People ex rel. O'Brien v. Hayes

38 Misc. 163, 16 N.Y. Crim. 516, 77 N.Y.S. 284

Opinion

Smith, W. M., J.

Mo substantial right of the relator was invaded. He had a hearing before the magistrate on a charge of larceny. The magistrate held him to await the action of the grand jury for the crime of grand larceny; the grand jury failed to indict him. The fact that the grand jury refused to find a bill of indictment, with a memorandum that the case be sent to the Court of Special Sessions to be disposed of as petit larceny, was irregular, but its legal effect was the same as a simple refusal to find an indictment. The court of Special Sessions had jurisdiction to try the relator upon the charge of petit larceny. He is not entitled to a discharge now because the magistrate erred in sending the case to the grand jury in the first instance instead of the Court of Special Sessions, where it belonged.

Writ dismissed.