
    SUPREME COURT—APP.DIVISION—SECOND DEPT.,
    May 29, 1912.
    PEOPLE ex rel. SADIE WILSON v. WARDEN OF THE CITY PRISON.
    (135 N. Y. Supp. 841; 151 App. Div. 108.)
    (1) Preliminary proceedings—Information.
    
    Where a police officer, by an information duly signed and sworn, charged the relator under a fictitious name and in general terms with keeping a disorderly house, without setting forth any facts save that the information was based upon facts set out in an affidavit accompanying the information, and no such affidavit did in fact accompany it, although a paper was thereto annexed to which the informant’s signature was affixed, but which was unverified, although it purported to have been sworn to two days subsequent to the presentation of the information and the issuance thereupon of the warrant, held, that the facts could not be regarded as having been attested to under oath, and therefore there was no jurisdiction in the magistrate to order the arrest and commitment of the relator.
    (2) Habeas cokptjs—When available.
    A defendant upon being arrested upon a magistrate’s warrant, may immediately resort to the writ of habeas corpus, and is not required to await the holding of an examination.
    (3) Same—What mat be reviewed on beturn.
    
    The appellate tribunal may go back of the warrant, in order to determine whether the facts stated in the depositions of the complainant and the witnesses depended upon by him, confer jurisdiction upon the issuing magistrate.
    Appeal from 'Special Term, Kings county.
    Habeas corpus by the People of the State of New York, on the relation of Sadie Wilson, against the Warden of the City Prison. Prom an order of the Supreme ¡Court dismissing the writ and remanding the relator to the custody of the respondent, relator appeals. Reversed, writ sustained, and relator discharged.
    Argued 'before Peeks, P. J., and Hiesohbebg, Thomas, Cabe and Woodward, PJ.
    W. A. Fischer, of Brooklyn, for appellant.
    
      Kersey Egginton, 'Asst. Dist. Atty., of Brooklyn (James G. Groysey, Dist. Atty., of Brooklyn, on the brief), for the respondent.
    
      
       See Note on Preliminary Proceedings, Vol. 27, p. 293.
    
    
      
       See Note on Sufficiency of Information, Vol. II, p. 376.
    
    
      
       See Note on Habeas Corpus, Vol. 15, p. 152; Vol. 23, p. 55.
    
   Hibsobcbebg, J.:

The relator is held in custody in the city prison in the borough of Brooklyn, under a commitment issued by one of the city magistrates, directing .that she be held, to answer to the Court of Special Sessions upon a charge of keeping a disorderly house in said borough on the 27th day of February, 1942. ¡She sued out a writ of habeas corpus, and on its return the respondent justified her detention by the committal proceedings, the return of which was traversed by her on the ground that the commission of the crime charged against her was not legally established thereby and that the magistrate accordingly was without jurisdiction to hold her. On the hearing on the return of the writ, the learned ¡Special Term granted the order appealed from, which dismisses the proceedings, quashes the writ of habeas corpus, and remands the relator to the prison to await trial.

■It seem® to me that the commitment by the magistrate was clearly invalid, and that he was without jurisdiction on the papers as presented. By sections 148 and 149 of the Code of 'Criminal Procedure, it is provided, in substance, that, when an information is laid before a magistrate of the commission of a crime, ¡he must examine the informant and any witnesses produced, on oath, and must take depositions subscribed by them setting forth the facts .tending to establish the commission of the crime. The informant in the case at bar was a police officer, and he presented to the magistrate an information duly signed and sworn to on the 5 th day of March, 1912, .charging the relator, under the name of Jane Doe, in general terms, with the commission of the offense of keeping a disorderly house. No facts 'are stated in the information; the allegation in relation to the facts in the -case being stated therein as follows:

“ Deponent further states that he makes this, complaint based upon the facts set forth in the accompanying affidavit which is hereto annexed and made -part of this complaint.”

The warrant for the apprehension of the relator was issued on March 5, 1912, and was dated that day, and by virtue of it she was .arrested and committed as hereinbefore stated. No affidavit, however, accompanies the information. There is & paper apparently .annexed thereto, signed by the police officer who made the complaint. It is not verified, but purports to have been sworn to on the 7th day of March, 1912, two days after the presentation of the information and the issue of the warrant. The jurat is unsigned. There is no statement or explanation of the time when the paper was signed other than its date affords, and it must be presumed that it was signed on the day it bears date. Jackson v. Hill, 5 Wend. 532, and Robinson v. Wheeler, 25 N. Y. 252, 260.

'Assuming that the paper sets forth facts sufficient to justify the inference of the existence of the .crime charged, such facts cannot be regarded in the circumstances as being attested under oath, nor can the paper itself be regarded as a legal deposition, and the relator is therefore entitled to resort for her protection to the writ of habeas corpus.

In People ex rel. Perkins v. Moss, 187 N. Y. 410, 80 N. E. 383, 11 L. R. A. (N. S.) 528, it was held that a person, arrested under a warant issued by a magistrate and charging the commission of a crime, is not obliged to await an examination, but may resort at once for his protection to a writ of habeas corpus.

It was further held in that case that upon such a proceeding the court would look back of the warrant to see if the facts stated in the depositions of the prosecutor and his witnesses conferred jurisdiction upon the magistrate to issue it, and that, unless there was some evidence to sustain it, .the warant is a nullity and the defendant is entitled to his discharge.

There being no legal evidence in the case at bar of the commission of a crime by the relator, it follows that the order appealed from should be reversed, the writ of habeas corpus sustained, and the relator discharged from custody. All concur.  