126 N.Y.S. 1085 | N.Y. App. Div. | 1911
The defendant was tlie owner of a dairy farm which, together with a herd of cows, was leased to the complainant on shares. Soon after the complainant moved upon the defendant’s farm Ire bid off a cow at a public auction. The vendors refused to deliver the cow to him unless the defendant would sign a note for the purchase price, which was fifty dollars and fifty cents. This the defendant agreed to do upon the understanding that the cow should be his if he was compelled to pay the note. When the note became due the complainant did not pay it and tlie same was paid by this defendant. At the time of the purchase of the cow she was placed on the farm owned by the defendant and occupied by the complainant and was there at the time the defendant paid the note. Some time later the defendant heard a rumor that the complainant had mortgaged the cow and in the absence of the complainant he went-to the farm in the daytime and openly took the cow away. Thereupon the complainant went before a magistrate and obtained a warrant for tlie arrest of the defendant for larceny. The information charged the defendant with committing “ the crime of violating
Assuming under the authority of People v. Smith (86 Hun, 485) that the information was sufficient upon which to base a warrant for larceny generally, it was not sufficient to show the crime of petit larceny which the Court of Special Sessions had jurisdiction to try because it was not shown that the value of the property did not exceed twenty-five dollars. If property of the value of more than twenty-five dollars is stolen the crime committed is grand larceny in the second degree (Penal Law, § 1296), trial for which can be had only after indictment. (Code Crim. Proc. §§ 4, 222.) Petit
On his arraignment the defendant appeared without counsel and did not raise objection to the jurisdiction of the court, but asked for an adjournment for the purpose of procuring counsel. While such failure to raise objection at the first opportunity might possibly be deemed a waiver of irregularities if the court had jurisdiction, as was held in People v. Shaver (37 App. Div. 21) and in People v. Huggins (110 id. 613) and in People v. Winness (3 N. Y. Cr. Rep. 89), there could be no waiver of the jurisdiction of the court and no consent could confer jurisdiction upon a court which had none. (Cancemi v. People, 18 N. Y. 128.) The . trial of the defendant, therefore, b.y the Court of Special Sessions was a nullity.
In addition the proof showed that no crime was committed. The agreement was that if the defendant paid the note given for the purchase price of the cow she should become his property Confessedly he did pay the note. The complainant says that he repaid the defendant and the defendant disputes it. Even if the complainant is right in his contention the defendant had sufficient reason to claim title to the cow, and from his standpoint there is nothing to impugn liis good faith in so doing. Section 1306 of the Penal Law provides that it is a sufficient defense to a charge of larceny that the property was appropriated openly and avowedly, under a claim of title preferred in good faith, even though such claim is untenable.
The judgments of the County Court and of the Court of Special; Sessions are reversed and the defendant discharged.
All concurred.
Judgments of conviction reversed and defendant discharged.