
    The People ex rel. John O’Brien, Relator, v. Patrick Hayes, as Warden of the Kings County Penitentiary, Defendant.
    (Supreme Court, Kings Special Term,
    May, 1902.)
    Crimes — Irregularity in disposing of a case of larceny.
    A person duly convicted of petit larceny in a 'Court of Special Sessions, upon the failure of a grand jury to indict him for grand larceny, cannot subsequently procure his discharge upon a wfit of habeas corpus merely because the magistrate who heard the charge of larceny erroneously sent the case to the grand jury in the first instance instead of to the Court of Special Sessions where it belonged.
    Habeas Corpus to procure discharge of relator from custody under commitment of Court of Special Sessions.
    The relator was charged with the crime of grand larceny and held to await the action of the grand jury by a city magistrate. The grand jury did not indict, but indorsed the papers as follows: “ Sent to Court of Special Sessions by Grand Jury to be disposed of as Petit Larceny March 29, 1902. Alex D. Seymour, Foreman,” and the case was accordingly sent to the Court of Special Sessions. The relator was tried and convicted by the Court of Special Sessions, and sentenced to the Kings County Penitentiary for the term of six months.
    John 0. Judge, for relator.
    John F. Clarke, District Attorney (William 0. Courtney, Assistant District Attorney), opposed.
   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.  