It is understandable that the applicant herein should seek to avoid what appears to him to be the fruitless ordeal of a second prosecution by an appeal to this court’s extraordinary power of prohibition; and I am in full accord with the majority that a proper showing of double jeopardy that would ultimately result in an acquittal should enlist the exercise of that power. But is there such a showing *105here! I entertain, at the least, grave doubts — doubts that may perhaps be resolved by the trial in the Court of General Sessions ; and for this reason only do I dissent and vote to deny the application.
The count of the indictment in Queens County which charged the petitioner with “receiving” referred to “ a quantity of wearing apparel”—partly owned by a sportswear company, partly owned by a coat company. There was a complete failure of proof upon the trial in Queens County Court that the sportswear—bathing suits—had been stolen; and proof of such theft was an essential element of the crime as charged. In the absence of such proof it was pointless to proceed further and identify the place of petitioner’s receipt of the suits, and so the introduction of testimony to that end was not even attempted. With regard to the coats, however, the prerequisite of an antecedent theft was shown and the testimony located their receipt in New York County. Similarly, with regard to the count for “ concealing ”, no testimony at all was offered relating to the criminal “ concealment ” of the bathing suits. In contrast, there was undisputed testimony that the coats were found in New York County in the trunk compartment of an automobile in petitioner’s possession, and that the detective who found them then got in the car and drove to Queens with petitioner on the latter’s representation that a receipt for the coats was at his home in Queens.
Thus we have a record silent as to the place of receiving or concealing the bathing suits, but explicit and uncontroverted as to the place of receiving and concealing the coats. I do not ignore the well-established proposition that each count of the indictment, though embracing both bathing suits and coats, charged but a single offense (Code Crim. Pro., §§ 278, 279, 295-d; Woodford v. People, 62 N. Y. 117, 128; People v. Hall, 186 Misc. 62; Smith v. State of Ohio, 59 Ohio St. 350; State v. Weathersbee, 125 S. C. 179). If there were any showing at all that the bathing suits had been received or concealed in Queens County, we of course could not by some species of judicial surgery hold that the receipt of the coats found in New York County could constitute the basis for an indictment to be tried in the Court of General Sessions of New York County. But a finding of double jeopardy here, or in other words a finding that the Queens County Court has jurisdiction, would be supported only by affirmative, undisputed proof that part of the goods were received and concealed in New York County and upon no proof at all as to where the remaining goods were received or concealed. The vulnerability of this alleged finding *106of jurisdiction in Queens County is made manifest by the rule that, since the County Courts are of limited statutory jurisdiction, the record must show the facts conferring jurisdiction and no presumption of jurisdiction is indulged in (People ex rel. Dold v. Martin, 284 App. Div. 127), as well as the rule that the sufficiency of an indictment and the power of a court to try an accused depend upon proof that the crime charged was committed within the court’s jurisdiction (People v. Fein, 292 N. Y. 10, 12, 13; People v. Di Lorenzo, 301 N. Y. 374; People v. Hetenyi, 277 App. Div. 310, affd. 301 N. Y. 757).
The doubts I entertain are not resolved by the statement of petitioner’s counsel relied upon by the majority, in his affidavit in support of the petition, that the case presented by the People “ consisted of calling various witnesses to testify as to certain bathing suits which were recovered in the petitioner’s home in Hollis, Queens ”. If the statement was intended to tell us that witnesses testified the bathing suits were recovered in Queens County, it is inaccurate; the transcript contains no such testimony. If it was intended to impugn the accuracy of the transcript, or to furnish information dehors the County Court record, it is contested by respondents’ sworn answer, which incorporates the transcript and must be taken as declaring its accuracy. And in any event the statement would seem to have no bearing on the County Court’s jurisdiction over the count for receiving.
Petitions for the remedy here sought — tantamount to an injunction against enforcement of a criminal statute — are traditionally viewed with great caution (People ex rel. Hummel v. Trial Term, 184 N. Y. 30; Reed v. Littleton, 275 N. Y. 150; Matter of Cooley v. Wilder, 234 App. Div. 256). “ The remedy is an extraordinary one which lies within the discretion of the court ” (Matter of Culver Contr. Corp. v. Humphrey, 268 N. Y. 26, 39). I agree that, in a double jeopardy case, relaxation of the customary reluctance to grant the remedy is a proper exercise of discretion. But a clear right to the relief should be established (Triangle Mint Corp. v. Mulrooney, 257 N. Y. 200, 201; People v. Canal Board, 55 N. Y. 390, 394-395). This, I believe, has not been done.
Beeitel and McNally, JJ., concur with Stevens, J.; Botein, P. J., dissents and votes to deny the application, in opinion in which Stexjeb, J., concurs.
Application granted and writ directed to issue. Settle order on notice.