
    The People of the State of New York ex rel. May Wilson, Respondent, v. The Warden of the City Prison of the City of New York, Defendant. The People of the State of New York, Appellant.
    First Department,
    January 10, 1908.
    Crime — arrest for felony—warrant—jurisdiction of magistrate — sufficiency of deposition—misstatement of sex in order, fixing bail-release on habeas corpus denied. :
    A larceny from the person is grand- larceny and á felony, and the offender may be . lawfully arrested with or without a -warranti " .
    One held for such crime under a commitment in due-form issued by a city magistrate upon- a sufficient deposition by a complaining, witness will not be reléased on' habeas corpus merely because it does not. appear how the relator was • ' • ¿ brought before the-magistrate.
    Neither will á woman held for such crime he released because the order fixing the • amount of hail used-the pronoun “.he” instead of she.”
    
      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 pocketbook from his pocket and carried the same away, and that the book contained two dollars in money, checks, papers, etc., is sufficient'to give a city magistrate jurisdiction to'hold the relator to answer - for the crime and to issue a commitment. -
    Appeal by the People of the State of New York from an order of the Supreme Court, made at the New York" Special Term, and entered in the office of the clerk of the county of New York on the 18tli day of October, 1907, sustaining a writ of habeas corpus 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 'Sessiohs. 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 aüd'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 relatór, in the night time, upon -a public-street in the borough of Manhattan, New York, feloniously took his pocket book from the left-hand hip pocket df his trousers-and harried tile-same away, and that the pocket'book was of the value of two dollars, and contained checks, papers áüd cards. The record also shows that the relator was .duly examined, j *'Zeiore the magistrate on this charge and duly informed that she was at "’liberty to waive making .a statement:and that she voluntarily sub- ■ mitted 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 appear- • ing in'the testimony against yóu, 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 tile magistrate jurisdiction to hold .the relator, for it showed that he was attacked on a public street within-the' territorial jurisdiction of the magistráte by the relator and .another, woman, and that the relator took ’. from liis pocket the pocket book and carried it away. It is difim cult 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- eorhmitted and that there was reasonable -cause .to believe, both defendants guilty thereof, in the order fixing -the'amount of bail in t wo instances the pronon'n-“,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 liad been committed and that there was sufficient cause to believe that the ’ defendants had - com- • mitted 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 aré 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.  