grand jury. In King v. People, 5 Hun, 297, a prosecution in Rensselaer county for bigamy committed in Washington county, the General Term of the third department held that “ whether the warrant was valid or void is immaterial, so long as an officer of the county arrested the defendant for a criminal offense of this character.”

It also seems to me that the Court of Appeals, in Mack v. People, 82 N. Y. 235, has declared the legislature’s power to enact such legislation as Penal Law, section 342, which has its like in England and many states of this country. The writ should be dismissed and relator remanded under the commitment herein.

Writ dismissed.