
    SUPREME COURT—AT CHAMBERS.
    February, 1851.
    Before Edmonds, Justice.
    The People v. Ray Tompkins.
    When a prisoner is brought up on a writ of habeas corpus, who is in custody on a warrant of commitment by the examining magistrate, it is proper to go behind the warrant and examine the grounds on which the warrant issued.
    The complaint and testimony before the magistrate may be brought up by writ of certiorari.
    A promise to do a thing is not a false representation constituting the offense of obtaining goods, etc., under false pretences.
    The defendant was brought up on habeas corpus, and on the return of the writ it appeared that he was in custody on a warrant, issued by a police magistrate, charging him "with having defrauded one Benjamin Kathan out of certain stocks in an incorporated company.
    The defendant put in an answer to the return, denying that there was any complaint or any testimony before the committing magistrate.
    Whereupon a certiorari was issued, commanding him to make a return of the process and proceedings before him, to which a return was made, setting forth the complaint and all the testimony taken before him.
    The case, on such return, was argued by—
    
      N. B. Blimt, and W. 0. Noyes, for the people.
    
      Ogden Hoffmom, a/nd John, Yam, Burén, for the defendant.
   Edmonds, J.,

delivered the following opinion:

It "was strenuously urged on the argument of this case, on the part of the public prosecutor, that, on habeas corpus, the court or officer had no right to go behind the warrant on which the prisoner was detained, and inquire, from facts out of the return, into the legality of the imprisonment.

The effect of this principle would be that the warrant of a committing magistrate, when legal upon its face, would be conclusive upon the prisoner, and he could have no relief from imprisonment, even if no charge whatever had in fact been preferred against him.

The proposition was of so grave a character, and was fraught with consequences so palpably mischievous, and was, withal, asserted with so much zeal, and apparently with the support of authorities,, that I have examined the subject very carefully, and rejoice to find there is no authority to shake what I have always supposed was the law on this subject.

The most prominent authority cited in support of the proposition is note 30 to the appendix in 3 Hill, 659, where it is broadly laid down that under an act of 1818, and under our present habeas corpus law (2 E. S. 571), if the object be to impeach the warrant as irregular, or as founded on an irregular or erroneous judgment, decree or conviction, you can no more inquire of such things, collaterally by habeas corpus, than by action or indictment, and that our statute was not intended as an authority to inquire into the validity of writs, warrants, or other process, further than to ascertain whether they will protect the party suing them out, or the officer serving or executing them.

So far as this relates to “judgments, decrees, and convictions,” it is unquestionably correct, for they cannot be inquired into collaterally, but so far as it relates to writs, warrants, and other processes before final judgment, it is far from being correct, and is unsupported by any authority except a dissenting opinion of one of the. judges in the matter of Prime, etc. (1 Barb. Sup. Ct. R. 349).

Three cases are cited, in the note in question, in support of the proposition in its broadest form. The first is the case of The Sheriff of Middlesex (1 Ad. & Ellis, 278). In that case the court held that it did not come under the 56 George III, which is our statute, under which the proceeding is now before me; and the main question was, whether a process of contempt was good which omitted to state the particulars of the contempt.

The position which it is cited to support was not raised in the case at all, nor, indeed, could it be, for the process was final, in execution of a final judgment of contempt. 'The next case is The People v. Nevins (1 Hill, 154). That, also, was a final process of contempt, and the question now before me was not raised, nor even alluded to, in the whole case.

The matter of Clark (9 Wend. 202) is the remaining one cited in the note. That was an extradition case of a fugitive from justice, under the Constitution of the United States, and the court said that the question before it was, under the Constitution, not one of the guilt or innocence of the accused, but whether he was properly charged, so as to warrant the Governor in surrendering him.

It will be very readily perceived that none of these cases support the principle contended for.

The district-attorney, however, cited other cases in support of his proposition. Among them, Bennac v. The People (4 Barb. 31). That, again, was a case of final process in execution of a summary conviction, and the counsel for the prisoner did not traverse the return. So that, at first blush, it is manifest that it does not touch the question before me.

Another case is The People v. Cassells (5 Hill, 168), which was also a commitment for contempt; and the court held'that the prisoner had an undoubted right to show that the committing magistrate acted without authority, and that this was so, notwithstanding the commitment recited the existence of the necessary facts to give jurisdiction. And they add, what is alike good sense and good law, “No court or officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the existence of facts on which jurisdiction depends.”

The case of McLeod (1 Hill, 377) is the only remaining one cited for the prosecution. There the question was whether the court, on habeas corpus, would go behind an indictment to examine the question of guilt or innocence; and the court, in refusing to do so, expressly admit the propriety,.in case of a commitment on a coroner’s inquest, to look into the depositions, and say that it was not necessary to inquire how far they might go were the prisoner in custody on the mere examination or warrant of a committing magistrate.

. These are all the cases which I can find, or to which I have been referred in support of the doctrine contended for in behalf of the prosecution. They do none of them sustain it, and it is well they do not, for the habeas corpus would be a mockery, whenever a magistrate might please to make it the instrument of oppression and false imprisonment, formal and regular on its. face; and .personal liberty would be at the mercy of ignorance or design, beyond any thing yet known to our laws, careless, as they too frequently are, of freedom in the detail, amid its abundance in gross.

I have always understood that it was the intention to give to'a party committed for crime, by an examining magistrate, an appeal, from his commitment, to the higher judges, by virtue of the writ of habeas corpus, and such has uniformly been my practice.

The practice is abundantly sanctioned by authority and statute.

Thus, in the very notes in 3 Hill, which are so much relied on, it is laid down that on a commitment by final process, upon a summary conviction, the record of the conviction may be examined; and if it be void, the prisoner will be discharged. (Note 38, p. 665.) So where the arrest was without the territorial jurisdiction of the court; so where the prisoner was carried before a remote justice, when there was one nearer before whom he ought to have been carried (id. note 39); so where, in a criminal case, the warrant is void, the original deposition will be looked into to see whether an offense has been committed, so that the prisoner may be remanded or held to bail. (Id. note 40.)

In case the commitment bo for felony, the prisoner may, if brought up before indictment, insist that the depositions be looked into as a part of the documentary authority on which the commitment was founded. For this purpose copies may be brought up by certiorari. (Id. note 43.) And in note 45, it is said the accused who appeals by habeas corpus must, at his peril, show that he has been committed on insufficient evidence ; and where the charge appears to be wholly groundless, and without suspicion, the prisoner may be discharged.

For this the writer cites 1 Chitty Cr. Law, 128, where it is said, that if the court ascertain that there is no pretence for imputing to the prisoner any indictable offense, they will discharge him. And Pullman and Swa/rtouSs case (4 Cranch, 125), where the United States Supreme Court, Chief Justice Marshall, delivering the opinion, quotes this passage from Chitty as that of a very learned and accurate commentator, and where the prisoners were discharged on habeas corpus.

In Ex parte Taylor (5 Cowen, 51) the Supreme Court say, that in all cases on habeas corpus, previous to indictment, the court will look into the depositions before the magistrate, or before the coroner’s inquest, and though the commitment be full and in due form, yet if the testimony proves no crime, the court will discharge.

In the matter of Prime (1 Barb. 349), the court looked beyond the warrants, and into the affidavits, to see that the judge had colorable jurisdiction.

In Ex parte Watkins (3 Peters, 202), Oh. J. Marshall described the writ of habeas corpus as in the nature of a writ of error which brings up the body of the prisoner with the cause of commitment, and he adds: The court can undoubtedly inquire into the sufficiency of that cause.

And Chancellor Kent, in his Commentaries (vol. 2, pp. 28 and 31), says that the act of 1818, which is now incorporated into the Revised Statutes, gave to the-officer before whom the writ of habeas corpus was returned, authority to revise the cause of commitment, and to examine into the truth of the facts alleged in the return; and the officer may examine into the merits of the commitment and hear the allegations and proofs arising thereon in a summary way, and dispose of the party as justice may require.

The language of the statute is equally explicit. Section 38 enacts that the court or officer before whom the party shall be brought on'such writ of habeas corpus, shall immediately after the return thereof proceed to examine into the facts contained in such return, and into the cause of confinement or restraint of such party, whether the same shall have been upon commitment for any criminal or supposed criminal matter or not.

Section 43 enacts: If it appear that the party has been legally committed for any criminal offense, or if he appear, by the testimony offered with the return, or upon the hearing thereof, to be guilty, etc., he shall-be remanded. And by section 48, it is enacted that the prisoner may deny the facts in the return, or assign any fact to show his imprisonment unlawful ; and thereupon the officer shall proceed to hear the proofs and allegations produced on either side, and dispose of the party as the justice of the case may require.

It is under this array of authority, settling clearly and at once my power and my duty, that I approach the main question involved in these proceedings.

And here two things are apparent; first, that the act imputed to the defendant is not a crime; second, that it is not proved.

The offense charged is, that on the 29th day of January, 1851, Bay Tompkins did designedly, and by means of false pretences, cheat and defraud Benjamin Nathan out of .one hundred shares of the stock of the Farmers’ Loan and Trust Company, of the value of $3,000 and more.”

From the depositions it appears that on the 28th January, 1851, Nathan agreed to sell Tompkins one hundred shares of that company, deliverable and payable the next day. On the next day, before transferring the stock, Nathan sent for a check, and received for answer that Tompkins had sent his check to be certified, and would send it to Nathan in ten or fifteen minutes; and, relying upon this promise, Nathan thereupon transferred the stock to Tompkins. Tompkins never asked to have it transferred to him; but the usual time for transferring having arrived, Nathan, without any request from Tompkins, transferred it. A previous transaction between these parties had been conducted in the same manner, Nathan having transferred the stock on that occasion, and afterward received Tompkins’ certified check.

Upon this state of things it is perfectly apparent that Nathan’s reliance was upon the promise that a check would be sent in ten dr fifteen minutes, and not solely upon the fact that Tompkins had sent his check to be certified. And nothing can be better settled than the rule that such a promise is not a false pretence under the statute.

To constitute the crime under the statute, two things are essential—a false representation as to an existing fact, and a reliance upon that representation as true. Both these ingredients are wanting in this case, for the reliance evidently was mainly upon the promise to send the check.- This in no respect constitutes the crime.

The only representation of an existing fact that there is to be found is that in respect to Tompkins’ having sent his check to be certified. His having done so would be of no possible value to Nathan unless it had been followed up by being sent to Nathan, and it is apparent that Nathan’s reliance was upon Tompkins’ credit and his promise to send him his check, and not upon the fact that he had sent it to be certified — a fact which, alone, could be of no value to Nathan, and upon which, alone, or even chiefly, it is manifest that Nathan did not rely.

The best test is to suppose the case should go on to trial. The question to be submitted would be, whether Nathan transferred the stock, relying solely upon the representation that Tompkins had sent his check to be certified; necessarily excluding all idea of Tompkins’ responsibility, for there was no representation as to that; excluding the promise to send him the check, for that is no element of the crime, and excluding the idea that the check would be certified when sent for that purpose, for there was no representation that it would be.

It is idle to suppose that a conviction would be warranted, or.be allowed, upon such a state of things.

The fact that, in his cross-examination, Nathan conveys the idea that his reliance was upon Tompkins’ promise that he would send his certified check in a few minutes; the fact that the stock was voluntarily transferred on the 29th, pursuant to a previous contract, of sale, without. Tompkins ever having requested it to be transferred, and -the fact that it was in Tompkins’ presence that Nathan transferred the stock, and without a word passing between them, would be entirely controlling on the subject.

But-even if it were otherwise; even if it could be found that Nathan’s reliance had been upon the representation that Tompkins had sent his check to be certified, there is no evidence that such was an untrue allegation. It appears that the check was made out, but it no where appears that it had not been sent to be certified, and the falsity of the pretence is not established, nor even attempted to be. And, for aught that appears, it may be perfectly true that Tompkins had sent his check to be certified; and if it may, then there is no foundation whatever for the criminal charge on which the defendant is arrested.

I have thus far confined my attention to the charge against the defendant named in the warrant, and though I do not find in the depositions sufficient evidence to support that charge, it is still my duty, under the statute, to inquire whether the depositions show him 'guilty of any criminal offense.

The examinations before the magistrate took a very wide range, inquiring into all the transactions of the defendant on the day of his failure, and, on the argument, considerations were urged in reference to the moral propriety of his conduct on that occasion. With the latter topic I have nothing to do. I am not authorized to inquire whether his conduct squared with strict morals or a high sense of commercial honor. I am to inquire merely whether a legal crime has been committed, and whether there is probable cause to suspect the defendant to have been guilty of it. Hone of the counsel for the prosecution suggested that the depositions showed the -commission of any other crime than that of obtaining the stock from Hathan by false pretences. Hor, upon looking into the depositions, do I find any other charged.

The defendant’s failure seems to have come upon him suddenly and unexpectedly. His transactions on the day of his failure do not seem to have been out of the ordinary course of his business, nor upon a larger scale than usual. All the money received that day, as well as several thousand dollars of a balance remaining in bank, except twenty-five dollars, he appropriated to the payment of debts, which seem to have been justly owing by him, and which, at all events, are not in these proceedings impeached. In such appropriation, he preferred some debts over others. Whether it was lawful and proper for him to make such preferences, is not a question now before me. All that I have to do is to ascertain whether it was legally criminal for him to do so. It clearly is not, and as that is the only offense imputed to the defendant, besides that growing out of the transaction with Hathan, there is no legal warrant for holding him in custody, and he must be discharged; and he is accordingly discharged.  