Hinds v. Parker , 42 N.Y.S. 955 ( 1896 )

LANDON, J.

(dissenting). As preliminary to the issue of a criminal warrant of commitment, two things should appear: (1) That a crime has been committed; (2) that there is reasonable ground, as the Code of Criminal Procedure expresses it (section 150), to believe that the accused has committed it. Now, when the commission of the crime has been proved, the real contention must be whether the accused committed it. In such case, it is clear that, until such definite action is taken, by the body or tribunal having jurisdiction to take it, as indicates its.determination upon that question, the question is open, and, so long as it is open, it is not ended. Pending commitment, however, by the magistrate, to await the action of the grand jury, and the meeting of the grand jury, a county judge may, upon habeas corpus, discharge the accused. The county judge, in such proceeding, as incident to his jurisdiction, may adjudge whether the facts charged constitute a crime; but, if he adjudge that they do, he cannot finally determine whether the accused committed it. If the county judge adjudges that the acts do not constitute a crime, that adjudication is final in its nature, and will avail the accused, as a former judgment, if pleaded in bar to a subsequent indictment for the alleged crime based wholly upon the same acts. Here there is no question or dispute about the acts done by the plaintiff, and, since the acts are undisputed, and constitute no crime, it is plain that the county judge, in discharging the plaintiff, decided, as he ought, that no crime had been committed. A criminal prosecution, based solely upon acts which constitute no crime, is at an end when the adjudication to that effect is made by a tribunal having jurisdiction so to decide. In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658; Code Civ. Proc. § 2050.

The first subdivision of the section cited, which excepts a recommitment for the “same offense” from the finality of the discharge upon habeas corpus, does not apply to a case where there is no offense; for what is “no” offense cannot be the “same” offense, within the meaning of the section.