People v. MacKenzie

“The warrant must direct that the defendant be brought before the magistrate issuing the warrant or if the offense was committed in another town and is one which a Court of Special Sessions has jurisdiction to try, or which a ■magistrate has jurisdiction to hear and determine he must direct that the defendant be brought before a magistrate of the town in which the offense was ■ committed.”

This is a general quotation applicable to cases triable in Courts of Special Sessions. If no other or different provisions had been enacted, this section would be controlling. People v. McLaughlin, 57 App. Div. 454 , 68 N. Y. Supp. 246 ; McCarg v. Burr, 186 N. Y. 467 , 79 N. E. 715 .

Section 24 of the forest, fish, and game law, however, provides:

“Courts of Special Sessions and police courts of towns and villages and the •several Courts of Special Sessions and police courts in cities shall in the first instance have exclusive jurisdiction of offenses committed under this chapter and the jurisdiction of such courts shall extend to all such offenses committed in the county where the court sits. A warrant shall be returnable before the magistrate issuing the same.”

It is evident from the language of this section that the Legislature ■intended a different procedure in this class of cases. It is apparent that they intended to enlarge the scope of inquiry of the courts mentioned and not to confine their investigations to the particular locality where the offense occurred. Had the Legislature intended to limit these investigations to the provisions of section 151, it would! have been sufficient to have conferred exclusive jurisdiction upon Courts -of Special Sessions without further enactment. Section 24 expressly provides that the jurisdiction of the courts mentioned shall extend to all offenses committed within the county where the court sits, and directs that the warrants shall be made returnable before the magistrate issuing the same. The language of this section does not admit •of doubt. Section 24 of the forest, fish, and game law having been enacted subsequent to section 151 of the Code of Criminal Procedure, and being inconsistent and repugnant to the same, must be regarded • as controlling and as an exception to the provisions of section 151. Livingston v. Harris, 11 Wend. 329 ; Hankins v. Mayor, 64 N. Y. 18 ; Ross v. Brooklyn, 69 N. Y. 605 ; Heckmann v. Pinkney, 81 N. Y. 211 .

Under section 24 of the forest, fish, and game law, the Court of Special Sessions had jurisdiction to try the defendant.

A further contention is made by the defendant that the conviction -of the defendant was illegal because the record fails to show that the

“If the crime with which the defendant is charged be one triable as provided in subdivision 37 of section 5G by the Court of Special Sessions of the county in which the same was committed, the magistrate before holding the-defendant to answer must inform him of his right to be tried by a Court of Special Sessions and must ask him how he will be tried. If the defendant shall not require to be tried by a Court of Special Sessions he can only beheld to answer to a court having authority to inquire by the intervention of a grand jury.”

The defendant insists that subdivision 37 of section 56 is applicable-to this case. Expressing no opinion upon that proposition, it is apparent that defendant’s position is not tenable. Section 24 of the forest, fish, and game law gave the trial court exclusive jurisdiction of' this offense. It was the duty of the justice to try the accused notwithstanding any demand to give bail to appear before the grand" jury. Austin v. Vrooman, 128 N. Y. 234 , 28 N. E. 477 , 14 L. R. A. 138 ; People v. Starks, 1 N. Y. Supp. 721 ; † People v. Austin, 49 Hun, 396 , 3 N. Y. Supp. 578 .

The judgment of conviction in this case must be affirmed. Under the circumstances of this case, however, and pursuant to the authority vested in this court by section 764 of the Code of Criminal Procedure, the sentence is modified to the time already served.