Year: 1877

render an early decision in the OF Nelson A. Ges
ner upon the question TO the continuance or other
wise Of the examination before Judge Duly which WAS
cut short by tho finding Of an indictment against him
by the Grand Jury OF the Court OF General Sessions,
gave his decision yesterday Supreme Court, Cham
bers He did what judges very rarely do-read his
opinion In open 1t will be he directs the
ex ami nation TO be resumed II no Indictment had
been found The opinion, which involves various,
novel aud interesting questions is given below in
full:-


To the writ OF habeas corpus issued and upon
him, the Warden OF tho City Prison returns that he
holds the prisoner, Ne son A. Gesncr under two
rants OF commitment one of Patrick G. Duny, police
magistrate. OF the CITY OF New York. committing SAID
Gesner pending examination upon a complaint
charging him with the of forgery the other
bench warrant IRON the Court of Sessions OF tho county
OF New York. issued upon an ndic mert found by the
Grand Jury of SAID Court and accusing him OF the
crime. The proof shows that the 22d day OF
August 1871, complaint was made to the said Mr.
Justice Duly, charging the prisoper with forging aud
uttering check upon the Third National Bank OF New
York, bearing date December s. 1876 purpoting 10 be
made by Winslow, Lanier Co Tor The sum Of
$26,66S 75 and payable to the order OF H. Friedman
90. Upon this charge warrant was issued and the
prisoner was brought before the Justice On the Both
day OF August the examination before the magistrate
commenced, and. against the protest OF the
prisoners counsel, such examination was postponed
!ron said day Thursday to the following Monday
morning. The adjournment was MADE at the request
OF Mr.. Herring the Assistant District Attorney, who
represented the people before the magistrate. On
Monday morning the prisoner and his counsel again
appeared before the Justice when Mr. Leary also an
assistant Of the District Attorney, asked. on account
Of tho alleged Official duties OF Mr. Herring a fur
ther adjournment of the examination until
tho afternoon OF that day Although The prisoners
counsel objected the application was granted the JUS
tice declaring however that no would then continue
she animation as long 1t was sunlight and go
from day to day until 1t finished" To the suggestion
OF the prisoners counsel that 1t was understood the
examination should 60 on IN the afternoon Mr. Leary
.ssen'od as, A. three o'clock p. NJ or little after
and his counsel being present, when Mr. Herring
stated that "a Ill had been found by the Grand Jury
aud that ended the power oil tho Justice" The
Justice concided In tho view SO far TO deliver
the prisoner to the officer having tho bench warrant
and finally on the urgent application of the prisoners
counsel adjourned the examination before him to tho
2Sth OF September inst, to give them an opportunity
to relieve the prisoner from the arrest uDdcr the
bench warrant issued by the Court OF Sessions Upon
the return Of Mr. Justice Duffy TO the writ Of cer.iorar
and the return OF the Warden OF City Prison to
the writ of habeas corpus and the evidence taken
upon this hearing, IRON which the foregoing facts ap
Ceur the prisoners counsel ask not that prisoner
should be discharged from all custody, but that he
should be relieved from Imprisonment under tho
bench warrant, in order that the Justice who
issued tho other commitment and under which he
prisoner IS detained can proceed 18th the cxamIna
ton before him. as the statute according to the claim
Of prisoners counsel, directs. The relief which tho
prisoner asks depends upon the effect, II any witch
an indictment found, after an examination has
been commenced before magistrate, has upon such
proceeding. The course OF procedure before oi-
Ger authorized to issue warrant Tor the arrest aud
apprehension OF criminal offenders Is clearly defined
by statute (3 H. s., oh Cd, page $685. &c When the





which no issues upon proper complaint and sup.
ported by evidence he Is com manded (the word used
to examine the complainant and the witnesses pro-
ducod III support OF the prosecution on oath
In the presence Of the prisoner In regard to
the offence charged and in regard to any other
matters connectei with such charge winch such
magistrate shall deem PERTINENT (3 II S., 9th edi-
tion page 995, section 10y. Provision Is then made
for the exanation OF tho prisoner and for pres
Ince OF counsel in his behalf and II is then (secon
III declared Ater the Of the pr is
EomDleted his witnesses II have be
and examined, and he may have the assistance OF
counsel IN such examination" After giving various
other directions touching the proceedings by sections
70 and 81 the magistrate must reach u conclusion
whether there or is not probable for charging
bhe prisoner with tho crime, II ne thinks there
not he must discharge the prisoner, but he thiuks
there Is he shall bind by recognzane the prosecutor
appear and testify at the next court having enhance
Of the offence, aud IN which the prisoner may be
dicted"


will DO observed that the statute is mandatory IN
Rl its requirements. duty Is thereby devolvcd upon
the officer who issues the warrant which must dis
charge No person, after a compliant is made and
warrant issued, represents the people be abo
TO Withdraw tho proceedings ana the complaint. Tnc
magistrate drec to do certain things, and he
do them unless some statute direction relieving HIM
from their performance cln be found. The counsel
for the people do not claim that there is express
provision Of our statute law which makes the hndng
OF an indictment supersedeas OF the powers ana
dutios Of the Magistrate, but they argue because q
grand jury can inaict Il follows that
the magistrate cannot further proceed. II
the indictment is conceded to be regular
It is not seen how the further conclusion follows 1t
Is true that the discharge OF the prisoner by the
magistrate Is no bar to an Indictment but the effect of
tho decision when made and even ts confessed use
lessncss II. that be conccded, docs not and cannot
absolve u magistrate from doing what the law IN
plain terms declares he must do. 10 all arguments
founded upon the alleged unproftabiencss oil the
aunation after an indictment is found II Is answered
that courts and magistrates cannot excuse themselves
from complying with statute mandates because in
thcir opinions such requirements lead to prac-
tical good. The needlcssncss OF continance of
an examination after an indictment Is. how
ever, not conceded, but on The contrary lis
completion Is deemed 10 be most valuable
and substantial right OF the accused. BY hc Will be
Informed as to the evidence and witnesses by which
lnd whom the charge Is to be subsantated the value
81 which 10 niormaton even the unpro sona mind
plainly see, and OF which the procurement of the
bill OF indlcm mont was desi gncd to deprive him Con
cedng then, the mandatory terms the statute under
which Mr. Justice Duly was actng when his proceed
ings arrested by the service of the bench warrant
from the Court OF Sessions IL follows tina; the soppago
OF such examination was unauthorized and illegaL
That an oilcai outy once begun, which tho PLAIN
terms OF the written law require TO be continued
up to certain result must be so continued
Is too clear Tor argument II IS equally clear
that he who is SO charged with official
duty has iull power to execute and discharge it, ana
he must execute and discharge It, Ii he must,
then how any court or process issued thereby
his and deprive him OF hIs Jurisdiction un-
loss the right to do Is expressly or by necessary
plicaton conferred. Tho lnding OF bill OF indct-
meht by grand jury is certainly, as conceded,
express 5upcrsedeas OF the examination by the magis
tratc, and 1t is not so inconsistent with continuance
thereof as so to operate Dy necessary implication.





son A. Gesner, must be relieved from the i'm prison.
ment the bench warrant and remanded to
!he custody of the warden upon the
rant oil Mr. Justice Duffy, to the END that
iuch magistrate may discharge the duty devolved
upon HIM hy law. This conclusion which has been
reached is more than sustained by the learned opinion
oi that most eminent jurst tho late Judge Edmonds,
In the matter OF Samuel Drury and samuel Drury. Jr.,
I copy OF which has been furnished to me- That Judge
held that Indictment procured pending examIna-
''irregular and void, because, when thus
,btaincd, II was "in fraud of the law.n Without
going to the extopt OF holding. Judge Edmonds did
hat the Indictment found against Gesner SHOULD be
iuashed by the Court having jurisdiction over IT, Is
held that warrant issued upon II cannot take
he prisoner from the jurisdiction OF Mr.
Justice Duly until his statute duties have
,een fulfilled. No reported has been
produced (whle some exist denying the propriety OF
u motion to quash indictment because found
pending nm rxnmInatonl which decides that an IN
dIctment found arrests the magistrates proceedings.
In the absence of any such case my own convictions
must DO followed which are entirely clear and lead
me To me conclusion already announced. BY tho
course which has been directed every right OF the
people Is preserved, and Is but just that every fair
and legitimate opportunity OF defence which the
law afiords should be given to the accused.
i the bp