
    GORSLINE’S CASE.
    
      Supreme Court, First District ;
    
      At Chambers, April, 1860.
    Criminal Law.—Habeas Corpus.—Bail.
    One who is arrested in one county under a bench-warrant duly issued on an indictment in another county, cannot be let to bail in the former county; he must first be carried to the county whence the warrant issued.
    It is only a prisoner who has been committed that can be bailed on habeas corpus, under 2 Revised Statutes, 668, § 43. One who is merely held under arrest to be carried to the county where he is to be committed, cannot be so let to bail.
    Habeas corpus.
   Bonney, J.

—James M. Górsline is brought before me on habeas corpus, with a return, showing that he had been arrested and is detained under a bench-warrant, dated 24th March, 1860, issued by the county judge of Fulton county, by which the officer is commanded to take this party, indicted in Fulton county Court of Sessions, for obtaining goods under false pretences, and bring him before said court, at the court-house in said county, if in session; and if not in session, to deliver him to the keeper of Fulton county jail, to be kept until discharged by due course of law. The warrant is duly indorsed by one of the police-justices of the city of New York.

It is conceded that this warrant is in due form and regularly issued; but the counsel for the prisoner moves that he be discharged on bail, which he proposes to give in such amount as shall be required; and I am called upon to decide as to the power of a justice of the Supreme Court, in this city, to let this party to bail, after his arrest under said bench-warrant, and before he has been taken to Fulton county.

The Revised Statutes, in relation to this question, provide as follows (2 Rev. Stat., 677, § 63; Laws of 1851, ch. 144; same statutes, 3 Rev. Stat., 5th ed., 956, § 55): That the punishment for the offence of obtaining goods by false pretences shall be imprisonment in a state-prison not exceeding three years, or in a county jail not exceeding one year, or fine, or both such fine and imprisonment. (2 Rev. Stat., 728, § 55; Laws of 1847, ch. 338; Laws of 1830, ch. 300, § 62; same statutes, 3 Rev Stat., 5th ed., 1020, §§ 57, 58.) That a warrant for the arrest of any defendant indicted, may be issued by the court to which such indictment shall be presented, or any judge of the county courts in that county, &c., directed to the sheriff and constables of any county in this State, and when served in any county other than that in which the indictment shall have been found, the same proceedings shall be had as on an indorsed warrant issued before the indictment, as subscribed by statute. (2 Rev. Stat., 707, §§ 4 and 5 ; same statutes, 5th ed., Vol. III., 993.) That if the person against whom such warrant before indictment is issued, shall escape, or be in any other county, it shall be the duty of certain magistrates referred to (including justices of the police courts in New York), within the county where such offender shall be, on proof of the handwriting of the officer subscribing the warrant, to indorse his name on the same, and thereupon the person bringing the warrant, or any other officer to whom it may have been directed, may arrest the offender in the county where the warrant was indorsed. (2 Rev. Stat., 708, §§ 11 and 12; Laws of 1845, ch. 180, § 26; Laws of 1847, ch. 455, § 13 ; same statutes, 3 Rev. Stat., 5th ed., 994, §§ 11, 12.) That if the offence charged in the warrant be punishable with death, or with imprisonment in a state-prison, the officer making the arrest shall convey the prisoner to the county where the warrant was originally issued, before some magistrate thereof, as in the statute prescribed; and that persons arrested under any warrant issued for any offence, shall, where no provision is otherwise made, be brought before the magistrate who issued the warrant; or, if he be absent, or his office be vacant, before the nearest magistrate in the same county, and the warrant, with a proper return, shall be delivered to such magistrate.

By these statutes, the officer who arrested Gorsline is clearly authorized and required to take him to Fulton county; and no justice of the Supreme Court, or other magistrate or officer out of that county, has authority, in my opinion, to take bail for his appearance, and discharge him from custody. The case of Clark a. Cleveland (6 Hill, 344), is authority for this decision.

It is urged, however, that under the habeas corpus act (2 Rev. Stat., 568, § 43; same statute, 5th ed., Vol. III., 883, § 58), this prisoner should now be let to bail. That section provides for a case where the party has leen committed-. Gorsline has not yet been committed, but is held under arrest by virtue of process, which requires that he be taken to Fulton County, where he may be committed, let to bail, or discharged according to law.

The writ of habeas corpus is discharged, and the prisoner remanded to the custody of the officer holding the bench-warrant.  