' It is claimed, by the learned counsel for tho respondent that chapter 390 of the Laws of 1879 deprives the accused of the right of trial before a common law jury of twelve men, and is, therefore, unconstitutional. That chapter provides that “ courts of special Sessions, except in the city of Albany and in the city and county of New York, shall, in addition to the powers now possessed by them, have also exclusive jurisdiction in the first instance to hear and determine * * * charges for petit larceny not charged as a second offence.” In the case of the People ex rel. Stetzer v. Rawson (61 Barb., 619), the General Term of the Fourth Department held that a similar statute applicable to Monroe county, passed in 1870 (chap. 47, Laws 1870), was valid under section 26, article 6 of the constitution as amended in 1869, which provides, that “ courts of special sessions shall have such jurisdiction of offences of the grade of misdemeanor as may bo prescribed by law; ” and the same also holds that petit larceny charged as a first offence is a misdemeanor under the Revised Statutes.
The opinion of Judge Johnson m the Mawscm Case was evidently prepared with great care, and is well considered, and until reversed should bo followed in the other deparments.
The argument that there will be a failure of justice in cases of petit larceny and assault and battery, if this law is held to be constitutional, has no force.
By section 27, title 7, chapter 1, part 4 of the Revised Statutes (2 R. S., 702), it is pi’ovided that “upon an indictment for any offence, consisting of different degrees as prescribed in this chapter, the jury may find the accused not guilty of the offence in the degree charged in the indictment, and may find such accused person guilty of any degree of such offence inferior to that charged in the indictment.” It has been the settled practice under the statutes in cases where indictments charged grand larceny, but the proof failed to establish that the property stolen exceeded in *243value twenty-five dollars, for juries to convict of petit larceny. In People v. Jackson (3 Hill, 93), this question is discussed by Cowen, J., and the practice approved.
It is plain, from the words of the statute of 1879, that it was not intended to repeal the section of the Revised Statutes .before referred to. Exclusive jurisdiction in the first instance is given where the charge is one described in the act.
This does not interfere with the powers conferred by the Revised Statutes by the chapter before quoted relative to the trial of offences therein described, neither does it operate as a restriction upon the power of a justice of the Supreme Court to admit to. bail.
By section 29, chapter 2, title 2, part 4 Revised Statutes (2 R. S., 710), it is provided that a justice of the Supreme Court shall have power to admit to bail in all cases.
The order, therefore, admitting the defendant to bail was proper, and must be affirmed.
Gilbert, J., concurred ; Barnard, P. J., not sitting.Order affirmed, with costs and disbursements.