
    SUPREME COURT—APP. DIV.—THIRD DEPT.
    Nov. 10, 1909.
    THE PEOPLE v. WILLIAM VERT.
    (134 App. Div. 790.)
    (1) . Jurisdiction—Poisoning Animal—Penal Code, Sec. 660.
    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.
    (2) . Same—Objection Must be Raised by Motion.
    The jurisdiction of the court to try such crime cannot be raised by demurrer, but only by motion.
    (3) . Same.
    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. Crasper, 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.

NOTE ON POISONING ANIMALS.

•GENERALLY.

Placing of poisoned flesh in an inclosed garden for the purpose of destroying a dog which is in the habit of straying there, was held not to be an offense punishable under 24 and 25 Vict., ch. 97, sec. 41, but it seems that it is an offense under 27 and 28 Vict., ch. 115, sec. 2. Daniel v. Janes, 2 C. P. D. 351.

The word “ land in the Poisoned Flesh Act of 1864 applies to inclosed gardens, buildings, and dwelling-houses. Rogers v. Hull, 60 J. P. 584.

The words “ Paris green import a ■ poisonous substance. State v. La Bounty, 53 Vt. 374.

INDICTMENT.

Indictment which charges defendant with wilfully and maliciously mixing poison with salt and scattering same in a pasture where the cattle of another are kept, with the intention that the poison so mixed with salt should be taken by the cattle, and that it was so taken, and as a result three cows and a bull were destroyed, held sufficient. People v. Knatt, 156 N. Y. 302, 13 N. Y. Crim. 92.

Where charged that poison was used, it will be sufficient to aver, in the statutory language, the use of a poisonous substance, without specifying the substance; an averment that the substance would kill, or was sufficient to kill, is unnecessary. People v. Keeley, 81 Cal. 210.

Where made an offense to deposit poison within two hundred rods of a field or improved land, indictment charging a deposit in a certain field without stating its distance from any other field or improved land, was held good. State v. Buckman, 5 Atl. 529.

EVIDENCE.

Where, to sustain charge of filling and saturating a potato with poison, with intent to give it to a horse, evidence was introduced that a hole was made in the potato and filled with bran saturated with poison, without the potato being saturated, the indictment was held properly proved, this being an immaterial variance. Com. v. McLaughlin, 105 Mass. 460.

Evidence that fowls ate poison, placed by defendant with intent that they should find and eat it, will sustain, an averment that he caused them to eat it. Com. v. Falvey, 108 Mass. 304  