
    The People of the State of New York ex rel. Samuel J. Sampson, Appellant, v. E. C. Dunning, Jr., a Justice of the Peace, and The People of the State of New York, the Alleged Plaintiff, in a Certain Criminal Action Alleged to Be Pending before said Justice of the Peace, Respondents.
    Second Department,
    May 4, 1906.
    Crime —jurisdiction — defendant must be named if known - when John Doe proceedings unauthorized — when information defective in hot designating crime — writ of prohibition restraining examination of witness granted, 7
    . Criminal jurisdiction depends upon good faith as well as upon the strict letter of the law.
    Although section 152 of the Code of Criminal Procedure allows a defendant-charged with crime to be designated by a fictitious name when his real name is unknown, yet such defendant must be designated so as to distinguish him from other persons if possible; and when it appears from the information that the complainant must have known the true names of those whom he charges with a conspiracy, it is a perversion of the spirit of the law to allow a general investigation to be carried on under an information against John Doe and ■ Bichard Roe. ' . .
    A witness summoned.to appear in such John Doe proceeding, who. by the moving. papers appears to be one of the persons who heard threats made to the complainant pursuant to an alleged conspiracy, is under such circumstances entitled to a writ of prohibition restraining a justice of the peace- from entertaining such proceedings becahse of lack of jurisdiction;
    An information must charge that “a person has been guilty of some designated crime." This means that when the real defendant is known a designation of the person must be so clear that there could be no justification for attempting to make him a witness against himself, and ‘means also that a specific crime ’ must be designated; Hence, an information which does not designate any specific crime, but merely alleges that John Doe and Richard Roe “ willfully, maliciously; wrongfully and fraudulently conspired to interfere with and injure the property and' business ” of a railroad and did solicit the complainant not to work for other persons and corporations, is defective and confers no jurisdiction on a justice of the peace, who will be restrained by a writ of prohibition • from examining a witness thereunder.
    Appeal by the relator, Samuel J. Sampson, from an order of the Supreme Court, made at the -Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 27th day of January, 1906, denying the relator’s motion for an absolute writ of prohibition and setting aside an alternative, writ of prohibition theretofore issued herein.
    
      Herbert R. Limburger, for the appellant.
    
      Francis T. Osborne, Otto T. Hess and Henry R. Barrett, for the respondents.
   Woodward, J.:

The relator,.Samuel. J. Sampson, has been subpoenaed as a witness, in what, is popularly known as a “John Doe proceeding,” before a justice .of the peace for the county of Westchester, and he has been denied an absolute writ of prohibition restraining the said justice of the peace from continuing the investigation.and compelling ..the relator to appear and answer questions. He appeals from the order denying such writ. It is well settled that a writ of prohibition.lies'.only where,there is k want of jurisdiction, or where a court or judge, or other tribunal, is proceeding in excess of the jurisdiction conferred. (People ex rel. Hummel v. Davy, 105 App. Div. 598, 602, and authority there cited.) We apprehend, however, that jurisdiction in a measure at least depends upon that element of good faith which should be at the foundation of all judicial proceedings, and, in applying technical rules, it may not be but of place to call attention to the abuses which are likely to arise if the courts are lax in insisting that all proceedings of a criminal nature shall be carried on within the letter and the spirit of the law. .

That the ends of justice may not be defeated the law wisely provides, both in civil and criminal cases, that where the name of a necessary party cannot be ascertained — where it is, in good faith, unknown — the moving party may designate the defendant, in the summons, and in any other process or proceeding in the action, by a fictitious name, or by as much of his name as is known, adding a description," identifying the person intended. (See Code Civ. Proc. § 451; Code Grim. Proc. § 152.) While in the latter Code there does not appear to be any provision calling for a description in those words, it is provided that in the warrant it must specify the name of the defendant, or if it be unknown to the magistrate, the defendant may be designated therein by any name,” and to designate is to “ point out by distinguishing from others; ” to indicate by description or by something known and determinate ” (14 Cyc. 229), so that it would appear that the policy of the law is not satisfied merely by declaring that John Doe or Richard Roe, or both of them, these names being generally recognized as being fictitious, have been guilty of a crime. Good faith and the spirit of the law alike demand that the parties who are accused of crime, or who are necessary defendants in a civil proceeding, should be pointed out in the papers, if not by their own proper names, then by such descrip-' tions as will enable the parties and the court or magistrate or other officials who may have to do with them, to know who is intended, and this is peculiarly true when the facts and circumstancés áre such that the accusing party in a criminal proceeding must, of necessity, know the party or parties. It could never have been the intention of the Legislature that any individual might, by merely alleging that a fictitious person had committed a crime, begin á general investigation into the affairs of the community ; all of opr criminal law proceeds upon the theory that every man is presumed innpeent until the contrary is shown, and it is all administered, or intended to he administered, with a view to protecting the innocent against. the designs of irresponsible and vicious persons. The grand, jury is the great bulwark of the innocent; it is designed ' to prevent criminal proceedings in cases where there is lack of probable cause, and this is to be determined in secret by responsible men chosen from the community at large, acting upon their oath and upon sworn testimony, and it is hardly to be supposed that the Legislature has intended to open' the - doors to irresponsible inquisitors who merely alleged generally that fictitious persons have been guilty of crime.

■ In the matter now before .us the information on which the justice of -the peace has assumed to act relates to the crime of conspiracy, if. to. any crime at all, and it is alleged that the said John Doe and Richard Roe, willfully, maliciously, wrongfully and fraudulently conspiring to interfere with and injure, the property and business of. the said New York, Westchester & Boston Railroad Company and the.property and business of. the said City and County Contracting Company, did thereupon solicit and urge deponent not to work for the said James P. McDonald Or for the said City and County Contracting Company or for the said New York, Westchester & Boston Railroad Company, stating that they would injure deponent’s credit .as a.contractor if he proceeded with such work, and that they would pay deponent to quit said work.” Clearly the deponent knew who the parties were who made these alleged threats and requests; they,appear from the language used to have been made directly to the deponent, and yet there is not the slightest effort to give the real .names of the parties, or to designate them in any manner, except as .John Doe and Richard Roe, these names being conceded to be fictitious. The deponent does not, apparently, dare to allege that any known individual has done any of the acts which he sets forth, although if the statements are true they were made to him directly, and he might at-least have designated. them by some kind of a description. It appears from the papers that he knew the relator, Mr. Sampson, and that it was the latter who was one of the parties who had the conversation with the deponent,, and that Mr. Sampson was requested to make an affidavit in support of the deponent’s allegations under a threat that he would be called as a witness in a John Doe proceeding, and yet the deponent, knowing' all of these facts and being in a position to know the parties, contents himself with a general allegation' against John Doe and Richard Roe, thus dodging the responsibility which it is the policy of the law. to demand on the part of those who would make use of its criminal processes. ‘ We do not intend to hold that there might not be a case in which a mere allegation that John Doe had committed a particular crime would not be sufficient to give jurisdiction, but where it appears from the moving, papers that the deponent must have known the true names, or at least must have been in a position to have described or indicated the particular individuals, it seems clear to us that it is a perversion of the' law to attempt to carry on an investigation under such an information ; that it is lacking in that good faith and that sense of individual responsibility which should be manifest in such a proceeding. ‘

We come now to consider the information and to determine whether the justice of the peace acquired jurisdiction. The information is the foundation for the jurisdiction of the magistrate (McKelvey v. Marsh, 63 App. Div. 396, 398; Code Crim Proc. § 148), and an information is defined by section 145 of the Code of Criminal Procedure as being “ the allegation made to a magistrate that a persdn has been guilty of some designated crime.” This would seem to require where the real defendant was known a designation of the person sufficiently clear so that there would be no justification for attempting to make him a witness against himself, and at the same time a designation of the crime which it was alleged such person had committed, not by an argumentative, blanket allegation of facts and conclusions, but by a plain and concise statement that some known crime, such as murder, arson, burglary, grand larceny, conspiracy or assault had been committed. This is evident, not alone from the language of the section quoted, but from that of succeeding sections. Section 148 provides that when an information is laid before a magistrate, o,f 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 tó be subscribed by the parties making them,” and section 149 provides that the “ depositions must set forth. the facts stated- by the prosecutor and his witnesses tending to .establish the commission'of the crime and the guilt' of the defendant.”

It is “ the crime ” designated' in' the information that is to be sup-. - ported by the depositions of the prosecutor and his witnesses and not the general allegations of fact from which an inference of a crime might, of might not be' drawn, according' as the' pleader has been accurate or inaccurate in- l.iis statement of facts. Words . having a precise and Well-settled "meaning in the jurisprudence of á country are to be understood in the same sense when used in its statutes,' unless a different meaning is unmistakably intended (Perkins v. Smith, 116 N. Y. 441,448, 449, and authority there cited), -and when section 145 of the Code of Criminal Procedure undertook to define an information, and to require that it should allege “that, a person- has been guilty of some designated crime,” it used the word “ designated ” in-its Well-settled legal sense,- which is “ to call by a distinctive'-title; to-point out by distinguishing from others;', to express ór declare; to indicate by description or- by "something known and determinate-;' to point out, or mark by some particular token'; to show; to point out; to .specify,” (14 Cyc. 229, ;and authorities cited in notes; 9 Am. & Eng. Encv. of Law [2dmd.], 405, and authorities cited in notes, particularly note 2.) Tried by ' this 'test, it is very plain that the information before the justice, - upon which it is sought to compel the relator, to testify, does not charge- that any person has been “guilty of some designated crime,” ' and this is a" jurisdictional defect which .may not be overlooked. Speaking of' the far-reaching possibilities of dispensing with this requirement, a learned jurist,.in People ex rel. Fleming v. Mayer . (41 Misc. Rep. 289) says : A mere form of words,, charging nothing and-subjecting no person to responsibility for the utterance, could be made the basis of a general inquiry, by or before a magis-, trate", into any and every question, arising between members of the community, which might be deemed to have a bearing upon some half-suspécted crime, and all persons would. be bound to attend, i'f directed", and to testify to any matter which the person conducting the inquiry might deem’ of moment. > The .policy of 'our law is to confiné 'the general power of - inquiry to the grand jury, a body ■ periodically chosen from the whole body of citizens- of the 'community itself whose exercise. of that power, with due regard to-the rights of citizens, is safeguarded by the number of its members.” (See, also, People v. Hiley, 33 Misc. Rep. 168, and People ex rel. Sandman v. Tuthill, 79 App. Div. 24.) In the - latter case this court declared that the “ statute, contemplates. that the information shall set forth that a definite crime has been committed, not with all of the particularity of an indictment, but with sufficient definiteness so that the magistrate may know that some particular offense against the law is charged.”

The information failing, to designate any crime, there is a jurisdictional defect, and it" ought not to be necessary for the relator to-be compelled to submit to the examination, or to be compelled to refuse to answer questions before he can be relieved. The justice of the peace can have no jurisdiction except upon the filing of an information which charges some person with “ some designated crime,” and in the absence of such an information it is clearly within the province of .this court to issue its mandate directing the proceeding to be terminated.

The order appealed from should be reversed, and the. absolute writ of prohibition should issue.

Hirschberg, P. J., Jenks, Hooker and Miller, JJ., concurred.

• Order reversed, with ten dollars costs and disbursements, and motion for writ of prohibition granted.  