Hiscock, J.
The relator sued out a writ of habeas corpus, which thus far has been sustained, to procure his release from imprisonment under a warrant of commitment issued by a city magistrate of the borough of Brooklyn. On the return of this writ it appeared that the relator had been arrested under a warrant of arrest issued by said magistrate on the complaint or information of one Cecelia Young, corroborated by the affidavit of one Ruth Wollman, charged with the crime of abduction under subdivision 2, section 70 of the Penal Law (Cons. Laws, chap. 40) and which provides that a person is thus guilty of abduction who “ Inveigles or entices an unmarried female, of previous chaste character, into a house of ill fame or of assignation, or elsewhere, for the purpose of prostitution or sexual intercourse.”
On the return of said warrant of arrest the People rested on the information and affidavit, but the complainant and said Ruth Wollman were produced and subjected to an exacting and skillful cross-examination by the relator’s counsel. The information, affidavit and evidence then produced and now returned in answer to the present writ in the aspect most favorable to the People disclose, amongst others, these substantial facts:
The complainant and Miss Wollman, unmaried young women residing in Brooklyn, before the occasion in question had some acquaintance with the relator and one Wolfe, and with one or both of them in company with another man they had taken quite extended evening automobile trips. As the result of this acquaintance and experience, apparently aided by deception as to the expected presence of another male friend of complainant, Wolfe on the night in question persuaded the latter and
Miss Wollman to agree to take another automobile trip and for that purpose called for them with a car. When these persons reached a certain restaurant, where the young women expected to find their acquaintance, it was learned that he would not be in the party and the relator in his place became attached. After learning of the deception as to the personnel of the proposed party, the young women insisted on going home, and after proposing to walk they finally entered the motor car with Wolfe and the relator for the purpose of being taken there. After going some distance it was proposed and assented to by the complainant and her companion that instead of going home a short ride should be taken. As a matter of fact this ride was continued without any particular objection on the part of the young women to a pleasure resort several miles distant in Queens county where against their protests the party stopped and, they included, indulged in eating, some drinking and dancing. When the party started for home the pretense was made first that the engine of the automobile had frozen, and then, after going some distance, that the gasoline had given out, with the result that finally at about two o’clock in the morning the complainant and relator left the car and started on an unfrequented road to obtain gasoline, and at this juncture the relator attempted to commit rape on the former.
All of the preliminary proceedings up to and including the time when with the consent of the young women the party started for a ride instead of taking the former to their homes,, occurred in the county of Kings. The attempted rape was committed in the county of Queens, but for some reason which does not appear instead of instituting proceedings in the latter-county based on the alleged rape, proceedings were instituted in the county of Kings before a magistrate for alleged abduction. The warrant of commitment issued at the close of the examination and under which has ensued the confinement from which relator has sought release" by the present writ followed
the information and specified as the crime for which he was committed that of abduction as defined by the provision which has been quoted.
We are all agreed that the evidence produced before the magistrate did not tend to establish the commission by the relator of the crime of the abduction as thus charged in the information and specified in the warrant of commitment. We agree that this charge is not supported by evidence of enticing a woman to an unfrequented roadside and there attempting to have a single act of intercourse with her. We do not concur in the proposition which has been urged by the accused that the offense defined by the statute could not be consummated unless the woman was enticed into some resort of ill fame. To our minds the test of guilt is not necessarily the character of the place to which the woman is taken, but rather whether she is enticed into some place for purposes of common prostitution, as generally understood, and, inasmuch as this subject is fully discussed in the dissenting opinion of Judge Bartlett I shall not dwell on it at greater length.
It is, however, urged that, although the evidence before the magistrate did not warrant the commitment and confinement of the relator on the charge specified, it did tend to estab- • lish the commission by him in the county of Kings of the crime of conspiracy to commit rape, and that, therefore, it was the duty of the justice before whom this writ was made returnable to hold him to bail in accordance with the provisions of section 2035 of the Code of Civil Procedure. That section provides: “ If it appears that the prisoner has been legally committed for a criminal offence, or if he appears by the testimony offered with the return, or upon the hearing thereof, to be guilty of such an offence, although the commitment is irregular, the court or judge, before which or whom he is brought, must forthwith make a final order, to discharge him upon his giving
bail, if the case is bailable; or, if it is not bailable, to remand him.”
This proposition precipitates the inquiry whether a warrant •of commitment which specifies as the crime with which the accused is charged, and for which he is held to answer, an offense which is not supported by the evidence and wholly fails to specify an entirely different crime which the evidence does tend to establish, is simply “ irregular ” and may be made the basis for holding the accused in habeas corpus proceedings on account of the latter offense. It seems to me that this cannot be the meaning of the section.
The warrant of commitment is the sole authority for the confinement which is being inquired into in the habeas corpus proceedings. The statute requires that it shall specify the offense which the imprisoned party is charged with (Code Criminal Procedure, sections 213, 214) and the authorities determine that this requirement is so essential and fundamental that a warrant which fails to comply with it is wholly ineffective and void. (People ex rel. Allen v. Hagan, 170 N. Y. 46; 16 N. Y. Crim. 309.)
This being so, it seems to follow that a judge sitting in habeas corpus proceedings would have no authority to remand the accused for further confinement under this warrant of commitment because the evidence disclosed to his mind the probable commission of a crime by the accused radically differing from the one named and with which he had never been charged, and as to which no examination had taken place, and on which he had never been committed by the magistrate who alone had authority to commit.
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Hiscock, J.
The relator sued out a writ of habeas corpus, which thus far has been sustained, to procure his release from imprisonment under a warrant of commitment issued by a city magistrate of the borough of Brooklyn. On the return of this writ it appeared that the relator had been arrested under a warrant of arrest issued by said magistrate on the complaint or information of one Cecelia Young, corroborated by the affidavit of one Ruth Wollman, charged with the crime of abduction under subdivision 2, section 70 of the Penal Law (Cons. Laws, chap. 40) and which provides that a person is thus guilty of abduction who “ Inveigles or entices an unmarried female, of previous chaste character, into a house of ill fame or of assignation, or elsewhere, for the purpose of prostitution or sexual intercourse.”
On the return of said warrant of arrest the People rested on the information and affidavit, but the complainant and said Ruth Wollman were produced and subjected to an exacting and skillful cross-examination by the relator’s counsel. The information, affidavit and evidence then produced and now returned in answer to the present writ in the aspect most favorable to the People disclose, amongst others, these substantial facts:
The complainant and Miss Wollman, unmaried young women residing in Brooklyn, before the occasion in question had some acquaintance with the relator and one Wolfe, and with one or both of them in company with another man they had taken quite extended evening automobile trips. As the result of this acquaintance and experience, apparently aided by deception as to the expected presence of another male friend of complainant, Wolfe on the night in question persuaded the latter and
Miss Wollman to agree to take another automobile trip and for that purpose called for them with a car. When these persons reached a certain restaurant, where the young women expected to find their acquaintance, it was learned that he would not be in the party and the relator in his place became attached. After learning of the deception as to the personnel of the proposed party, the young women insisted on going home, and after proposing to walk they finally entered the motor car with Wolfe and the relator for the purpose of being taken there. After going some distance it was proposed and assented to by the complainant and her companion that instead of going home a short ride should be taken. As a matter of fact this ride was continued without any particular objection on the part of the young women to a pleasure resort several miles distant in Queens county where against their protests the party stopped and, they included, indulged in eating, some drinking and dancing. When the party started for home the pretense was made first that the engine of the automobile had frozen, and then, after going some distance, that the gasoline had given out, with the result that finally at about two o’clock in the morning the complainant and relator left the car and started on an unfrequented road to obtain gasoline, and at this juncture the relator attempted to commit rape on the former.
All of the preliminary proceedings up to and including the time when with the consent of the young women the party started for a ride instead of taking the former to their homes,, occurred in the county of Kings. The attempted rape was committed in the county of Queens, but for some reason which does not appear instead of instituting proceedings in the latter-county based on the alleged rape, proceedings were instituted in the county of Kings before a magistrate for alleged abduction. The warrant of commitment issued at the close of the examination and under which has ensued the confinement from which relator has sought release" by the present writ followed
the information and specified as the crime for which he was committed that of abduction as defined by the provision which has been quoted.
We are all agreed that the evidence produced before the magistrate did not tend to establish the commission by the relator of the crime of the abduction as thus charged in the information and specified in the warrant of commitment. We agree that this charge is not supported by evidence of enticing a woman to an unfrequented roadside and there attempting to have a single act of intercourse with her. We do not concur in the proposition which has been urged by the accused that the offense defined by the statute could not be consummated unless the woman was enticed into some resort of ill fame. To our minds the test of guilt is not necessarily the character of the place to which the woman is taken, but rather whether she is enticed into some place for purposes of common prostitution, as generally understood, and, inasmuch as this subject is fully discussed in the dissenting opinion of Judge Bartlett I shall not dwell on it at greater length.
It is, however, urged that, although the evidence before the magistrate did not warrant the commitment and confinement of the relator on the charge specified, it did tend to estab- • lish the commission by him in the county of Kings of the crime of conspiracy to commit rape, and that, therefore, it was the duty of the justice before whom this writ was made returnable to hold him to bail in accordance with the provisions of section 2035 of the Code of Civil Procedure. That section provides: “ If it appears that the prisoner has been legally committed for a criminal offence, or if he appears by the testimony offered with the return, or upon the hearing thereof, to be guilty of such an offence, although the commitment is irregular, the court or judge, before which or whom he is brought, must forthwith make a final order, to discharge him upon his giving
bail, if the case is bailable; or, if it is not bailable, to remand him.”
This proposition precipitates the inquiry whether a warrant •of commitment which specifies as the crime with which the accused is charged, and for which he is held to answer, an offense which is not supported by the evidence and wholly fails to specify an entirely different crime which the evidence does tend to establish, is simply “ irregular ” and may be made the basis for holding the accused in habeas corpus proceedings on account of the latter offense. It seems to me that this cannot be the meaning of the section.
The warrant of commitment is the sole authority for the confinement which is being inquired into in the habeas corpus proceedings. The statute requires that it shall specify the offense which the imprisoned party is charged with (Code Criminal Procedure, sections 213, 214) and the authorities determine that this requirement is so essential and fundamental that a warrant which fails to comply with it is wholly ineffective and void. (People ex rel. Allen v. Hagan, 170 N. Y. 46; 16 N. Y. Crim. 309.)
This being so, it seems to follow that a judge sitting in habeas corpus proceedings would have no authority to remand the accused for further confinement under this warrant of commitment because the evidence disclosed to his mind the probable commission of a crime by the accused radically differing from the one named and with which he had never been charged, and as to which no examination had taken place, and on which he had never been committed by the magistrate who alone had authority to commit. Such a result would involve not the disregard of a mere irregularity in the warrant but practically the commission of the accused to confinement by a new warrant made by the judge in a habeas corpus proceeding rather than by the committing magistrate.
I believe that what the section in question contemplates and
provides for are those practically immaterial errors in the description or nomenclature of the crime or in the form of the warrant which might well be overlooked when the evidence disclosed the probable commission by the accused of a crime substantially and fairly described in the warrant. This section is found in the Code of Civil Procedure, and this interpretation would be in accordance with sections 721-730 of the Code which provide generally for the disregard of inconsequential errors. The other view which has been suggested would be more in accordance with a holding that the statement in the complaint of a wrong cause of action was an irregularity which might be overlooked without amendment.
Little law is to be found on this question but whatever there is seems to sustain the view which I have taken. (People v. Budge, 4 Parker’s Crim. Repts. 519, 522;
Matter of Nichols,
4 N. Y. S. R. 659.)
But beyond what has been said on this question, I do not think that the evidence produced on the return to this proceeding fairly permits the inference tha.t relator in the county of Kings entered into a conspiracy to commit rape on the complainant, and I do not feel that the true interests of justice will be subserved by straining to hold him on this charge at this time. If the evidence of complainant and her witness is true, the relator was guilty of an easily defined crime of a grave and particularly abhorrent nature in the county of Queens, and there he may without any question be tried and if found guilty punished by an adequate imprisonment of several years. If he should be held and tried, and convicted on the charge of conspiracjj to commit rape, as is now suggested, the offense would be a mere misdemeanor for which he could be imprisoned not to exceed a year (Penal Law, sections 580, 1937), and the question whether a prosecution for conspiracy to commit a rape, even though unsuccessful, would not be a bar to a prosecution for the actual attempt to commit rape because of the
identity of the facts tending to establish both crimes is, in my opinion, altogether too serious a one to be invited in this case, with the possible,result of a serious miscarriage of justice.
For all these reasons I think that the order appealed from should be affirmed.