THE

New York Supplement

VOLUME 72,

AND

New York State Reporter,

VOLUME 106.

(35 Misc. Rep. 765.)

PEOPLE v. RUSSELL et al.

(Supreme Court, Special Term, New York County. September 20, 1901.) 1. BAIL BOND-SUFFICIENCY-STATEMENT OF OFFENSE.

Under Code Cr. Proc. § 684, providing that no departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor any error or mistake therein, shall render it invalid unless it has actually prejudiced, or tended to prejudice, the defendant in respect to a substantial right, a bail bond which fails to correctly state the ground of an arrest, but uses an abbreviation therefor, is not defective unless it results in the prejudice of the bondsman.

2 SAME ESTOPPEL.

Where a bail bond has obtained for the principal all the benefits which could be derived therefrom if the bond had been correct in form, the sureties will be estopped from setting up in defense thereto that it is insufficient in failing to describe the crime for which defendant was arrested.

Action by the people against Frederick B. Russeli and others on a bail bond. Judgment was rendered in favor of the plaintiff, and defendants moved to vacate the judgment and an execution issued thereon. Motion denied.

Wm. G. Cooke, for the motion.

Eugene A. Philbin, Dist. Atty., for the People.

MCADAM, J. The defendants, principal and surety on a bail bond given at the Eighteenth precinct police station house, claim that, because it recites that the principal is held to answer the complaint of "Sus. Person" (an offense unknown to the law), the bond is void, and hence a judgment entered on a forfeiture thereof, and 72 N.Y.S.-1

and 106 New York State Reporter

an execution to collect the same, must be vacated on their application. The claim is based on the argument that the principal was in custody upon a charge of what under the law was no offense at all, and that the arrest and detention were not only wrongful, but the whole proceeding void ab origine. That the abbreviated term used indicates no offense in law is not so plain. Where there is reasonable cause to believe that a person has committed a felony, he may be arrested without a warrant. Code Cr. Proc. § 177. Yet the belief is generally nothing more than a well-grounded suspicion. Such a person is, therefore, regarded in police parlance as a "suspicious person," the designation aptly denoting the offense. The condition of the bond was not only to produce the prisoner before the magistrate on the following day, but he was to there "remain to answer, subject to any order of the magistrate, and render himself in execution thereof." The complainant appeared in court on August 20th, the day specified in the bond, and charged the prisoner with extortion, a crime which may be either felony or misdemeanor, according to circumstances. Pen. Code, §§ 552, 557. If the defendant had been in actual custody, the proper officer would have produced him to answer this charge, and the object of the bail bond is to put the prisoner as much under the power of the court as the officer, whose place the sureties take, would have done if the bond had not been given. It was formerly held that the recognizance should so far state the crime charged as to show the case to be one over which the officer taking it had jurisdiction. People v. Koeber, 7 Hill, 39; People v. Young, Id. 44. But subsequently, in People v. Kane, 4 Denio, 530, it was held by the same court that the recognizance need not recite the special facts which gave the officer jurisdiction, and the cases above cited were in this respect overruled. In Champlain v. People, 2 N. Y. 82, the rule laid down in People v. Kane, supra, was adopted by the court of appeals, and has ever since been the settled law of the state. Gildersleeve v. People, 10 Barb. 35. The reason of the rule is that, the entering into a recognizance being the voluntary act of the party, he admits the authority of the magistrate, and acknowledges the regularity of the proceedings in which it is taken. In this respect the case is distinguishable from one where the liability arises from a proceeding in invitum. Gildersleeve v. People, supra. The inaccurate or inadequate recital of the offense in the bond in no manner affects its validity. The Code of Criminal Procedure (section 684) provides that "neither a departure from the form or mode prescribed by this Code in respect to any pleadings or proceedings, nor an error or mistake therein, renders it invalid unless it have actually prejudiced the defendant or tend to his prejudice in respect to a substantial right." No substantial or other right of the defendants. has been prejudiced in this instance. Acting on this provision, the court in People v. Gillman, 125 N. Y. 372, 26 N. E. 469, held that the omission to recite in the bail bond the offense charged did not prejudice the defendant, that the recital is not the essence of the undertaking of bail, and that the defendant discharged on bail may be tried upon any other charge subsequently made. Besides, on

every equitable principle, the bond has obtained for the defendants all the benefit that could be derived from the suretyship, and they should now be estopped from setting up its invalidity. Kelly v. McCormick, 28 N. Y., at page 323; Chamberlain v. Applegate, 2 Hun, 510; Bates v. Merrick, Id., at page 571. It follows that the defendants' motion to vacate the judgment and execution must be denied, with $10 costs.

(35 Misc. Rep. 763.)

PEOPLE v. PAINE.

(Supreme Court, Special Term, New York County. September 16, 1901.) CRIMINAL LAW-COMPLAINT-SUFFICIENCY.

A complaint charged that complainant had a certain sum on deposit with a broker, to be used as a margin in speculating in stocks for the complainant's account; that defendant on a certain date notified complainant that he had sold certain shares; that no sales were to be made except on complainant's order; that complainant gave no order, and that the stock was not in fact sold, and that the broker's statement was to show a loss of margin, and to appropriate complainant's money to his own use: Held, that the complaint alleged no crime, since complainant had voluntarily parted with his money.

Hearing on writ of habeas corpus to test the right of a city magistrate to commit J. Overton Paine. Writ sustained.

E. A. Philbin, Dist. Atty., and John F. Cowan, Asst. Dist. Atty., for the People.

Black, Olcutt, Gruber & Bonynge, for defendant.

MCADAM, J. The complaint charges that on May 6, 1901, Maurice A. Thorner, the complainant, had on deposit with J. Overton Paine, the defendant, the sum of $167, to be used as a margin in speculating in stocks for the complainant's account; that on said date the complainant received notice from the defendant that he had sold 10 shares of Northern Pacific and 20 shares of Brooklyn Rapid Transit stock at certain figures; that no sales or purchases of stock were to be made for complainant except upon his direction; that the complainant gave no orders for the sale of said stock, and that the same was not in fact sold; and that the statement made by the defendant to the effect that he had sold said stock was to show a loss of the margin, and to appropriate to his own use the money deposited. by the complainant as aforesaid. Clearly, no crime is alleged. The defendant did not obtain possession of the complainant's money by any trick, device, fraud, or artifice, for it was voluntarily parted with. by the complainant of his own free will and accord, in which respect the case differs essentially from that of Com. v. Cooper, 130 Mass. 285, relied on by the district attorney. In that case the complainant, at the request of the defendant, who was a broker, gave him $200 as margin to use on the purchase of 100 shares of the stock of a certain railroad, the defendant agreeing at the time to make the purchase, and receiving the money for the specific purpose. The broker afterwards represented that he had made the purchase as agreed, but, when pressed for the stock by the customer with an offer