
    Supreme Court—Special Term, Kings County.
    May, 1902.
    PEOPLE EX REL. JOHN O’BRIEN v. PATRICK HAYES, WARDEN, ETC.
    (38 Misc. 163.)
    Habeas Cobpus.
    Where relator had a hearing before the magistrate on a charge of larceny, who held him for grand larceny, but the grand jury failed to indict, but sent the case to Special Sessions upon the charge of petit larceny, he is not entitled to a discharge because the magistrate erred-in sending the case to the grand jury in the first instance.
    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 ease 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 C. Judge, for relator.
    John F. Clarke, District Attorney (William 0. Courtney, Assistant District Attorney), opposed.
   Smith, W. M., J.

Ho 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.  