Opinion · New York Supreme Court

In re Marceau

In re Marceau, 15 N.Y. Crim. 92 (N.Y. Sup. Ct. 1900)

Type
Opinion
Court
New York Supreme Court
Jurisdiction
New York
Date
1900-07-15
Topic
general

McAdam, J. The prisoner was arrested in the city of New York by the chief of police thereof, under a warrant issued by the recorder of the city of Ogdensburg, on the charge of kidnapping. There being no denial by return filed, it must be taken as true, as alleged by the prisoner, that he obtained a divorce from his wife, and was awarded by a competent court the custody of the child, which bears his name and which he is charged with *218kidnapping. It was impossible for the prisoner to be guilty of kidnapping his own child under such circumstances. The warrant was issued before indictment, and the prisoner is, therefore, entitled to have the legality of his detention inquired into and passed upon.

Citator

UpLaw has not yet analyzed In re Marceau. The absence of a flag is not a finding that it is good law.

Cited by
2 opinions
McAdam, J.

The prisoner was arrested in the city of New York by the chief of police thereof, under a warrant issued by the recorder of the city of Ogdensburg, on the charge of kidnapping. There being no denial by return filed, it must be taken as true, as alleged by the prisoner, that he obtained a divorce from his wife, and was awarded by a competent court the custody of the child, which bears his name and which he is charged with *218 kidnapping. It was impossible for the prisoner to be guilty of kidnapping his own child under such circumstances. The warrant was issued before indictment, and the prisoner is, therefore, entitled to have the legality of his detention inquired into and passed upon. Code Civ. Pro., § 2031; People v. Martin, 1 Park. Or. 187, 189; Ex parte Tayloe, 5 Cow. 50, 51; People ex rel. Pickard v. Sheriff, 11 Civ. Pro. 172, 179; 15 Am. & Eng. Ency. of Law (2d ed.), § 161. It cannot be that a mere ex parte complaint before a magistrate deprives the Supreme Court of its power under the writ of habeas corpus of determining whether the imprisonment of the citizen is justifiable or not, particularly where the warrant is to take him to a place remote from his home or friends. The prisoner committed no crime, and is entitled to his liberty.

Application granted.