The defendant was indicted and convicted under section 654 of the Penal Code for the crime of willfully and maliciously destroying personal property. The specific act charged in the indictment is, that the defendant willfully and maliciously mixed poison with salt, and scattered the same in a pasture where the cattle of another were kept, with the intent that the poison so mixed with salt should be taken by the cattle; that it was so taken, and as a result three cows and a bull were destroyed. The indictment was found in the Court of Oyer and Terminer on the 27th of January, 1893, and sent to the Court of Sessions, where a trial and conviction were had. The defendant demurred to the indictment on the ground, among others, that the court in which the indictment was found had no jurisdiction of the case, since the offense was a misdemeanor within the exclusive jurisdiction of the Court of Special Sessions, unless the certificate provided by section 57 of the Code of Criminal Procedure had been made in the case, and it is conceded that it was not. The demurrer was overruled and the defendant put upon trial and convicted. He then appealed to the Appellate Division from the judgment of conviction and from the order overruling the demurrer, where both were affirmed, and the defendant now appeals to this court from the judgment of affirmance.
The defendant, after the verdict, moved for a new trial and in arrest of judgment, on the ground that the Court of Sessions had no jurisdiction, and this motion was denied. The question with respect to the jurisdiction of the court was raised by the demurrer and is now before us by the appeal from the order overruling it.
Section 654 of the Penal Code declares that the willful and unlawful destruction of the real or personal property of another is a felony, but the section by its own terms is limited to cases "where the punishment is not specially prescribed *Page 305 by statute." A statute so sweeping and general as this is could by a liberal construction be extended to cases that were not within the purpose of the legislature. Almost every crime against property involves, in some sense, its destruction or injury. The crime of arson for instance involves nearly always the willful and unlawful destruction of the property of another, but it cannot be supposed for a moment that such an offense is included within the scope of the section. That provision of the Code was manifestly intended to cover cases that had not been provided for by any other law. Its purpose is expressed in clear language, and, therefore, if we can find any other statute that provides for the punishment of the offense of poisoning cattle, the conclusion that it does not fall within this section is irresistible.
Section 660 of the Penal Code enacts that "a person who unjustifiably administers any poisonous or noxious drug or substance to an animal, or unjustifiably exposes any such drug or substance with intent that the same shall be taken by an animal, whether such animal be the property of himself or another, is guilty of a misdemeanor." By section 15 of the same Code misdemeanors are punishable by imprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than five hundred dollars, or by both. Thus it appears that the specific act for which the defendant was indicted and convicted is declared to be a misdemeanor and punishable as such. Even if there was doubt with respect to the question as to which of these two sections applies to the wrongful act with which the defendant was charged, we would, I think, according to all the principles and analogies of the criminal law, be required to hold that it was a misdemeanor rather than a felony. Courts are not justified in giving a strained or extreme construction to criminal statutes in order to bring some particular act within their scope, when it is plain that the same act is covered by another statute defining offenses of an inferior grade. Hence, we must conclude that the offense charged in this indictment was not a felony, but a misdemeanor. *Page 306
By section 56 of the Code of Criminal Procedure the Special Sessions, except in two cities named, have in the first instance exclusive jurisdiction to hear and determine misdemeanors committed within their respective counties as there specified and enumerated, and in this specification are included crimes against the provisions of existing laws for the prevention of wanton or malicious mischief and cruelty to animals. It is provided by section 57 of the same Code that, upon filing with the magistrate before whom is pending a charge for any of the crimes specified in the last section, a certificate of the county judge of the county or of any justice of the Supreme Court that it is reasonable that such charge be prosecuted by indictment, and fixing the sum in which the defendant shall give bail to appear before the grand jury, and upon the defendant giving this bail, the proceedings before the justice shall be stayed, and he shall, within five days thereafter, make a return to the district attorney of the county of all proceedings had before him of the charge, together with such certificate, and the undertaking given by the defendant thereon, and the district attorney shall then present such charge to the grand jury. No certificate under this section was procured by the district attorney in this case, and, hence, the question arises whether the Court of Oyer and Terminer had jurisdiction to find the indictment, and whether the County Court of Sessions had jurisdiction to try the defendant. The indictment must show upon its face the facts necessary to confer jurisdiction upon the court in which it is found. The jurisdiction of the Court of Sessions where the trial was had depended upon the jurisdiction of the Oyer and Terminer where the indictment was found. Since, in our opinion, the offense with which the defendant is charged was a misdemeanor triable exclusively in the Court of Special Sessions under the provisions of section 56, and since no certificate was procured under section 57, the indictment and trial were without jurisdiction. It follows that the defendant's demurrer to the indictment was well taken and should have been sustained.
The district attorney joined issue and went to argument on *Page 307 the demurrer. He did not suggest and does not now suggest any doubt that the question of jurisdiction is raised by the demurrer. There is no question of that kind raised in the case, but a doubt has been suggested by some members of the court as to whether the question is properly raised by demurrer. I think it quite clear that it is. It was always the law that a general demurrer to an indictment brought the whole record before the court and the inquiry was then open whether the court in which the indictment was found had jurisdiction. (1 Bishop Crim. Pro. §§ 741, 775; 1 Arch. Crim. Pro. [8th ed.] 355.) In reason and in the nature of things that must be so, since there can be no indictment at all in any legal sense unless it appears that the grand jury had jurisdiction. Without jurisdiction they have no power to investigate the charge or present the accused for trial, and a presentment made under such circumstances has no more effect in law than if made by the jurors in their capacity as private citizens. The accused cannot be required to plead to it, and no witness at such an inquiry could be held for perjury, however falsely he may have sworn. So, also, upon a general demurrer that no crime is stated, the same inquiry must always arise, since it is legally impossible for a grand jury to charge any crime unless there is jurisdiction. Therefore, in every inquiry, whether the paper before the court is an indictment at all, in the legal sense, or whether it charges a crime which the accused is required to answer, there must necessarily be involved the question of the jurisdiction of the grand jury. The scope and effect of a general demurrer at common law has not been changed by the Code, unless it be to enlarge it. That statute greatly simplified the forms of pleadings in criminal cases, but an indictment or other pleading, which was good at common law, is good still. It may, indeed, be in a much more simple form, but it is not objectionable if it comes up to the standard of accuracy prescribed by the common law. (Kennedy v. People, 39 N.Y. 245;Fitzgerrold v. People, 37 N.Y. 413.) The court in which this indictment was found was not a court of general criminal jurisdiction. It had jurisdiction only in *Page 308 cases prosecuted by indictment. (Code Cr. Pro. § 22.) In all cases where Courts of Special Sessions have exclusive jurisdiction, the power of the grand jury to inquire depends wholly on a special fact, and that was the existence of the certificate described in § 57. Until that certificate is made and filed the jurisdiction of the grand jury did not attach, the charge being a misdemeanor of which the Court of Special Sessions had exclusive jurisdiction. It was necessary that this special fact upon which the jurisdiction depended should be alleged in the indictment before the defendant could be required to answer or plead, and hence the question was properly raised by demurrer.
Moreover, it is quite clear that if the question of jurisdicdiction was not raised by the demurrer, it has not been raised at all. The defendant at the opening of the trial moved to dismiss the indictment for the reason that the court had no jurisdiction and the motion was denied. There were no facts then before the court, except the allegations of the indictment, and if the indictment was good as against the demurrer, it must certainly have been good as against the motion, unless there is some mysterious force or virtue in a motion that cannot be attributed to a demurrer. To say that the question was not presented by the demurrer, raising as it did an issue of law which went to the very bottom of the case, while it was raised by a summary motion without any additional facts, is very much like asserting that a part is greater than the whole. If, as has been suggested, no statute can be found authorizing a demurrer in such a case, it is equally true that none can be found authorizing a motion. But the Code does authorize a demurrer on the ground that no crime is charged and this is the general demurrer of the common law; and it also authorizes a demurrer on the ground that local jurisdiction was not acquired (Code Cr. Pro. § 323), and, as we have seen, it was always the law that such a demurrer brought before the court all questions of jurisdiction.
The defendant made another motion after conviction in arrest of judgment which was denied. It was made on the *Page 309 ground, among others, that the court had no jurisdiction. But no proof was made in the case that the certificate upon which jurisdiction depended had not been filed. The court, therefore, had no facts before it on this motion that were not before it on the demurrer. If the jurisdiction of the grand jury was to be presumed on the argument of the demurrer, then that presumption remains in the case until removed by proof that the certificate was not filed, and since no such proof was given, the presumption must be in the case against the defendant still. Moreover, the Code provides that a motion in arrest of judgment must be based on grounds of demurrer (Code Cr. Pro. § 467), and if the question of jurisdiction was not raised by the demurrer, it could not have been raised by the motion in arrest of judgment. (People v.Buddensieck, 103 N.Y. 487.) I conclude, therefore, that the general demurrer in this case performed the same office that it always did, and raised the question of jurisdiction.
There is an appeal before us from the order overruling the demurrer. We must decide in one way or the other. If the indictment was good and the demurrer bad, then the order should be affirmed. On the contrary, if the indictment was bad, in that it failed to allege a special fact upon which the jurisdiction of the court depended, and the demurrer was well taken, as I think it was, then the order should be reversed and the conviction would necessarily fall with the indictment.
The judgment should be reversed.