People v. Miller — 14 Johns. 371

Majority

p. 373

The People against Miller.

NEW YORK,

October, 1817.

Headnote

A Court of special ,reatF.cüon of <,/” conviction special session*, the place where the offence -ras committed must have been m the tionof the court. Whether it 18 !>RCRSSaryj>> state that the “¡ms^'issSii^ which the rested was made Qum. A fraud, to be indictable at common law* and such as common pru* dence is not to guard against; as the using of false weights and measures, or false tokens, or wheie there has been a conspira-cy to cheat Where a got ofa note, that ¡¡fok "aitshftd a‘° then carriRd ¡t away, and to deliver it to the holder > it was held that this was merely a private fraud, and not punishable criminally.

IN ERROR, on certiorari, to a court of special sessions of the peace', consisting of three justices of the county of Otsego, to bring up the trial and conviction of the defendant, for a misdemeanor. The return stated, that upon the complaint of one George Wilson, that the defendant had been guilty of a misde- . .i meaner, m taking; from him a certain note, a warrant was issued, ° and that the defendant on being brought before a justice, court was duly to be tried by a special sessions. formed, and from the evidence, it appeared, that the defendant he witness, Wilson. was given by the defendant called on the witness, Wilson, and wished to see a note which to one Marsh, or bearer, for ten tons of hay, and that on its being handed to the defendant to at, he mounted his horse, and rode away with it, and refused to deliver it to Wilson. The defendant was convicted upon this evidence, and fined J2 dollars and 50 cents, and the • objections alleged against the conviction were, that it did not appear that the complaint, upon which the warrant issued, was under oath ; that it did not appear where the offence, if any, was committed, or that it was within the jurisdiction of the court below; that admitting the offence to have been committed the county of Otsego, it is not an offence within the of a court of special sessions ; and that the evidence does not make out any criminal offence.

None of the objections made to this conon have much weight, except those relating to the place where

p. 374

the offence was committed, and the insufficiency of the evidence on wHiCh the conviction was founded. It is essential that it should appear, that the court had jurisdiction of the offence; and it had no jurisdiction, unless it was committed within the county of Qstego ; and if committed within that county, it was within the jurisdiction of a court of special sessions. The act, (sess. 36. c. 104. s. 6. 2 R. L. 507.) extends its jurisdiction to petit larceny, misdemeanor, breach of the peace, or other criminal of-fence, under the degree of grand larceny. But the evidence did not" make out any criminal offence at all; it was a mere private fraud, which, according to the doctrine laid down by this court, in the case of The People v. Babcock, ( 7 Johns. Rep. 204 .,) is not indictable. A fraud indictable at common law, must be such as would affect the public, and such as common prudence would not be sufficient to guard against; as the using of false weights and measures, or false tokens, or where there has been a conspiracy to cheat. (6 Term. Rep. 565.) The fraud, in this instance, is not one falling within the rule. The conviction must, therefore, be reversed.

Conviction reversed.