In re McFarland — 36 N.Y. St. Rep. 573

Majority

p. 573

In the Matter of the Application of Peter McFarland for a writ of habeas corpus.

(Supreme Court, General Term, Fourth Department,

Filed February 20, 1891.)

Headnote

1. Criminal law—Jurisdiction—Recorder op Oswego.

The recorder of the city of Oswego has jurisdiction to hear and act upon a charge of larceny based upon a wrongful appropriation of property by a bailee, although he resides in another county, where the bailment was made in Oswego county and the goods were to be returned there.

2. Same—Larceny.

A person who intentionally appropriates to his own use property held by him as a bailee, is guilty of larceny.

Appeal by the People, by the district attorney of Oswego county, from an order of the special surrogate of Oswego county, made in the above entitled matter, dated June 23, 1890, and entered in Oswego county June 25, 1890. The order discharged McFarland from the custody of the sheriff of Oswego county, who •held him under a commitment, made by the recorder of Oswego city, to await the action of the grand jury of the county.

On the 24th 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

p. 574

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.”

George T. Clark, Ass’t Dist. Att’y, for app’lts; Peter McFarland, resp’t in person.

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. Chap. 134 of 1849, § 2. He is a magistrate, under § 147 of Code of Crim. Pro. 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 § 134 of Code Crim. Pro., 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 § 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 magistrate to determine and should not be

p. 575

rejudged, in any ordinary case at least, in habeas corpus proceedings.

We think the contention of the respondent is not sustained, and that the order of discharge was improperly made.

Order reversed.

Hardin, P. J., and Martin, J., concur.