The opinion
Werner, J. (dissenting).
If the question were whether the relator’s guilt of the crime of larceny as charged in the information had been - established according to the immemorial rule which obtains in .criminal trials, and which imperatively demands proof of guilt beyond a reasonable doubt to justify a conviction, I should unhesitatingly vote in the negative, for the evidence which the magistrate had before him when he was called- upon to issue the warrant concededly falls far short of that standard. But that is not the question before us. The only question we are called upon to consider, and indeed the only one we have the right now to decide, is whether the evidence before the magistrate invested him with jurisdiction to issue the warrant; in other words, whether the evidence before him was of such a character as to impose upon him the duty of judicially determining whether there was probable cause to believe that the crime charged had been committed. It is not our province now to inquire whether his decision may have been correct or erroneous, but our duty begins and ends in passing upon his right to decide that question at all. If he had before him any evidence calling for the exercise of his judicial judgment as to whether there was probable cause to believe that the crime charged had been committed, it invested him with jurisdiction, and in that event the writ of habeas corpus issued herein must be dismissed. I think there was evidence enough
*607
before the magistrate to give him jurisdiction, and, therefore, vote for reversal of the order of the Appellate Division upon the opinion written by Chief Judge Cullen.
O’Brien and Edward T. Bartlett, JJ., concur with Gray and BEiscogk, JJ.; Chase, J. concurs with Cullen, Ch. J., and Werner, J.
Order affirmed.