Gaffney v. Kampf

Heffernan, J.

(concurring in result). I am convinced that the order appealed from must be reversed as a matter of law and that the subpoena duces tecum must be vacated.

In my opinion the respondent has no authority to issue process in aid of the execution of the warrant. Having issued his warrant for the arrest of the alleged culprits, designated by fictitious names, his power to conduct a further inquiry in order to ascertain their correct names was exhausted. The warrant which was issued could not be executed because it contained no information from which a peace officer could .identify the persons to be apprehended.

I am also of the opinion that the information filed with respondent by Jones was insufficient to confer jurisdiction. J do not agree with the contention of appellant that the complainant was required in the information to designate by name his assailants, providing their names were unknown to him. In that event the requirements of the statute would be satisfied by an allegation that the names were unknown to him together with a description of them sufficient for identification or, in the alternative, a statement of the name or names of persons who could identify them.. The Magistrate would theh have authority to issue subpoenas for the persons alleged to possess information as to the identity of the guilty ones and take their depositions as provided by section 148 of the Code of Criminal Procedure.

The other grounds upon which appellant relies to vacate the subpoena are,- in my opinion, without merit.