
    PEOPLE v. MacKENZIE.
    (Chautauqua County Court.
    November 23, 1910.)
    1. Criminal Law (§ 97)—Statutory Regulations—Prosecution.
    Defendant was convicted by the Court of Special Sessions, not sitting in the town where the offense was committed, for violation of Forest, Fish, and Game Law (Consol. Laws, e. 19) § 135, making it an offense to take-fish by the use of explosives. Code Or. Proc. § 151, requires that where an-offense, committed in another town, over which a magistrate has jurisdiction, the magistrate issuing the warrant must direct the defendant to-be brought before a magistrate in the town in which the offense was committed. Forest, Fish, and Game Law, § 24, gives to Courts of Special-Sessions exclusive jurisdiction of offenses committed under that chapter,, extending to offenses committed.-in the county where the court sits. Held,. that section 24, enacted subsequent to Code Or. Proc. § 151, is an exception to section 151, and that the Court of Special Sessions had jurisdiction to try the defendant.
    [Ed. Note.—For other cases, see Criminal Law, Dec, Dig. § 97.*]
    2. Criminal Law (§ 87*)—Statutory Regulations—Criminal Prosecution.
    Forest, Fish, and Game Law (Consol. Laws, c. 19) § 24, confers on-Courts of Special Sessions in towns and villages exclusive jurisdiction to-try an offense committed under that chapter, and Code Or. Proc. § 211, giving the defendant in certain cases an election as to how he will be tried,, has no application to such offenses.
    [Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 87.*]
    Appeal from Court of Special Sessions.
    Sprague MacKenzie was convicted for a violation of the forest, fish,, and game law, and he appeals.
    Affirmed, with a modification of sentence.
    Van Dusen & Martin, for appellant.
    John K. Patterson, Dist. Atty., for the People.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes-
    
   OTTAWAY, J.

This is an appeal from a conviction had in a, Court of Special Sessions held in the town of Westfield, Chautauqua county, N. Y. The conviction was for violation of section 135 of the forest, fish, and game, law of the state of New York (Consol. Laws, c. 19). The offense was committed in the town of Chatauqua and •consisted of discharging dlynamite in a stream of water within said town. The defendant insists that the Court of Special Sessions in which he was convicted had no jurisdiction to try the defendant. It is claimed in his behalf that, pursuant to section 151 of the Code of Criminal Procedure, the defendant was triable only before a magistrate of the town in which the offense was committed. This section provides:

“The warrant must direct that the defendant be brought before the magistrate issuing the warrant or if the offense was committed in another town and is one which a Court of Special Sessions has jurisdiction to try, or which a ■magistrate has jurisdiction to hear and determine he must direct that the defendant be brought before a magistrate of the town in which the offense was ■ committed.”

This is a general quotation applicable to cases triable in Courts of Special Sessions. If no other or different provisions had been enacted, this section would be controlling. People v. McLaughlin, 57 App. Div. 454, 68 N. Y. Supp. 246; McCarg v. Burr, 186 N. Y. 467, 79 N. E. 715.

Section 24 of the forest, fish, and game law, however, provides:

“Courts of Special Sessions and police courts of towns and villages and the •several Courts of Special Sessions and police courts in cities shall in the first instance have exclusive jurisdiction of offenses committed under this chapter and the jurisdiction of such courts shall extend to all such offenses committed in the county where the court sits. A warrant shall be returnable before the magistrate issuing the same.”

It is evident from the language of this section that the Legislature ■intended a different procedure in this class of cases. It is apparent that they intended to enlarge the scope of inquiry of the courts mentioned and not to confine their investigations to the particular locality where the offense occurred. Had the Legislature intended to limit these investigations to the provisions of section 151, it would! have been sufficient to have conferred exclusive jurisdiction upon Courts -of Special Sessions without further enactment. Section 24 expressly provides that the jurisdiction of the courts mentioned shall extend to all offenses committed within the county where the court sits, and directs that the warrants shall be made returnable before the magistrate issuing the same. The language of this section does not admit •of doubt. Section 24 of the forest, fish, and game law having been enacted subsequent to section 151 of the Code of Criminal Procedure, and being inconsistent and repugnant to the same, must be regarded • as controlling and as an exception to the provisions of section 151. Livingston v. Harris, 11 Wend. 329; Hankins v. Mayor, 64 N. Y. 18; Ross v. Brooklyn, 69 N. Y. 605; Heckmann v. Pinkney, 81 N. Y. 211.

Under section 24 of the forest, fish, and game law, the Court of Special Sessions had jurisdiction to try the defendant.

A further contention is made by the defendant that the conviction -of the defendant was illegal because the record fails to show that the court informed the defendant by a Court of Special Sessions and asked1 him how he would be tried. Section 211 of the Code of Criminal-Procedure provides:

“If the crime with which the defendant is charged be one triable as provided in subdivision 37 of section 5G by the Court of Special Sessions of the county in which the same was committed, the magistrate before holding the-defendant to answer must inform him of his right to be tried by a Court of Special Sessions and must ask him how he will be tried. If the defendant shall not require to be tried by a Court of Special Sessions he can only beheld to answer to a court having authority to inquire by the intervention of a grand jury.”

The defendant insists that subdivision 37 of section 56 is applicable-to this case. Expressing no opinion upon that proposition, it is apparent that defendant’s position is not tenable. Section 24 of the forest, fish, and game law gave the trial court exclusive jurisdiction of' this offense. It was the duty of the justice to try the accused notwithstanding any demand to give bail to appear before the grand" jury. Austin v. Vrooman, 128 N. Y. 234, 28 N. E. 477, 14 L. R. A. 138; People v. Starks, 1 N. Y. Supp. 721; † People v. Austin, 49 Hun, 396, 3 N. Y. Supp. 578.

The judgment of conviction in this case must be affirmed. Under the circumstances of this case, however, and pursuant to the authority vested in this court by section 764 of the Code of Criminal Procedure, the sentence is modified to the time already served.  