In re McFarland ( 1891 )

Merwin, J.

The questions on this appeal are (1) whether the recorder of Oswego city had jurisdiction territorially to make the commitment, and (2) whether there was such a lack of evidence before him as to the guilt of the defendant that his discharge upon habeas■ corpus was proper. Upon the first proposition the claim of the respondent here is that he lived in Cayuga county, and.that the crime, if any, was committed outside of the county of Oswego. The recorder of the city of Oswego has in criminal matters the powers of a justice of the peace. Chapter 134, § 2, Laws 1849. He is a magistrate, under section 147, Code Grim. Proe. The substance of the crime charged was the wrongful appropriation of property by a bailee. The bailment, if there was one, was made in Oswego county, and the property •was to be returned there. If we take the view most favorable to the respondent, it was a case within section 134, Code Grim. Proc., which provides that “when a crime is committed partly in one county and partly in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.” It follows that the recorder had jurisdiction territorially. Upon the second proposition the claim of the respondent is that the evidence before the recorder did not tend to establish the commission of any crime. Under section 528 of the Penal Code, a person who intentionally appropriates to his own use property held by him as a bailee is guilty of larceny. Within this definition there was before the recorder evidence, given on the part of the complainant, which the recorder had a right to believe, which tended to show the commission by respondent of the crime of larceny. There was conflicting evidence, but the weight of that was for the magistrate to determine, and should not be rejudged, in any ordinary case at least, in habeas corpus proceedings. We think the contention of the respondent is not sustained, and that the order of discharge was improperly made. Order reversed. All concur.