
    The People, Resp’ts, v. John Dewey, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1890.)
    
    1. Gaming—Selling lottery policies—Penal code, § 344.
    The court of oyer and terminer and the court of sessions have jurisdiction of the offense of being a common gambler in selling lottery policies under § 344, Penal Code, buhdivision 10 of § 56, Code Crim. Pro,, giving exclusive jurisdiction to courts of special sessions of the offense of selling lottery tickets, etc., does not include the offense charged in such indictment.
    2 Same—Bar—Former conviction.
    A conviction by a court of special sessions of one of the crimes specified in subdivision 10 of § 56, Cod§ Crim. Pro., is not a bar to a conviction under such an indictment.
    Appeal by the defendant from a judgment of conviction of the court of sessions of Erie county.
    
      G. H. Wende, for app’lt; W. L. Marcy, for resp’ts.
   Dwight, P. J.

The defendant was indicted in the Erie oyer and terminer as a common gambler, for selling lottery policies, under § 344 of the Penal Code, and the indictment was sent to the court of sessions of Erie county. In that court the defendant demurred to the indictment on the ground that neither the oyer and terminer nor the court of sessions had jurisdiction of the offense charged, that offense being, as he alleged, the same mentioned in subdivision 10 of § 56 of the Code of Criminal Procedure, and of which exclusive jurisdiction is thereby given to courts of special sessions, subject only to the power of removal provided by § 57 of the same statute, which power had not been exercised in this case. The demurrer was overruled. The defendant thereupon pleaded, in bar, a former conviction for the same offense in a court of special sessions, the -facts being stipulated. The plea in bar was overruled and the defendant was convicted of the crime charged in the indictment

Both the demurrer and the plea in bar were properly overruled. The offense charged in the indictment was not within the provisions of § 56 of the Code of Crim. Pro. It was distinctly the offense defined by § 344 of the Penal Code. That offense is a felony. It may be punished by imprisonment for a term of two years, § 344, and under the provisions of §§ 5 and 704 of the Penal Code every offense so punishable is a felony. The provisions of § 56 of the Code Crim. Pro. supra, in terms, apply only to misdemeanors. Moreover, the particular description contained in subd. 10 of that section clearly embraces only offenses defined by chap. 8, §§ 323, 324 et seq., of the Penal Cocle. There can be no question of the jurisdiction of both the court of oyer and terminer and the court of sessions of Erie county of the offense charged in the indictment.

The plea in bar was equally ineffectual. The attorneys who signed the stipulation in the court of sessions fell into a curious error in describing the previous conviction of the defendant in the court of special sessions. The stipulation states that he was charged with and convicted of “a violation ofsubd. 10 of! 56 of the Code of Crim. Pro.” If this statement were to be taken as true, the defendant was not convicted in the court of special sessions of any crime of which that court or any other had jurisdiction. The section mentioned does not define any crime; but only provides that of certain crimes, enumerated in its several sub-divisions (all of which are defined by the Penal Code), courts of special sessions have, in the first instance, exclusive jurisdiction. The Code of Criminal Procedure prescribes the rules of procedure in criminal cases; the definition of crimes is confined to the Penal Code. But we may assume that by the stipulation it was intended that the defendant was charged with and convicted, in the court of special sessions, of one of the crimes which is specified in subd. 10 of § 56, etc. If so that conviction was of one of the crimes defined by chap. 8 of the Penal Code and not _ one of those defined by § 344 (of the same statute), under which the indictment was drawn. The two classes of crimes so severally defined are entirely distinct from each other, and a conviction of one of the crimes included in the former class would be no bar to a conviction of one of those included in the latter.

It is true, no doubt, that the application and force of the plea" in bar depends upon the identity of the act itself, which was the subject of the former conviction, with that which is intended to be charged in the subsequent complaint or indictment; and not, necessarily, upon identity in name of the two offenses charged. People v. McGowan, 17 Wend., 386 ; Same v. Krummer, 4 Park. Crim., 217. But in this case the record of the former conviction is not before us, and there is nothing in the stipulation to show that the act then complained of was the same as that charged in the indictment. On the contrary, as we have seen, giving to the defendant the benefit of a liberal construction of the stipulation, the two acts were distinct in character and constituted distinct and separate offenses.

The conviction should be affirmed, and the case remitted to the court of sessions to proceed thereon.

Macomber and Corlett, JJ., concur.

Judgment and conviction affirmed, and case remitted to the court of sessions of Erie county to proceed thereon.  