
    SUPREME COURT—APP. DIVISION—SECOND DEPT.,
    October 27, 1911.
    THE PEOPLE EX REL. BROWN v. JAMES G. TIGHE.
    (146 App. Div. 491.)
    (1.) Jurisdiction—Magistrate of Court of Special Sessions.
    Unless a magistrate of the Court of Special Sessions has jurisdiction to issue a warrant, he has no jurisdiction to hold a person for examination and to commit him to custody. Where the information laid before him is insufficient, he has no jurisdiction to issue a warrant or even to issue a subpoena for the examination of witnesses in support of it.
    (2.) Same-Penal Law, § 273—Deception of court by attorney.
    An attorney at law is not guilty of a misdemeanor under section 273 of the Penal Law in attempting to deceive the court, unless he is guilty of an evil intent to deceive it.
    Hence, a magistrate of the Court of Special Sessions has no jurisdiction to issue a warrant for the arrest of an attorney for said crime where the acts of the defendant as recited in the information may have been the result of mere ignorance and stupidity, and the informant does not expressly state that he believes the acts were done with evil intent.
    (3.) Same—Code Crim. Pro., §§ 148, 149.
    The provisions of sections 148 and 149 of the Code of Criminal Procedure relating to the examination of informants under oath and to the taking of their depositions are jurisdictional; a magistrate must comply therewith before he has power to issue a warrant of arrest.
    (4.) Same.
    As section 148 of the Code of Criminal Procedure requires the depositions of witnesses to be subscribed by them, a magistrate has no jurisdiction to issue a warrant of arrest if the depositions have not been signed.
    Appeal by the relator, Max Brown, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the ‘6th day of January, 1911, dismissing a writ of habeas corpus.
    
      
      Max Brown, appellant, in person.
    
      Peter P. Smith, Assistant District Attorney (John F. Clark, District Attorney, with him on the brief), for the respondent.
   Carr, J.:

This is an appeal from an order made at Special Term in Kings county dismissing a writ of habeas corpus and remanding a prisoner. The relator and appellant has been held by a .magistrate in the borough of Brooklyn to answer in the Court of Special Sessions on a charge of having violated section 273 of the Penal Law, which provides in part as follows: “ An attorney or counselor who: 1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; * * * Is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by this chapter, he forfeits to the party injured treble damages, to be recovered in a civil action.” The criminal proceedings in question were begun by the filing with a magistrate of a written information by Robert H. Elder, an assistant district attorney of Kings county. This “ information ” did not in express terms charge the relator with the commission of a crime. It contained a long recital of facts tending to show a violation of section 273 of the Penal Law, and then declared on information and belief that the relator had admitted in open court, in another proceeding, that he had done the act upon which, the charge of crime was based, but had done it with no evil intent or purpose. Mr. Elder, in his “ information,” asked the Magistrate’s Court “ to issue its process for the examination of witnesses, to the "end that an inquiry and determination ma.y be had as to whether the said Maximillian Brown committed a crime, * * * and also to the end that in case the facts revealed on said inquiry should justify same a warrant may be issued for the arrest of said Maximillian Brown, that he may he dealt with according to law.” The Magistrate’s Court issued its process and examined several witnesses under oath in-support of the information, hut it failed to have the depositions of any of these witnesses signed by them before the issuance of its warrant of arrest, or ever since, so far as this, record appears. It issued a warrant for the arrest of said Brown, and, on his being brought before the court, he moved to set aside the warrant and to dismiss the proceeding on the ground that the “information” was insufficient, and on the further ground that the depositions of the witnesses produced in favor of the information had not been signed by the witnesses. This motion being denied, an examination was had, and the prisoner was held to answer. Thereupon Brown sued out a writ of habeas corpus, by which he attacked the jurisdiction of the magistrate to issue the warrant of arrest. Unless, the magistrate had jurisdiction to issue the warrant" there was unquestionably no jurisdiction to hold an examination of the prisoner and to commit him to custody. The first point urged against jurisdiction was that the information on its face was not sufficient, in that it failed to show the commission of a crime and to charge Brown with being guilty thereof.

An information is defined by section 145 of the Code of Criminal Procedure as follows: “The information is the allegation made to a magistrate that a person has been guilty of some designated crime.” Where the information laid before a magistrate is insufficient, it cannot in itself confer jurisdiction to issue a warrant nor even to issue a subpoena for the examination of witnesses in support of it. (People ex rel. Livingston v. Wyatt, 186 N. Y. 383, 20 N. Y. Crim. 394.) The question of the sufficiency of an information under the Code of Criminal Procedure has been considered with so much detail and clearness in People ex rel. Livingston v. Wyatt (supra) as to require no further consideration here. That court said, as to the contents of an information: “Suspicion is not enough, and information and belief are not enough, unless facts are stated showing the source of the information and the grounds of belief. The information should fairly warrant the inference by the magistrate that in good faith and on reasonable grounds the complainant believes that a definite crime has been committed by a designated person.”

The essence of the crime attempted to be charged by this information was evil intent to deceive a court. The naked facts recited in the information did not constitute a crime without such evil intent. They were of such a nature that they could easily have been the result of mere ignorance and stupidity. The informant did not state expressly that he believed these acts were done with evil intent. He merely declared that Brown had got himself into trouble with the courts in other matrters, and suggested, and vaguely at that, that Brown was prob'-ably not acting in good faith in this matter. I think the information was not sufficient in itself to support a warrant of arrest. Evidently the magistrate thought so, as did the informant himself, when he asked for the examination of witnesses in support of the information. If the issuance of the warrant can be sustained, it must be on the strength of the depositions taken in support of the information. It is prescribed in section 148 of the Code of Criminal Procedure as follows: “When an information is laid before a magistrate of the commission of a crime, he must examine on oath the informant or prosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them.” Section 149 provides: “The depositions must set forth the facts stated by the prose- " cutor and his witnesses, tending to establish the commission of the crime and the guilt of the defendant.” Section 150 provides : “If the magistrate be satisfied therefrom, that the crime complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, jhe must issue a warrant of arrest.”

How, all these provisions of the statute are jurisdictional, as a magistrate has no arbitrary power to issue a warrant of arrest, but must rest his authority to do so on provisions of law. (McKelvey v. Marsh, 63 App. Div. 396.) As before stated, the magistrate issued a warrant of arrest in this case without having caused the witnesses to sign their depositions in support of the information, although the statute expressly directed him to do so. When the defendant was brought into court on this warrant, he immediately urged this objection but was overruled. In People v. Winness (3 N. Y. Cr. Rep. 89) it was held that where one had been arrested on the strength of a warrant issued upon an unsigned complaint or deposition, and made no objection at the time, and raised the point for the first time on an appeal from a judgment of conviction, he must he deemed to have waived the objection. Here, however, the objection was made in due time and there is no question of waiver.

I am of opinion that the failure to cause the depositions to be signed by the witnesses deprived the magistrate of power to issue the warrant of arrest, and that the subsequent proceedings were without jurisdiction. I recommend, therefore, that the order of the Special Term be reversed and the writ of habeas corpus sustained, and the relator be discharged from custody, with ten dollars costs and disbursements.

■' Jerks, P. J., Thomas, Woodward and Rich, JJ., concurred.

Order reversed, writ of habeas corpus sustained, and relator discharged, from custody, with ten dollars costs and disbursements.  