
    The People ex rel. Donald L. Persch, Relator, v. William Flynn, as Warden of the City Prison, Respondent.
    (Supreme Court, New York Special Term,
    August, 1909.)
    Arrest on criminal charge: Preliminary complaint, information or affidavit: Examination and commitment for trial — Commitment for further examination — When authorized.
    An affidavit of a police officer, that he has arrested an accused person on suspicion of having committed a crime “ as deponent verily believes from the fact that defendant is charged by one J. that defendant bad ” committed the crime, is insufficient to authorize the issuance of a warrant for the arrest of the person charged, or to allow his commitment for further examination after he has been arrested.
    To hold an accused person for further examination there must be an information filed sufficient to give the magistrate jurisdiction to make the examination.
    Hearing on writ of habeas corpus,
    
      Karlin & Busch, for relator.
    William T. Jerome, District Attorney, for respondent.
   Lehman, J.

The relator has been held in $-5 0,000 bail for further examination upon an affidavit of a police officer stating that he arrested the relator on suspicion of having committed the crime of grand larceny, as deponent verily believes, from the fact that defendant is charged by one M. M. Joyce that defendant had taken, stolen, and carried away securities of the value of $110,000.” It was conceded on the argument, and upon the authority of numerous cases it can hardly be disputed, that such an affidavit is insufficient to authorize the issuance of a warrant or to hold the accused to answer the complaint; but it is claimed that, where the relator was not 'arrested under a warrant, such an affidavit is sufficient to allow his commitment for further examination, especially where he has consented to an adjournment. In the case of People ex rel. Farley v. Crane, 94 App. Div. 397, the relator was held upon a similar affidavit for further examination, and upon oral proof he was held to answer the complaint. The Appellate Division, upon an appeal from the order dismissing the writ, said (94 App. Div. 400) : “ * * * "if the defendant is to be committed pending an adjournment of the examination, or to. await trial or the action of the grand jury, there must exist as a basis for such commitment a deposition or other evidence, not oral, and depending upon the recollection of the magistrate, but in writing, and tending to show that the prisoner has committed the crime. Section 192 of the Code of Criminal Procedure authorizes the commitment of a defendant for examination upon his failure to give bail or where the offense is not bailable. If, as is to be inferred from the return of the magistrate, the practice of committing defendants pending examination without the presentation of proper information in the, form of a deposition prevails, it is unauthorized, and should he discontinued(Italics are mine.) Ppon this decision I ám constrained to sustain the writ. In making this decision I do not decide that a magistrate may not hold for further examination an accused person, even though it has not yet appeared upon examination hy satisfactory evidence that a crime has been committed and that there is sufficient cause to believe the defendant guilty thereof; but there must at least be an information filed sufficient to give the magistrate jurisdiction to make the examination. People ex rel. Livingston v. Wyatt, 186 N. Y. 383. Since the magistrate in this ease has never obtained jurisdiction, no waiver of the defendant can make the commitment valid.

Relator discharged.  