In re McFarland

Headnote

Territorial jurisdiction, to commit for a crime — offense of grand larceny, where it is'commiited.

Upon appeal from an order, made upon tie return to a writ of habeas corpus discharging one McFarland from custody, it appeared that McFarland had been committed upon the charge of grand larceny in the second degree by the recorder of Oswego city, who had in criminal matters, under section 2 of chapter 134 of the Laws of J 849, the powers of a justice of the peace, and who was a magistrate, under section 147 of the Code of Criminal Procedure.

It was claimed by McFarland that he lived in Cayuga county, and that the crime, if any, was committed outside of the county of Oswego.

The offense charged consisted in McFarland’s having obtained, in the city and county of Oswego, an Irish setter dog under an agreement to return the same, his having refused to do so, and his having converted the said dog to his own use, with intent and purpose to cheat and defraud the owner out of the value thereof:

Held, that the case, under the view most favorable to McFarland, came within section 134 of the Code of Criminal Procedure, providing 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,” and that the recorder of Oswego city consequently had territorial jurisdiction to make the commitment.

Appeal by tbe People from an order of tbe Hon. L. 'W. Barer, special surrogate of tbe county of Oswego, made in tbe above-entitled matter, under date of June 23, 1890, and entered in the Oswego county clerk’s office on tbe 25th day of June, 1890.

Tbe order appealed from discharged McFarland from tbe custody of the sheriff of Oswego county, who held him under a commitment made by the recorder of Oswego county, to await tbe action of the grand jury of that county.

Tbe complaint made before tbe recorder was as follows : “ That on or about tbe 10th day of September, 1889, at tbe city of Oswego, in said county, one Peter McFarland obtained from deponent an Irish setter dog, owned by deponent and worth about fifty dollars, and agreed to return tbe said dog on tbe 1st day of January, 1890; that said McFarland has neglected and refused to surrender said dog to deponent, and has converted said dog to his-

own use with intent and purpose to cheat and defraud deponent out of the value of the same, wherefore ■ this deponent prays that the said offender may be dealt with according to law.”

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,” etc.