New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1853-05-14

lbs Dstr,ct he proper peTnn 20 az IN t4e inA''' wv
he People v Cls,sk, Hi l69 III,
Twas no1t cont n1ed thai there was not suc1
psoce. o.ng pending before the Recorder - SA8'0'
bin 20 asi 10 the matter II al ,.-..,,r No
Tie statute provides ih.t sheDoveT oomPAH' s-i-. -
rsde 20 shy Magsrs.e bavrg power to issue pr'ce
tho appri nsion e per ors ch lr-ei With any
crnis-l oitnse has beenc nmittut u s1a4i o. 'f7
srch gi-;lste 90 reeXNnae on OATH tae c.
,d r s;.r.sses 10 rav De produced by h,n. IA
La a5nea- from such exam a-.ion itat suy c ~
f.Dee has been committed, the Uags'rite slAA i's~'
rrort~ warrant under b, hand. with without set con
rsroire ;he o--T 70 whom shall be drec;o tFsi"S
30 ke th- person acCus u hlylns Committed "a N
fcr o. srd brig han before Saoh mtsstF.e % o. aeN'
h according 20 law Aiter TIE person accused j. a
rt.f ,be rsit-s T. bound 20 pr0ccrd as soon IS may
be 10 e1amioe tire complainant ana tie witnesses o. ~
part Of the pr alton, and at-r uc eNlaa ell ~
r,i.ore- ~ yvitres> L g. have any must D sworn Sd
evsuipeJ and he may have the asssln"e o! coln'ela
such an naior ard If il shall appear that "a oAense mas
heen committed. ard that there / prcotos cta 70 ne
evs IL rrsCneT % BE- guilty thereof r. 'nah o. 'n
mf,sd 20 .ison unle,, h. shalt b. bale9 q - 90
r. srpesrs from this that there are distinct stages in
the proceedings vhich necessary to authorse haN
commitment The one Is preliminary TO tae issuing OF
warrant; the other IS for the purpose OF ascer@nins
whether the party charged win the otenoe sn.n &c '
med to prison II will be observed that IN both cases
must appear that offence has been conmtted 9ut u-
statute that there shall be probable cause 10 oeeVe
the prisoner guilty only in the last case Ine reason oil
this undoubtedly is that intended 10 vest the mag
isirste with liberal discretion 10 issuing ms warrant
will also be remarked that the statute does not that
the complaint to be made before the mag tr1s so v ~
writing under oath and in this respect dders rom
the psnt which required in the OF proceedings
to compel party to enter into recoguKsnce 10 keep Tue
peace u K = 704 The Statute does not state IN WHAT
form the complaint shall be made what facts shall
b. SET forth whether must contain charge against
particular person whether the facts mus: be stated as
within the knowledge Of the cmpsinAnt upon has in
formation and belief Asmpe compsnttnat an offence has
been committed is all that necessary to authorize the
magistrate to act that to examine the complainant on
oath. which is the first step to be taken.
The question then arises how much must be proved by
the examination Of the complainant to authouzeiarher ac
ton on the pant of the magistrate IL clear that the sta
ute does contemplate that the complainant shall prove
all that Is necessary authorize arrest for declares
that the magistrate shall also examine such other witnesses
shall be produced by the coup lsinsnt HOW mucn
then be proved by his examination Il seems to me
that all st be required is that enough shall appear TO
furnish good grounds to believe that further investigation
will lead to the discovery of crime The preliminary pro
ceeding instituted entirely for the purpose Of investzs
ton and the whole object of the statute would be defeated
if the deposition of the complainant should be required 70
state facts which would prove what the very end and
purpose Of the investigation 10 ascertain. II we examine
the davit of the Controller by hi, te there can be no
doubt that sufficient complaint was presented TO the he
corder only tO authorize but 10 require him. as faith
full magistrate 70 investigate the subject matter OF the
plant The first officer in the Financial Department OF the
City Government had made oath that from the examination
Of documents in his possession IN his Official opacity aud
from information which be believed to be true frauds cri
na their nature and character had been committed up
non the Public Treasury Of the City Tie had also stated
the particular character Of OF the frauds charged as
specmon of the nature and character of the AMI
although his description of the Oense might not be sDh
cen in an Indictment for procuring money 10y false pre-
lenses yet contains many the elements OF CRIME thN
no magistrate could consistently with proper discharge
OF his duty refuse TO give the matter any TURNER h'es
CATION.
had no power examine any other witnesses han such As
were produced before him by the complainant that IS,
such as voluntarily sentedthemseyesfor exlmnson
The English Statute of and Pm and Mary Z. IL p =,
provided hs The justices any of them beng OF the
QUORUM when any prisoner was brought before them Tor
anughter or felony should take the examination OF the
prisoner and information Of them that brought him. ol ths
fact and circumstances Thereof and Mr. Chlty systhd
"ihe Magistrate having by this Statute authority ~ eS
anime the party bringing the offender. which expresson u
construed 20 include well the all witnesses IN
support of tine charge incident to this authority has
poWer bring before him all persons who appear upon the
oath of the inormer who may TO the Magistrate
himself 10 be material witnesses for the prosecution ana
for this pu pose NAV his warrant TO Constable
curing him 10 the witnesses TO appear before the
Magistrate and give evidence" Il Gritty Or L. 76)
But what would be the practical effect OF adopting the
construction contendcd for by the respondent
plant might be made and witnesses might be produced in
support Of it, and there might be sufficient evidence 70
show that OrDse mad been committed II single add
tons fact could be proved AID the examination might es
tsblsh beyond doubt that particular person could
prove that Act but such person would appear before
The Magistrate voluntarily The result would be that the
whole prosecution would fail for want Of power TO compel
the attendance OF the witness Or case might occur In
which Of the Witnesses who voluntarily appeared IN
support of the complaint knew of the fact witch might DO
essential to make the chain Of evidence complete, and he
might refuse Re examined and withdraw and the Mag
sraie could not prevent hun from dong So but II 5
said that this only shows that the law is defective.
do not think So | think that il shows rather that
such construction of the law as Is commended for,
is neither reasonable sound When the Statute
says that the magistrate shall examine witnesses who
may be produced by the complainant means any witness
Is who may be produced either voluntarily by means Of
such process the law allows to compel the attendance OF
Witnesses Every party 10 salt produces the witnesses IN
bis behalf at the trial But in doing 50 he IS not confined
to such witnesses voluntarily appear II necessary he
~ cOmDulsiOn follow,
press power given to the magistrate to issue suopens
that such power exists In an anonymous case, which
is reported by La Coke ne Co. Rep 1907 he says that in
motion made by him before the Justices Of the Kings
Bench, il unanimously resolved that when the Stat
ute gave power TO Justices Of the Peace to require any
person persons to take the oath the law mpedy gave
Them power TO make a warrant 10 have the body before
them for quando lex aqud aeni concedit concedur ct
id sine quo res ipsa esse non protest
In reference 10 the case before u.s. the tlute states what
are the general duties of the Magistrate II does not pro
ess to point out the by which he to execute those
duties and il seems that the natural aud necessary
conclusion that be- may use such means as are known 10
the law and such as used in all similar cases see The
Peope W. Wyngall I'LL, l9) and such must have been
the intention Of the Legislature for the statute which pro-
des for the fees efJusces OF the Peace criminal cases
allows charge for a subpoena for each witness" and in
subsequent section il provides that whenever any Mags
shall issue any subpoena in any criminal proceeding or
trial he shall ndorse upon the back thereof menoran-
dunn showing whether the issued for the people
or the prisoner 4 T. 79l These provisions show be-
yOud question that it supposed by the Legislature
criminal proceedings in other words tho power - as
sumed 10 exist But is said that the power 70
issue subpoena exists still that the Magistrate has no right
to enforce the attendance Of the witness in case OF d'obe
dence The power 20 issue subpoena means tie power 70
issue one which shall be effective or means nothing IL
means the legal and not the physical power IL means
the power to subpoena which the party is bound and
Insy BE- compelled TO obey But It IS said that even # this
power exists yet that the Magistrate cannot compel the
witness TO be sworn.
The statute which makes provisions respecting criminal
proceedings gives express power 10 any magistrate 70 pm
ish for contempt in Ike cases and in the Ike manner as