
    Supreme Court-General Term-fourth Department.
    
      November, 1885.
    PEOPLE v. BATES.
    Courts of Special Sessions—Territorial jurisdiction— Code Crim. Pro. § 135.
    Section 185 of the Code of Criminal Procedure, providing that •“ Where a crime is committed on the boundary of two or more counties, or within five hundred yards thereof, the jurisdiction is in either county,” is limited to courts proceeding by indictment, and confers no jurisdiction on courts of Special Sessions or magistrates holding such courts.
    Defendant, who resided in the town of Ulysses, Tompkins county, and who had procured a license from the excise commissioners of the town of Covert, in Seneca county, was arrested on a warrant issued by a justice of the peace of said town of Ulysses, charging him with having sold liquors in said town of Covert, in Seneca county, and within fifty feet of the boundary line of Tompkins county. Beld, mat neither the magistrate nor the court held by him had jurisdiction over the offense charged.
    Appeal by defendant, Seymour Bates, from a the Court of Sessions of Tompkins county, uphol judgment of ling the conviction of defendant at a Court of Special Sessions of a violation of the excise laws.
    Defendant, who resided in the town of Ulysses, Tompkins county, was arrested on a warrant issued by a justice of the peace of said town, charging him with having sold liquors in the town of Covert, in Seneca county, and within fifty feet of the boundary line of Tompkins county. It appeared that the excise commissioners of said town of Covert had granted to defendant a license to sell liquors in quantities less than five gallons, not to be drunk on the premises. That defendant had sold liquors in quantities less than five gallons, but not to be drunk on the premises, and that he had sold no liquors in Tompkins county.
    
      J. D. Smith, for the prisoner, appellant.
    
      C. L. Smith, district attorney, for the people, respondent.
   Harden, P. J.

Emory was a justice of the peace of the county of Tompkins, who issued, on the 4th day of July, 1885, the warrant upon which the defendant was arrested and brought before him.

According to section 147 of the Code of Criminal Procedure he was a magistrate, and by section 62 of the Code of Criminal Procedure he was authorized to hold a Court of Special Sessions. Courts of Special Sessions have such jurisdiction as is conferred upon them by section 56 of the Code of Criminal Procedure, “to hear and determine.charges of misdemeanors committed within the respective counties, as follows.”

The language just quoted seems to limit the jurisdiction to crimes committed within the county where the magistrate is authorized to hold a Court of Special Sessions.

Subdivision 82, as amended May 28,1884, allows such Courts of Special Sessions jurisdiction, viz.: “ When a complaint is made to, or a warrant is issued by, a committing magistrate for a violation of the laws relating to excise, and the regulating of taverns, inns and hotels.”

No provision of the law has been cited to vs, nor a word found, which confers jurisdiction upon a justice of the peace, or upon a Court of Special Sessions held by him, of a crime committed beyond the county in which he resides. Wherever jurisdiction has been given beyond the county in which a court of limited jurisdiction is held, it has been by special enactment.

Our attention has been directed to the language of section 135 of the Code of Criminal Procedure, which reads as follows ¡ “When a crime is committed on the boundary of two or more counties, or within five hundred yards thereof, the jurisdiction is in either county.” This section is, in substance, like a provision contained in the Bevised Statutes (2 R. S. 727), section 45. That provision of the Bevised Statutes is found in article 2, under a heading of Indictments, and proceedings thereon.” The language of that section differs somewhat from section 135 quoted from the Code of Criminal Procedure. It is as follows, viz.: “ Section 45. When an offense shall be committed upon the boundary of two counties, or within five hundred yards of such boundary, an indictment for the same may be found, and a trial and a conviction thereon may be had in either of such counties. Under that section the jndictment in Otsego county in the case of People v. Davis, (56 N. Y. 95), charging the crime to have been committed in the town of. Brookfield, in Madison county, was .upheld as gocd, because it also contained a charge that the crime was com nitted within i five hundred yards of the boundary line of Otsego county. By an inspection of the Code of Criminal Procedure we find section 135, as found in part 4, entitled: “ Of the proceedings in criminal actions, prosecuted by indictment.” Mje think the caption found in the statute is to be taken into consideration, in determining what signification should be given to the words found in section 135. We are of the opinion that the jurisdiction conferred over crimes committed on the bsundary of a county, and within five hundred yards thereof, :s limited to courts proceeding by an indictment, and that sec ion 135 does not confer jurisdiction upon Courts of Special Sessions, or magistrates holding such courts.

Nothing to the contrary to what we have said, was expressly held in the case of the People v. Davis (36 N. Y. 77). The proceedings in that section were by indictment, and, of course, the grand jury Had jurisdiction of that crime, which was committed within five hundred yards of the county line, and it was ■ lawful to proceed by indictment for such an offense. Section 45 of the Code of Criminal Procedure, which we have already quoted, gives to the grand jury and the court the same jurisdiction as they would have had, had the crime been perpetrated within the territorial limits of the county of Tates. We are of the opinion that the magistrate, and the Court of Special Sessions held by him, had no jurisdiction over a crime alleged to have been perpetrated in the town of Covert in the county of' Seneca.

It is suggested by the counsel for the appellant, that the question of jurisdiction was waived, when not taken, when the • defendant was first brought before the magistrate. An objection was distinctly taken that the court had no jurisdiction over " the alleged offense. We are of the opinion that the objection was timely, and that the Court of Special Sessions improperly overruled the objection, and that it was its .duty to have dismissed the charge made against the defendant at'that stage of' the proceedings.

It may also be observed that the warrant- does not, in terms,. charge an offense to have been committed in the town of Ulysses or in the county of Tompkins. The language of the warrant was, viz.: “ The crime of selling strong and spirituous liquors,. wine, ale, beer and cider, within the jurisdiction of Tompkins county, has been committed.” The language is somewhat indefinite, and a further inference from the literal reading of it might be, that the crime was committed within the territorial limits of Tompkins county. If that be the proper rendering of the language, the admissions of proof upon the trial clearly showed that the supposed offense was not committed within the territorial limits of Tompkins county, but was committed in the town of Covert, in the county of Seneca.

The justice overruled the objection, and the defendant excepted. We think the question of the want of jurisdiction in. "¡the magistrate, or the Court of Special Session was raised - timely, and was improperly disposed of by the trial court For '.that error we think there should be a reversal of the judgment - of the Court of Sessions of Tompkins county, and the court - directed to give judgment for the defendant

Judgment of the Court of Sessions of Tompkins county, and -of the Court of Special Sessions reversed, and the Dourt of Ses- ; sions directed to grant an order for judgment for the defendant

Board man, J.

I concur in the foregoing opinion. It seems - to me doubtful whether a conviction could have been had in i Seneca county while the license remained unrevoked, and, if so, that which was not a crime in Seneca county could not be pun- : ished as a crime in Tompkins county.

Follett, J., concurred.

Judgment of the Court of Sessions of Tompkins county and -of the court of Special Sessions reversed, and the Court of Ses..sions directed to grant an order for judgment for the defendant  