
    In the Matter of the Writ of Habeas Corpus for Harris Blum.
    
      (Supreme Court, Kings County Oyer and Terminer,
    
    
      Filed September, 1894.)
    
    1. Criminal law—Warrant.
    A police officer, or any other person, may not cause the arrest of any one on a mere allegation of information and belief.
    2. Same.
    The commission of a crime must be shown by facts positively stated, before a magistrate has jurisdiction to issue a warrant of arrest.
    3. Same—Waiver.
    But where a person, in such case, has demanded and stood trial without objection, he cannot be heard, after conviction, to claim that the court had no jurisdiction of his person.
    
      William Wills, for the petitioner; John F. Clarice, Assistant District-Attorney, for the people.
   Gaynor, J.

The petitioner was convicted by a police court, or court of special sessions of Brooklyn, for selling a ticket or chance in a lottery, which is made a misdemeanor by § 826 of the Penal Code. He now sues out the writ of habeas corpus and asks for his discharge from the judgment of conviction on the ground that the court never had jurisdiction of his person, and therefore had no power to render judgment against him. If the claim of want of jurisdiction were true, the petitioner would have to be discharged. The written complaint against the defendant was by a police officer. It charges the defendant with selling a lottery ticket on a specified day, but concludes as follows: “ Deponent further says that he makes this complaint upon information and belief as a police officer of the city of Brooklyn.” A police officer, or any other person, may not cause the arrest of any one on a mere allegation of information and belief. Human liberty never was so cheap as that under our law, or the system from which we derived the main body of our law. The commission of a crime must be shown by facts positively stated before a magistrate has jurisdiction to issue a warrant of arrest. This is guaranteed by the bill of rights (R. S., part 1, chap. 4, § 11), which provides that “ the right of the people to be secure in their persons and effects against unreasonable searches and seizures ought not to be violated, and no warrants can issue but upon probable cause supported by oatli or affirmation.” No one who knows the history of this guarantee to individual liberty, and the struggles of the people for it against despotic power, and out of which it came, can see it infringed without a feeling of resentment. It is important that crime should be punished, but far more important that arbitrary power should not be tolerated. The “oath or affirmation” required is of facts. The claim on the argument that this complaint gave the magistrate no jurisdiction to issue the warrant, and-that he is liable to an action for damages by the defendant for having done so and caused his arrest, is true. Blodgett v. Race, 18 Hun, 132 ; Comfort v. Fulton, 39 Barb. 56. But while the arrest of the defendant was a trespass, for which the magistrate and all concerned in it are liable in damages, I am of opinion that though the magistrate had no jurisdiction to issue the warrant, the defendant afterwards, by his own act, conferred jurisdiction over his person upon the court of special sessions. When arraigned before the magistrate he did not object that he was illegally arrested and that the magistrate had no jurisdiction, nor did he afterwards make such a claim. He not only failed to do so, but he recognized the complaint, pleaded not guilty, demanded trial by a court of special sessions, and stood trial without claiming, at any time, any lack of jurisdiction in the court. Having demanded and stood trial without objection he cannot be heard after conviction to claim that the court had no jurisdiction of his person. Crocker on Sheriffs, 3d ed., p. 42. I do not deem the case The People ex rel. Kingsley v. Pratt, 22 Hun, 300, in point. That was the case of the summary statuary conviction by a magistrate of one coming under the statute for the disposition of disorderly persons, and the decision may not be extended beyond such cases. The distinction in respect of jurisdiction between the exercise of special summary powers vested in judicial officers or in courts, and the regular proceedings within their ordinary jurisdiction, is well understood. Nor is the case The People ex rel. Lotz v. Norton, 58 St. Rep. 736, in point. There no offense was stated in the complaint or proved. That the court of special sessions in the case at bar had jurisdiction of the offense itself is not disputed. The writ is dismissed.  