#### PEOPLE v. EBERSPACKER.

(Supreme Court, General Term, Second Department

June 18, 1894.)

Criminal Law—Validity ob' Trial—Denial oe Right to Give Bail.

The denial of the right of defendant to be taken before a magistrate-of the county in which he was arrested to give bail does not affect the-validity of his subsequent trial and conviction.

Appeal from court of sessions, Dutchess county.

John Eberspacker was convicted of an assault, and appeals.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.

Horace D. Hufcut, for appellant.

J. Morschauser, for the People.

CULLEN, J.

This is an appeal from a judgment of the court of sessions affirming the conviction and sentence of the defendant by a court of special sessions held by the recorder in the city of" Poughkeepsie. On a complaint against the defendant for assault in the third degree, a warrant was issued by the recorder. The-defendant was arrested in Westchester county,—the warrant not being properly indorsed,—and was denied his request to be takeni before a magistrate of that county to give bail. On being brought before the recorder, he asked his discharge on the ground of the-illegality of his arrest, and the denial of his privilege to give bail; before a magistrate in the county of his arrest. This application for discharge was denied, and thereupon the defendant pleaded not guilty, and was subsequently tried, convicted, and sentenced. The-only objection to the trial and judgment taken on this appeal is the-illegality of the defendant’s arrest.

We think that the point as to the defendant’s arrest does not affect the validity of his trial and conviction. The complaint was-made, and a warrant properly issued, and the court had jurisdiction of the offense charged. It was therefore authorized to try and determine the complaint against the defendant whenever he might be-brought before the court. The general rule is that it is no defense to a criminal prosecution that the defendant was illegally or forcibly brought within the jurisdiction of the court. In civil prosecutions the force or fraud used against the defendant in that respect is a good defense only against those who are parties to the fraud or force. Adriance v. Lagrave, 59 N. Y. 110. But this rule, as immunity from arrest, has no application to criminal offenses. Ex parte Lagrave, 45 How. Pr. 301. The same principle was held in People v. Rowe, 4 Parker, Cr. R. 253. See, also, U. S. v. Caldwell, 8 Blatchf. 131, Fed. Cas. No. 14,707; U. S. v. Lawrence, 13 Blatchf. 300, Fed. Cas. No. 15,573. In Crocker on Sheriffs (page 35), it is-said:

> “In general, where one is liable to be detained, on a criminal charge, the court will not inquire into the manner of his capture, but hold him to answer thereto, and leave the accused to his remedy against those who have-acted under void process, or exceeded their authority.”

*797This case is to be distinguished from that of People v. Shaver, 4 Parker, Or. R 53. In that case the recognizance was held void because taken by a justice of the peace in Fulton county for appearance in Montgomery county sessions. The dictum that the recognizance could be avoided because the arrest in Montgomery county was illegal was not necessary to the decision of the case, and seems opposed to the current of authority. But there is a marked distinction between the power of a magistrate to hold on examination, and that of a court which has acquired jurisdiction of the charge to try. The first is merely a proceeding to detain for trial, if indictment be subsequently found; and it may be that such a detention is to be considered a continuance of the original arrest, but such a principle would not apply to the trial court. The judgment of the court of sessions, appealed from, .should be affirmed. All concur.