People v. Jones

a rumor that the complainant had mortgaged the cow, and, in the absence of the complainant, he went to the farm in the daytime and openly took the cow away. Thereupon the complainant went before a magistrate, and obtained a warrant for the arrest of the defendant for larceny. The information charged the defendant with committing “the crime of violating section 1298 of the Penal Law [Consol. Laws, c. 40] in feloniously taking the cow claimed to belong to the plaintiff from the fields where she was grazing and taking same in the direction of Cortland,” where the defendant resided, without the consent or authority of the complainant. No value of the property was stated. On arraignment after he had procured counsel, the defendant moved for his discharge on the ground that the information was insufficient, and, upon that being denied, he further moved for his discharge on the ground that the magistrate sitting as Court of Special Sessions had no jurisdiction to try him. Upon this motion being denied, a jury was impaneled and a trial had. The complainant was sworn as a witness, and testified that the understanding with the defendant was when he signed the note that, if the defendant should pay it, the cow should be his, and acknowledged that the defendant did pay the note, but claimed that, after such payment, he repaid the amount to him. The defendant denied repayment, and testified that such payments as were made were not upon the note, but upon other dealings had between the parties, and that he took the cow openly, claiming title, believing that she belonged to him. The only proof of value was the undisputed testimony of one witness who said the cow was worth $40 at the time of taking. At the conclusion of the evidence, the defendant moved for his discharge both on the ground that no crime had been shown and upon the further ground that the Court of Special Sessions had! no jurisdiction because the value of the property was more than $25. Such motion was denied and the jury found the defendant guilty. An appeal was allowed to the county court of Cortland county, which affirmed the judgment, whereupon defendant appealed to this court.

Assuming under the authority of People v. Smith, 86 Hun, 485 , 38 N. Y. Supp. 989 , that the information was sufficient upon which to base a warrant for larceny generally, it was not sufficient to show the crime of petit larceny which the Court of Special Sessions had jurisdiction to try because it was not shown that the value of the property did! not exceed $25. If property of the value of more than $25 is stolen, the crime committed is grand larceny in the second degree (Pen. Law, § 1296), trial for which can be had only after indictment. Petit larceny is a misdemeanor, and can be committed only by the stealing of property of the value of $25 or less. Courts of Special Sessions are given jurisdiction by section 56, subd. 1, Cr. Code, to hear and determine the crime of petit larceny, but have no jurisdiction to hear and determine charges of larceny in any other degree. Not only did the information fail to show that the value of the cow was $25 or less, but the undisputed evidence upon the trial was that she was worth $40. It thus affirmatively appeared that if, in fact, any crime was committed, it was that of grand larceny in the second de

.gree, which the Court of Special Sessions had no jurisdiction to hear and determine. A Court of Special Sessions being a court of limited jurisdiction, the fact that it has jurisdiction in a particular case must affirmatively appear. People v. McLaughlin, 57 App. Div. 454 , 68 N. Y. Supp. 246 .

On his arraignment the defendant appeared without counsel, and did not raise objection to the jurisdiction of the court, but asked for an adjournment for the purpose of procuring counsel. While such failure to raise objection at the first opportunity might possibly be deemed a waiver of irregularities if the court had jurisdiction, as was held in People v. Shaver, 37 App. Div. 21 , 55 N. Y. Supp. 701 , and in People v. Huggins, 110 App. Div. 613 , 97 N. Y. Supp. 187 , and in People v. Winness, N. Y., 3 Cr. Rep. 89, there could be no waiver of the jurisdiction of the court, and no consent could confer jurisdiction upon a court which had none. Cancemi v. People, 18 N. Y. 128 . The trial of the defendant therefore by the Court of Special Sessions was a nullity.

In addition, the proof showed that no crime was committed. The agreement was that, if the defendant paid the note given for the purchase price of the cow, she should become his property. Confessedly he did pay the note. The complainant says that he repaid! the defendant, and the defendant disputes it. Even if the complainant is right in1 his contention, the defendant had sufficient reason to claim title to the cow, and from his standpoint there is nothing to impugn his good faith in so doing. Section 1306 of the penal law provides that it is a sufficient defense to a charge of larceny that the property was appropriated openly and avowedly under a claim of title .in good faith, even though such claim is untenable.

Assuming that the jury had jurisdiction to render a verdict of guilty "against the defendant, on the facts established the verdict would have been wrong, and must have been set aside.

The judgments of the County Court and of the Court of Special ■Sessions are reversed, and the defendant discharged. All concur.