
    PEOPLE v. WENK et al.
    (Kings County Court.
    February 14, 1911.)
    1. Threats (§ 1)—Offenses.
    An attempt to extort money by means of verbal threats is a misdemeanor within Penal Law (Consol. Laws, c. 40) § 857, making one attempting to extort money by verbal threats guilty of a misdemeanor.
    [Ed. Note.—For other cases, see Threats, Cent. Dig. §§ 1-6; Dec. Dig. § l.l
    2. Indictment and Information (§ 119)—Surplusage.
    Under Code Cr. Proc. § 285, defining the sufficiency of an indictment, the word “feloniously” in an indictment charging a misdemeanor may be disregarded.
    [Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 311-314; Dec. Dig. § 119.*]
    3. Indictment and Information (§ 9*)—Preliminary Proceedings—Commencement of Prosecution—“Exclusive.”
    Under Code Cr. Proc. § 39, subd. 1, §§ 56, 57, defining the jurisdiction of courts, and section 252, empowering the grand jury to inquire into all crimes, and Laws 1910, c. 659, § 31, declaring that the Court of Special Sessions shall have in the first instance exclusive jurisdiction to hear misdemeanors, but shall be divested of jurisdiction, if before the trial the grand jury shall indict the same person for the same offense, the commencement of a prosecution for a misdemeanor in the Special Sessions is not a prerequisite to the right to indict for the same offense, since the word “exclusive” merely defines the jurisdiction of inferior criminal courts, and prevents the subjecting of accused to be twice put in jeopardy for the same offense, in violation of Const, art. 1, § 6.
    [Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. § 34; Dec. Dig. § 9.*
    For other definitions, see Words and Phrases, vol. 3,- p. 2549; vol. 8, p. 7656.]
    4. Courts (§.477*)—Conflicting Jurisdiction—Criminal Prosecutions. •
    Where two courts may take jurisdiction of the same person, and offense, the court first acquiring jurisdiction retains it to the exclusion of the other, in the absence of any statute to the contrary.
    [Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 1260, 1260% ; Dec. Dig. § 477.*]
    Lesser Wenk and another were indicted for crime. Motion to dismiss indictment.
    Denied.
    Hirsh & Rasquin (Hugo Hirsh, of counsel), for the motion.
    John F. Clarke, Dist. Atty. (Peter P. Smith, Asst. Dist. Atty., of counsel), opposed. •
    
      
      For' other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep*r Indexes
    
   FAWCETT, J.

This is a motion to dismiss an indictment upon the ground that the grand jury had no power or jurisdiction to" find the same.

Defendants have been jointly indicted for an unsuccessful attempt to extort money by means of verbal threats. The acts charged were committed in the borough of Brooklyn of the city of New York, which borough is coterminous with the county of Kings. The acts charged are a misdemeanor within the provisions of section 857 of the penal law (Consol. Laws, c. 40). People v. Gillette, 200 N. Y. 275, 93 N. E. 953. The word “feloniously,” as used in the indictment, may be disregarded under section 285 of the Code of Criminal Procedure.

The defendants contend that the commencement of a prosecution for a misdemeanor in the Special Sessions is a prerequisite to the right of the grand jury to indict for the same offense. This depends on the construction of section 31, c. 659, Laws 1910, known as the “Inferior Criminal Courts Act of the City of New York,” ■\vhich, so far as material here, provides as follows:

“The Courts of Special Sessions shall have jurisdiction as follows: (1) The court shall have in the first instance exclusive jurisdiction to hear and determine all charges of misdemeanor committed within the city of New York, except charges of libel. The court shall however be divested of jurisdiction to proceed with the hearing and determination of any charge of misdemeanor in either of the following cases: * * * (b) If, before the commencement of the trial of any person accused of a misdemeanor, a grand jury shall present an indictment against the same person for the same offense.”

Section 252 of the Code of Criminal Procedure says:

“The grand jury has power and it is their duty to inquire into all crimes committed or triable in the county, and to present them to the court.”

Section 2 of the Penal Law says:

“Division of Crime—A crime is (1) a felony; or (2) a misdemeanor.”

Does the expression “exclusive jurisdiction” in section 31 of the inferior criminal courts act of the city of New York .limit the jurisdiction of the grand jury as given' in section 252 of the Code of Criminal Procedure? I think not. The word “exclusive” in the statute establishing the inferior courts was not intended to limit the jurisdiction of courts of general jurisdiction, but was intended to define the jurisdiction of the inferior criminal courts established thereby, as between themselves. People v. McCarthy, 168 N. Y. 549, 61 N. E. 899.

It may be asked, if this be the true interpretation, why exception “b” in section 31 of the inferior courts act is necessary.. The natural answer would be that it is an elementary principle of criminal jurisprudence that no person shall be subject to be twice put in jeopardy for the same offense. Article 1, § 6, Constitution of the state of New York. Where two courts may take jurisdiction of the same persons and subject-matter, the court first acquiring jurisdiction retains it to the exclusion of the other. This is true in both civil and criminal practice. Therefore, if there were no statutory authority to oust the Special Sessions of jurisdiction when it had once taken jurisdiction, the courts of general jurisdiction would be powerless.

The question raised here was squarely decided adversely to the claim of the defendants in the case of People v. McCarthy, supra. But it is claimed that the case of People v. Gillette, 200 N. Y. 275, 93 N. E. 953, establishes a principle contrary to that in the McCarthy Case. The Gillette Case arose under the provisions of the charter of the city of Rochester. The Police Court of that city has jurisdiction equivalent to that of our Special Sessions but there is no statutory authority for ousting it of jurisdiction simply by indictment by the grand jury. This can only be done by first obtaining one of certain specified certificates. It appears, therefore, that a court of competent jurisdiction had assumed jurisdiction of the offense, and that no proper proceeding to oust it of jurisdiction had been taken. Of course, the second criminal proceeding could not be maintained. I see nothing in the language of the Court of Appeals in the Gillette Case to indicate that they intended to overrule the principle of the McCarthy Case.

If the defendants’ construction of the inferior courts act of the city of New York is good, no reason can be assigned why the Legislature should have inserted in subdivision 1 of section 39 of the Code of Criminal Procedure, the limitation therein found requiring a certificate under section 57 of the Code of Criminal Procedure before indictment as to crimes over which the inferior courts specified in section 56 of the Code have in the first' instance exclusive jurisdiction to hear and determine. If the simple giving to those inferior courts exclusive jurisdiction in the first instance to hear and determine would have prevented the County Court from inquiring by means of indictment before prosecution had been commenced in the inferior court, no added limitation was required. While subdivision 1 of section 39 of the Code of Criminal'Procedure does not apply to the inferior courts of the city of New York, it does clearly indicate that the legislative understanding of the phrase “in the first instance, exclusive jurisdiction” as applied to inferior courts is adverse to the claim of the defendants in the case at bar.

Motion denied.  