Swart v. . Rickard

As no order denying the plaintiff's motion for a new trial was entered or is contained in the record, none of the questions sought to be raised by that motion was presented to the General Term, and the absence of such an order is not supplied by the recital in the record that such a motion was made, nor by the notice of appeal, which states that an appeal was taken from the order as well as from the judgment. (Richardson v. Hartmann, 68 Hun, 9; Maas v. Ellis, 12 N.Y. Civ. Pro. Rep. 323; Jagau v. Goetz, 11 Misc. R. 381; Bradley Fertilizer Co. v. SouthPublishing Co., 4 Misc. R. 172; Zapp v. Miller, 109 N.Y. 51,56.) Hence, the only question before that court arose upon the exception to the ruling of the trial court refusing to submit the action to the jury as one for false imprisonment.

The plaintiff was arrested upon a warrant issued by a justice of the peace charging him with the crime of burglary and larceny. The complaint or deposition, in pursuance of which the warrant was issued, was made by the defendant. If it was sufficient to give the justice jurisdiction, then confessedly the defendant was not liable for false imprisonment. The Code of Criminal Procedure provides that the deposition upon which a warrant may issue, "must set forth the facts stated by the prosecutor and his witnesses, tending to establish the commission of the crime and the guilt of the defendant." (§ 149.) "If the magistrate be satisfied therefrom, that the crime complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest." (§ 150.) That it was sufficiently stated in the deposition that a crime had been committed, is not controverted. The respondent's contention is that the facts set forth did not tend to establish the guilt of the plaintiff, and, therefore, were insufficient to afford a reasonable ground for the justice to believe that the respondent had committed the offense. After the facts showing the commission of the crime were stated, it was stated in the deposition that "Deponent believes and has reason to believe that said store was broken into and burglarized by James H. Swart and Wallace Van Evera and another, from the fact that said parties were about that time, i.e., after one o'clock that night prowling around, and near the premises." If the facts and circumstances stated in this deposition were sufficient to call for the judicial determination of the justice as to whether there was reasonable ground to believe that the plaintiff had committed the offense, then the defendant was protected, although the magistrate may have erred in judgment. Therefore, the precise question to be determined is whether the deposition tended to establish the guilt of the plaintiff. The facts stated in the deposition are to the effect that the offense of burglary was committed by breaking into the defendant's store in the night time, and that about the time of the commission of the offense the plaintiff and others were prowling around and near the premises.

The general definition of the word "prowl" is: "To rove or wander over in a stealthy manner; to collect by plunder; to rove or wander stealthily, as one in search of plunder." When we give full effect to this word, and accord to it its general meaning, it becomes quite clear that the deposition was sufficient. It disclosed that an offense had been committed; that it was committed in the night, and that at or near the time of its commission the plaintiff was roving stealthily around the premises in search of prey or plunder. We think this statement of facts was sufficient to justify the magistrate in determining that there was reasonable ground to believe that the plaintiff was guilty of the crime charged. In determining the sufficiency of this deposition, it should be borne in mind that the proceeding before the justice is attacked collaterally, and, therefore, that great latitude of construction should be indulged in. (Pratt v. Bogardus, 49 Barb. 89, 91.)

The case of Blodgett v. Race (18 Hun, 132), and similar cases cited by the respondent, are to the effect that an affidavit or complaint, upon which a warrant of arrest is issued, made upon information and belief only, or upon hearsay, or mere suspicion, is insufficient to confer jurisdiction upon a magistrate as to the person of a defendant, and that a warrant issued without such jurisdiction affords no protection against a charge of illegal arrest. The cases referred to are clearly distinguishable from this, and are not in conflict with the conclusion we have reached. In those cases no facts were stated. In this the deposition contained a statement of facts which was sufficient to call upon the magistrate for judicial consideration and determination, and tended to prove the guilt of the respondent.

We are of the opinion that the deposition was sufficient to give the magistrate jurisdiction to issue the warrant under which the plaintiff was arrested; that the warrant when issued was a protection to the defendant, and that an action for false imprisonment could not be properly maintained.

The judgment of the General Term should be reversed and the judgment of the trial court affirmed, with costs in all the courts.

All concur.

Judgment accordingly.