
    
      July, 1886.
    PEOPLE v. NAVAGH and MILNE. PEOPLE ex rel. NAVAGH and MILNE v. FRINK and McNAUGHT.
    Warrant under Code of Civil Procedure, § 2054
    Proceedings under a warrant issued under Code of Civil Procedure, § 2054, on the ground that a person is held in unlawful confinement or custody, and that there is good reason to believe that he will be carried out of the State, or suffer irreparable injury before he can be relieved by Tiabeas corpus or certiorari, are criminal in their nature.
    Where by such a warrant an arrest is directed for a felony the magistrate issuing it has exclusive jurisdiction except in case of his absence or inability to act (Code Criminal Procedure, § 164), to examine, commit, bail or discharge the prisoner arrested under such warrant.
    In such a case the discharge of the prisoner, without notice to the district attorney, is irregular.
    
      Semble; where the arrest under such a warrant is for a misdemeanor the prisoner may be admitted to bail by a magistrate residing in the county where the arrest is made.
    Appeals from an order made December 22, 1885, by Justice Churchill, in the city of Oswego, admitting to bail John Navagh and James A. Milne, and directing their discharge from the custody of William B. Brink and Bobert McNaught, by whom they were held in virtue of a warrant issued by Justice Donohue, who resided in the city of New York, commanding Brink and McNaught, municipal police officers of the city of New York, named in said warrant, to “ arrest the said John Navagh and the said J. A. Milne, and bring them and each of them before ” the justice who issued said warrant, to be dealt with according to law. After the police officers had arrested Navagh and Milne, and had them in custody in virtue of the warrant, Justice Churchill of the Supreme Court, residing in and being in the city of Oswego, where the arrest was made, granted a writ of habeas corpus on the petition of Milne and Navagh, requiring Brink and McNaught to have ‘the bodies of John Navagh and James A. Milne ’ before the said justice at chambers in the city of Oswego, ‘ to do and receive what shall then and there be considered concerning the said John Navagh and James A. Milne, and each of them.’ ”
    The writ of habeas corpus was allowed the 22d of December, 1885. A return was made thereto by Brink and McNaught, viz.: First, that at the time such writ was served on them, the 22d of December, 1886, they had in their custody James Navagh and James A. Milne, for whose relief the writ was issued; second, that they so had said Navagh and Milne in custody under and by virtue of a writ or warrant of which a copy was thereto annexed, a copy of which was also annexed to the petition for the writ, and that they had the original ready to be produced as the court might direct
    Appended to the return was an affidavit purporting to be signed by Frink and McNaught, to the effect that the return was true. That affidavit purported to have been sworn to on the 22d day of December, 1885, although there was no signature of an officer before whom it was taken. The papers upon this appeal do not show that any question was made upon the return of the writ in respect to whether it was sworn to before an officer or not
    After the return was made, the justice of this court who issued the writ of habeas corpus indorsed upon the writ the following order, viz.: “ The within named John FTavagh and James A. Milne having been brought before me by virtue of the within writ, and the said parties having been admitted to bail for the offense charged in the sum of one thousand dollars, it is ordered that said Eavagh and Milne be and they are hereby discharged from custody. Dated Oswego, December 22,1885.” The order was signed by the justice who issued the writ of habeas corpus. From that order two appeals were taken, which were heard together—one by the district attorney of Oswego county in behalf of the people, and the other by Frink and McEhught The appeals came on to be heard, and were heard together, on the same papers, by consent of counsel The certificate of the clerk of Oswego county is to the effect that the papers furnished to the court on this appeal were copies of the warrant, application, writ, order, return, notices of appeal and indorsements thereon filed in his office.
    
      S. B. Mead, district attorney (Elbridge T. Gerry, of counsel), for appellants.
    I. Justice Churchill had no jurisdiction upon the return to the writ of habeas corpus issued by him, either to bail or discharge Eavagh and Milne. The warrant was nonbailabie except by the justice who issued it The complaint upon which the warrant was founded was before Justice Donohue and him only. Until the prisoners were brought before him to answer upon the return to that warrant, no other judge could usurp his functions by examining into the complaint or into the nature of the offense charged. All that could be done upon a habeas corpus, issued like the one in question, was to ascertain whether the warrant itself was correct in form and was duly issued. The statute under which it was issued only provides for bail, after the defendant has been taken before the court or judge issuing the warrant Code Civ. Pro. § 2057. The very nature of the warrant requires that it should be non-bailable pending its execution. It was created for cases in which there is danger that a prisoner may be carried out of the State or irreparably injured, and is granted as a means of instituting a proceeding which shall not merely secure a release of the prisoner from his present confinement, but also redress for past wrong, and protection against the future. Its issue sets in operation a legal inquiry, which was never intended to be frustrated by allowing any other justice than the one issuing it, to set at liberty the very person who is subject to the inquiry, undér the pretext of bail. In other words, the statute creates a peculiar jurisdiction, gives a peculiar remedy, directs the mode of procedure throughout, and impliedly forbids any such interference as took place in the present case, because the interference frustrated the very inquiry which it was the purpose of the statute to secure, and the object of the warrant and the arrest to make.
    II. The history of this peculiar warrant shows clearly that the intention of its originators was to create a potent remedy by substituting it for a writ of habeas corpus in certain cases; the effect being to thereby first secure the custody of the person unlawfully detained, and thus to prevent the consequences which ensue where a writ of habeas corpus is pocketed by the party upon whom it is served, and the person named therein is carried with the writ beyond the jurisdiction of the court. In the latter case the attachment for contempt, which is the only other process of enforcing the habeas corpus, is rendered entirely nugatory. The warrant was issued under sections 2054, 2055 of the Code of Civil Procedure. The entire substance of sections 2054, 2055, 2056 and 2057 of the Code of Civil Procedure is found in the Eevised Statutes, part 3, chapter 9, title 1, article 2, sections 65, 66, 67, 68. 2 R. SD. marg. p. 572. These sections are to be found in the revisers' report, as they appear in the first edition of the Eevised Statutes. The Legislature adopted them as the revisers recommended them. Revisers’ notes, part 3, chap. 9, §§ 62, 63, 64, 65. The revisers do not quote these sections from any previous statute of this State, and there are no provisions precisely corresponding to them to be found in the previous general habeas corpus acts. 1 Laws of 1813, chap. 57; Laws of 1818, chap. 277. An examination of these provisions shows a strong resemblance to the principles upon which the ancient common law writ of homine replegiando was issued. That writ was based upon the groundless imprisonment of a child or servant, involving two wrongs: first, the .right of the personal liberty of the latter, and secondly, the deprivation of the property in the child’s or servant’s services existing in the parent, guardian or master. By means of it the question of a claim to the services of any individual who was prevented from rendering service by any unlawful imprisonment might be tried distinct from the question of the right of personal liberty. 1 Fitz. Nat. Brev. 66 E.; see Abb. Law Dic., tit. De homine. The writ de homine replegiando was not abolished by the Eevised Statutes. The revisers and the' Legislature both recognize it as an existing writ by revisers’ notes, part 3, chapter 9, section 13. 2 R. S. 561, § 15. The provisions recommended by the revisers and enacted by the Legislature, included an enactment that “ every person who should remove from the State any fugitive from labor, under any pretense, after a writ of homine replegiando should have been brought and before judgment thereon should forfeit five hundred dollars to the aggrieved party. Revisers’ notes, part 3, chap. 9, § 17; 2 R. S., 562, § 19. This enactment was probably not available in a case of a child who was not a “ fugitive ” from his father’s or guardian’s service. The object of the revisers in recommending the enactment which formed sections 65, 67, 68 of 2 Eevised Statutes, and has since become sections 2054, 2055, 2056 and 2057 of the Code of Civil Procedure, may have been to preserve for other cases than those of fugi tives from service, a remedy which should accomplish the ends and principles of the writ de homine replegiando. Certainly the principles and objects of the writ have not been abrogated. The occasions for resort to it have greatly diminished, and the writ in form may have become disused; but it still remains true that lawless imprisonment of a child is an invasion of the property rights of the parent or guardian in his character of master; and it still remains necessary and proper that the courts should have some means of enforcing the restoration of the child to its freedom from the lawless imprisonment, for the sake of the owner of its services, and independent of the petition or will of the child. But whether, in framing this writ, the revisers sought to incorporate the principles of the writ de homine replegiando in the enactment in question or not, is uncertain. A further examination of the case shows that the process m question was evidently suggested to them by the substantially corresponding sections of Livingston’s Penal Code. The revisers say in a note to the article of their report, in which the suggestion of these sections is embodied: In regard to every part of this article, the revisers have derived great assistance from the Code of Civil Procedure in criminal cases, prepared for the State of Louisiana by Edward Livingston, Esq.” Revisers' notes, part 3, chap. 9, p. 6. The provisions of Livingston’s Penal Code (articles 13-16) correspond so nearly to the sections embodied in the Revised Statutes as sections 65, 66, 67, 68 of part 2, chapter 9, title 1, article 2, as to justify the opinion that the enactment in question was founded on Livingston’s suggestions. But whatever may have been the origin of the sections 2054, 2055 and 2056 of the Code of Civil Procedure, one thing is plain: they are independent of the provisions of the habeas corpus act originating in section.4 of the act of 1818, which empower the court to punish disobedience to the writ by attachment, and equally independent of the general provisions of the criminal law under which a person duly charged with kidnapping (or other felony) may be arrested therefor.
    III. The order of discharge appealed from not only ousted Justice Donohue of all inquiry into the circumstances under.. which, the child was detained, but also paralyzed his functions as a criminal magistrate in examining or holding Eavagh and Milne for their alleged criminal offense committed in the taking and detaining of the child.
    
      W. A. Poucher and Wm. Tiffany, for respondents.
   Hardest, P. J.

From the papers before us it would appear that Eugenia Meehan was alleged “ to be held in unlawful confinement and custody by one John Eavagh and one J. A. Milne, in the city of Oswego. ... of which child ” the Eew York society for the prevention of cruelty to children is the “lawful guardian, duly appointed such by the Supreme Court of this State by order thereof duly made and entered.”

It also appears that the child was under twelve years of age, to wit, three years and five months, and that Eavagh and Milne “ are not, nor is either the lawful guardian of such child or entitled to its custody, care or control, and that said child was seized and taken possession of by them on the death of its mother without any warrant or authority of law, and that they refused to deliver said child to said society.”

It also appears that Eavagh, with the counsel and assistance of Milne, unlawfully, feloniously and wilfully did seize, confine, inveigle and kidnap the said child with intent to cause her, without the authority of law, to be secretly confined within this State, and did then and there unlawfully, feloniously and wilfully lead, take, entice away and detain the said child, . . . with intent then and there to keep and conceal said child from the persons having the lawful care and control thereof, in violation of the provisions of section 211 of the Penal Code of the State of Eew York.”

And it appears also upon the papers before us that it was alleged that said child, viz.: “ Is now by the said John Eavagh and the said J. A. Milne secretly confined, kept and concealed as aforesaid in violation of the legal rights of said society as the lawful guardian of said child.”

It also appears that it was stated in the warrant so issued by a justice of this court., viz.: “ That there is good reason to believe that the said child will he earned out of the State by, or will suffer irreparable injury at the hands of the said John Eavagh and the said J. A Milne before said child can be relieved by the issuing of a habeas corpus or certiorari

It was also recited in the warrant, viz.: It satisfactorily appears to the officer issuing the warrant “ that the said child Eugenia is held in unlawful confinement and custody by the said John Eavagh and the said J. A Milne.”

According to the tenor of the warrant and the return made • to the writ of habeas corpus it would seem that the warrant was issued in pursuance of section 2054 of the Code of Civil Procedure. That section authorized the issuance of the warrant and the arrest of Eavagh and Milne. That section provides for a warrant of the character of the one now before us. It also authorized the direction of such a warrant to a “ person specially designated therein,” and commanding him to take and forthwith bring before the court or judge the prisoner, to be dealt with according to law. Proceedings under that statute are criminal in their nature. People ex rel. Society for Prevention of Cruelty to Children v. Gilmore, 26 Hun, 1; affirmed, 88 N. Y. 626.

In section 211 of the Penal Code, defining the-, crime of kidnapping, it is provided that™ a person who wilfully leads, takes, entices away or detains a child under the age of twelve years with intent to keep or conceal it from its parent, guardian or other person having lawful care or control thereof . . . is guilty of kidnapping, and is punishable by imprisonment for not more than fifteen years.

We are of opinion that the warrant before us charged a felony against Eavagh and Milne under the section from which we have quoted, and that all the facts and allegations requisite to bring the cáse within section 2054 of the Code of Civil Procedure, which authorizes a warrant, are found in the warrant under which Eavagh and Milne were arrested. It was the duty of the persons who received the warrant for execution to take the prisoners therein named before the judge issuing the warrant Code of Civ. Pro § 2056. It is provided in that section that wherever it appears that the “ person detaining the prisoner ” is thus taken before a judge in virtue of such a warrant that the person “ must make a return, in like manner and the like proceedings must be taken as if a writ of habeas corpus had been issued in the first instance.”

It is further provided by section 2057 that the person thus arrested “ is entitled to be examined, and must be committed, bailed or discharged by the court or judge as in any other criminal case of the same nature.”

We are of the opinion that it was the duly of the officer or officers receiving the warrant to carry the prisoners before the magistrate who issued it to the end that such proceedings as are authorized by the section to which we have alluded, might be had, and to the end that they might be “ examined, . . . committed, bailed or discharged by ... . the judge, as in other criminal cases of the same nature.” The grade of the crime charged in the warrant was that of felony. It was within the province of the judge who issued the warrant to deal with the prisoner’s offense named in the warrant. We think this sufficiently appears from the tenor of the sections 2054, 2055, 2056, 2057, of the Code of Civil Procedure. Section 2057 cléarly authorized the persons charged under the previous sections, which we have just quoted, to be dealt with in the same manner as “ in any other criminal case of the same nature.” As stated, the nature and grade of the offense charged was that of a felony. By section 158 of the Code of Criminal Procedure it is provided, viz.: If the crime charged in the warrant be a felony the officer making the arrest must take the defendant before the magistrate who issued the warrant, or some other magistrate in the same county, as provided in section 164.

Section 164 of the Code of Criminal Procedure seems to contemplate the taking of such prisoners before the magistrate who issued the warrant, as it provides that if the magistrate who issued the warrant “be absent or unable to act,” then in that case the prisoner is to be taken before the nearest or most accessible magistrate in. the same county. People ex rel. Sichel v. Chapman, 30 How. 202; People v. Clews, 77 N. Y. 39.

If the prisoners had been arrested for a misdemeanor it seems that it would have been competent for a magistrate residing in the county in which the arrest was made to have let the prisoners to bail People v. Chapman; People v. Clews (supra).

We are of the opinion that the magistrate who issued the warrant had exclusive jurisdiction (except in case of his absence or inability to act), and that a contraiy construction would frustrate and defeat the object and intent of the Legislature in enacting the exceptional provisions found in section 2054 of the Code of Civil Procedure.

It seems no notice was given to the attorney whose name was indorsed upon the warrant nor to the district attorney of the county where the habeas corpus was issued. Section 2038 of the Code of Civil Procedure forbids a discharge of a person on a writ of habeas corpus where he is held by virtue of a mandate, until notice of the time when, and the place where, the writ is returnable, or to which the hearing has been adjourned, is either personally served eight days previously, or given in such other manner and for such previous length of time as the court or judge prescribes—where the mandate was issued or made in a civil action or special proceeding, to the person who has an interest in continuing the imprisonment, or his attorney—and in every other case, to the district attorney of the county within which the prisoner was detained at the time when the writ was served. Inasmuch as the writ of habeas corpus in this case was not issued in a civil action or a special proceeding, but rather in a criminal action (People ex rel. v. Gilmore, 88 N. Y. 628), and as section 2057 provides that the discharge or bailing or committal shall be “ as in any other criminal case of the same nature,” it would seem that the discharge of the prisoners without notice to the district attorney of the county of Oswego, was irregular. Code Civ. Pro. %% 2038, 2057 ; People ex rel. v. Gilmore, 88 N. Y. 628.

There is nothing before us in the appeal book to show that any question was made before the justice who granted the discharge as to the genuineness of the warrant, and we think it is too late to raise the question upon this appeal, as it appears by the clerk’s certificate forming a part of the appeal papers herein, that he has compared the copy of warrant certified to us with the original on file in his office, and that copy appears to be issued by a justice of this court residing in the city of New York, clothed with all the powers given by section 2054 of the Code of Civil Procedure. Whether or not the persons named in the warrant, charged with a felony, should be admitted to bail, rested in judicial discretion, and our views already expressed lead us to the conclusion that the exercise of that judicial discretion should have been by the magistrate issuing the warrant. From note 38, in People v. McLeod (3 Hill, 663), as somewhat appropriate to the question involved here, we quote, viz.: “ It is believed that the rules of common law, under which one superior court rarely allowed itself to interfere with the process of another, still hold their full sway, and should, indeed, be allowed a peculiar force when the power of a single magistrate is invoked.” Again, it was said in note 45 to the same case (at p. 673), viz.: “Valid process alone, both in criminal and in civil cases, prima facie, renders it obligatory on the court or officer to remand. It lies with the parties suing out the writ to show affirmatively that it is insufficient to authorize his detention. The people are, therefore, under no obligation to produce evidence even in cases where this may be looked into. The accused, who appeals by habeas corpus, must, at his peril, show that he has been committed upon insufficient evidence.”

We find nothing inconsistent with this in section 553 of the Code of Criminal Procedure, nor does section 190 of the Code of Criminal Procedure contain any provision inconsistent with the views already expressed. Under that section had the prisoners been taken before the magistrate who issued' the warrant, they might have waived an examination and at once elected to give bail Code Crim. Pro. §§ 188, 189, 190, 210.

We are of the opinion that the recital of the facts found in the warrant is sufficient, and that it ought not to be said, upon this appeal, that the same was issued without proper proofs to confer jurisdiction upon the officer issuing the same.

We are of the opinion that the order appealed from should, be reversed.

Order reversed; no costs. See 88 N. Y. 628.

Boardman and Follett, JJ., concur.  