People ex rel. O'Brien v. Hayes

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

• Court: New York Supreme Court
• Decided: May 15, 1902
• Status: Published

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.