
    Matter of Theodore C. Marceau.
    (Supreme Court, New York Special Term,
    July, 1900.)
    1. Crimes — A person cannot kidnap his own child.
    Where the return to a writ of habeas corpus, procured by a prisoner arrested for kidnapping a child, does not deny the allegation of the petition that the .petitioner duly obtained a divorce from his wife and was thereupon awarded the custody of the said child, the latter bearing his name, the prisoner must be discharged, as he cannot, under such circumstances, be guilty of kidnapping his own child.
    2. Same — Habeas corpus to review legality of detention before indictment found.
    Where a warrant is issued before an indictment has been found, the prisoner is entitled to have the legality of his detention passed upon.
    Application on habeas corpus for discharge from imprisonment.
    Howe & Hummel, for petitioner.
    Forbes J. Hennessy, Assistant District Attorney, for People.
   McAdam, J.

The prisoner was arrested in the city of New York by the chief of police thereof, under a warrant issued by the recorder of the city of Ogdensburg, on the charge of kidnapping. There being no denial by return filed, it must be taken as true, as alleged by the prisoner, that he obtained a divorce from his wife, and was awarded by a competent court the custody of the child, which bears his name and which he is charged with kidnapping. It was impossible for the prisoner to be guilty of kidnapping his own child under such circumstances. The warrant was issued before indictment, and the prisoner is, therefore, entitled to have the legality of his detention inquired into and passed upon. Code Civ. Pro., § 2031; People v. Martin, 1 Park. Or. 187, 189; Ex parte Tayloe, 5 Cow. 50, 51; People ex rel. Pickard v. Sheriff, 11 Civ. Pro. 172, 179; 15 Am. & Eng. Ency. of Law (2d ed.), § 161. It cannot be that a mere ex parte complaint before a magistrate deprives the Supreme Court of its power under the writ of habeas corpus of determining whether the imprisonment of the citizen is justifiable or not, particularly where the warrant is to take him to a place remote from his home or friends. The prisoner committed no crime, and is entitled to his liberty.

Application granted.  