Opinion
Argued January 8th, 1870
Decided March 17th, 1870
Lynes Bowen, for the appellant.
George Brooks, for the respondent.
Substantially only two questions are presented for the consideration of this court: 1. Whether the warrant of commitment was void, having been issued without a seal. 2. Whether what occurred between the plaintiff and defendant at the close of the examination, and after the plaintiff was required to enter into a recognizance, and before the issuing of the warrant of commitment, amounted to a voluntary escape, and rendered his subsequent arrest illegal and the defendant liable therefor.
In regard to the first question, we are clearly of opinion that no seal was required to render the warrant valid. This question was very fully examined in Millett v. Baker (42 Barb.; 215). Justice FOSTER, in that case, has collected the decisions bearing upon the question, and his reasoning and conclusion are entirely satisfactory to my mind. (See, also, Bennac v. The People, 4 Barb., 31).
In reference to the other question, the jury found as a fact that the justice did not discharge the plaintiff. Independent of such finding, this being a criminal proceeding, the defendant was not only fully authorized to issue the commitment, but it was his duty to do so; and although he had permitted the plaintiff to go home, he had an undoubted right to issue the commitment and carry out the judgment which he had pronounced. The public had a right to demand the execution of the law, which the defendant had no authority to compromise, nor could the plaintiff evade it by such a pretext. In Clark v. Cleveland (6 Hill, 344), Judge COWEN remarks: "The public ought not to be deprived of any right by an escape of whatever kind from custody, under criminal process. Though the officer consent to the escape, he is bound to retake the prisoner." (See also Arnold v. Steeves, 10 Wend. Reps., 515).
The counsel for the appellant insists that the justice had not jurisdiction, because the warrant did not state expressly where the offence was committed. There are two answers to this proposition: 1. No such objection was raised upon the trial at the Circuit, and should not be entertained here in the first instance. We cannot infer that the omission could not have been supplied, if the objection had been taken at the trial. 2. The warrant was sufficient to confer jurisdiction. It stated the offence, the time when committed, and that Gano (the plaintiff) was a resident of the town of Middlefield, in the county of Otsego. The warrant of commitment states expressly where the offence was committed. The judgment should be affirmed with costs.
LOTT, J., also read an opinion for affirmance. All concur.
Judgment affirmed.