and examination of offenders, their commitment for trial and the letting of them to bail; namely, justices of the supreme court, judges of the superior court of law of the city and county of New York, judges of county courts, mayors, recorders and aldermen of cities, the justices of the justices' courts and police justices in the city of New York, and justices of the peace and police justices appointed for any city or elected in any town, and no other magistrates shall have authority to execute the above mentioned powers.1

Although the judges of the superior court of the city of New York are clothed with authority as criminal magistrates, it is not any part of their ordinary duty to attend to the arrest and examination of persons charged with criminal offences, and it must be an extreme case, either in the nature of the charge or the difficulty of procuring the action of the regular criminal judges, to warrant the judges of that court in devoting their time to it.2

§ 3. DUTY OF MAGISTRATE UPON COMPLAINT BEING MADE. Whenever complaint shall be made to any of the magistrates mentioned in section two of this chapter, that a criminal offence has been committed, it shall be the duty of such magistrate to examine on oath the complainant, and any witnesses who may be produced by him.3

The statute above referred to, does not require that the complaint should be in writing, or that the examination of the complainant and his witnesses therein referred to, should be in writing.4 It is, however, better that the complaint should be reduced to writing, for the following, among other considerations: It will insure greater system and accuracy in the subsequent proceedings; enabling the justice, in case the complainant or any of the witnesses are prosecuted for their doings in the matter, to show distinctly what they testify to; and further, if the justice himself is prosecuted, it will facilitate his defence, by enabling him to exhibit at once, an information, on oath authorizing the warrant, and giving him jurisdiction. If the complaint is made in writ

1 2 R. S., 706, § 1.

8

Matter of Hayward, 1 Sandf. 701. 2 R. 8., 706, § 2.

• 2 Park., 34; 21 Wend., 552; 5 Barb., 465; 15 Id., 153.

Barb. Cr. L., 2d ed., 519; 2 Stark. Ev., 429, n. a; 2 Strange, 710; 8 East. R., 113; 2 T. R., 225.

ing, it becomes the duty of the magistrate to file and preserve the same; and upon the demand of any person affected by the warrant, he shall exhibit the affidavit or complaint upon which the warrant is issued, and such person, by himself or by another, is permitted to take a copy thereof.1 The oath should be administered to the prosecutor and his witnesses previous to the commencement of the examination; and in taking down the testimony, the magistrate should pursue, as near as may be, the language of the witnesses.2

The reason why the oath is required before the examination, is in order that the witness shall be under the solemn obligation of an oath while he is giving his evidence. Otherwise, he may inadvertently, or perhaps willfully state some particulars erroneously, which, when afterwards put to the test of an oath, a sense of shame may prevent him from retracting.3

The complaint, if taken in writing, should be read by the complainant and his witnesses, or, if he be unable to read, it should be carefully read over and explained to them, and an opportunity offered them to make any corrections in it that may be necessary. In relation to the amount and character of the evidence which is requisite to authorize the magistrate to issue a warrant, it is said it is fitting to examine upon oath the party requiring a warrant, as well as to ascertain that there is a felony or other crime committed, without which no warrant should be granted, as also to prove the cause and probability of suspecting the party against whom the warrant is prayed. The Supreme Court of this State have held that, to authorize a magistrate to take the first step towards the arrest of a person charged with the commission of a crime, viz., to examine a complainant on oath, a simple complaint that an offence has been committed is all that is necessary, and all that need be proved by the examination of the complainant to authorize further action on the part of the magistrate, is that is shall furnish good grounds to believe that further investigation will lead to the discovery of crime."

1 Laws 1860, ch. 95..

* 4 Dow. & Ryl., 734; 1 Nun v. Walsh, 168; 8 Dow. & Ryl., 8.

1 Nun. v. Walsh, 168.

1 Nun. & Walsh, 182.

If neither the complaint for larceny nor the warrant state the value of the property stolen, and there be no mention of the place where the offence arose, a conviction by a court of special sessions is erroneous.1

§ 4. WARRANT TO BE ISSUED.

The complaint having been made, and the complainant, with any witnesses produced by him, having been examined by the magistrate, the next proceeding is to cause the arrest of the person accused of the crime, in order that such further proceedings may be taken as will lead to his conviction and punishment. The statute provides that if it shall appear from such examination that any criminal offence has been committed, the magistrate shall issue a proper warrant under his hand, with or without seal, reciting the accusation and commanding the officer to whom it shall be directed forthwith to take the person accused of having committed such offence, and bring him before such magistrate to be dealt with according to law.

There is a further section of the statute, providing that whenever any criminal warrant or process shall be issued by any magistrate residing out of the town or city wherein the offence shall be committed, it shall authorize the officer executing the same to carry the person charged with an offence before any magistrate resident and being in the town or city wherein such offence shall have been committed, to be proceeded against according to the provisions of the statute, but the magistrate issuing such warrant or process shall not lose any jurisdiction over the trial and proceedings against any such persons by reason of anything contained in the statute.3

§ 5. REQUISITES OF WARRANT.

4

At the common law it was said that a seal was necessary, but by the express provision of our statute above referred to the warrant may be either with or without seal.5 The preamble to a

4

'Howell v. Peo., 2 Hill, 281.

'2 R. S., 706, § 3.

' 2 R. S., 706, § 12.

4 Black. Com., 290; 2 Hawk., P. C., ch. 13, § 21; 1 Hale's P. C., 577.

' 2 R. S., 706, § 3.

C. P.-12.

warrant constitutes a part of it.' The warrant should not be general to apprehend all persons suspected, but should direct the officer to apprehend some particular individual; for a general warrant to apprehend all persons suspected or guilty of a particular crime, without naming or describing any particular person, is illegal and void for uncertainty, for it is not fit that it should be left to the officer to judge of the ground of suspicion. The magistrate is to judge of this, and it is his duty to give certain and precise directions to the person who is to execute the warrant.2 At the common law it was deemed rather discretionary than necessary to set out the accusation in the warrant, but the practice of doing so was generally recommended.3 Our statute, however, requires that the warrant should recite the accusation made by the complaint. All the statute requires is, that the warrant shall recite the accusation, and the accusation need only charge that a criminal offence has been committed. If, therefore, it charges a criminal offence generally, viz, that of larceny, it is sufficient to authorize the issuing of a warrant, though the accusation omits to state the value of the property. The recital in such warrant of the complaint is presumptive evidence that such complaint has been made. An omission in a warrant of arrest which is merely clerical and is apparent, and does not mislead any one nor prejudice the defendant, will not render such warrant invalid.5

If it do not recite the offence charged, the officer issuing it is a trespasser.

A warrant which charges the defendant with having sold lager beer does not, on its face, charge an offence against a statute forbidding the sale of beer."

The warrant should not be left in blank, to be afterwards filled up by the officer or party. And if the name of the party or of the officer be inserted without authority after the issuing of the

1 Harshaw v. Crow, 11 Iredell, 240.

4 Blac. Com., 291; 1 Hale's P. C., 580; 1 Chit. Cr. L., 41, 42; 1 Nun. & Walsh, 190; 3 Burr, 1766.

* 1 Chit. Cr. L., 41; 2 Hale's P. C., 111; Ib., 580; Cro. Jac., 81; 2 Wiltes, 158.

warrant, the arrest will be illegal, and the person executing it will not be protected in proceeding under it.1

But it may be filled by the justice himself, after he has signed it, before he delivers it over to the officer.2

Where a magistrate designated an officer to execute a warrant issued to arrest a defendant and bring him before the court to give sureties of the peace, it was held that if such officer's name was erased, and another person's name, who was not a sworn officer, was inserted by the prosecutor, an arrest made by the person thus substituted was illegal and void, and was not a justification in case he was sued for assault and battery and false imprisonment, but was matter to offer in mitigation of damages.3

The name of the person to be apprehended should be accurately stated, if known, and must not be left in blank to be filled up afterwards; and a description, thus, A and his associate, is void as to the latter.5

If, however, the name of the party be unknown, the warrant may be issued against him by the best description the nature of the case will allow, as "the body of a man, whose name is unknown, but whose person is well known, and who is employed as the driver of cattle, wears a white hat, and has lost his right eye." 6

It has, however, been held that a warrant to apprehend " Hood, (omitting his christian name,) of B., in the parish of F., by whatsoever name he may be called or known, the son of Samuel Hood, to answer, &c.," was defective for omitting the christian name and assigning no reason for the omission, nor giving any distinguishing particulars of the individual.7

So, also, is a warrant against "the author, printer and publisher" of a certain paper, void, for the warrant must carefully identify the person intended to be arrested. Thus a warrant against "John Doe, the person carrying off the cannon" intended for Levi Mead, who was, when it was issued, in the act of carry

1 2 Hale, 114; 1 Nun. & W., 195.

* 8 T. R., 455; 1 East. P. C., 324.

'Wells v. Jackson, 3 Mumf., 458.

1 Chit. Cr. L., 39; 2 Hale P. C., 114; Fost., 312.

* Wells v. Jackson, 3 Mumf., 458.

1 Chit. Cr. L., 39-40; 1 Hale P. C., 577.

'Rex v. Hood, 1 M. & M., 281.

• Wells v. Jackson, supra.