I think that the officer exceeded his powers when he brought relator before the police justice of the city of Troy, but I am unable to reach the conclusion that the Troy magistrate thereby lost jurisdiction.
It has often been held that it is no defense to a criminal prosecution that the defendant was illegally brought within the jurisdiction. (People v. Eberspacher, 79 Hun, 410; People v. Iverson, 46 App. Div. 301; Ker v. Illinois,119 U.S. 436.)
The Code of Criminal Procedure (§ 165) reads as follows: "The defendant must in all cases be taken before the magistrate without unnecessary delay, and he may give bail at any hour of the day or night."
The magistrate does not lose jurisdiction by reason of unnecessary delay on the part of the officer. Habeas corpus may grant relief during the period of unlawful detention, but not for that reason after the prisoner is brought before the magistrate.
The Code of Criminal Procedure (§ 173) provides: "The defendantmust be informed by the officer that he acts under the authority of the warrant, and he must also show the warrant, if required."
The magistrate should not discharge defendant because the officer had not stated his authority and shown his warrant.
The Code of Criminal Procedure (§ 180) provides: "When arresting a person without a warrant the officer must inform him of the authority of the officer and the *Page 544 cause of the arrest, except when the person arrested is in the actual commission of a crime, or is pursued immediately after an escape."
The magistrate would have jurisdiction, although the arrest was illegally made.
These provisions and others of like nature are directions to the officer or person making an arrest, which he disregards at his peril, but they have no bearing on the question of jurisdiction.
The Code of Criminal Procedure (§ 844) has to do with the duty of the officer to permit defendant to give an undertaking without being brought before the magistrate who issued the warrant. The magistrate may, if such an undertaking is given, then proceed in the absence of the defendant (Code Crim. Pro. § 855) in the same manner as if the arrest had been made in his county (Code Crim. Pro. § 854).
It was the duty of the magistrate, if defendant was broughtbefore him, to inquire into the charge, and not into the question of how defendant was brought there. (Code Crim. Pro. § 848.)
The orders should be affirmed.
CHASE and HOGAN, JJ., concur with COLLIN, J., and WILLARD BARTLETT, Ch. J.; SEABURY, J., reads dissenting opinion, and CUDDEBACK, J., and POUND, J., in memorandum, concur.
Orders reversed, etc.