
    SUPREME COURT—APP. DIVISION—FIRST DEPARTMENT,
    Jan. 10, 1908.
    THE PEOPLE ex rel. MAY WILSON v. WARDEN CITY PRISON.
    (123 App. Div. 288.)
    (1) . Larceny—Arrest—Warrant.
    A larceny from the person is grand larceny and a felony, and the offender may be lawfully arrested with or without a warrant.
    (2) . Same.
    One held for larceny from the person under a commitment in due form issued by a city magistrate upon a sufficient deposition by a complaining witness will not be released on habeas corpus merely because it does not appear how the relator was brought before the magistrate.
    (3) . Same—Misstatement of Sex in Order Fixings Bail.
    Neither will a woman held for such a crime be released because the order fixing the amount of bail used the pronoun “ he ” instead of “ she.”
    (4). Same.
    A deposition by a complaining witness in. due form charging that the relator in the night time on a public street in the borough of Manhattan, New York, feloniously took his pocket book from his pocket and carried the same away, and described its contents, is sufficient to give a city magistrate jurisdiction to hold relator to answer and to issue a commitment.
    Appeal by the People of the State of Yew York from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 18th day of October, 1907, sustaining a writ of habeas corjms and discharging the relator from custody.
    
      
      Robert S. Johnstone, Deputy Assistant District Attorney, for the appellant.
   Laughlin, J.:

The warden of the city prison held the relator under a commitment duly issued by one of the city magistrates in due form, charging her upon the oath of one Walter B. Hatch with having committed the crime of larceny from the person, which is grand larceny and a felony; and he was commanded by the commitment to hold her to answer to the Court of General Sessions. The commitment was annexed to the return. The relator then traversed the return by presenting the record of the proceedings before the city magistrate. This record does not show how the relator came to be taken before the magistrate, but that is immaterial for she might have been lawfully arrested either with or without a warrant and as she was before the magistrate and raised no question with respect to her arrest he had jurisdiction to examine the charge. (Code Crim. Proc. §§ 168, 177, 188;. People ex rel. Farley v. Crane, 94 App. Div. 397.)

The record shows that the complaining witness made a deposition in due form before the magistrate on the day on which the relator was arraigned, specifically charging that the relator, in the night time, upon a public street in the borough of Manhattan,. Hew York, feloniously took his pocket book from the left-hand hip pocket of his trousers and carried the same away, and that the pocket book was of the value of two dollars, and contained checks, papers and cards. The record also shows that the relator was duly examined before the magistrate on this charge and duly informed that she was at liberty to waive making a statement and that she voluntarily submitted to an examination and gave her name, age, place of birth, residence and business, and that in answer to the question, “ Give any explanation you may think proper of the circumstances appearing in the testimony against you, and state any facts which you think will tend to your exculpation,” she said only, “ I am not guilty.” The deposition of the complaining witness clearly gave the magistrate jurisdiction to hold the relator, for it showed that he was attacked on a public street within the territorial jurisdiction of the magistrate hy the relator and another woman, and that the relator took from his pocket the pocket book and carried it away. It is difficult to understand upon what theory the writ of habeas corpus was sustained, unless it be that it did not appear how the relator came to be before the magistrate, which, as has been seen, was not required, or upon the technical ground that in the record of the proceedings before the magistrate, after the recital that it appeared to the magistrate by the depositions that the crime had been committed and that there was reasonable cause to believe both defendants guilty thereof, in the order fixing the amount of bail in two instances the pronoun he ” instead of the pronoun “ she ” is used. This manifestly did not affect the jurisdiction of the magistrate which had been duly exercised in previously deciding that the evidence was sufficient to satisfy him that the crime had been committed and that there was sufficient cause to believe that the defendants had committed it, and to issue the commitment thereon. We are of opinion, therefore, that the magistrate had jurisdiction and that the deposition of the complaining witness was sufficient to warrant him in holding the relator to answer for the crime and to issue the commitment to that end.

Judges and courts are required, through the instrumentality of the writ of habeas corpus, to discharge from custody any person, held without due process of law; but great care should be exercised in discharging this duty to the end that those who are in custody by due process of law shall not be discharged and thus enabled to escape the punishment which the law has prescribed for the crime with which they are duly charged. There has been no appearance for the relator on the appeal and it may now be difficult or impossible to apprehend her again.

It follows that the order should be reversed and the writ of habeas corpus should be dismissed.

Patterson, P. J., Ingraham, Clarke and Scott, JJ., concurred.

Order reversed and writ dismissed. Settle order on notice.  