People ex rel. Ostlund v. Warden of City Prison

125 N.Y.S. 707

• Court: New York Supreme Court
• Decided: September 17, 1910
• Status: Published

Opinion

BIJUR, J.

This is an application upon a writ of habeas corpus for the release of two prisoners “held for examination.” The record shows that the prisoners were arrested by a police officer and arraigned before a magistrate, charged with felonious assault, on the affidavit of the officer, filed in the Magistrate’s Court, which also recited that the victim of the assault was temporarily confined in the hospital and unable to appear. The warrant for commitment is in what is known as the “short form.” While extremely brief, I think it complies sufficiently with section 193 of the Code of Criminal Procedure. Indeed, the form of the warrant is not seriously attacked by the relators.

Their chief contention is that there can be no “commitment for examination” except after a warrant has issued. I find no basis for this claim in the statute. Where the person arrested has been brought before a magistrate upon a previous complaint or information, a warrant has necessarily issued. The alternative mode of arraignment contemplated in sections 177 to 185 of the Code is upon arrest by an officer or a private person without a warrant, in which case an affidavit in the nature of an information must be made out upon arraigning the prisoner, as is pointed out in People ex rel. Farley v. Crane, 94 App. Div. 397, 88 N. Y. Supp. 343.

This requirement having been satisfactorily met in the case at bar, the writ is dismissed. Settle order on notice.