
    The People of the State of New York, Respondent. v. Edward T. Johnston, Appellant.
    Third Department,
    May 2, 1906.
    Crime — petit larceny— Court of Special Sessions has jurisdiction although, information does not charge crime to be first offense — evidence.
    A -Court of Special Sessions has jurisdiction to try a case of petit larceny when a first -offense, although the information does not charge the crime to have " been a first offense.
    It is not error to exclude an offer by the defendant to show -that the same complainant had laid-an information against the defendant,for larceny, upon which a warrant had been issued and upon which he had been arrested, prior to his arrest in the case at-bar, .when there is no offer to show that the offense pharged in that information was committed by defendant prior to the one for which he is on trial. .
    
      Appeal by the defendant, Edward T. Johnston, from that part of a judgment of the County Court of Warren county, entered in the office .of the clerk of the county of Warren on the 11th day of November,' 1905, which affirms a judgment of the Court of Special Sessions of the village of Grlens Falls, rendered on the 3d day of March, 1905, convicting the defendant of the crime of petit larceny.
    The defendant was convicted of the crime of petit larceny on a trial before a Court of Special Sessions held by the police justice of G-lens Falls, and sentenced to sixty-one days in the Albany Penitentiary. On an appeal to the County Court the sentence was modified to a fine of fifty dollars, and to. confinement in the Warren county jail for fifty days if the fine was not paid, and as so modified affirmed. From the judgment of affirmance the defendant has appealed.
    
      A. Armstrong, for the appellant.
    
      Daniel J. Finn and W. L. Kiley, for the respondent.
   Chester, J.:

The evidence was sufficient to sustain the conviction, but the defendant insists that the Court of Special Sessions had no jurisdiction to try him, because in the information the crime of petit larceny was not charged as a first offense, such court being a court of limited jurisdiction and being given jurisdiction under the statute (Code Crim. Proc. § 56, subd. 1) of trying the ’ charge of petit larceny, charged as a first offense.” This question has been expressly determined adversely to the contention of the defendant in the case of People v. Cook (45 Hun, 34) where Smith, P. J., in writing for the court, says: “ It is also contended that courts of Special Sessions can only try cases, of petit larceny, charged as a first offense.’ (Code of Crim. Pro. § 56, sub. 1.) We do not understand that it is essential to the jurisdiction of a Court of Special Sessions, in a case of petit larceny, that the information or the warrant should allege that the crime charged is a first offense. If it be a first offense in fact, the court has jurisdiction to try the case, and it is to be deemed a first offense unless the contrary is charged. But if such allegation is material for any purpose the defendant is not harmed by its omission. The provision requiring such allegation is, in the interest of the public, to prevent criminals guilty of a second offense from- escaping the full measure of. punishment imposed by statute (Penal Code, § 688), and which courts of Special Sessions; have not the power to inflict.”

The defendant also urges that the court, erred in excluding evidence, offered by him.to show,that the charge was not a first offense in fact. The offer, however, fell far short of this. The offer • was that the same complainant had laid information, against tiffs defend-. ant oti a charge of larceny upon which a warrant was issued against' the prisoner and upon which he was arrested' prior to' being arrested on this charge, but there was no offer, to show that the offense charged in that information was one committed by the defendant prior to the one for which he was being tried, and it is not to be presumed that he would care to confess the commission of an' earlier offense to exclude the court of jurisdiction when the only other effect of such confession would be to subject himself to a prosecution which might result in a mücli more severe punishment than could be imposed for a first offense. . , .'

The judgment should be affirmed.

All concurred, except Parker, P. J., not voting.

Judgment of conviction affirmed.  