2. Same—Preliminary Hearing—Sufficiency of Evidence.
Where there is some evidence before the committing magistrate that relator is guilty of the crime charged, his determination thereon will not ordinarily be disturbed on habeas corvus.
Appeal from order of special surrogate, Oswego county.
Application of Peter McFarland for a writ of habeas corpus. On the 24th of March, 1890, the recorder, upon information upon oath, issued a warrant for the arrest of McFarland for the crime of grand larceny in the second degree. The arrest was made and a hearing had before the recorder, evidence being given on behalf of the people and also on behalf of the defendant therein. The recorder was satisfied that the crime charged had been committed, and that there was sufficient ground to believe the defendant guilty thereof, and ordered that he be held to answer in the sum of $300, and be committed to the sheriff of Oswego county until he give such bail. The recorder accordingly issued a warrant of commitment to the sheriff, who thereupon took the defendant. The latter then applied to the special surrogate of Oswego county for a writ of habeas corpus, alleging that the commitment was illegal for the reason that no evidence was given before the recorder tending to show the defendant guilty, and also that the recorder had no jurisdiction territorially to make the order of commitment. Upon the hearing before the special surrogate the evidence taken before the recorder was read. The grounds upon which the order of discharge was made, as recited in it, are: “It appearing upon such examination that the said Peter McFarland is unlawfully imprisoned and restrained of his liberty by reason of want of jurisdiction on the part of the committing magistrate to make the order of commitment on which said Peter McFarland is held, upon the evidence and facts, and of evidence to sustain the same.” Relator was discharged, and the people appeal.
Argued before Hardin, P. J., and Martin and Merwin, JJ.Geo. T. Clark, Asst. Dist. Atty., for appellants. Peter McFarland, in pro. per.
The questions on this appeal are (1) whether the recorder of Oswego city had jurisdiction territorially to make the commitment, and (2) whether there was such a lack of evidence before him as to the guilt of the defendant that his discharge upon habeas■ corpus was proper. Upon the first proposition the claim of the respondent here is that he lived in Cayuga county, and.that the crime, if any, was committed outside of the county of Oswego. The recorder of the city of Oswego has in criminal matters the powers of a justice of the peace. Chapter 134, § 2, Laws 1849. He is a magistrate, under section 147, Code Grim. Proe. The substance of the crime charged was the wrongful appropriation of property by a bailee. The bailment, if there was one, was made in Oswego county, and the property •was to be returned there. If we take the view most favorable to the respondent, it was a case within section 134, Code Grim. Proc., which provides that “when a crime is committed partly in one county and partly in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.” It follows that the recorder had jurisdiction territorially. Upon the second proposition the claim of the respondent is that the evidence before the recorder did not tend to establish the commission of any crime. Under section 528 of the Penal Code, a person who intentionally appropriates to his own use property held by him as a bailee is guilty of larceny. Within this definition there was before the recorder evidence, given on the part of the complainant, which the recorder had a right to believe, which tended to show the commission by respondent of the crime of larceny. There was conflicting evidence, but the weight of that was for the magis