
    SUPREME COURT—APP. DIVISION—SECOND DEPARTMENT,
    November 14, 1913.
    THE PEOPLE v. DOMINICK PASCOWITCH.
    (158 App. Div. 812.)
    (1.) New York City Magistrate—Return by.
    A magistrate in the City of New York, after charging a defendant with felonious assault, should make a return to the district attorney.
    (2.) Same—Reduction by Grand Jury of degree of crime fixed by MAGISTRATE.
    But the fact that the magistrate, after holding the defendant for felonious assault, made a return to the sheriff of the county instead of to the district attorney, and the grand jury reduced the crime to assault third degree and sent the case to the Court of Special Sessions, where the defendant was convicted, is not a ground for reversal.
    Appeal by the defendant, Dominick Pascowitch, from a judgment of the Court of Special Sessions of the City of New York, borough of Brooklyn, rendered against him on the 14th day of April, 1913, convicting him of the crime of assault in the third degree.
    
      A. I. Nova, for the appellant.
    
      Edward A. Freshman, Assistant District Attorney [James C. Cropsey, District Attorney, and Harry G. Anderson, Assistant District Attorney, with him on the brief], for the respondent.
   Jenks, P. J.:

The defendant appeals from a judgment of the Court of Special Sessions of the City of New York, borough of Brooklyn, that convicts him of assault in the third degree. He was charged before a magistrate in the said borough and city with felonious assault. At the close of his examination the magistrate disposed of the case as follows: “ It appearing to me by the within depositions and statement, that the crime therein mentioned has been committed, and that there is sufficient cause to believe the within-named Dominick Pascowitch guilty thereof, I order that he be held to answer the same. And that he be committed to the Sheriff of the county of Kings. And that he be admitted to bail in the sum of $1,000 and be committed to the Sheriff of the county of Kings until he give such bail.” The case was considered thereafter by the grand jury of the county of Kings, with this disposition, as appears by indorsement upon the papers subscribed by its foreman: “ Reduced to Assault 3rd by Grand Jury and sent to Special Sessions 3/6/13.” Thereafter the district attorney of the said county filed an information in the said court pursuant to section 742 of the Code of Criminal Procedure, and the defendant was tried upon his plea of “not guilty.”

The sole point that requires consideration was raised by the, learned counsel for the defendant at the outset of the trial upon a motion to dismiss the information and for a discharge of the defendant, renewed at the close of the case for the People, and upon motion for arrest of judgment. The contention was that the court had no jurisdiction in that the proceedings were begun in a Magistrate’s Court upon an affidavit, upon which a warrant was issued, that the defendant was charged with a felony, held to answer to that charge, which, however, the grand jury reduced'to assault in the third degree and sent to the Special Sessions'. I cannot find from the record that the defendant was arrested upon a warrant, for the indications are that he was arrested pursuant to the provisions of section 177 of the Code of Criminal Procedure and arraigned pursuant to section 188 thereof.

I cannot find specific authority for this action of the grand jury. The contention of the defendant is that, because the examining magistrate held him for an assault of a degree which is triable by indictment, and, therefore, made return to the grand jury, the defendant cannot in course be proceeded against for the assault as of a degree not triable by indictment but by the Court of Special Sessions upon an information. This contention involves the proposition that, although the committing magistrate determine that a crime has been committed, and there is sufficient cause to believe the defendant guilty thereof, and thereupon hold the defendant to answer, and yet err in his determination of the degree of that crime, that is an end of the present prosecution. I am inclined to opinion that the contention is not sound. The purpose of the examination was fulfilled, the protection thereof was afforded, and the error in mistaking the degree of the crime is not prejudicial to the defendant. (State v. Spaulding, 24 Kans. 4; Ex parte Nicholas, 91 Cal. 643; State v. Myers, 8 Wash. 180.) The return should have been made to the district attorney by the magistrate (Code Crim. Proc. § 221) ; it came to him, practically from the magistrate, through the channel of the grand jury, although it is true that the magistrate did not intend that it should reach his hands. The failure of the grand jury to indict is not a bar to the present prosecution. (People ex rel. Burns v. Flaherty, 119 App. Div. 462. See, too, People v. Spier, 120 App. Div. 786.)

The chief reliance of the defendant is upon People v. Dillon (197 N. Y. 254), but Dillon had been discharged by the magisstrate, and for that reason the proceedings came to an end, whereas, as we have seen, this defendant was held by the magistrate.

I advise affirmance of the judgment.

Burr, Thomas, Carr and Putnam, JJ., concurred.

Judgment of conviction of the Court of Special Sessions affirmed.'  