been executed by Conover on that day, but one of them does not appear to have been signed by him. Each assignment recites that Conover is about to enter into a contract with the county of Erie to remove the unclaimed dead from the cemetery, and to be paid therefor in warrants drawn upon the treasurer, in accordance with the report of the appraisal commission, as confirmed by the Supreme Court. One of the assignments transferred $5,000 out of the warrant to be issued for the removal and reinterment of the first 1,000 bodies. The other three were each for $5,750, one payable out of warrants for the second 1,000 bodies, another out of warrants for the third 1,000 bodies, and the third payable out of warrants for the fourth 1,000 bod ́es. The day before the contract was made with Conover, Jackson exacted the discount on the $5,000 note, and Conover executed another note, dated March 25, 1901, for $262.50, at three months, which was paid by Conover's check on the Niagara Bank of Buffalo, dated June 12, 1901, for that amount, and payable to the order of Jackson. Thereupon, and on the 26th day of March, the resolution was passed awarding the contract to Conover, by the board of supervisors, of which Gibson, Jackson, and Stock were members. On the 22d of May, 1901, the 30 days for the removal of the unclaimed dead expired, and the following day Conover commenced taking up the remaining bodies.

It may be well now to call attention to the duties of Neff as county auditor. The statute creating the office of county auditor of Erie county (chapter 173, p. 204, Laws of 1895) requires the county auditor to examine and report upon all accounts or claims against the county before the same shall be audited and ordered paid by the board of supervisors. He is required to ascertain whether the claims are just, whether the prices charged are just and true, and whether the work has been performed and the material delivered, attaching his certificate stating the result of his examination, and, if he advises that the claim be rejected or modified, give his reasons therefor; the claims, with his certificate, to be filed in his office, and during office hours open to public inspection. The usual course of business in passing upon and paying the Conover claims was for Conover to present his claim in writing, and the auditor, after passing on the claim, certified to the amount to which Conover was entitled, and thereupon a warrant was drawn, signed by the clerk of the board of supervisors, and countersigned by the chairman of the board and the county auditor, who was the defendant Neff. On June 4, 1901, a certificate was produced, countersigned by Neff, the auditor, certifying that there was due Conover the sum of $75 for removal award. On the next day a warrant was drawn in the usual form for $7,500. A check was drawn therefor by the deputy county treasurer. It was paid in currency, as is indicated by the markings on the back of the check, as testified to by the cashier employed in the office of the county treasurer. Although the warrant appears to be indorsed by Conover, he denied having the money, or even having any recollection of presenting the warrant. It should be stated, in this connection, that before entering upon the performance of his contract Conover had made removals for lot owners, and their awards were assigned to him, which may be a possible explanation for the certificate of June 4, 1901, for $75. However, no

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claim for the $7,500 warrant, or certificate of the auditing thereof, could be found in the office of the auditor; at least, none was produced at the trial.

On June 11, 1901, Conover made a claim for the removal of 1,200 bodies, and on that day a warrant was drawn in the usual form for $29,304, payable to the order of Conover. He testifies that the only claim he made was for the 1,200 bodies; that, after the warrant was signed and countersigned, Neff took it and started to go down to the county treasurer's office, but, some one desiring to see Neff, he handed the warrant to Gibson, and asked him to go down to the county treasurer's office; that Gibson, Jackson, and Conover went to the county treasurer's office, and into the room of the deputy county treasurer, who was absent, and there Gibson made a computation upon a card, figuring 1,200 bodies at $6.42, and also insisted that Conover pay at the same rate for 600 bodies, being the private removals made by Conover, but Conover refused to make such an allowance, and finally it was agreed that for the 600 bodies there should be allowed $5.75 a body; that the two sums, making in all $11,154, were deducted from the amount of the warrant, $29,304, leaving Conover $18,150; that, in looking over the figures, Gibson stated that it did not come out right, but that they would let it go that way. The card containing the computation was produced on the trial. After the deputy treasurer came, two checks were drawn on the Columbia National Bank, to the order of Conover, one for $11,154, and another for $18,150. Both were indorsed by Conover. Conover further testified that he did not indorse the warrant; that Neff had it; that he never made any claim on the county for the amount of $29,304; that he took the $18,150 check, and deposited it to his credit in the Niagara Bank of Buffalo; that the other check, of $11,154, he left lying on the desk; that Neff came in before he left the room. The currency was obtained the next day on the $11,154 check, by Jackson or Gibson, at the Commercial Bank, without their indorsement. On the 25th of June, 1901, Conover presented a claim for 1,000 bodies, and a warrant for $15,000 was drawn. Neff, Gibson, and Jackson went to the treasurer's office with Conover, and there two checks were drawn, one for $10,000, and one for $5,000. Conover took the $10,000 check, and left the $5,000 check. On July 9th Conover presented a claim for 1,000 bodies, and a like division was made as on June 25th.

The work of removing the bodies was completed on August 2, 1901, according to the last report of one of the inspectors. Conover testifies that on the 6th day of August it was completed in a general way, with the exception of some bodies that were found afterwards in excavating. On that day Conover presented a claim for 558 bodies, making a total of 3,758 bodies up to that time, for which he had presented claims. Conover went to the auditor's office, and, as usual, Jackson and Gibson went to the treasurer's office with him. A warrant dated that day for $7,800 was produced, bearing the indorsement of Conover; but Conover insists that it was not the one taken to the treasurer's office. Another warrant was produced, bearing the same date, for $6,000, likewise made payable to the order of Conover, which Conover indorsed. A treasurer's check for $7,800, payable to the or

der of Conover and indorsed by him, was produced; but he disclaimed having any recollection of the check. Two other checks were produced, dated August 6, 1901-one for $3,450, and another for $2,550, making up the amount of $6,000 warrant. He took the former check and left the latter. On the 1st day of October, 1901, another warrant of $7,500 was issued, payable to the order of Conover. If Conover was not entitled to the land awards, he had before that time been overpaid upwards of $20,000. The moneys were obtained from the county treasurer upon this warrant of $7,500, and it is this transaction for which Conover and Neff were indicted and convicted. Conover testifies that he did not receive the warrant; that he first saw the warrant in Neff's office; that Neff, Gibson, and Jackson were present; that he first saw the warrant in Neff's hands, and Neff handed it to Gibson or Jackson; that the warrant was taken to the county treasurer's office; and that Neff, Gibson, and Jackson were present with him. Two treasurer's checks were issued on the Columbia National Bank-one for $3,086 and another for $4,414-for the warrant. The smaller check was taken by Conover, and the one for the larger amount was left lying on the desk. Both checks were paid out of moneys belonging to the county. Conover testifies that he has no recollection of making any claim for that warrant, and has no record of having done so, and no claim was produced therefor upon the trial.

There are other facts and circumstances, but sufficient, I think, has been detailed to show that the jury were well warranted in finding against the claim, made on behalf of the defendant, that he honestly believed that Conover was justly entitled to the $7,500, for which this warrant was drawn, and upon which this indictment is founded. We think the evidence establishes that Neff, Gibson, Jackson, and Stock entered into a conspiracy to defraud the county; that a combination. was formed by them with a common purpose to steal the money of the county; and that the scheme was deliberately planned and successfully executed. While it is true that the testimony of Conover and Stock, who were accomplices, was relied on to establish the guilt of the defendant Neff, the overt acts proven and the corroborating evidence are such, we think, that the jury was entirely justified in finding that there was such illegal combination, and that the defendant Neff was connected therewith, and aided and assisted in stealing the money of the

county.

3. The defendant also challenges the legality of the court which tried him and the jury which convicted him. As regards the point that the court was not legally constituted, it appeared that it was an extraordinary term appointed by the Governor, and it is now urged that the provision of section 234 of the Code of Civil Procedure, authorizing the Governor to appoint extraordinary terms of the SupremeCourt, was abrogated by the last state Constitution; that although that section was amended in 1895 (Laws 1895, p. 808, c. 946, § 234), and thus re-enacted, it, being in contravention of the Constitution, was void. Of course, if this section is at variance with the Constitution, it is of no force. Section 2, art. 6, of the Constitution of 1894, upon. which counsel for the defendant bases his claim, provides that the justices of the Appellate Division in each department shall have the power

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to fix the times and places for holding Trial and Special Terms, and assign the justices to hold such terms, or make rules therefor. This section was amended in 1905, so as to permit any justice of the Appellate Division, when not actually engaged in performing the duties of such appellate justice in the department to which he is designated, to hold any term of the Supreme Court, and exercise any of the powers of a justice of the Supreme Court, in any county or judicial district in any other department of the state, and in making that amendment the provision contained in that section for fixing the times and places for holding Special and Trial Terms seems also to have been amended, through inadvertence or otherwise, by eliminating from that provision the words "and trial," so that the provision now reads:

"The justices of the Appellate Division in each department shall have power to fix the times and places for holding Special Terms therein, and to assign the justices in the departments to hold such terms, or to make rules therefor."

While the amendment does not affect the power of the Appellate Division justices to appoint Trial and Special Terms, conferred by section 232 of the Code of Civil Procedure, as amended in 1895, it would seem to remove whatever ground existed for the claim that the Constitution contemplated that the Appellate Division justices should. have exclusive power to make such designations, so far as relates to Trial Terms.

The amendment to the Constitution, however, does not affect the question here presented, since the amendment was after the re-enactment of section 234 of the Code of Civil Procedure, which contains the provision authorizing the Governor to appoint extraordinary terms of the Supreme Court; the amendment to the Constitution having been. approved at the general election in 1905, becoming effective on the 1st day of January, 1906, while section 234 was amended in 1895, and its validity must be tested by the Constitution as it was at that time. The precise question now raised by counsel for the defendant was decided adversely to his contention by the Appellate Division in the Second Department in 1897, in the case of People v. Young, 18 App. Div. 162, 45 N. Y. Supp. 772, by a unanimous decision. It was there held that the power given to the Appellate Division by the Constitution was not in conflict with the power of the Governor to appoint extraordinary terms. It has been the uniform practice of all of the Governors, since the adoption of the Constitution, to exercise this power, and, while we recognize the force of the argument of counsel for the defendant to the contrary, we are not convinced that the Governor did not have that power.

After the first jury was impaneled and sworn, and before any evidence was given, it was discovered that the order removing the action. to Wyoming county had not been entered in the clerk's office of that county. Section 353 of the Code of Criminal Procedure provides that such an order is of no effect unless a certified copy thereof be filed, as required by section 351, before a juror is sworn to try the indictment. When thus filed the court to which the action is removed must proceed to trial and judgment therein. Section 351 provides that, if the Supreme Court order the removal of the action, a certified copy of

the order for that purpose must be delivered to and filed with the clerk of the court where the indictment is pending, who must thereupon transmit the same, with the pleadings and proceedings in the action, including all undertakings for the appearance of the defendant or of the witnesses, or a certified copy of the same, to the court to which the action is removed. The drawing of the jury was finished on July 17, 1906, and the panel was sworn. At the opening of court on the next day counsel for the defendant stated that no certified copy of the order of removal had been filed with the court, or the clerk thereof, and consequently the court had not jurisdiction. The question was discussed as to whether the order had been filed. The clerk of the court and his deputy were sworn, showing that no such order had been filed with them. A copy of the order, which had been served upon the counsel for the defendant by the district attorney, was examined by the court, and a recess was taken until later in the day. After the recess counsel for the defendant stated that the defendant would waive the question of jurisdiction, but the court stated that the statute seemed to be imperative, and, in view of the position of the defendant's counsel, he would discharge the jury, and the jury were discharged accordingly.

It will be observed that the defendant's counsel did not recede from his position that the court was without jurisdiction to try the defendant, but stated that he was willing to waive that question. What the effect would have been, had the defendant persisted in his objections and the trial continued before the first jury, we need not determine, since that question is not now in the case. We think, under the circumstances, the defendant cannot be heard to complain of the course adopted by the trial court in discharging the first jury.

After the first jury was discharged it became necessary to draw additional jurors, which counsel for the defendant objected to upon the ground that it was practically drawing a new panel, without observing the provisions of sections 1012 and 1043 of the Code of Civil Procedure. We think the court had power to draw the additional jurors. See Code Civ. Proc. §§ 1058, 1059.

Neither do we think that what was done before the first jury was an independent trial, so that by discharging the jury it exonerated the defendant from further prosecution and trial, under the provisions of the Constitution that no person shall be subject to be twice put in jeopardy for the same offense (Const. N. Y. art. 1, § 6), as contended by the defendant. There was but one trial. The jury was discharged for the reasons which have been stated, and we think, even if the case had gone over the term, as was requested by counsel for the defendant, it would not have prevented another trial. Section 430, Code Cr. Proc.; People v. Cignarale, 110 N. Y. 23, 17 N. E. 135; Smith, 172 N. Y. 210, 64 N. E. 814.

People v.

It is further contended on behalf of the defendant that there is a fatal variance between the proof and the indictment, which is in form. a common-law indictment for larceny; that the charge of larceny as stated in the indictment was not proven; that, if any offense was proven, it is what was formerly known as "obtaining money under false pretenses," and not larceny as defined by the common law and the Revised Statutes before the Penal Code was enacted, making the