
    The People of the State of New York ex rel. Sadie Wilson, Appellant, v. The Warden of the City Prison, Respondent.
    Second Department,
    May 29, 1912.
    Habeas corpus — commitment for keeping disorderly house — commitment on unverified affidavit.
    In a proceeding for a writ of habeas corpus the court may 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 unless there is some evidence to sustidn.it, the warrant is a nullity,- ' and the defendant is entitled to his discharge.
    Where it appears that the relator is held under a commitment issued by a city magistrate upon the charge of keeping a disorderly house; that no facts establishing the crime were stated in the information, and that no affidavit accompanied the information,, although there was an unverified paper annexed thereto, but sworn to tro days after the issue of the warrant, the commitment of the magistrate is invalid and the writ should be granted.
    Appeal by the relator, Sadie Wilson, from, an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of March, 1912, dismissing a writ of habeas corpus and remanding the relator to custody.
    
      W. A. Fischer, for the appellant.
    
      Hersey Egginton, Assistant District Attorney [James C. Cropsey, District Attorney, with him on the brief], for the respondent.
   Hirschberg, 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 the charge of keeping a disorderly house in said borough on the 27th day of February, 1912. 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 seems 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 on oath the informant and any witnesses produced, and must take depositions subscribed by them setting forth the facts tending to establish the commisison 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. Ho 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. Ho affidavit, however, accompanies the information. There is a 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 1th 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; 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) it was held that a person, arrested under a warrant 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 warrant 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.

Jenks, P. J., Thomas, Carr and Woodward, JJ., concurred.

Order reversed, writ sustained, and relator discharged.  