
    The People of the State of New York, Appellant, v. William Vert, Respondent.
    Third Department,
    November 10, 1909.
    Grime — poisoning animal—jurisdiction — objection should toe raised toy motion — appeal dismissed.
    The crime of wantonly poisoning an animal in violation of section 660 of the Penal Code is triable exclusively in a Court of Special Sessions under section 56 of the Code of Criminal Procedure unless the certificate provided for by section 57 be made.
    
      The jurisdiction of the court to try such crime cannot be raised by demurrer, but only by motion.
    But an appeal by the People from a judgment sustaining the defendant’s demurrer to an indictment by the grand jury for said crime will be dismissed, as a reversal of the judgment sustaining the demurrer would merely result in sending the prisoner back to obtain his discharge by motion.
    Appeal by the plaintiff, The People of the State of New York, from a judgment of the County Court of St. Lawrence county, entered in the office of the clerk of said county on the 17th day of February, 1909, allowing the defendant’s demurrer to an indictment.
    
      John C. Crapser, District Attorney, for the appellant.
    
      George E. Van Kennen, for the respondent.
   Smith, P. J.:

The defendant was indicted for poisoning cattle under section 660 of the Penal Code. He was indicted by a grand jury drawn for a term of the Supreme Court in St. Lawrence county. The case was sent to the County Court. The defendant demurred to the indictment for lack of jurisdiction. The demurrer was sustained.

The case of People v. Knatt (156 N. Y. 302) seems to have settled two questions: First, that a crime committed under section 660 of the Penal Code is one triable exclusively in a Court of Special Sessions under section 56 of the Code of Criminal Procedure, unless the certificate provided for under section 57 of the Code of Criminal Procedure be made. It was conceded upon the trial that such a certificate was not made. It is further settled by the majority of the court in that case that the jurisdiction of the court could not be raised by a demurrer, but could only be raised by motion.

It is unnecessary for us to pass in any way upon the merits of this appeal. The district attorney does not claim that the grand jury had any jurisdiction to find this indictment. The defendant was, therefore, entitled to his discharge, and if we reverse this judgment and overrule this demurrer it would simply result in sending the prisoner back for his discharge upon motion. We are at a loss to understand how there is any practical question before us. The appeal, therefore, should be dismissed, without costs.

All concurred.

Appeal dismissed.  