Laughlin, J.:
As we observed in People ex rel. Smith v. Van De Carr (86 App. Div. 9), where a person is held pending examination, or to await trial or the action of the grand jury, and he claims that his restraint is illegal, a practice not founded on statutory authority, but for convenience in bringing before the court on the hearing the information or evidence on which the commitment was issued, thus obviating the delay incident to subpoenaing and examining witnesses, has sprung up in this department of issuing a writ of certiorari and of habeas corpus simultaneously, the writ of certiorari being directed to the magistrate to return the information or evidence, and the writ of habeas corpus requiring the production of the relator. In this case even that practice has been departed from and a writ of certiorari and of habeas corpus have been improperly combined in one writ, addressed both [399] to the magistrate and to the person having the custody of the relator. The magistrate has made a return; but there is no return from the keeper of the city prison, into whose custody the magistrate committed the relator. The record does not show whether or not the writ was served on the keeper of the city prison. It appears from the return of the magistrate that on the 8th day of March, 1904, the relator was brought before him by Officer John Cavanaugh and charged upon the oath of the officer with having committed the crime of grand larceny in the first degree; that “ the complainants were not ready to make their formal complaint, and, as usual in such cases, a short affidavit was taken to give the complainants time in which to formulate and file their complaint (a copy of which short affidavit is annexed hereto and made a part hereof); ” that the case was then adjourned without objection by defendant or his counsel to "March tenth, when the complaint was to be filed; that on the same day the defendant was admitted to bail in the sum of $10,000; that on the ninth of March the sureties surrendered the relator at the City Magistrate’s Court, fourth district, held by the magistrate who makes the return; that the magistrate then orally examined the complainant and witnesses and, it appearing therefrom that an offense had been committed and that there was probable cause to believe the relator guilty thereof, bail was again fixed at $10,000, and the relator having failed to give bail was committed by the magistrate “ to the City Prison to answer the said complaint.” The affidavit of the police officer annexed to the return states that he arrested the relator “ on suspicion of having committed the crime of grand larceny, as deponent verily believes,, from the fact that Andrew Thompson, Cashier for the Fifth National Bank, Twenty-third Street and 3rd Ave., charges him with larceny of the sum of twenty thousand dollars, the property of said national bank. Deponent, therefore, asks that the defendant be held á reasonable length of time to enable deponent to produce further evidence.” The oral evidence taken by the magistrate on the ninth of March is not returned, nor is the substance thereof stated. The magistrate merely gives' his' conclusion as to the effect thereof. The relator traversed the return, alleging that the commitment was invalid on the ground that the magistrate was without jurisdiction, “by reason of the fact that there was no legal evidence before the said magistrate [400] from which it appeared that a crime had been.committed, and that there was not sufficient cause to believe the defendant guilty thereof.” The order dismissing the writ, recites that the relator was produced in court in obedience' to "the writ. The petition shows that the relator was in the custody of the keeper of the city prison, and, although no formal return was made by the keeper, since the -order recites that the' relator was produced, the fair inference is that he was produced by the keeper of the prison. If there was no-formal commitment pending. examination, pursuant to the-provisions of sections 192 and 193 of the Code of Criminal Procedure, it is manifest that the detention of the relator by the keeper of the city prison was without authority of law, and in the absence of the return of a legal commitment to justify the retention of the relator, he should have been discharged.
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Laughlin, J.:
As we observed in People ex rel. Smith v. Van De Carr (86 App. Div. 9), where a person is held pending examination, or to await trial or the action of the grand jury, and he claims that his restraint is illegal, a practice not founded on statutory authority, but for convenience in bringing before the court on the hearing the information or evidence on which the commitment was issued, thus obviating the delay incident to subpoenaing and examining witnesses, has sprung up in this department of issuing a writ of certiorari and of habeas corpus simultaneously, the writ of certiorari being directed to the magistrate to return the information or evidence, and the writ of habeas corpus requiring the production of the relator. In this case even that practice has been departed from and a writ of certiorari and of habeas corpus have been improperly combined in one writ, addressed both [399] to the magistrate and to the person having the custody of the relator. The magistrate has made a return; but there is no return from the keeper of the city prison, into whose custody the magistrate committed the relator. The record does not show whether or not the writ was served on the keeper of the city prison. It appears from the return of the magistrate that on the 8th day of March, 1904, the relator was brought before him by Officer John Cavanaugh and charged upon the oath of the officer with having committed the crime of grand larceny in the first degree; that “ the complainants were not ready to make their formal complaint, and, as usual in such cases, a short affidavit was taken to give the complainants time in which to formulate and file their complaint (a copy of which short affidavit is annexed hereto and made a part hereof); ” that the case was then adjourned without objection by defendant or his counsel to "March tenth, when the complaint was to be filed; that on the same day the defendant was admitted to bail in the sum of $10,000; that on the ninth of March the sureties surrendered the relator at the City Magistrate’s Court, fourth district, held by the magistrate who makes the return; that the magistrate then orally examined the complainant and witnesses and, it appearing therefrom that an offense had been committed and that there was probable cause to believe the relator guilty thereof, bail was again fixed at $10,000, and the relator having failed to give bail was committed by the magistrate “ to the City Prison to answer the said complaint.” The affidavit of the police officer annexed to the return states that he arrested the relator “ on suspicion of having committed the crime of grand larceny, as deponent verily believes,, from the fact that Andrew Thompson, Cashier for the Fifth National Bank, Twenty-third Street and 3rd Ave., charges him with larceny of the sum of twenty thousand dollars, the property of said national bank. Deponent, therefore, asks that the defendant be held á reasonable length of time to enable deponent to produce further evidence.” The oral evidence taken by the magistrate on the ninth of March is not returned, nor is the substance thereof stated. The magistrate merely gives' his' conclusion as to the effect thereof. The relator traversed the return, alleging that the commitment was invalid on the ground that the magistrate was without jurisdiction, “by reason of the fact that there was no legal evidence before the said magistrate [400] from which it appeared that a crime had been.committed, and that there was not sufficient cause to believe the defendant guilty thereof.” The order dismissing the writ, recites that the relator was produced in court in obedience' to "the writ. The petition shows that the relator was in the custody of the keeper of the city prison, and, although no formal return was made by the keeper, since the -order recites that the' relator was produced, the fair inference is that he was produced by the keeper of the prison. If there was no-formal commitment pending. examination, pursuant to the-provisions of sections 192 and 193 of the Code of Criminal Procedure, it is manifest that the detention of the relator by the keeper of the city prison was without authority of law, and in the absence of the return of a legal commitment to justify the retention of the relator, he should have been discharged.
The only information to the magistrate, which was reduced to- the form of a deposition as required by the Code of Criminal Procedure (§§ 145, 148), is. the affidavit of the police officer, which utterly fails to state any facts showing that a felony had been committed or that there was reasonable cause to believe that the relator, had committed one. (People v. Cramer, 22 App. Div. 189; McKelvey v. Marsh, 63 id. 396, 398.) Arrests without warrant are authorized in certain cases, and if the' necessary facts authorizing the arrest exist, they constitute the authority and protection of the peace officer. The-filing óf a Written information in the form- of a deposition does not seem to be expressly required by the provisions of the Code of Criminal Procedure, where a prisoner has been arrested without a warrant, but this is. necessarily required by implication from the other provisions of the Code of Criminal Procedure relating to the arraignment of a prisoner and holding him for examination. (Code Crim. Proc. §§ 145,148,149,150,188,192,193,194; People v. James, 11 App. Div. 609.) If the examination is to be proceeded with at. once doubtless the prisoner may waive this requirement, but if it is to be adjourned and he is to be committed pending the examination, it is manifest that a proper information in writing must be filed with the magistrate to give him jurisdiction, to issue the commitment. So also if the examination be entered upon by consent without a formal information in writing and without adjournment, if the defendant is to be committed pending, an adjournment of the examination or [401] to await trial or the action of the grand jury, there must exist as the basis for such commitment a deposition or other evidence, not oral and depending upon the recollection of the magistrate, but in writing, and tending to show that the prisoner has committed the crime. Section 192 of the Code of Criminal Procedure authorizes the commitment of a defendant for examination upon his failure to give bail or where the offense is not bailable. If, as is to be inferred from the return of the magistrate, the practice of committing 'defendants pending examination without the presentation of proper information in the form of a deposition prevails, it is unauthorized and should be discontinued. It is essential in order to prevent the escape of criminals that their arrest without warrant should be authorized, as it is in certain cases, and while the prisoner is in the hands of the citizen or peace officer the existence of the essential facts constitute the authority for the apprehension and detention; but when the prisoner is arraigned before the magistrate, that authority terminates, and the necessary facts to justify the further detention or commitment of the prisoner must be shown by competent proof in the form of depositions or evidence taken in writing. Moreover, assuming that the magistrate issued a commitment in due form, there was no competent evidence before him either that the' crime for which the relator was held had been committed, or that there was probable cause to believe that he had committed the same. The jurisdiction of the magistrate to issue the commitment was challenged by the traverse to the return, and the magistrate having been commanded by the writ to return the information or evidence before him, the question as to whether he acquired jurisdiction to issue the commitment was fairly presented by his return without further evidence, as both parties and the court assumed that thére was no further record that could be produced. The action of the police officer in making the arrest and of the magistrate in holding the relator deserve severe condemnation. Their acts appear to have been both illegal and arbitrary. The pretense upon which the relator has been arrested and held is either that he has committed a felony or that a felony has been committed and that there was reasonable cause for believing that he committed it, for these are the only circumstances under which his arrest without a warrant would [402] be authorized; but no competent evidence was produced to show that a felony had been commited by the relator or by any one else, or that there was reasonable cause for believing that he had committed a felony.. (Code Crim. Proc. § 177.) The jurisdiction of a magistrate to issue a commitment is properly presented, on habeas corpus or on a writ of certiorari to.inquire into the cause of detention, by traversing the return and by presenting the information or evidence upon which the magistrate acted; and if it appears thereby that there is no evidence that the crime charged has been committed by the relator, or that it has been committed, and there is no evidence of reasonable ground for believing that it has been committed by him, he is entitled to his liberty. (People ex rel. Danziger v. P. E. House of Mercy, 128 N. Y. 180; People ex rel. Bungart v. Wells, 57 App. Div. 140; People v. Miller, 81 id. 255; People ex rel. Smith v. Van De Carr, supra; People ex rel. Sandman v. Tuthill, 79 App. Div. 24; 79 N. Y. Supp. 905.) It may be that after Conviction the evidence may not be examined for the purpose of. seeing whether there is any evidence to authorize the conviction, for then the authority)» issuethe commitment is the judgment of conviction, and if rendered by a court of competent jurisdiction the sufficiency of the evidence or whether there be any evidence of guilt-may, perhaps, only be reviewed on appeal (People ex rel. Kuhn v. P. E. House of Mercy, 133 N. Y. 207); but that question is not presented for decision now.
It is claimed that the questions presented became academic prior to the hearing on the return to the writ on account of the fact, attempted to be shown by certified copies of papers not in the record, that the relator was subsequently duly charged with the commission of the same crime attempted to be charged by the proceedings now under review. It is difficult to see upon what theory a writ, of habeas corpus may be dismissed upon the ground that the question has become academic. Upon proper facts shown it is the mandatory duty of a justice of the Supreme Court under a penalty of $1,000 to issue a writ of habeas corpus (Code Civ. Proc. § 2020), . and the same, duty Continues to discharge the relator from further detention by virtue of the proceedings under which he is detained if such proceedings do not authorize his detention; and it is not conceivable that such relief may be denied by reason of the occurrence of. any [403] subsequent facts. The effect of a decision in a habeas corpus proceeding, if favorable to the relator, is that his detention by virtue of the mandate or other proceeding, the validity of which is questioned in the habeas corpus proceeding, is unauthorized, and that so far as that mandate or those proceedings are concerned, he must not be longer detained; but of course this does not prevent his further detention by virtue of any other lawful mandate or proceeding authorizing it. .
It follows, therefore, that the order should be reversed, the writ sustained and the relator discharged from further detention by virtue of the arrest, commitment and proceedings under which he has been detained as presented by this record.
Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred.