People ex rel. Hertz v. Warden of the City Prison

149 A.D. 939, 28 N.Y. Crim. 61, 134 N.Y.S. 443

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1912
• Status: Published

Opinion

Per Curiam:

The relator was arraigned before a city magistrate charged with the crime of maintaining a disorderly house. The examination of the relator under this charge was at her request adjourned to February 21,1912, and she was admitted to bail in the sum of $2,500. Thereafter, on February twenty-first, the relator was surrendered by her surety, and was in the custody of the warden of the city prison. Whereupon she sued out a writ of habeas corpus before a justice of the Supreme Court, claiming her discharge upon the ground that the complaint upon which she was arraigned before the magistrate did not state facts sufficient to connect her with the crime charged. The justice of the Supreme Court, before whom the habeas corpus proceeding was had, reserved decision and admitted the relator to bail. Subsequently the writ was dismissed and the relator remanded. On February twenty-ninth an information was filed by the district attorney in the Court of Special Sessions, charging the relator with the crime of maintaining a disorderly house, to which information the relator interposed a plea of not guilty, and the issue raised by that plea has not yet been disposed of. Thus the relator is now held under the commitment of the magistrate dated February twenty-eighth, the information filed by the district attorney in the Court of Special Sessions and the plea thereto. It thus becomes entirely immaterial whether the original charge was sufficient to justify the arrest of the relator under the warrant of the magistrate. The case has been removed from that jurisdiction to the Court of Special Sessions; and if this court should hold that the original arraignment before the magistrate was based upon an insufficient charge, the relator would not be entitled to be discharged, as the subsequent commitment by the magistrate and the arraignment and plea before the Court of Sessions superseded the original warrant of the magistrate. The question, therefore, becomes purely academic and the motion to dismiss the appeal must be granted. Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Appeal dismissed.