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Full text of "The Code of Criminal Procedure and Penal Code of the State of New York : as amended and in force, 1893"

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I 



I 




PENAL CODE 



OP THE 



AS /^ENDED, 

AMD Ur FORCE AT THE CLOSE OF THE ONE HUNDRED AMD 
SIXTEENTH SESSION OF THE LEGISLATURE, 



1893. 



ANNOTATED BY 

JOHN T. COOK, 

OF THE ALBANY BAR. 



543653 

ASrc.l. L-N-v AST. 

TfLDLNr '--no.,. 



Entered, according to act of Congress, in the year eighteen hundred and ninetj-three 

bt h. b. parsons, 

In the office of the Librarian of Congress at Washington. 



THE 



CODE OF CRIMINAL PROCEDURE 



OF THE 



AS AMENDED, 



AND IN FORCE AT THE CLOSE OF THK ONE HUNDRED AND 
SIXTEENTH SESSION OF THE LEGISLATURE. 



1893. 



ANNOTATED BY 

JOHN T. COOK, 

OF THE ALBANY BAR. 



ALBANY, N. Y.: 
H. B. PARSONS, LAW PUBLISHER. 
1893. 



Entered, accurding to uct uf Congress, in the year eighteen hundred and oinety- 

three 

By H. 15. PARSONS. 
In the office of tho Librarian of Congress at Washingtor. 



SUMMARY OF CONTENTS 

or THE 

CODE OF CRIMINAL PROCEDURE 



PRELIMINARY PROVIfllONa 

Htle of the Code 

Diviiioiis of the Ckxle 

No person punishable but on legal conTictioiL 

Crimes, how prosecuted 

Criminal action defined 

Parties to a criminal action 

The party prosecuted known as defendant 

Rights of defendant in a criminal action 

Second prosecution for the same crime prohibited 

No person to be a witness against himself in a criminal action or to 



be unnecessarily restrained 10 

PART L 

TRU L — Of the OOURTS of ORIOIHAL CROfHIAL JUKUDUmOK 

IS OEKKRAL 11 

XL — Of thk court fob the trial of ncFSAGmoEzm. . • 11^80 

nL — Of the courts of oyer ajtd TERicmR 81-85 

rV. — Of the city courts. 

Gbaptsr L Tbb city court of Brooklyn 86-87 

n. Tlje superior court of Buffalo 88-80 

nL The other city courts ^ 81-88 

IV. General provisions relating to city courts 88-86 

TrcLB V. — Of the courts of bb88ion& 

Chapter L The courts of sessions in general 87-88 

IL The courts of sessions in counties other than New 

York »Mi 

nL The court of general sessions of the dty and county 

of New York SO^ 

TnuiyL — Op tkb oouart of iraoiAL aBsmoNs ahd poucr 

COURTS. 

Chiptxr I. The special sesdona except in the cities of New York 

and Albany 56-61 



viii 



SUMMABT OF CONTENTS OF THX 



GkARn n. The special seesions in the and ooun^ ol Kew 

York W-67 

IIL The special sessions of the dtj of Albany 68-78 

lY. The police courts 74r-78 

PART IL 

OF THB PRETXlfTION OF GRDCB. 

Tiiui L — Of xjLWFxrL resistance. 

GHAPm L General provisions respecting kwfol resistance 79 

TL Resistance by the party about to be injured 80 

IIL Resistance by other parties 81 

TtaEuIL— Of the intbuyention op the officbbs of jutncB. 

GBAPm L Intervention of public officers in general 8d-88 

IL Security to keep the peace 8i-M 

IIL Police in cities and villages, and their attendance at 

exposed places 100-101 

IV. Prevention and suppression of riots 1011-117 

PART m. 

€V jinxoiAL FBocsEDmos for the rbmoyal of pubuo ofviobbs bt 

IMPEACHMENT OR OTHBRWin. 

TtiLBL— Of dcfbachments 118-181 

IL — Of the removal of jusTicsa of the peaob, rouam 

JTOFICKS, AND JTUSTICBS OF JUSTICES' COURTS AND TDDB 
CLERKS 18f 



PART IV. 

OF THB FBOCEBDINOB IN CRIMINAL ACTIONS PROSECUTED BT nOMOTMBNT. 



TmM L — Or the local jurisdiction or pubuo orFENSBS. . . 188-140 
n. — Of the time of commencing criminal actions. . • • 141-144 
• HL — Of the information and proceedinos thereon to 

THE COMMITMENT INCLUBITB. 

Qbarbb L The information 145-147 

n. The warrant of arrest 148-166 

nL Arrest by an officer under a warrant 167-176 

IV. Arrest by an officer without a warrant 177-189 

V. Arrest by a private person 188-185 

VL Retaking, after an escape or rescue 186-187 

Vn. Examination of the case, and discharge of the defend- 
ant or holding him to answer 188-881 

Titlb IV. — Of proceedings after commitmrnt, and bbfobb 

INDICTMENT. 

Chaptbb L Preliminary provisions 88t 

IL Formation of the grand Jury ; its powers and dnttos. » 838-867 
TiTLB v. — Of the indictment. 

Chaptbb L Finding and presentation of the indictment 268-878 

n. Form of the indictment 878-898 



Cods of Cbdoval Pbogbdoxb ' ix 

(kimni ni Amendment of the indietmoit MMMM 

IV. Arraignment of the defendant 

V. Setting aside the indictment • Bia-«MI 

VL Demurrer 

Vn. Plea 88d-^ 

VUL BemoYal of the action before trial 848-^ 

ftnaYL— Of thb fbogbedinqb on thb nnxionaDiTy bbpobb 

TRIAL. 

(kipm L The mode of trial 854-857 

H Formation of the trial Jnxy 858 

m. ChaUenging the Jury 888^ 

fmrn VIL— Of THE Trial. 

(kARBE L The trial 888-488 

n. Conduct of the Jury, after the canae la sabmitted to 

them 488-488 

m. The verdict 488-454 

taUl Yin. Of THE FBOGBEDINQB AFTBB TRIAL AHD BBPORB JUM- 
MBNT. 

(kAFTBR L Bill of exceptions 455-461 

n. New trials 4«M66 

III. Amrst of judgment 467-470 

IV. Suspension of Judgment ... .470a-470b 

Trlb el — Of the judoicent and bzbodtion. 

Ghapixr L The judgment 471-485 

XL The execution 486-480 

TlOM X — ObNEBAL PEOTISIONB in BRULTION to thb FUNiaUMBNT 
OF CBDfBa. 

QiUmB L The death penalty 481-508 

n. Second offenses, habitual criminals, and tpedal penal 

discipline 510-514 

TBOM Z. — Of AFPBAL8. 

CkarnR L Appeals, when allowed, and how taken 515-588 

XL Dismissing an appeal, for irregularity 588-584 

UL Argument of the appeal 585-541 

IV. Judgment upon appeal. . 548-548 

TrOM XL — Of XnCBLLANEOim PBOCEBDINQa. 

CkarnR L— Bail 



Amou L In what cases the defendant may be admitted to bail, 550-556 
XL Bail, upon being held to answer, before indictment, 557-577 



UL Bail, upon an indictment, before conviction 678-589 

IV. Bail upon an appeal 583-585 

V. Deposit, instead of baU 686-588 

YL Surrender of the defendant 590-598 

vn. Forfeiture of the undertaking of bail, or of the 

deposit of money 588-598 

Vm. Re-commitment of the defendant, after having given 

bail, or deposited money instead of bail • • 588-801 



Z BUMMABY OF CoNTSNTB OF THB 

Baonoa. 

(hUMB n. Compelling the attendance of witnesses 607-619 

in. Szamination of witnesses, conditionally 620-635 

IV. Szamination of witnesses, on commission 686-667 

Y. Inquiry into the insanity of the defendant, before 

trial, or after conviction 668-66d 

YL Ck>mpromi8ing certain crimes, by leave of the court, 663-666 
Vn. Dismissal of the action, before or after indictment, 

for want of prosecution or otherwise 667-678 

Tin. Remitting the punishment in certain cases 674 

IZ. Proceedings against corporations 676-^688 

Entitling affldavito 683 

XL Errors and mistakes in pleadings and other proceed- 
ings 684 

XlL Disposal of property, stolen or embezzled 685-691 

XITT. Beprieves, commutations and pardons 692-698 

PART V. 

or PBOGBEDnrae in courts of special sessions and policb coubtb. 

TtlLB L ~0f the PBOCEEDINGS IK COURTS OF SPECIAL SESSIONS 

IK THE COUNTIES OTHER THAN NEW YORK 699-740 

JL — Of THE PROCEBDINOS IN THB COURTS OF SPECIAL BBA- 

SIONS IN THE CITT AND COUNTY OF NEW YORK 741-748 

IIL — Of APPEALS FROM THE COURTS OF SPECIAL SESSIONS. . . 749-772 

PART VL 

OF SPECIAL PROCEEDINGS OF A CRIMINAL NATURE. 

Tru L — Of coroners' mqussrs, and the duties of coroners, 773-790 

XL — Of search warrants. 791-8!8 

UL — Of the outlawry of persons convictbd of treason, 814-826 
IV. — Of proceedinos against fugitiyjcs from justice. 
Obaptbb L Fugitives from another state or territory, mto this 

state 827-835 

n. Fugitives from this state into another state or territory, 836-837 

TtlLB y. — Of proceedings respecting BASTARDa 

Oharbb L Proceeding before magistrates, respecting bastards . . . 838-860 
IL Appeals from the orders of magistrates, respecting bas- 
tards 861-880 

m Enforcement of the undertaking for the support of the 

bastard or its mother, or for appearance on appeal . . 881-886 

TaSM VL — Of proceedings respecting vagrants 887-898 

VIL — Of proceedings respecting disorderly persons . . 899-918 
VnL — Of proceedings respecting the support of poor 

PERSONS 914-926 

DL — Of proceedings respecting masters, apprentices 

AND servants 927-940 

X* Of criminal statistics 941-949 

XL MlSOBLLANBOUS PROVISIONS RESPECTING SPECIAL PRO- 

CEEDINGS OF A CRIMINAL NATURB 950-958 



Code of CRmmAL Fbooedubs xi 

OXNSRAL PROVISIONS AND DEFINITIONS APPUOABLA TO 

THIS CODE. tiom». 

Abitemeatof nuisance 953 

Ko part of this Code TetroactiYe» onlefls expressly sri dedared...... 964 

hmat tense includes fatuie, etc. • 

Deflnitionof "writing" ^ 956 

Definition of " oath " 957 

Definition of "signature" 958 

Definition of " magistrate " 959 

DefinitioQ of " peace officer" 960 

Definition of " court of sessions" 961 

Ibwlut actiona and proceedings this Code applies 99% 

An Oode to take effect m 



THE CODE 

OP 

Criminal Procedure 



[CTIONS AMENDED OR ADDED, 



1893. 

CRIMINAL CODE* 
Pa mended ; s^iims s5, i6t. 164 1 i^i. 309. 7^ 

PENAL CODE, 
, lyiWnded l St^Mam ta, 4ie, 41^1 4^ ^^h ^i* 115- S7 
!,'4t^i 4*6, 4^, f77»' 581* Gn. 651* 

Added : ScctsonR.ii ^, 41 y, 4$ A, 46^1^1 lie. IS4»* »iS7»f 

Efi* ayah, J^a, 3^4 1'- 4*35a* 4**811* 4lS^4^n* 43a«* 43Sm 



ings. and was passed for the purpose of blending into one intelligent and con- 
sistent act, all the various proceedings necessary, in administering the criminal 
Uw. Froier Board, etc., 17 State Bep. 876. 

♦ See Laws 1892, ch. 677, § 29, pott. 



THE CODE 

OF 

Criminal Procedure 

OF THB 

STATE OF NEW YORK. 



I«aws 1881, Chapter 442. 

AN ACT 

To ^EbTABLISH A CODE OF CRIMINAL PROCEDURE. 

Passed June 1, 1861; three-fifths beiDg present. 

7^ People cf the State of New Torhy represented in Senate 
emd AeeenMy^ do enact as follows : 

PRELIMINARY PROVISIONS. 

Title of the Code. 
DiTisions of the Code. 

No person punishable but on legal couTiction. 
Crimes, how prosecuted. 
Criminal action defined. 
Parties to a criminal action. 
The party prosecuted known as defendant 
Rights of defendant in a criminal action. 
Second prosecution for the same crime prohibited. 
No person to be a witness against himself in a criminal action 
or to be unnecessarily restrained. 

Sbction 1. Title of the Code. — Thin act shall be known as 
the Code of Criminal Procedure of the State of New York. 

This Code is general in its nature, purports to apply to all criminal proceed- 
ings, and was passed for the purpose of blending into one intelligent and con- 
sistent act, all the various proceedings necessary, in administering the criminal 
law. Fnmr Board, etc,, 17 State Bep. 875. 

♦ See Laws 1892, ch. 677, § 29, pott. 

1 




2 



The Code of Criminal Procedure 



§ 2. Divisions of the Code. — This Code is divided into six 
parts. The first relates to the courts having original jurisdiction 
in criminal actions ; 

The second relates to the prevention of crime ; 

The third relates to the judicial proceedings for the removal of 
public officers by impeachment or otherwise ; 

The fourth relates to the proceedings in criminal actions prose- 
cuted by indictment ; 

The fifth relates to proceedings in special sessions and police 
courts; 

The sixth relates to special proceedings of a criminal nature. 

This Code has jurisdiction of every indictment found after it went into 
effect regardless of when the crime was committed. People v. Petreaf 92 
Y. 128; 65 How. Pr. 59; 1 N. Y. Cr. Rep. 233. 

§ 3. No person punishable but on l^^al conviction. - 

No person can be punished for a crime except upon legal con 
viction in a court having jurisdiction thereof. 

See State Const., art. 1, § 1; Fed. Const., fifth amendment; Penal Codvv, 
§ 9 and note; Cameron v. Tribune Ass'n, 27 State Rep. 912; 65 Hun, 607. 
In People, ex rel, McDonald, v. Keeler, 82 Hun, 594, the court say : ** It is the 
very basis of liberty, that no person shall be imprisoned unless the right to 
imprison him has been or may be determined by the judiciary. People v. 
Brady, 56 N. Y. 182; Taylor v. Porter, 4 Hill, 140; Const., art. 1, § 1. It 
must be for the courts to decide whether he is deprived of his rights ' by the 
law of the land.' Otherwise the legislature might pass a law to imprison a 
man with or without cause and he would be remediless.*' 

§ 4r. Crimes, how proBecuted. — A crime must be prosecuted 
by indictment, except : 

1. Where proceedings are had for the removal of a civil officer 
of the state on impeachment by the assembly for willful or cor- 
rupt misconduct in office ; 

2. Where proceedings are had for the removal of justices of 
the peace, police justices and justices of justices' courts and their 
clerks ; 

3. A crime arising in the militia wheu in actual service, and 
in the land and naval forces in time of war, or which this state 
may keep with the consent of congress in time of peace ; 

4. Such crimes as are hereinafter or in special statutes specified 
as cognizable by courts of special sessions and police courts. 

State Const., art. 1, § 6; Fed. Const., fifth amendment. 



OF THE State of New York. 



8 



§5. Crimmal action defined. — The proceoding, bj which 
a party charged with a crime is accused and brought to trial and 
pimishment, is known as a criminal action. 

§6. Parties to a criminal action. — A criminal action is 
pposecated in the name of the people of the State of New York, 
as plaintifEs, against the party charged with crime. 

See People v. Johnson, 104 N. Y. 216; 5 N. Y. Cr. Rep. 219. 

§7. The party prosecuted known as defendant. — The 

party prosecuted in a criminal action is designated in this Code 
as the defendant. 
See Pe<^ v. JohMon, 104 N. Y. 216; 5 N. Y. Cr. Rep. 219. 

§8. Rights of defendant in a criminal action.— In a 

criminal action the defendant is entitled : 

1. To a speedy and public trial ; 

2. To be allowed counsel as in civil actions, or he may appear 
and defend in person and witli counsel ; and, 

3. To produce witnesses in his behalf, and to be confronted 
with the witnesses against him in the presence of the court, ex- 
cept that where the charge has been preliminarily examined 
before a magistrate, and the testimony reduced by him to the 
form of a deposition in the presence of the defendant, who has, 
either in person or by counsel, cross-examined, or had an oppor- 
tunity to cross-examine, the witness, or where the testimony of a 
witness on the part of the people, has been taken according to 
the provisions of section two hundred and nineteen of tliis Code, 
the deposition of the witness may be read upon its l>eing satis 
factorily shown to the court that he is dead or insane, or cannot 
with due diligence be found in the state. 

BobdiT. 1. See 6 L. R. A. 832, note; Rapalje's Crim. Proc., § 152; Desty's 
Penal Code. Cal.. § 686; 4 Crim. L. Mag. 801; Cooley's Const. Lim. (5th ed.) 
379, 380; 4 Amer. & Eng. Encj. of Law, 812; United States v. Fox, 3 Mont. 
512; P^opGt V. Murray (Mich.), 60 N. W. Kep'r, 995; N. Y. L. J. Oct. 31 , 1892; 
26 Am. L. Rev. 771. 

The ezclasion of jurors sammoned for the term, but not impaneled, is not 
t deprivation of the right of pablic trial. Pe^e v. Sprague, 54 Cal. 401. 

SnbdiT. 2. See Cooley's Const. Lim. (5th od.)405; 21 Am. L. Reg. (N. S.) 62". 

A prisoner is entitled to a private consultation with counsel after having 
been committed to await action of grand jury. People, ex rel. Burgess, v. 
Bidey, 66 How. Pr. 67. 



4 



The Code of Criminal Pkocbdtjre. 



He is also entitled to be present with coansel when the jary view the 
premises where a crime is alleged to have been committed, pursuant to section 
411, post. People v. Palmer, 48 Hun, 401, 407; 2 N. Y. Cr. Rep. 106. 

In trials by court martial the accused is entitled to counsel. Pe^le, ex rel, 
Oarling, v. Van Allen, 55 N. Y.81; People v. Sharp, 45 Hun, 492; People v. 
Mayor, etc,, 19 id. 452. 

SubdiT. 3. See Rapalje's Crim. Proc., § 279. 

It is sufficient, if the accused be once confronted by the witnesses against 
liim at any stage of the proceeding upon the same accusation and ha^e an 
opportunity of cross-examination. People v. PenhoUow, 5 N. Y. Cr. Rep. 41 ; 
42 Hun, 108. 

The provision that the deposition of a witness, taken before the magistrate 
in the presence of the defendant, who at the time had an opportunity of cross- 
examining the witness, may, under certain circumstances, be read in evidence 
upon the trial, is not unconstitutional. People v. WiUiams, 35 Hun, 516; 3 N. 
Y. Cr. Rep. 68; People v. Fish. 125 N. Y. 152. 

To same effect. Territory v. Evans, 12 Crim. L. Mag. 446; State v. McO*Blenis, 
1J4 Mo. 412; Summons v. State, 6 Ohio St. 340; GHlbreath v. State, 26 Tex. App. 
S18; People v. Brothcrton, 47 Cal. 388; People v. Leong Sing, 77 id. 117. 

**Due diligence." See People v. Murphy, 1 N. Y. Cr. Rep. 102. 

§ 9. Second prosecution for the same crime prohibited. — 

No person can be subjected to a second prosecution for a crime 
for which he has once been prosecuted, and duly convicted or 
lacquitted. 

State Const., art. 1, § 6; Fed. Const., fifth amendment; Penal Code, § 86; 
Cooley Const. Lim. (5th ed.) 400; 1 Bish. Crim. Law (7th ed.). §§ 978-1070; 17 
Am. Law Rev. (X. S.) 735; 33 Am. Dec. 96, note; 11 Am. & Eng. Encyc. of Law, 
^26; 6 Crim. Law Mag. 61; 4 id. 27, 487; 18 C«nt. L. J. 43, 63; Rapalje Crim. 
Proc., § 124. 

The rules and authorities as to the effect of a former acquittal or former con- 
viction will be found collected in Abbott's Crim. Brief, 64, etc., 443, etc. 

The incorporation into the federal constitution and into constitutions of 
states of the phrase " twice put in jeopardy for the same offense," was but the 
recognition and the application in a stronger form of expression of the com- 
mon-law doctrine. PvopUi v. Palmer, 109 X. Y. 417. See, also, Canter v. 
J'eopU, 5 Abb. Pr. (X. S.) 27 

*' In a legal sense ♦ ♦ ♦ a prisoner is not once put in jeopardy until the 
Terdict of the jury is rendered for or against him." Spencer, J., in People v. 
Oooditin, 18 Johns. 187. See Peoplr v. Green, 13 Wend. 65. 

A prisoner is not put in jeopardy where the evidence fails to establish the 
offense charged. Canter v. Pt'oph , 1 Abb. Dec. 305. 

In this state a prisoner is considered in jeopardy when be has been arraigned 
and pleaded to a valid indictment, a witness has beeu sworn and evidence 
given, and then, without his consent, a juror has been withdrawn or the jury 
discharged. King v. People, 5 Ilun, 297; Hilands v. Com. (Penn.), 33 Alb. L. 
J. 147. 

The pendency of a prior indictment, to which he has pleaded, cannot be 
pleaded in abatement. People v. Fisher, 14 Wend. 9. 



OF THK State of New York, 



5 



Tbe plea of autrefois convict is supported by proof of a lawful trial and ver- 
dict, though no judgment be given upon it. Shepherd v. Pe<?ple, 25 N. Y. 406; 
reversing 23 How. 337; People v. Cramer, 5 Park. 171. See, also, People v. 
Barrett, 1 Johns. 66. 

A verdict upon which no judgment could have been given cannot be pleaded 
ss a former acquittal. People v. Olcott, 2 Johns. Cas. 301 . 

Former acquittal not a bar, the act being the same where the intent was 
different. Pe^rple v. Warren, 1 Park. 338. 

When one offense is committed the more effectually to carry into effect an- 
other, an acquittal of the latter is no bar to an indictment for the former. 
Ptople V. Ward, 15 Wend. 281. 

A former trial and acquittal is no bar unless the offenses charged in both 
indictments are the same in law as well as in fact. 4 Bl. Com. 330; 1 Russ. 
Crimes, 829. 836; People v. Burch, 5 N. Y. Cr. Rep. 29; Com, v. Rol)y, 12 Pick. 
496: Burns v. People, 1 Park. 182; People v. NicJioU, 3 id. 579; People v. 
Hkhirds, 44 Hun, 288; People v. Saunders, 4 Park. 106. 

Where, by the same act, defendant murders two persons, conviction or 
acquittal of the murder of one is no bar to a prosecution for the murder of the 
orber. People v. Majors, 65 Cal. 138; 52 Am. Rep. 295. 

A verdict of acquittal, upon the trial of an indictment, for robbery is no bar 
to a subsequent indictment and conviction for perjury, committed by defend- 
ant as a witness on his own behalf, on trial of the former indictment, though 
the testimony on the two trials be substantially the same. People v. Scully, 3 
X. Y. Cr. Rep. 244. 

A trial and acquittal of robbery may ha pleaded in bar to an indictment for 
larceny, of the tame.proi^erty. People v. McOowan, 17 Wend. 386; People v. 
.SweVA, 57 Barb. 46. 

An acquittal upon an indictment for larceny, no bar to an indictment for 
embezzlement of same property. People v. Burch, 5 N. Y. Cr. Rep. 29; 1 N. 
Y. Sute Rep. 751. 

A verdict of acquittal for stealing the same goods, which were charged in 
the former indictment as the property of another owner, cannot be pleaded in 
bar. Hughes' Case, 4 C. H. Rec. 182. 

Single act constituting two separate offenses, when conviction for one offense 
does not bar prosecution for the other. People^ ex rel,, etc.^ v. Sadler , 3 N. Y. 
Cr. Rep. 471; People v. Miller, id. 475. See, also, 26 Alb. L.J. 324; 15 Cox 
Crim. Cas. 85; 36 Eng. Rep. 500; 16 Am. St. Rep. 224; 14 id. 572. 

Conviction for assault and battery no bar to indictment for murder, where 
the person assaulted subsequently dies of the blows. Burns v. People, 1 
Park. 182. 

A conviction for uttering a forged bond is a bar to a subsequent conviction, 
under an indictment charging the uttering, at the same time, of the mortgage 
accompanying such bond, and purporting to secure the perfonnauce of its 
conditions. People v. Peck, 4 N. Y. Cr. Rep. 148. 

Former acquittal on an indictment charging an indorsement, may be pleaded 
in bar to another charging forgery of the same note and indorsement. People 
V. Allen, 1 Park. 445. 

So, also, an acquittal on an indictment charging the prisoner with havinnf in 
his possession a certein counterfeit note with intent to utter it, may be pleaded 



6 



The Code of Criminal Procedure 



in bar to a sabsoquent indictmeDt for having such other notes in his possession 
for a like intent, where all were in possession at the same time. People 
Van Keuren, 5 Park. 66. 

An acquittal on the merits of the offense of forging an order in writing is 
pleadable in bar to a subsequent prosecution for obtaining money on the false 
pretense that the instrument was true. People v. Krummer, 4 Park. 217; 1 
Seld. 549. 

To an indictment for rape the defendant cannot plead in bar a former con- 
viction for assault and batterj arising out of the same transaction. People 
Saunders, 4 Park. 196. 

An acquittal on a former indictment for nuisance is not a bar to a second 
prosecution, where the erection is not a nuisance per »e. People v. Townsend, 
8 Hill. 479. 

Where a prisoner has been put on trial, a juror cannot be withdrawn with- 
out his consent. People v. Barrett, 2 Cai. 304; OrarU v. People, 4 Park. 527; 
Klock V. People, 2 id. 676. 

In case of disagreement the jury may be discharged and the prisoner retried. 
People V. Goodwin, 18 Johns. 187; Jones v. Com,, 14 Va. L. J. 197; 10 S. E. 
Rep. 1004. 

So where they separate without authority and are afterward discharged. 
People V. Reagle, 60 Barb. 527. 

In cases of misdemeanor the court of sessions may discharge the jury with- 
out consent of the prisoner, and he may be tried again. 2 Johns. Gas. 275. 
An arrest of judgment after conviction for felony is not a bar to a second 
People v. CashoruM, i;i Johns. 351. 

n fraudulently obtained by defendant is not a bar to a subsequent 
prosecution for the same offense. McFarland v. State, 68 Wis. 400; 60 Am. 
Rep. 867; State v. Simpson, 28 Minn. 66; 41 Am. Rep. 269. 

A person may be tried on a second indictment after a nolle pros, or super- 
sedeas of the first, to which the plea of jurisdiction only had been overruled. 
OardiMr v. People, 6 Park. 155, 190. 

A prisoner sentenced upon a regular trial and conviction cannot be retried, 
S/iepTwrd v. People, 25 X. Y. 406; but the judgment may be corrected under 
the act of 1863. Hussy v. People, 47 Barb. 503. 

Where one is convicted of murder and the law is subsequently repealed 
without reservation and a new law enacted, he cannot be tried again, nor can 
he be executed under a re-enactment of the old law. JIartung v. People, 26 
N. Y. 167. 

The defense of former acquittal must be pleaded, and in the absence of a 
plea .setting it up, the question cannot be raised. Code Grim. Proc., g§ 333, 
839; Peoj^e v. Cignnrale, 110 N. Y. 29; People v. Benjamin, 2 Park. 201. See, 
also, 4 L. R. A. 542, note; Rapalje Crim. Proc., § 140. 

To sustain the plea of former acquittal it must appear that the party was 
'•put in jeopardy" by the former trial. Canter v. People, 5 Abb. Pr. (N. S.) 
27; 1 Abb. Dec. 305; People v. Warren, 1 Park. 338 

Where an indictment contains three counts, and the jury find a verdict of 
guilty on the first count, and omit to find either way as to the remaining 
counts, it is equivalent to an acquittal on those counts, and is as to them a bar 



indictment. 



OF THE State op New York. 



7 



to further prosecntion. PeopU v. Seeley, 3 N. Y. Cr. Rep. 225; PwpU v. 2><ho- 
%, 84 N. Y. 478; QuentJur v. PeopU, 24 id. 100. 

To same effect, Whart. Criin. PI. & Pr., § 740; BeU v. StaU, 48 Ala. 684; 17 
Am. Rep. 40; Edgerton v. Com., 5 AUeD, 514; Stuart v. Com., 28 Gratt. 950. 

Where a party seeks and obtains a new trial for error, he thereby waives his 
constitutional protection and can be again tried for the offense of which he 
was formerly convicted. People v. Cignarale, 110 X. Y. 80, 31; People v, 
Kfffer, 65 Cal. 232; Bohanan v. State, 18 Neb. 57; 53 Am. Rep. 791; ShiUar v. 
i^U, 105 Ind. ^9; 55 Am. Rep. 217. 

In People v. Palmer, 109 N. Y. 419, the court say: "The effect of the de- 
fendant's appeal is merely to continue the trial under the indictment in the 
appellate court, and if reversal of the judgment of conviction follows, that 
judgment, as well as the record of the former trial, have been annulled and 
expunged by the judgment of the appellate court, and they are as though they 
never had been; while the indictment is left to stand as to the crime of which 
the prisoner had been charged and convicted as though there had been no 
trial. Only where the result of the former trial was in effect an acquittal of 
another crime charged in the indictment, may he plead that result in bar of 
farther prosecution for that crime. If the defendant takes an appeal from the 
judgment of conviction, he must be deemed to ask for a correction of errors 
made upon his trial, and to waive his constitutional protection. Of necessity 
he must be deemed to ask for a new trial. By taking the appeal to the 
supreme court power is conferred upon that court to continue and review the 
prisoner's trial, and upon a reversal to pronounce such judgment as it deems 
just within the terms of the statute. It may affirm the proceedings below, or 
reverse, and either order a new trial or discharge the prisoner. That no con- 
stitutional right of the party is invaded must be a self-evident proposition, or 
it is a privilege which is granted, of which he may, but not must, avail him- 
self. I think that the sounder doctrine which recognizes a distinction between 
jeopardy incurred with the consent of the prisoner and jeopardy incurred with- 
out that consent." 

A statute which provides that ' * the granting of a new trial places the parties 
in the same position as if no trial had been had," is not unconstitutional. Com, 
T. Arnold, 83 Ky. 1; 4 Am. St. Rep. 114. In that case it was held that the grant- 
ing of a new trial to one convicted of manslaughter upon an indictment for 
murder, was not a bar to another trial under the same indictment, for the 
higher offense. See exhaustive note to this case, collating the authorities. 

A statute providing that a person shall be subjected to an increased punish 
ment upon conviction for a second offense is not in violation of a constitutional 
provision that no person shall be twice put in jeopardy for the same offense. 
Pt<rpU Y. Stanley, 47 Cal. 113; 17 Am. Rep. 401; Chenowith v. Com, (Ky.), 12 
Crim. Law Mag. 234. 

. §10. Nopersontobea witness agaixmt himself in a cr^ 
inal action or to be unnecessarily restrained. — Ko person 
can be compelled in a criminal action to be a witneee against liiin- 
fielf, nor can a person charged with crime be subjected, before 



8 



The Code of Criminal Procedubb 



conviction, to any more restraint, than is necessary for his deten- 
tion to answer the charge. 

See State Const., art. 1, § 0; Fed. CoDst., fifth amendment; 19 Eng. Rep. 617; 
People V. McGay» 46 How. Pr. 216; People v. Mondon, 103 N. Y. 220; 88 Hun, 
198 ; 4 N. Y. Cr. Rep. 123; People v. Ouidici, 100 N. Y. 508; Conners v. People, 
50 id. 240; Euloffv, People, 45 id. 221; People v. Conrtiuy, 94 id. 490; PeopU 
V. King, 64 Cal. 338; Boyd v. U. S., 116 U. S. 616; People v. Hockley, 24 
N. Y. 74. U. S. V. Denicke, 10 Cr. L. Ma;?. 8G8. 

As to compelling a prisoner to furnish evidence of his identity by putting 
his foot in a track or exposing his person, see State v. Oraham, 74 X. C. 646; 
21 Am. Rep. 493; Walker v. StaU, 7 Tex. a. App. 245 ; 82 Am. Rep. 595; 
Stokes V, State, 5 Baxt. 619; 32 Am. Rep. 595; State v. Sanders, 68 Mo. 202 ; 30 
Am. Rep. 782 ; State v. Garrett, 71 N. C. 85; 17 Am. Rep. 1; State v. Ah Chuey, 
14 Nev. 79; 83 Am. Rep. 530; BlackweU v. State, 67 Ga. 76; 44 Am. Rep. 717; 
CampbeU v. State, 55 Ala. 80; Cooper v. State (Ala.), 4 L. R. A. 766. 

A prisoner is entitled to appear for trial free from all manner of shackles or 
bonds, unless there is danger of his escape. People v. Harrington, 42 Cal. 
165; 10 Am. Rep. 296. 

Defendant may be a witness in his own behalf, g 393, post. 

The object of the constitutional provision that no person shall be com- 
pelled in any criminal case to be a witness against himself " was not to prevent 
the passing of laws allowing the accused to testify in his own behalf if he 
choose to avail himself of that privilege, but to prevent the enactment of stat- 
utes by which the accused might be subjected to actual compulsion to give 
evidence. People v. Courtney, 1 N. Y. Cr. Rep. 558. 

Where a defendant when arrested is compelled to subject his body to in- 
spectiqn in order to discover his identity, the person making such inspection 
may testify on the trial as to the marks found by him on defendant's body, 
since the giving of such testimony is not compelling defendant to testify 
against himself. O'Brien v. State, 13 Cr. L. Mag. 84; 25 Am. L. Rev. 141; 38 
Alb. L. J. 448. 

In Chartangv. State (Ala.) 10 Cr. L. Mag. 417, defendant being arrested 
was found to have a pistol concealed in his hip pocket. On the trial on an 
indictment for carrying concealed weajwus, defendant objected that the search 
of his person was a trespass, and the testimony thus obtained was improper, 
Jield that the objection was properly overruled. 

In McOriff v. State, 88 Ala. 147; 16 Am. St. Rep. 825, it was held that on a 
prosecution for rape of an infant under ten years of age, the prosecutrix can- 
not be compelled as matter of right to submit to a personal medical examina- 
tion. If such right exists, it is a matter of discretion with the trial court to 
be exercised only ia cases of extreme necessity and not subject to review on 
appeal. 

A witness before a grand jury in the Federal courts may refuse to answer on 
the ground that his testimony will tend to criminate himself. Counselman v. 
Hitchcock, 142 U. S 547; 45 Alb. L. J. 231, reversing 44 Fed. Rep. 268. 



OF THE StATB of NeW Yo&K. 



9 



PART I. 

OF THE COURTS HAVING ORIGINAL JTJRI8DICITI0N IS 
CRIMINAL ACTIONS. 

Tttlb L Of the courts of original criminal juRiSDicmoN m 

GENERAL. 

n. Of THE COURT FOR THE TRIAL OF IMPEACHMENTS. 

ni. Of the COURTS of oyer and terminer. 
IV. Of the citt courts. 
V. Of the courts of sessions. 

YI. Of the courts of special sessions and police oouBm 
TITLE I. 

OF THE COURTS OF ORIGINAL CRIMINAL JURISDICTION IK 

GENERAL. 

Section 11. Of the courts of original criminal jurisdiction. 

§11. Of the courts of original criminal jurisdiction. — 

The following are the courts of justice la this state having original 
jurisdiction of criminal actions : 

1. The court for the trial of impeachments ; 

2. The courts of oyer and terminer ; 

3. The city courts of Brooklyn, Buffalo, Utica, Oswego and 
Hudson ; 

4. The courts of sessions, in counties other than New York ; 

5. The court of general sessions in the city and county of New 
York; 

6. The courts of special sessions ; 

7. The police courts. 

The courts of special sessions and police courts are deemed 
inferior courts not of record, within the section of the Constitu- 
tion which provides for the removal of justices of the peace and 
jndges, or justices of inferior courts not of record, and their 
clerks, by such county, city or state courts as are designated by 
law; but for no other purpose. 
See SUte Const., art. 6, §§ 18, 19. 
2 



10 The Code of Criminal Procedube 



TITLE 11. 

OF THE COURT FOR THE TRIAL OF IMPEAOHMXNIB. 

BscnoN 12. Its jurisdiction. 

18. Members of the court 

14. Presiding judge. 

15. Clerks and officers. 

16. Seal of the court. 

17. Time of holding the court. 

18. Oath to members of the court 

19. Adjournments, etc. 

20. Compensation of members and officers of the court 

§ 12. Its jurisdiction. — The court for the trial of impeach- 
ments has power to try impeachments, when presented by the 
assembly, of all civil officers of the state, ex<^pt justices of the 
peace, justices of justices' courts, police justices, and their clerks, 
for willful and corrupt misconduct in office. 

See Stats Const., art. 6, g§ 1. 18. 



§ 13. Members of the court. — The court is composed of the 
president of the senate, the senators, or a majority of them, and 
the judges of the court of appeals, or a majority of them, but on 
the trial of an impeachment against the governor, the lieutenant 
governor cannot act as a member of the court. 

See State Const., art. 6, § 1. 

§ 14. Presiding judge. — The president of the senate, or in 
case of his impeachment, death or absence, the chief judge of the 
court of appeals, or in the absence of both, such other member as 
the court may elect, is the presiding judge of the court. 

§ 15. Clerks and oflQlcers. — The clerk and officers of the 
senate are the clerk and officers of the court for the trial of 
impeachments. 

§ 16. Seal of the court. — The seal of the court for the trial of 
impeachments now deposited and recorded in the office of the 
secretary of state shall continue to be the seal of this court and 
must bo kept in the custody of the clerk of the senate. 



OF THB State of New Yoke. 



11 



§ 17. Time of holding the court— Upon the delivery of an 
impeachment from the assembly to the senate the president of tho 
senate mnst cause the court to be summoned to meet at the capitol 
in the city of Albany, on a day not less than thirty nor more 
than sixty days from the day of the delivery of the articles of 
impeachment. 

§ 18. Oath to members of the court. — At the time and 
place appointed, and before the court proceeds to act upon the 
impeachment, the clerk mnst administer to the presiding judge, 
and the presiding judge to each of the members of the court 
then present, an oath or aflSrmation truly and impartially to try 
and determine the impeachment ; and no member of the court 
can act or vote upon the impeachment, or any question arising 
thereon, without having taken this oath or affirmation. 

§ 19. Adjourmnents, etc. — The court may adjourn from 
time to time and hold its sessions at such places as it may determ- 
ine, but no more than two sessions of the court can be held 
daring the recess of the legislature in any one year. 

§20. Compensatloiiof members and officers of the court. 

The writ and process of the court must be signed by the clerk 
^and tested in the name of the president of the senate. The 
president of the senate and each senator are entitled to receive 
for their services and expenses while actually attending the court 
the same rate of compensation as an associate judge of the court 
of appeals is entitled by law to receive for his services and 
expenses as such judge for the same time. The other officers of 
the court, excepting the judges of the court of appeals, are enti- 
tled to the same compensation for their attendance thereon, and 
for traveling to and from tho place where it is held, as is allowed 
them for attending a meeting of the senate, but no such compen- 
Bation shall be received for attending the court during a session 
of the legislature. 



12 Thb Code of Cbiminal Pbocedube 



TITLE HI. 

OF THE COURTS OF OYER AND TERMINER. 

Section 21. Court of oyer and terminer in each county. 

22. Its jurisdiction. 

23. By whom held. 

24. Writ or process. 

25. Clerk. 

§ 21. Court of oyer and terminer in each county. — 

There is in each of the counties of this state, except that for thia 
purpose Fulton and Hamilton are deemed one county, a court of 
oyer and terminer, with the jurisdiction conferred by the next 
section and no other, but nothing contained in tliis section affects 
its jurisdiction in actions or proceedings now pending therein. 

The oyer and terminer is a permanent and continuous court. Its successive 
sessions are terms of the same, and not distinct tribunals. Quirnbo Appo v. 
Peoplcy 20 N. Y. 531; 18 How. Pr. 350. 

Though held by different presiding justices. People v. Naughton, 7 Abb. 
Pr. (N. 8.) 421. 

§ 22. Its Jurisdiction. — Tlie court of oyer and terminer has 
jurisdiction : 

1. To inquire, by the intervention of a grand jury, of all 
crimes committed or triable in the county ; but in respect of such 
minor crimes as courts of special sessions or police courts have 
exclusive jurisdiction to hear and determine, in the first instance, 
the jurisdiction of the oyer and terminer attaches only after the 
certificate mentioned in section fifty-seven of this Code ; 

2. To try and determine all such crimes, and to try all persons 
indicted for the same ; 

3. To deliver the jails of the county, or city and county, 
according to law, of all prisoners therein ; 

4. To try any indictment found in the court of sessions of the 
county or the court of general sessions of the city and county of 
New York, which has been sent by order of the couii; of sessions 
or general sessions to and received by the court of oyer and 
terminer, or which has been removed from any court into the 
court of oyer and terminer if, in the opinion of that court, it ia 
proper to be tried therein ; 

5. To exercise the same jurisdiction as a court of sessions in a 



OF THE State of New Tokk. 



18 



erase or proceeding transferred according to sections forty and 
forty one of this Code ; 

6. By an order, entered in its minutes, to send any indictment 
found therein for a crime triable at the court of sessions of the 
ooQuty, or the court of general sessions of the city and county of 
Sew York, to such court ; 

7. To grant new trials in all cases tried therein ; 

8. To let to bail any person committed, before and after indict- 
ment found, upon any criminal charge whatever ; 

9. To exercise the powers conferred upon it by other provisions 
of this Code and by special statutes. 

The organization of courts of oyer and temriner, with the exception that a 
justice of the supreme court mast preside, is within the control of the legis- 
Irture. People v. Bork, 96 N. Y. 198. 

These oourts are of superior criminal jurisdiction, and every thing necessary 
to confer jurisdiction over defendant's person is presumed. People v. Cam- 
wujh, 3 Abb. Pr. 84; reversing 1 Park. 588; 2 id. 6o0. 

May try an indictment found in the sessions, without an order of the ses- 
aons, sending it there for trial. People, ex reL Shermn, v. Mead, 28 Hun, 
227; 64 How. 41; 92 N. Y. 415; People v. Myers, 2 Hun. 626; Pe&ple v. Gay, 10 
Wend 509; Peoj^ v. Quimbo Appo, 20 N. Y. 577; People v. SesHom, 8 Barb. 
144 

An indictment for murder found in general sessions may be transferred to 
oyer and terminer for trial. Thompson v. People, 6 Hun, 135; Dolan v. People, 
ii 493; 64 N. Y. 4a5. 

An indictment found in the oyer and terminer and remitted to the sessions, 
mty be again remitted back to the former court for trial. People v. Gay, 10 
Wend. 509. 

An indictment sent to the oyer and terminer by the general sessions, may 
he tried at any time thereafter, though ordered to be sent to the next court of 
oyer and terminer. Ne/il v. People, 42 N. Y. ^70; 55 Barb. 551; 8 Abb. (N. S.) 
314. 

A court of oyer and terminer had no power, by the common law, to grant 
Bew trials upon the merits, after conviction, in a capital case, nor it seems, 
in any case of felony. 6 T. R. 625; Chit. Crim. Law, 5«2; Appo v. Peo* 
pU, 30 N. Y. 581; People v. Toitnsend, 1 Johns. Cas. 104; Col. & Cr. Cas. 
73: NoaKs Case, 3 C. H. Rec. 13; PeopU v. Coinstock, 8 Wend. 549; People 
^•Dutchess (O. and T.), 2 Barb. 282. See, also, WiUis v. People, 32 N. Y. 
715: 5 Park. 621; People v. Morrison, 1 id. 625. 

Tlie judge has no power to adjourn the oyer and terminer to another place 
within the district, than that appointed for holding the court. Northrxip v. 
ftopfe, 37 N. Y. 208. reversing 50 Barb. 147. 

The supreme court judge assigned to hold the oyer and terminer cannot 
•djoum the court to a future day by a written order to the sheriff without 
^ng present in conrt; but such adjournment may be ordered by any judge 
present. PeopU Cl€^D%, 4 Abb. N. C. 256. 



Thb Code of CsiMmAL Pbooedujeub: 



The oyer and terminer has jurisdiction of a murder committed hj a soldier 
in the actual service of the general government, within the body of the county; 
that a court-martial has concurrent jurisdiction makes no difference. People 
V. Oardiner, 6 Park. 143. 

§ 23. By whom held. — A court of oyer and'terminer is held 
by a justice of the supreme court, without an associate. 

This section is not affected by the provisions of section 962, poet. 

Since the adoption of the constitution of 1846, the organization of courts of 
oyer and terminer is within the control of the legislature with the single 
exception that a justice of the supreme court must be a member of the court 
and must preside. Stnith v. People, 47 N. Y. 330. 

The fact that two justices of sessions 'sat with supreme court justice is a 
mere irregularity, and does not affect the court's jurisdiction. People^ ex rel, 
Bork, V. Qilhert, 1 N. Y. Cr. Rep. 398. 

Court of oyer and terminer organized under this section may execute a 
sentence, pronounced by a court of oyer and terminer before this section took 
effect. Ostrander v. People, 29 Hun, 513; 1 N. Y. Cr. Rep. 274; People v. 
Bork, 96 N. Y. 198; 2 N. Y. Cr, Rep. 177. 

§ 24. Writ or process. — A writ or process issued out of the 
court of oyer and terminer must be tested in the name of a justice 
of the supreme court of the district, and may be directed by the 
court into any county of the state, as occasion requires. 

§ 25. Clerk.— Except the clerk of the county of New York, 
the clerk of each county is, by virtue of his office, the clerk of 
the court of oyer and terminer held therein. 



TITLE IV. 

OF THE CITY COURTS. 

Gbafteb I. The city court of Brooklyn. 

II. The superior court of Buffalo 
nL The other city courts. 
IV. General provisions relating to city comlii 

CHAPTER I 

I 

THE OCTY OOUBT OF BBOOKLTH. 

Section 26. Jurisdiction. 

27. By whom held. 



OF THK State 07 New York. 15 



§ 86. JturiadictLon. — The city court of Brooklyn has erimintl 

jorifidiction : 

1. To the same extent *and in the same manner, and with the 
game power as a court of oyer and terminer in the county of 
Kings in the indictment and trial of all offenses committed in the 
city of Brooklyn, whenever a bill of indictment for any such 
offense has been transmitted to the court by the court of sessions 
or court of oyer and terminer of the county of Kings ; 

2. To remand any such indictment to the court of sessions or 
eonrt of oyer and terminer of the county of Kings ; 

3. To prosecute a forfeited recognizance taken by the court of 
lessions or court of oyer and terminer of Kings county, and bind- 
ing the party or parties and witnesses to such indictment to 
appear in the city of Brooklyn. 

Laws 1849, chap. 125. g 1; Laws 1870, chap. 470; and see N. Y. Const., art. 
VI, 5 12; 3 R. S. 282, § 15; Code Civ. Pioa, §§ £07-813 

§27. By wliom lielcL — Any one of the judges of the city 
coort of Brooklyn may hold a court of criminal jurisdiction. 



CHAPTER II. 

THB SUPERIOR COURT OF BUTFALa 

Section 38. Jurisdiction. 

29. By whom held. 
80. Terms. 

§ 28. Jurisdictloii.^ The superior court of Buffalo has crim* 
inal jorisdiction : 

1. To inquire by a grand jury of all crimes committed in the 
city of Buffalo ; 

2. To try and determine all indictments found therein, or sent 
thereto by another court for a crime committed in that city ; 

3. To send any indictment pending therein undetermined to 
the court of oyer and terminer or to the court of sessions of the 
county of Erie, to be determined according to law ; 

i. Ata general term thereof exclusively to review upon motion 
on the indictment, with or without a bill of exceptions, its decisions 
and judgments, and grant new trials. 

See Peopfe ▼. Demkk, 107 N. Y. 15; 41 Han. 088; 5 N. Y. Cr..Rep. 200. 



16 The Codk of Criminal PBocKDnaE 



§ 29. By whom held. — The court for the trial of indictmenta 
and the transaction of criminal business other than specified in 
subdivision 4 of the last section, may be held by any one of the 
justices thereof. 
See Code Civ. Proc., §§ 295-296. 

§ 30. Terms. — There must be at least four terms of the court 
for the trial of indictments and the transaction of criminal bud* 
ness held in each year, to be appointed as prescribed in sectioQ 
280 of the Code of Civil Procedure. 

See Code Qv. Proc., §§ 295-296. 



CHAPTER m. 

THE OTHER CITT OOUBTB. 

SscnoNSl. Other city courts. 
82. By whom held. 

§ 31. Other city qourts. — The other city courts, having 
original criminal jurisdiction, are the recorder's court ot TJtica, 
the recorder's court of Oswego, and the mayor's court of Hudson. 
Their jurisdiction in criminal matters is defined by special statutes, 
and continues as thus defined. 

§ 32. By whom held. — These courts for the exercise of their 
criminal jurisdiction must be held by the following officers : 

1. The city courts of Utica and Oswego by the recorders of 
those cities respectively ; 

2. The mayor's court of Hudson, by the mayor of that city. 



CHAPTER IV. 

GENERAL PROVISIONS RELATING TO OTTT COURTS. 

fltacnoN 38. Indictments for offenses punishable with death to be sent 
to oyer and terminer. 
84 Indictments for crime not punishable by death. 

85. Same. 

86. Court continued beyond terms. 



OF THs State of Nsw York. 



17 



§ 33. Indictments for offenses punishable with death 
to be sent to oyer and terminer. — When an indictment is 
found at a city oonrt for a crime punishable with death, the court 
may send it to the next court of oyer and terminer of the county. 

§ 34. Indictments for crime not pimishable by death. — 

A city court may also send an indictment found therein and remain- 
ing undetermined for a crime not punishable with death to the 
next court of oyer and terminer of the same county, to be determ- 
ined according to law. But that court, if, in its opinion, the 
nme is not proper to be tried therein, may remit it back to the 
court by which it was sent, which must proceed thereon as if it 
had remained there. 

§35. Same. — When an indictment is found at a court of 
oyer and terminer, or of sessions, in a county embracing any of 
the cities in which a city court having original criminal jurisdic- 
tion is established, for an offense committed in that city, the 
court in which it was found may send it to the next city court in 
which it is triable, which must proceed to try and determine the 
indictment as if it had been found therein. 

§ 36. Court continued beyond terms. — If the trial of a 
cause be commenced before the expiration of the term of a city 
court the court may be continued beyond the term, to the com- 
pletion of the trial and the rendering of judgment on the verdict 



TITLE V. 

OF THE COURTS OP SESSIONS. 

QiAmB L The courts of Bescions in general. 

TT. The courts of sessions in counties other than New YoriL 
nL The court of general sessions of the city and county of New 
York. 

CHAPTER I. 

THE 00UBT8 07 8B88IOK8 IN OSNSBAL. 

SbctioitS?. Qeneral proYlaions. 

88. Thecourtsof seesiona. 

8 



18 Thk Code of Criminal Fbocedubk 



§ 37. General provisions. — There is in each of the comities 
of this state a court denominated the court of sessions, with the 
iurisdiction conferred by the next two chapters and no other, but 
nothing contained in this section affects its jurisdiction in actions 
or proceedings now pending therein. 

§ 38. The courts of sessions.— The courts of sessions are 

1. The courts of sessions in counties other than New York ; 

2. The court of general sessions in the city and county of New 
York. 



CHAPTER II. 

COURTS OF SESSIONS IN COUNTIES OTHER THAN NEW YORK ATO KmOS^ 

fiEcriON 39. Jurisdiction. 

40. Indictments to be sent to oyer and terminer. 

41. Other indictments may be sent to oyer and terminer. 

42. By whom held. 

48. Justice disquaUfied. 

44. Same. 

45. When and where held; JararsL 

46. Jurors, how drawn. 

47. Clerk. 

48. Writ or process. 

48. Compensation of Justiee. 

§ 39. Jurisdiction. — The courts of sessions embraced in this 
chapter have jurisdiction : 

1. To inquire by the intervention of a grand jury of all crimes 
committed or triable in the county ; but in respect of such minor 
crimes as courts of special sessions or police courts have exclusive 
juriBdiction to hear and determine, in the first instance, the juris- 
diction of the sessions attaches only after the certificate men- 
tioned in section 57 of this Code ; 

2. To try and determine indictments found therein or sent 
thereto by the court of oyer and terminer of the county, or by a 
city court in the county, for crimes not punishable with death ; 

3. To hear and determine appeals from orders of justices of 
the peace under the provisions of law respecting the support of 
bastards ; 



OF TBJB StATK of NbW YoSK. 



1» 



4. To examine into the circamstances of persons oommitted to 
prison as parents of bastards, and to discharge them in cases 
provided by law ; 

5. To try and determine complaints under the provisions of 
law respecting masters, apprentices and servants ; 

6. To review the convictions of disorderly persons actnallv 
imprisoned, and to execute the powers conferred and duties 
imposed by law in relation to those persons ; 

7. To continue or discharge recognizances, undertakings and 
bonds of persons bound to keep the peace or to be of good 
behavior and to inquire into and determine the complaints on 
which they were founded ; 

8. To compel relatives of poor persons and committees of the 
estates of lunatics to support such persons and lunatics in the 
cases and manner prescribed by law ; 

9. To exercise the powers conferred by law in relation to the 
estates of persons absconding and leaving their families charge- 
able to the public ; 

10. To let to bail persons indicted therein for any crime triable 
therein as provided by law ; 

11. To let to bail persons committed to the prison of the 
county before indictment for any offense triable in the court ; 

12. To discharge persons who have remained in prison without 
indictment or trial in the cases prescribed by law ; 

13. To revoke licenses in the cases and mode prescribed by 
law ; 

14. To grant new trials in all cases tried therein ; 

15. To execute such other powers and duties as may be con- 
ferred by statute, or are now defined by special statute relating 
thereto. 

See § 961. pott. 

The hifltoiy of courts ot sesdoBS is given in People v. Brctdner, 107 N. Y. 7; 
PeopU V. General Semans, 15 Abb. Pr. 59w 

Where an indictment is found in a court of oyer and terminer, to give 
joriadiction to the court of sessions to try it, there must be an order of the oyer 
aad terminer remitting it to the sessions for trial. People v. Bradner, 107 N. 
Y. 1. 

Kotioe to dAfendant is not necessary. Myerejr, People, 14 Hun, 416; LeigTi- 
t9nT, PeopU, S8:S. Y. 117. 

As togranling new trials, see JfeFaU y. People, 18 Hun, 882. 

As to appaals fiona ooorts of special sessions to courts of sessions, see 74$^ 
n,poiL 



Thb Code of Criminal Pbockduee 



Where a court of sessions during a trial adjourned to a specified day, but be- 
cause of a blizzard, could not convene until a later day, held error to proceed 
with the trial, though defendant did not object. People v. Sullitan, 49 Hun, 883. 

§ 40. Indictments to be sent to oyer and terminer. — A 

court of sessions must send every indictment there found for a 
crime not triable therein to the court of oyer and terminer of the 
county, or to a city court having jurisdiction to try and determine 
the same. 

As to removal of indictments, see § 844, post. 

§ 41. Other indictments may be sent to oyer and term- 
iner, — A court of sessions may send an indictment pending 
therein to the court of oyer and terminer of the same county, to 
be determined according to law, and if such indictment is remitted 
back without trial by the court of oyer and terminer, the court 
of sessions may proceed thereon. 

See § 844, post; People v. Bradner, 107 N. Y. 6; Leighton v. People, 88 id. 
117; 10 Abb. N. C. 201. 

§ 42. By whom held« — A court of sessions must be held by 
the county judge, with two justices of sessions to be designated 
according to statute. If the justices of sessions, or either of 
them, fail to attend the commencement of, or during the term, 
or if his oflSce at such time is or becomes vacant, the county judge 
by an order entered in the minutes, may designate any justice of 
the peace of the county to serve as justice of sessions during the 
term, or if the order is made by reason of non-attendance, until 
the absentee attends. 

See State Const., art. VI, § 15; Laws 1883, ohap. Ill; Cyphers v. People, 81 
N. Y. 373; 5 Park. 666. 

On the trial of an indictment in the court of sessions, it is error for the 
county judge to substitute a justice of the peace for one of the justices of 
sessions, who has sat during the impaneling o€ the jury and a portion of the 
trial, and who abandons the bench. BUnd v. People, 41 N. Y. 604. 

In People v. Dohring, 59 N. Y. 874; 17 Am. Rep. 849, it was held that 
a court of sessions does not lose jurisdiction because one of its members is 
called from the bench as a witness in the case, and is sworn and testifies as 
such. 

But his becoming a witness is error, and if objection be made and exception 
taken, it is fatal to the judgment. People v. Dohring, supra, 

A county judge who, with two justices constituting a court of general ses- 
sions, has tried a person indicted for larceny, has no authority to receive the 
verdict of the jury in the absence of those justices from the court-room, and 



OF THE State op Nbw Toek. 



31 



of (me of them from the court-house. The verdict most be received by the 
court before which the trial was had, otherwise it is a nullitj, and no authority 
for a sentence. Hinman v. People, 13 Hun, 266. 

Failure of defendant to object to the verdict being received by the county 
jodge alone, at the time of its reception, or the asking to have the jury polled, 
do not preclude the prisoner from afterward insisting upon the objection. Id. 

See. also, PeopU v. Shaw, 63 N. Y. 36; PeapU v. Bork, 2 N. Y. Cr. Rep. 75; 
81 Hun, 871. 

§ 43. Justice disqualified. — Whenever a justice of ecssions 
k disqualified to act in any cause or proceeding pending in a 
oonrt of sessions, the county judge must designate some other 
justice of the peace of the county, to act as member of the court 
daring the trial or determination of such cause or proceeding. 
See Laws 1883, chap. 111. 

§ 44. Justice disqualified.— If the county judge is, for any 
cause, incapable of acting in any criminal action or proceeding 
pending in the court of sessions, the court must transfer the same 
to the court of oyer and terminer of the county, or to a city 
court having jurisdiction of such an action or proceeding, or may 
request the county judge of any other county, except New York 
and Kings, to preside at and hold courts of sessions and county 
courts in said county. 

§ 45. When and where held; Jurors. — A court of sessions 
must be held at such times as the county judge of the county, by 
order, designates, and at the place where the county coui'ts are 
held for the trial of issues of fact by a jury. Such order must 
designate the terms at which a grand or petit jury, or both, or 
neither, is required to attend ; and neither a grand jury nor a 
petit jury is required to be drawn, or summoned to attend a term 
thus designated to be held without a jury. The order must be 
published in a newspaper printed in the county, for four success- 
ive weeks previous to the time of holding the first term under 
such order. 

See People v. Moneghan, 1 Park. 670; Pe<yple v. WUcox, 23 How. Pr. 297; 
CypherB v. PeopU, 81 N. Y. 873; 5 Park. 666. 

This section is a distinct enactment, under which grand juries may be drawn 
and summoned for conns of sessions in the different counties of the state, ex- 
cupt New York county, and an indictment found in the court of sessions of 
Queens county is valid where the grand jury is organized in accordance wiih 
the provinons of said section, vis., where it is held in pursuance of an order 



32 The Code of Criminal Procedure 



of the ooantj judge designating the times when courts of sessions will be held 
at the place where county courts are held, etc., and designating the terms at 
which a grand or petit jury, or both, or neither, is required to attend, which 
order has been published in a newspaper printed in the county, for four suc- 
cessive weeks previous to the time of holding the first term under said order. 
People V. Bugg, 98 N. Y. 587; 3 N. Y. Cr. Rep. 172. See People v. Bates, 88 
Hun, 180. 

§ 46. Jurors, how drawn. — If a county judge fail to desig- 
nate the term at which a grand and petit jury is required to 
attend, the grand and petit jurors must be drawn and summoned 
for each term mentioned in the order mentioned in the last section. 

See § 226, post; PeopU v. Bugg, 98 N. Y. 546; 8 N. Y. Cr. Rep. 177. 

§ 47. Olerk. — Except in the city and county of New York 
and the county of Kings, the clerk of the county is the clerk of 
the court of sessions thereof. 

§ 48. Writ or process. — Every writ or process issued out of 
a court of sessions may be tested on any day of the term in 
which the court is sitting, and be made returnable on any other 
day of the same term, or at the next term. 

§ 49. Oompensation of justice. — A justice of sessions is en- 
titled to receive three dollars for each day's attendance at a court 
of sessions and to five cents a mile for traveling expenses in coin- 
ing to and returning from the court. The justices of the sessions 
in the county of Kings, shall each receive the compensation al^ 
lowed to them by law in force before the adoption of this Code. 



CHAPTER HI. 

THE COURT OF GENEBAL SESSIONS IN THE CTIT AND COUNTT OF 
NEW YORK AND THE COURT OF SESSIONS IN THE COUNTT OF KINGS. 

Section 50. This court continued; proceedings now pending. 

51. Its jurisdiction. 

52. Division of court. 
58. Parts, by whom held. 

54. When held and its duration. 

55. Accommodation for court and offloera. 



OF THE State of New York. 



23 



§ 50. This oooxt continued; proceedings now pending. 

— The courts known as the court of general sessions in and for 
the city and county of New York, and the court of sessions in 
and for the county of Kings are continued, with the jurisdiction 
conferred by the next two sections and no other. But nothing 
I'Oiitained in this section affects their jurisdiction of actions and 
proceedings now pending therein. 

See Laws 1851. chap. 441; Laws 1855. chap. 887; LawB 1857, chap. 124; 
Laws 1859, chap. 208; Laws 1862, chap. 10; Laws 1860, chap. 508. 

§ 51. Its Jurisdiction. — The court of general sessions of the 
city and county of New York and the court of sessions of the 
county of Kings have jurisdiction : 

1. To try, determine and punish according to law, all crimes 
cognizable within their respective counties, including crimes pun- 
ishable with death or imprisonment in the state prison for life; 

2. To exercise, in cases arising in their respective counties, the 
same powers as are conferred by this Code upon courts of sessions 
in other counties ; 

3. To try and determine any indictment found in the court of 
oyer and terminer of the county, which has been sent by order of 
that court to and received by the court of sessions therein, and 

4. To exercise such powers as are now prescribed by special 
statute relating thereto. 

As to the coart of general sessions in the citj and coantj of New York see 
ConsoUdation Act (Laws 1882, chap. 410), § 1514 et seq. 

The court of general sessions of the city and countj of New York has no 
jurisdiction to discharge a prisoner committed hj a police magistrate in de- 
fault of giving the undertaking required bj section 89, Code of Criminal Pro- 
cedure, to keep the peace. People v. Boyle, 2 N. Y. Cr. Rep. 54. 

An indictment for murder found in the general sessions of New York maj 
be transferred to the oyer and terminer for trial either before or after arraign- 
ment. Thompson v. People, 6 Hun, 186; Dolan v. People, id. 408; 64 N. Y. 
485. 

On error, an order for the removal of the case from the oyer and terminer to 
the court of sessions need not appear on the record. May v. People, 12 Hun, 
880. 

Has power to discharge a jury in case of felony, if unable to agree. People 
T. Goodwin, 18 Johns. 187. 

The court of general sessions of New York has power to grant new trials 
tipon the merits. People v. Powell, 9 Abb. Pr. 91; Lonergan v. People, 39 N. 
Y.89, reversing 60 Barb. 2«6; 6 Park. 209; and overruling People v. N. T. 
Oen. 8es$., 15 Abb. 69; and ExparU Marks, 14 id. 105, n. 



24 



The Code of Criminal Proobdube 



The general sessions have jurisdiction over offenses committed on Governor's 
Island. People v. Lent, Wheeler Crim. Cas. 548. 

Maj try a prisoner on a charge of stealing corporation notes which were in 
circulation. Linnenden*s Case, 1 C. H. Rec. 30. 

It is the duty of the New York court of sessions to send to the oyer and ter- 
miner all indictments for offenses which they cannot try. People v. Shepardf 
11 Abb. Pr. 69; 19 How. 446. 

The New York general sessions will not transfer to the oyer and terminer 
indictments found in the sessions except on motion, and on notice to the dis- 
trict attorney or the accused, as the case may be. McFarland'a Casej 7 Abb. 
(N. S.) 848. 

After affirmance in court of appeals, court of sessions may re-sentence a pris- 
oner. Walters v. People, 19 Abb. 212. 

New York general sessions has all the power of a court of oyer and termi- 
ner. People V. Ooodimn, 18 Johns. 187. 

§ 52. Division of court. — The court of general sessions of 
the city and connty of New York is divided into three parts. 

§ 53. Parts, by whom held.— Any one of the three parts of 
the court of general sessions of the city and county of New York 
may be held by the recorder of the city of New York, or the city 
judge, or the judge of the court of general sessions. A judge of 
the court of common pleas for the city and county of New York 
may also hold it. The court of sessions of the county of Kings 
must be held by the county judge of the county of Kings, with 
two justices of the sessions, designated according to statute. 

§ 54. When held and its duration. — Each part of the court 
of general sessions in and for the city and county of New York, 
may be held each month, commencing on the first Monday and 
continuing so long as, in the opinion of the judge sitting and of 
the district attorney, the public interest requires, but one part 
only is required to be held during the months of July and August, 
and two parts only during the rest of the year. 

The provision of the act of 1859 authorizing the court of sessions of any 
county of this state to continue its sittings so long as may be necessary for the 
determination of any cases, is applicable to the court of general sessions of 
New York. Lomnherg v. People, 27 N. Y. 336; 26 How. 202; 5 Park. 414; 
Ferns v. PeopU, 31 How. 140; 35 N. Y. 125; 48 Barb. 17; 1 Abb. (N. S.) 193. 

While prolonging its session for the purpose of concluding a trial, the court 
may pass sentence on a prisoner convicted before the expiration of the term. 
Lomnberg v. People, 27 N. Y. 336. 



OF THE State of New York. 



25 



§ 55. Aocommodation for court and officers. — The courts 
have the same power to direct suitable provisions to be made for 
their accommodation as is now possessed by the supreme court. 
The recorder, city judge, and judge of the court of general ses- 
sions of the city and county of New York must appoint a clerk, 
and not more than four deputy clerks, two interpreters and two 
stenographers, the clerk and deputy clerks so appointed must act 
ilso as clerks of the court of oyer and terminer in the city and 
county of New York. The county judge of the county of Kings 
shall, by writing, filed with the county clerk, appoint a clerk of the 
conrt of sessions of the county, who shall be removable by him at 
any time, for incompetency, negligence or official misconduct, in 
which case he may appoint another. The county clerk of the 
county of Kings must deliver to the clerk of the sessions all 
books and records of the court of sessions in his custody. The 
clerk of the sessions must appoint a deputy clerk, a first assistant 
clerk and not more than three second assistant clerks, and such 
clerk, depnty and assistants shall receive salaries, respectively, as 
that now paid to the clerk, deputy clerk and assistant clerk serving 
in that county, payable monthly by the treasurer of the county. 
Soch court of sessions shall by an order entered in its minutes 
adopt a seal, which seal when so adopted shall be the seal of the 
court of sessions of the county of Kings. [Amended 1892^ 
cL 137 ; in effect March 16, 1892. 



TITLE VI. 

OF THE COURTS OF SPECIAL SESSIONS AKD POLICE COTTBm 

Chapter L The special seBsions, except in the cities of New York and 
Albany. 

II. The special sessions in the citj and ooanty of New York. 

III. The special sessions of the city of Albany. 

IV. The poUce ooarts. 

CHAPTER I. 

THE SPECIAL SESSIONS EXCEPT IN THE OmBS OF NEW TOEK AND 

ALBAKY. 

Section 56. Jarisdiction of courts. 

57. ExcloslTe jurisdiction. 

4 



26 The Codb of Criminal Procedubb 



Sbction 58. Limitation. 

59. Trial and punishment of certain erimee. 

00. Special sessions in Brooklyn. 

61. Id., in Oswego. 

52. By whom held. 

58. Recorder of a city to hold court 

§ 56. Juriidiction of courts. — Subject to the power of re 
moval provided for in this chapter, courts of special Beesions, ex 
oept in the city and county of Kew York and the city of Albany 
have in the first instance exclusive jurisdiction to hear and deter 
mine charges of misdemeanors committed within their re8pectiv< 
oounties, as follows: 

1. Petit larceny, charged as a first offense. 

2. Assault in the third degree. 

3. Eacing, running or testing the speed of any animal within 
one mile of the place where any court is held. 

4. Wrongfully severing any produce or article from the free- 
hold, not amounting to grand larceny. 

5. Selling poisonous substances not labeled as required by 
law. 

6. Wrongfully and maliciously removing, defacing or cutting 
down monuments or marked trees. 

7. Wrongfully destroying or removing mile-stones, mile-boards 
or guide-boards, or altering or defacing any inscription thereon, 

8. Wrongfully destroying any public or toll-gate or turnpike 
gate. 

9. Intoxication of a person engaged in running any loco- 
motive engine upon any railroad, or while acting as conductor 
of a car, or train of cars, on any such railroad, or a misdemeanoi 
committed by any person on a railroad car or train. 

10. Setting up or drawing unauthorized lotteries, or printing 
and publishing an account of any such illegal lotteryj game, or 
device, or selling lottery tickets, or procuring them to be sold, 
or offering for sale or distributing any property depending upon 
any lottery, or for selling any chances in any lottery contrary to 
the provisions of law. 

11. Unlawfully running, trotting or pacing horses or any other 
animal 



or TOB Statk of New York. 



27 



12. Making or selling slnng-shot or any similar weapon. 

13. Unlawfully disclosing the finding of an indictment. 

14. Unlawfully bringing to or carrying letters from any county 
jail, penitentiary or state prison. 

15. Unlawfully destroying or injuring any mill-dam or em- 
bankment necessary for the support of such dam. 

16. Unlawfully injuring any telegraph wire, post, pier, abut- 
ment, materials or property belonging to any line of tel^raph. 

17. Unlawfully counterfeiting any representation, likeness, 
similitude or copy of a private stamp, wraj^per or label of any 
mechanic or manufacturer. 

18. Malicious trespass on lands, trees or timber, or injuring 
any fruit or ornamental or shade trees or vines. 

19. Maliciously breaking or lowering any canal walls, or 
wantonly opening any lock-gate, or destroying any bridge, or 
otherwise unlawfully injuring such canal or bridge. 

20. Unlawfully counterfeiting or defacing marks on packages, 

21. Unlawfully setting fire to wood or fallow land, or allowing 
the same to extend to lands of others, or unlawfully refusing to 
extinguish any fire. 

22. Unlawfully or negligently cutting out, altering or defacing 
any mark on any logs, timber, wood or plank, floating in any 
waters of this state, or lying on the banks or shores of any such 
waters, or at any saw-mills, or on any island where the same may 
have drifted. 

23. UnlawfuUy frequenting or attending a steamboat landing, 
railroad depot, church, banking institution, broker's office, place 
of public amusement, auction-room, store, auction sale at pri vate 
residence, passenger car, hotel, restaurant, or at any other gather- 
ing of people. 

24. Unlawfully taking and carrying away the oysters of another, 
lawfully planted upon the bed of a river, bay, sound or other 
waters within the jurisdiction of tliis state. 

25. Removing property out of the county, with intent to pre- 
vent the same from being levied upon by execution, or secreting, 
assigning, conveying or otherwise disposing of property, with in- 
tent to defraud any creditor, or to prevent the property being 
made liable for the payment of debts, or for receiving ^oporty 
with such intent. 



28 



The Code op Ceiminal Peooeduek 



26. Driving any carriage upon any turnpike, road or highway 
for the purpose of running horses. 

27. Cruelty to animals or children. 

28. Cheating at games. 

29. Winning or losing at any game or play, or by any bet, as 
much as twenty-five dollars within twenty-four hours. 

30. Selling liquors in a court-house or jail contrary to law. 

31. Exposure of the person contrary to law. 

32. Crimes against the provisions of existing laws for the pre- 
vention of wanton or malicious mischief. 

33. When a complaint is made to or a warrant is issued by a 
committing magistrate, for a violation of the laws relating to ex- 
cise and the regulation of taverns, inns and hotels, or for unlaw- 
fully selling or giving to any Indian spirituous liquors or intoxi- 
cating drinks. 

34. Frauds on hotel, inn, tavern and boarding-house keepers. 

35. All violations of the provisions of the agricultural law. 

36. Such other jurisdiction as is now provided by special stat- 
ute or municipal ordinance authorized by statute. 

In effect as amended, May 24, 1893; Laws 1893, chaps. 570, 150. 

See 28 Alb. L. J. 520. For history of courts of special sessions, see People 
V. Kennedy, 2 Park. 319. 

In People v. Austin^ 49 Hun, 397, the court say: ** Article 6 of the constitu- 
tion of the state of New York, section 26, contains the following provision: 
' Courts of special sessions shall have such jurisdiction of offenses of the grade 
of misdemeanors as may be prescribed by law.' After the adoption of that 
section the legislature passed chapter 390 of the Laws of 1879, which provided, 
viz. : * Courts of special sessions ♦ * * shall, in addition to the powers 
now possessed by them, have also exclusive jurisdiction in the first instance 
to hear and determine the following cases: ' Then the statute contains six 
enumerations of offenses. Shortly thereafter, a controversy arose in the courts 
as to whether the statute was constitutional or not. Its validity has been sus- 
tained. Devine v. People, 20 Hun, 98; People, ex rel. Comaford, v. Butcher, id. 
241; People, ex rel. Stetzer, v. Rawson, 61 Barb. 619; People, ex rel. Murray, v. 
Justices, 74 N. Y. 406; People, ex rel. Comaford, v. Butcher, 83 id. 240." 

In People v. Starks, 17 State Rep. 238, the court say: " A court of special 
sessions is not a continuing court. It is organized and exists only for the trial 
of each particular case and is functus officio when the judgment is rendered 
therein. Lattimore v. People, 10 How. Pr. 336. Even the certificate of the 
entry of judgment, which operated as a warrant of commitment, and the re- 
turn of the record on appeal are acts of the justice who held the court and not 
of the court of special sessions." 

This section does not prevent a jury in oyer and terminer or sessions from 
finding a verdict of petit larceny where a prisoner is on trial under indictment 
for grand larceny. People v. McTamemy, 80 Hun, 505; 56 How. 70; 18 Abb. 
N. C. 55. 



OF THB StATR of NeW YoBK. 



29 



The act of 1879, chapter 390, which conferred apon courts of special ses- 
sons, except in New York and Albany, exclusive jurisdiction over cases of 
ample assault and battery, was a general act and was repealed by the Code of 
Criminal Procedure (§ 56, etc.). Matter of Lord, 10 Abb. N. C. 293; 03 How. 

b People V. Palmer, 8 State Rep. 499, Palmer was indicted for assault in 
the first degree and convicted of assault in the third degree. Having obtained 
mew trial, his counsel moved for an order that he be tried only for assault in 
the third degree. Held, that such an order might properly make a question as 
to the jurisdiction of the court of oyer and terminer under this section, or of 
aoj court ander section 35 of the Penal Code. That as the case now stands, he 
cannot be harmed. Motion denied. 

In People v. Cook, 45 Hun, 37, the court say: " We do not understand that 
it is essential to the jurisdiction of a court of special sessions, in a case of ]>etit 
larceny, that the information or the warrant should allege that the crime 
charged is a first offense. If it be a first offense in fact, the court has jurisdic- 
tion to try the case, and it is to be deemed a first offense unless the contrary is 
charged. But if such allegation is material for any purpose, the defendant is 
not harmed by its omission. The provision requiring such allegation is in the 
interest of the public to prevent criminals guilty of a second offense from 
escaping the full measure of punishment imposed by statute (Penal Code, § 088), 
and which courts of special sessions have not the power to inflict." 

See People v. SacOer, 2 N. Y. Cr. Rep. 438. 

In People v. Palmer^ 109 N. Y. 416, the court say : •* A charge of assault in 
the third degree seems exclusively cognizable in the first instance by the court 
of special sessions, except a certificate that it should be prosecuted by indict- 
ment be allowed by the county judge." 

See opinion of Bockes, J., at general term in this case, 43 Hun, 405; 5 N. 
T. Cr. Rep. 101, for discussion of the limitation of subdivision 2. 

Snbdivision 12 does nut repeal the provisions of the excise law (Act 1857, 
chap. 638, § 17, amended act 1889, chap. 856, § 2), providing for the pun- 
iihment of public intoxication. People v. Burleigh, 1 N. Y. Cr. Rep. 522. 

Subdiv. 24. In People v. Beatty, 39 Hun, 476; 4 N. Y. Cr. Rep. 287, it was 
held that the objection that the prefix ** un " was omitted from the word *' law- 
folly " in the charge made against defendant in a court of special sessions for 
unkwfully taking and carrying away oysters from certain oyster beds, cannot 
be urged on appeal for the first time when it is not specified in the afildavit. 
required by section 751 of the Code of Criminal Procedure. It Beem4s, that such 
an objection, if properly raised, would be sustained. 

Daring a preliminary hearing on a complaint to determine whether a warrant 
should issue, the attorney for the complainant notified the justice that the 
people would proceed do further before him, but would go before the grand 
jarj; whereupon the justice sent the papers to the district attorney and did 
nothing further, though no order of discontinuance was entered. Held to 
amount to a withdrawal and discontinuance of the case, surrendering the jus- 
tice's jurisdiction and giving the grand jury jurisdiction of the complaint. 
PeopU V. Andreum, 115 N. Y. 427; 12 Crim. Law Mag. 227. 



30 Thb Codb of Criminal Pboobdusb 



§ 57. Exclusive Jurisdiction — Upon filing with the mag. 
istrate 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 bail as specified 
in the certificate, all 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 
upon the charge, together with such certificate and the undertak- 
ing given by the defendant thereon, and the district attorney shall 
present such charge to the grand jury; provided, however, that 
no such certificate shall be given except upon at least three days' 
notice to the complainant or to the district attorney of the county 
of the time and place for the application therefor. 

See references under last section; People v. McQann, 43 Hon, 65; Psople 
Cooper, 42 id. 196; People v. Palmer, 6 State Rep. 841. 

§ 58. liimitation. — When a person is brought before a 
magistrate charged with the commission of any of the crimes 
mentioned in section fifty-six, and asks that his case be presented 
to the grand jury, the proceedings shall be adjourned for not less 
than five nor more than ten days, and if on or before the ad- 
journed day the certificate mentioned in section fifty-seven is 
not filed with the magistrate before whom the charge is pend- 
ing, and bail given by the defendant as therein prescribed, the 
magistrate shall proceed with the trial, and when the defendant 
is brought before the magistrate, it shall be the duty of the 
magistrate to inform him of his rights under section fifty-seven 
and this section. 

See People v. McOann, 43 Hun, 66; People v. Starka, 17 State Rep. 237. 

It is not essential to a valid conviction that the court inform the prisoner of 
his right to be tried bj a jurj, or that he should expressly waive such right. 
People V. Goodwin, 5 Wend. 251. 

By electing to be tried in special sessions, prisoner waives all objections to 
Jurisdiction. OiU v. People, 3 Hun, 187; 60 N. Y. 648. See, also. People v. 
MaUon, 89 How. 454. 

§ 59. Trial and punishment of certain crimes. — A 

court of special sessions having jurisdiction in the place where 



hi 



OF THB State of New Tobk. 



31 



iDj of the crimes specified in section fifty-six is committed has 
jurisdiction to try and determine a complaint for such crime, and 
to impose the punishment prescribed upon conviction, unless the 
defendant obtains the certificate and gives the bail mentioned in 
section fifty-seven. 
See People v. McOann, 43 Hun, 56; People v. Austin, 49 id. 896. 

§ 60. Special sessions in Brooklyn. — Subject to th^ 
power of removal provided for by sections fifty-seven and fifty- 
eight of this Code, the courts of special sessions in the city of 
Brooklyn shall, in the first instance, have exclusive jurisdiction to 
try and determine all complaints for misdemeanors committed in 
said city, where the term of imprisonment does not exceed one 
year, with or without fine, excepting conspiracy, and to impose 
the same punishment as is authorized by statute in like cases to 
be inflicted by the court of sessions of the county of Kings. 
Where any jury is required for the trial of any crime or misde. 
nieanor in said courts of special sessions in the city of Brooklyn, 
the said courts shall have power to summons as many jurors as 
tiie court may deem necessary for the trial of such action or mis- 
demeanor. The said court of special sessions in the city of Brook- 
lyn shall have power to take bail in a reasonable amount for all 
misdemeanors, and shall have power to take undertakings in bail 
either with or without the defendant thereon in the discretion of 
the said court. All fines imposed by the said courts of special 
sessions in the city of Brooklyn, or by police magistrates in said 
city, upon defendants convicted in said courts or by such magis- 
trates, of crimes, misdemeanors or violations of any city ordinance 
of the city of Brooklyn, which are paid by such defendants so con- 
victed to the sheriff of the county of Kings or to the keeper of 
the penitentiary of said city, shall be paid monthly by the said 
sheriff or said keeper to the respective clerks of the courts in 
which the said fines were imposed; provided, however, that the 
said sheriff or keeper of the penitentiary of Kings county may, in 
bis discretion, pay all of such fines so paid to them, or either of 
them, directly to the city treasurer of the city of Brooklyn. In 
an examination held in any criminal proceeding by a police magis- 
frate in the city of Brooklyn, the testimony of each witness may, 
in the discretion of the magistrate, be taken as a deposition by 



32 



The Code of Criminal Procedure 



the oflBcial stenograplier of the court in which said magistrate 
holds snch examination. Such minutes of the testimony when so 
taken, and when certified by the stenographer and by the magis- 
trate who held such examination, shall both with reference to such 
examination, and in all procedure in connection with such exami- 
nation provided for by any section of this Code not inconsistent 
herewith, be regarded as actually taken down in writing by such 
magistrate and subscribed by the witness or witnesses at such ex- 
amination. 
See People v. Oreen, 4 N. Y. Cr. Rep. 443. 

§61. Special sessions in Oswego.— The court of special 
sessions in the city of Oswego, where held by the recorder, has 
also jurisdiction over all cases of offenses, crimes against public 
decency, selling unwholesome provisions, cheats, breaches of peace, 
disobeying the commands of officers to render assistance in crimi- 
nal cases, obstructing officers in the discharo^eof their duties, adul- 
terating distilled spirits, not delivering marked property, defacing 
marks, or putting false marks on floating timber, all violations 
against the laws and ordinances of or applicable to the city, when 
snch violation is a misdemeanor, and all attempts to commit any 
crimes herein named or referred to when such attempt is a mis- 
demeanor. 

§62. By whom held. — Unless provision is otherwise made 
by law, a court of special sessions must be held by one justice of 
the peace of the town or city in which the same is held, and sec- 
tions two hundred and ninety-three, two hundred and ninety-four, 
two hundred and ninety-five, three hundred and ten, three hun- 
dred and thirty-two, three hundred and thirty -three, three hun- 
dred and thirty-four, three hundred and thirty-five, three hundred 
and thirty-six, three hundred and thirty-seven, three hundred and 
thirty-eight, three hundred and thirty-nine, three hundred and 
forty, three hundred and fortj'^-one, three hundred and forty 
two, and three hundred and fifty-nine to four hundred and fifty, 
both inclusive, shall apply as far as may be to proceedings in ail 
courts of special sessions or police courts. 

See PeopU v. BoUb, 38 Hun, 181; Matter of Bray, 34 State Rep'r, 642. 



OF THB State of New Yobs. 



88 



§ 68. Recorder of a oity to hold court.— A recorder of 
ft city has power to hold a court of special sessions therein. 
See PeopU FVeneh, 82 Han, 116; PeopU y. Cooper, 42 id. 197. 



CHAPTER II. 

THE 8PB0IAI« SESSIONS IN THE CTTY AND OOUNTT OF NEW YORK. 

Section 64. Jurisdiction. 

65. Oliicers, how appointed. 

66. Term of office. 

67. Court, when held. 

§ 64. Jnrisdiotlon. — The court of special sessions in the city 
and county of New York has jurisdiction : 

1. To try and determine according to law all complaints for 
nusdemeanors, unless the defendant elects to be tried at the court 
of general sessions, or the court of special sessions sends the case 
to the court of general sessions for trial ; 

2. To remit fines imposed by it, and in place of the fine re- 
mitted, substitute, in its discretion, imprisonment. 

3. By an order entered in its minutes, to declare forfeited the 
recognizance of a defendant, taken by the court, to appear thereat, 
upon his failure so to appear ; 

4. To impose the same punishment as is authorized by statute 
to be inflicted in like cases tried in the court of general sessions 
of the peace of that city and county ; 

5. By warrant attested in the name of any one of the justices 
aathorized to hold the court, signed by the clerk thereof, and 
entered in the minutes of the court, to enforce its judgments and 
orders ; to bring before the court all accused persons for trial and 
judgment in all cases in which it has jurisdiction ; to issue sub- 
poenas for the attendance of witnesses, attachments for contempt, 
and other process necessary for the proper conduct of the court ; 

6. To require the principal in a recognizance to appear at the 
court, and enter into a further recognizance to keep the peace, or 
to be of good behavior, or both, toward the people of the state, 
for a period not exceeding one year, and in default thereof to 
oonmiit him to prison till he be discharged therefrom according 
to low. 

5 



The Code op Cbdonal Peooedubb. 



See Laws 1858, chap. 282; Laws 1869, chap. 491; Laws 1865, chap. 663; 
Laws 1866, chap. 409; Laws 1871, chap. 802; Laws 1870, chap. 80; Laws 1870» 
chap. 988, § 49; Peoj^ v. Hogan, 128 N. Y. 219; 65 Hun, 894; MaU&r of Bray, 
84 State Rep'r. 642. 

The coart of special sessions haye no jurisdiction of a prisoner who, on his 
committal, entered into a recognizance to appear at general sessions. People^ 
fxrel. Doyle, v. Johnson, 10 Abb. 294; 19 How. 11. 

« Three justices are necessary to constitute a court of special sessions in the 
city of New York. Laws 1858, chap. 282. 

Hence a commitment and conviction by two only is void as without Jurisdic- 
tion. Detine'a Case, 11 Abb. 90; 21 How. 80; 5 Park. 62. 

The special sessions cannot acquire jurisdiction to try a prisoner for a crime 
unless he expressly waives the right to be tried by a jury. People v. MaUon, 
89 How. 454. 

Petit larceny is triable under this section. People v. Mnn, 87 N. Y. 688. 

As to right of police magistrates to commit disorderly persons since Penal 
Code took effect, see Matter of MeMahan, 64 How. Pr. 286; 1 N. Y. Cr. Rep. 
67. 

In People v. Finn, 87 N. Y. 588, the warrant of commitment issued upon a 
Judgment of the court of special sessions stated that the defendant was con- 
victed of the ** misdemeanor of petit larceny." Held, a sufficient description of 
the offense. 

§ 65. Officers, how appointed. — The police juBtices of the 
city and county of New York, by the vote of a majority, have 
the exclusive power to appoint the clerk, deputy derk, steno- 
grapher, interpreter and other officers of the court of spedil 
sessions in the city and county of New York. 

§ 66. Term of office. — The term of office of the derk and 
deputy clerk of the court of special sessions in the dty and county 
of New York is the same as the term of office of the police 
justices of that city. 

§ 67. C!oiirt, when held. — The court of special sessions in 
the city and county of New York, may be held as often and at 
such times as the justices thereof may think expedient. 



CHAPTER m. 



SPBOIAL SESSIONS IN THE dlT OF ALBAHT. 



fiBOnoN 68. Jurisdiction. 

69. By whom held. 



or THB Statb of New York. 



85 



SBCnoR 70. Inabilitj of judge. 
71 Offlcen to attend. 
72. aerk. 

78. Court, when and where held. 

§ 68. Jurifldiotion. — The court of special seadoDB in tbe city 
of Albany has jarisdiction : 

1. To try and determine all cases of petit larceny charged as a 
first offense, and all misdemeanors, not being infamous crimes, 
committed within the city ; 

2. To take recognizances, to appear before the court at a suo- 
oeeding term from persons charged with a crime or misdemeanor, 
triable therein ; 

3. To impose and enforce sentence of fine or imprisonment, or 
both, in the discretion of the court, in all cases within its juria- 
diction, upon conviction, to the same extent as the court of sessions 
of the county of Albany could do in like cases ; 

4. To punish a contempt of court in the same manner and to 
the same extent as the court of oyer and terminer of the county 
could do in like cases ; 

5. In cases where a jury trial is demanded by a defendant, to 
draw from the jury box containing the names of jurors who 
reside in the city of Albany such number of names as the recorder 
or county judge may direct, and to require the sheriff of the 
county to summon the persons so drawn to appear at the time 
designated for trial, to impanel a jury of twelve men, to require 
the attendance of additional jurors and to punish a juror or wit- 
ness neglecting to appear, in the same manner and to the same 
extent as the court of oyer and terminer of the county could do 
in like cases; 

6. On motion of the district attorney, to issue a warrant for the 
arrest of a person who neglects to appear agreeably to the require- 
ments of a recognizance to appear thereat, commanding the officer 
executing the same to bring the party forthwith before the court, 
if in session, otherwise to commit him to the common jail of the 
county, there to remain until delivered by due course of law. 

Under snbdi vision 1, the publication of a libel is not an " infamons crime." 
PeopU y. Parr, 42 Hun, 816; 4 N. Y. Cr. Rep. 546. 

§ 69. By whom held. — Upon charges for offenses triable by 
this court, the police magistrate'or any other magistrate in the city 



86 



The Code of Cbuiinal Pboosdube 



hearing the same, shall, if offered, take recognizances in the cases 
provided bj law returnable at the court of special sessions ; and 
all such recognizances as shall have been so taken shall be returned 
to and filed with the district attorney of the county of Albany. If 
no such recognizance be offered, the magistrate or magistrates shall 
commit the defendant to the common jail of the county of Albany 
imtil he shall be thence delivered in due course of law, and the trial 
of such person shall be had before the court of special sessions, ex« 
cept that where a police justice or other magistrate in this city has 
jurisdiction, the defendant may elect to be tried before such police 
justice or other magistrate. 

§ 70. Inability of judge.— Whenever a person is brought 
before a police justice or other magistrate of the city, charged 
with any of the following crimes, viz.: Petit larceny charged as 
a first offense, offenses against the laws relating to excise and the 
regulation of taverns, inns and hotels, offenses being misdemean- 
ors against the laws relating to gaming, assaults upon, and inter- 
ference with a public officer in the discharge of his duty, and it 
shall appear to the magistrate that the crime has been committed 
and that there is suflicient cause to believe the defendant guilty 
thereof, the magistrate must order him to be held to answer the 
charge before the court of special sessions. 

§ 71. Officers to attend. — The court of special sessions in 
the city of Albany must be held by the recorder of the city, with 
or without one or more of the justices of the peace to be associated 
with him. In case of the absence or inability of the recorder to 
act, the county judge of the county of Albany must act in his 
place. If the recorder and county judge are both unable, by 
reason of absence or other cause, to hold the court, the clerk must 
adjourn the court to the next following Tuesday, and continue 
such adjournments until the recorder or county judge attends, 
Kot more than two officers shall be designated or appointed by 
the sheriff or other authority to attend the court of special sessions 
of the dty of Albany, unless the court shall, by an order entered 
in its minutes, require the attendance of a greater number. 

§ 72. Clerk. — The county clerk of Albany county is clerk of 
the court of special sessions of the city of Albany, and must 
attend the same in person or by deputy. 



OF THB 8tATS of NxW YoSK. 



87 



§ 78. Ckmrty when and where helcL— The court of special 
seesions of the city of Albany most be held at the city hall in the 
dtj of Albany on Tnesday of each week, and may be held and 
aontinned for such length of time as it deems proper. 



CHAPTER IV. 

THE POLICE OOUKT8. 

Bmcnos 74. Jurisdiction. 

75. Election of justices. 

76. Justice to take and file oath of office, ela 

77. Justice, how to hold office. 

78. Compensation of justice. 

§74. JuriBdiction. —Police justices have such jurisdiction, 
and such only, as is specially conferred upon them by statute. 
The courts held by police justices are called police courts, and 
courts of special sessions are also called police courts, and are so 
designated in different parts of the Code. 

See MatUr of MeMahan. 64 How. Pr. 285; 1 N. Y. Cr. Rep. 446. 

No app>eal lies from the judgment of a police justice unless a village charter 
or special statute confers such right. People v. Trumble, 29 Hun, 205; 1 N. 
Y. Cr. Rep. 443. 

§ 75. Election of jnsticeB. — Upon the application in writing 
of not less than twenty-five electors, inhabitants of any incor- 
porated village in this state in which no provision now exists for 
the election of a police justice, the board of trustees of such 
village may determine, by resolution to be entered in their 
minutes of proceedings, that a police justice should be elected 
for such village ; and, if they so determine, the electors of the 
village may, at their next annual election, or at a special election 
to be called for the purpose, and to be conducted in the same 
manner as the annual election, choose a police justice, who must 
be a resident elector of the village ; and thereafter a police justice 
most be elected in such village, at the annual charter election 
next preceding the expiration of a regular term, or at the next 
annual election after a vacancy, on the same ticket with the other 
elective village officers. Any vacancy must be filled by appoint- 
ment by the board of trustees of the village. 

Bee Matter of McMaJum, 64 How. 285; 1 N. Y. Cr. Rep. 58. 



88 Thb Code of Cbuiinal Froosdubb 



§ 76. Jiuitioe to take and file oath of offiooi eto. — 

police justice elected or appointed as prescribed in the last sec- 
tion must, before entering npon the duties of his office, and 
within fifteen days after receiving notice from the village clerk 
of his election or appointment, take, before the clerk, the consti- 
tutional oath of office, and file the same with the clerk, together 
with a bond with such sureties aud in such amount as shall be 
approved bj the board of trustees of the village, conditioned for 
the faithful performance of his official duties. 
The following is the constitutional oath of office (Const., art. 11, § 1): 
" I do solemnly swear (or affirm) that I will support the constitution of the 
United States, and the constitution of the state of New York, and that I will 
faithfully discharge the duties of the office of , according to the 

best of my ability; " and all such officers who shall have been chosen at any 
election shall, before they enter on the duties of their respective offices, 
take and subscribe the oath or affirmation above prescribed, together with the 
following addition thereto, as part thereof : 

"And I do further solemnly swear (or affirm) that I have not directly or in* 
directly paid, offered or promised to pay, contributed, or offered or promised 
to contribute any money or other valuable thing as a consideration or reward 
for the giving or withholding a vote at the election at which I was elected to 
said office, and have not made any promise to influence the giving or with- 
holding any such vote," and no other oath, declaration or test, shall be re- 
quired as a qualification for any office of public trust." 

§ 77. Justice ; how to hold office. — A police justice elected 
or appointed, as prescribed in section seventj-five, holds his office 
as follows : 

1. If elected at the first election held after the creation of the 
office, he must enter upon the duties of his office immediately 
after qualifying, as prescribed in the last section, and may hold 
his office until and including the thirty-first day of December in 
the third year succeeding his election ; 

2. If elected at any subsequent election, except as prescribed 
in the next subdivision, he must enter upon the duties of his 
office on the first day of January succeeding his election, and 
may hold his office for three years ; 

3. If elected to fill a vacancy, he must enter upon the duties 
of his office immediately after qualifying, as prescribed in the 
last section, and may hold his office for the unexpired term ; 

4. If appointed, he must enter upon the duties of his office 
immediately after qualifying, as prescribed in the last section, 
and may hold his office until his successor is elected and qnalifies. 



OF THE State of New Yosk. 



89 



§78. CkxmpensatlQn of justice. — A police justice cannot 
retain to his own nse any costs or fees, but may receive for his 
servicee an annual salary, to be fixed in villa^^ by the board of 
trosteeB, and in cities by the common council, except where the 
same is otherwise fixed by law; and such salary shall not be 
increaaed or decreaaed during his term of ofSoe. 



40 Thb Codb of Criminal Fbooedubb 



PART II. 

OF THB PRBVENTION OF OBIXX. 

Tmji L Of lawful bbsistanob. 

n. Of thb intbbybntion of thb offiobbs of JunraBi 

TITLE I. 
of lawful resistance. 

Gbaftbb L General provisions respecting lawful remiitance 
XL Resistance by the party about to be injured. 
UL Resistance by other parties. 

CHAPTER I. 

OBNBBAL PROVISIONS BESPEOnNQ LAWFUL BB8I8TAN0B. 
SscnoN 79. Lawful resistance; by whom made. 

§79. Lawful resistance ; by whom made. — Lawful reBlat 
ance to the commission of a crime may be made : 

1. By the party about to be injured ; 

2. By other parties. 
See 24 Alb. L, J, 1, 3. 



CHAPTER 11. 

BB8I8TANOB BY THE PARTY ABOUT TO BB INJT7BB1X 
Section 80. In what cases; to what extent 

§80. Inwhatcaaee; to what extent. — Resistance snflScient 
to prevent the crime may be made by the party about to be 
injured : 

1. To prevent a cnme against his person ; 

2. To prevent an illegal attempt by force to take or injure 
property in his lawful possession. 

See Penal Ck>de, 26, and note. 



OF THE State of New York. 



41 



CHAPTER in. 

BB8ISTAN0E BY OTHER PARTIB8. 

SBonoNdl. In what cases. 

§ 81. In what oases. — Any other person, in aid or defense 
of the person abont to be injured, may make resistance sufficient 
to prevent the injory. 



TITLE IL 

OF THB nmERVENTION OF THE 0FFI0BB8 OF JITSTIOS. 

CsiFTEB I. Interyention of public officers in general 
H. Secnrity to keep the peace. 

m. Police in cities and villages, and their attendance at ezpoied 

places. 

rV. Prevention and suppression of riots. 

CHAPTER I. 

HrrEBVEKTTON OF PUBLIO OFFICERS IN GENERAL. 

Beotion 82. In what cases. 

88. Persons acting in their aid. Justified. 

§ 82. In. what cases. — Crimes may be prevented by the 
intervention of the officers of justice : 

1. By requiring security to keep the peace ; 

2. By forming a police in cities and villages, and by requiring 
their attendance in exposed places ; 

8. By suppressing riots. 
See JKM<. §§ 84-101. 102-117. 

§ 83. Persons acting in their aid, jnstiflecL— When the 
officers of justice are authorized to act in the prevention of crime, 
other persons who, by their command, act in their aid, ara justi- 
fled ir 80 doing. 

See Ftaial Code, §228, sabd. 1. 
6 



49 



The Code of Cbdiikal Prockdurb 



CHAPTER IL 

SECURTTT TO KEEP THE PEAOB* 

BwnoN 84. Information of threatened crime. 

86. Bxamination of complainant and witneaseflL 

86. Warrant of arrest 

87. Proceedings, on complaint being controverted. 

88. Person complained of, when to be discharged. 

89. Security to keep the peace, when required. 

90. Effect of giving or refusing to give security. 

91. Person committed for not giving security, how discharged. 

92. Undertaking, to be transmitted to sessions. 

98. Security, when required, for assault, etc., in presence of a ooul 
or magistrate. 

94. Appearance of party bound, upon his undertaking. 

95. Person bound, may be discharged, if complainant does not appear. 

96. Proceedings in sessions, on appearance of both parties. 

97. Undertaking, when broken. 

98. Undertaking, when and how to be prosecuted. 

99. Security for the peace not required, except aeoording to thii 

chapter. 

§ 84. Infbnnation of threatened crime.— An information 
may be laid before any magistrate that a person has threatened to 
commit a crime against the person or property of another. 

See People v. Boyle, 2 N. Y. Cr. Rep. 54; WHght v. Church, 110 N. Y. 468. 

To justify the issuing of a warrant to require a person to find sureties of the 
peace there must be a formal complaint in writing upon oath, in addition to 
the examination required by statute. Bradstreet v. Furguaon, 17 Wend. 181; 
28 id. 688. 

§ 85. Bxamination of complainant and witnesBCB. — 

When the information is laid before a magistate, he must examine 
on oath the complainant and any witnesses he may produce, and 
must reduce their examination to writiug, and cause them to be 
subscribed by the parties making them. 

To justify the issuing of a warrant the examination must declare the neces- 
sity of it. Bradstreet v. FkLrguaan, 17 Wend. 181; 23 id. 688. 

§ 86. Warrant of arrest. — K it appear from such examina- 
tions that there is just reason to fear the commission of the crime 
threatened, by the person complained of, the magistrate must issue 
a warrant, directed generally to the sheriff of the county, or any 
constable, pnarahAl or policeman of the city or town, reciting the 



OF THE State of New Yobk. 



43 



labetance of the information, and commanding the officer forth* 
with to arrest the person complained of, and bring him before the 
QugiBtrate. 

When a person uses abndye or reproachful language to the court it Is suffi- 
cient cause for issuing warrant. Biehmand y. Dayton, 10 Johns. 898. 

So, also, where a prosecutor, in his own testimony, discloses his own infamj. 
Carpenters Case, 1 C. H. Rec. 164. 

Also where a person rents property for the purposes of prostitution. People 
T. Parkes, 15 How. 551. 

There must, however, be a formal complaint to justify the issuing of a war- 
nnt. Bradstrut y, Furguson, 17 Wend. 181; 28 id. 688. 

§ 87. ProceedixigSy on complaint being controverted. — 

When the person complained of is brought before the magistrate, 
if the charge be controverted, the magistrate most take testimony 
in relation thereto. The evidence must be reduced to writing 
and subscribed bj the witnesses. 

See People v. Boyle, 2 N. Y. Cr. Rep. 55. 

In a summary proceeding to require a man to give sureties for his good be- 
htTior on the ground that he has abandoned his family, evidence is admissible 
that the complainant is not in fact his wife. Duffy v. People, 6 Hill, 75. 

The question to be tried is, has the complainant just cause to entertain the 
fetn expressed in his complaint. 26 Ind. 141; 21 id. 225; 85 id. 879; 48 id. 146. 

§ 88. Person complained of; when to be diflcharged. * 

If it appear that there is no just reason to fear the commission 
of the crime alleged to have been threatened, the person com- 
plained of must be discharged. 
See People t. Boyle, 2 N. Y. Cr. Eep. 55. 

§ 89. Security to keep the pesuce ; when required* —If, 

however, there be just reason to fear the commission of the 
cnme, the person complained of may be required to enter into 
tn undertaking, in such sum, not exceeding one thousand dollars, 
as the magistrate may direct, with one or more sufficient sureties, 
to abide the order of the next court of sessions of the county, 
and in the meantime to keep the peace towards the people of 
this state, and particularly towards the complainant. 

The court of general sesslonB of the city and conntj of New York has no 
jurisdiction to discharge a prisoner committed by a police magistrate in default 
of giving an undertaking required. People v. Boyle, 2 N. Y. Cr. Rep. 54. 

Where a person uses abusive and reproachful language to a justice relative 
to his jadidal condact, the latter may issue his warrant and require the 



The Code of CBmmAL Pbooedubb 



offender to find sureties for his good behavior. Richmond y. Dayton, 10 
Johns. 398. 

A prosecutor who, in his own testimony, discloses his own infamy will be 
recognized for his good behavior. Carpenter's Case, 1 C. H. Kec. 164. 

A landlord who rents a house for purposes of prostitution may be held to 
bail under the statute. People v. Parkes, 15 How. 651. 

A person who neglects to support his wife may be held under the statute. 
People V. MiteheU, 2 S. C. 172. 

Though the evidence comes short of making out a clear case of crime, the 
court may be justified in requiring sureties. 1 Bish. Crim. Law, § 945; RUchey 
V. Davis, 11 Iowa, 124; Steele v. State, 4 Ind. 561; Com, v. Ward, 4 Mass. 497; 
Com, V. Morey, 8 id. 78; ConMin v State, 8 Ind. 458; L<mg v. State, 10 id. 858; 
CoUins V. StaU, 11 id. 812. 

The court may also, on the coming in of a verdict of not guilty, order the 
prisoner to give sureties. Bamber v. Com., 10 Barr. 889, HespvJblica v. Done- 
gan, 2 Teates, 437; People v. Bemer, 13 Johns. 883; Doyle's Case, 19 Abb. Pr. 
269. 

Drunkenness with disorderly conduct not necessarily a breach of the peace 
(Bankin v. Com., 9 Bush, 553); but libel is such a breach. Com, v. Braynard, 
6 Pick. 113. 

§ 90. Effect of giving or refasing to give security. — If 

the undertaking required by the last section be given, the party 
complained of must be discharged. If it is not given, the magis- 
trate must commit him to prison, specifying in the warrant the 
cause of commitment, the amount of security required, and the 
omission to give the same. 
See WHght v. Church, 110 N. Y. 463. 

It is sufficient in the mittimus to state that the party is convicted for refusing 
to give sureties. Bradstreet v. Ferguson, 17 Wend. 181; 23 id. 638. 

It is not necessary to state in the mittimus the crime for which prisoner 
stands committed. Id. 

A disorderly person may bo committed until he find sureties to keep the 
peace. Doyle's Case, 19 Abb. 269. 

When a justice of the peace, after an examination, has adjudicated that a 
person brought before him shall give sureties to keep the peace, and the pris- 
oner has refused to do so, it is his duty to issue his warrant of commitment. 
Oaiio V. HaU, 5 Park. 651; 42 N. Y. 67. 

Form of warrant on a refusal to give sureties. Id. 

§ 91. Person committed for not giving security; how 
discharged. — If the person complained of be committed for 
not giving security, he may be discharged by any two justices of 
the peace of the county, or police or special justices of the eUy, 
upon giving tj^e security. 



OF TH£ State of Nxw Yokk. 



§ 92. TTndertakiiig, to be transmitted to MeeuAanB. — An 

nndertaldng given as provided in section eighty-nine, must be 
tnnsmitted by the magistrate to the next court of sessions of the 
oounty. 

§ 93. Security, when required, for aasatilt, etc., in pree- 
ence of a court or magistrate. — A person who, in the 
presence of a conrt or magistrate, assaalts or threatens to assault 
another, or to conmiit a crime against his person or property, or 
who contends with another in angry words, may be thereupon 
ordered by the court or magistrate to give security as provided 
in section eighty-nine, or if he refuses to do so, may be committed 
as provided in section ninety. 

Where a person uses abasiye or reproachful language to a justice relative tc 
his jadidal oonduct, the latter may issue his warrant. Richmond v. Da/yUmg 
10 Johns. 893 

§ 94. Appearance of party bound, upon his undertak- 
ing. — A person who has entered into an undertaking to keep 
the peace, must appear on the first day of the next term of the 
court of sessions of the county. If he do not, the court may 
forfeit his undertaking, and order it to be prosecuted, unless his 
default be excused. 

§ 95. Person bound, may be discharged if complainant 
does not appear. — If the complainant do not appear, the per- 
son complained of may be discharged, xmless good cause to the 
contrary be shown. 

§ 96. Proceedings in sessions, on appearance of both 
parties. — If both parties appear, the court may hear their 
proofs and allegations, and may either discharge the undertaking, 
or require a new one, for a time not exceeding one year. 

§97. Undertaking, when broken. — An undertaking to 
keep the peace is broken, on the failure of the person complained 
of to appear at the court of sessions, as provided in section 
nmety-f our, or upon his being convicted of any crimes involving 
a breach of the peace. 



A6 Ths Codb of Ordcinal Fbooedubb 



§ 98. TJndertakixigy when and how to be proiEiecuted. 

Fpon the difitrict attorney producing evidence of such conviction 
to the court of sessions to which the undertaking is returned, 
that court must order the undertaking to be prosecuted ; and the 
district attorney must thereupon commence an action upon it in 
the name of the people of this state. 
See Peaj^ v. DayU, 2 N, Y. Cr. Bep. 54. 

§99. Security fbr the peace not reqtiii^ except accord- 
ing to this chapter. — Security to keep the peace or be of good 
behavior, cannot be required, except as prescribed in this chapter. 

See MatUr of McMahon, 64 How. 285; 1 N. Y. Cp. Rep. 58. 

A justice before whom one has been convicted as a disorderly person has no 
power, singly, to take a recognizance for good behavior. People v. Broum, 23 
Wend. 47. 

Also, after a sommary conviction as a disorderly person, recognizance for 
good behavior cannot be taken. People v. Ihiffy, 5 Barb. 205. 



CHAPTER III. 

FOLIOE m OTTEES AND VILLAGES, AND THEIB ATTENDAHOB AT 
EXPOSED PLAGES. 

BscnoN 100. Organization and regulation of the police. 

101. Force to preserve the peace, at public meetings, when and bow 
ordered. 

§ 100. Organization and regolation of the police. — The 

organization and regulation of the police in the cities and villages 
of this state are governed by special statutes. 

§ 101. Force to preserve the peace, at pubUo meetingB, 
when and how ordered. — The mayor or other officer having 
the direction of the police in a city or village, must order a force, 
sufficient to preserve the peace, to attend any public meeting^ 
when he is satisfied that a breach of the peace is to be appre- 
hended. 



b 



OF THB State of New Yobk. 



47 



CHAPTER IV. 

FBBVSimOK AND S17PPBS88IOK OF BIOTB. 

flmoir 103. PbweiB of sheriff or other officer, in oyercoming rwiftance to 

process. 

108. His duty to certify to court the names of resisten and theix 
abettors. 

104. Duty of a person commanded to aid the officer. 

105. When governor to order out a military force, to aid in executing 

process. 

106. Magistrates and officers to command rioters to disperse. 

107. To arrest rioters, if they do not disperse. 

106. Consequences of refusal to aid the magistrates or officers. 
100. Consequences of neglect or refusal of a magistrate or officer to 
act 

110. Proceeding, if rioters do not disperse. 

111. Officers who may order out the military. 

112. Commanding officer and troops to obey the order. 

113. Armed force to obey orders. 

114. Conduct of the troops. 

115. Governor may, in certain cases, proclaim a county in a slate of 

Insurrection. 

116. Kay caU out the militia. 

117. May revoke the proclamation. 

§ 102. Powers of sheriff or other ofHoer in overcoming 
resistance to jirooees. — When a sherifi or other public officer, 
anthorized to execute process, has reason to apprehend that resist- 
ance is about to be made to the execution of the process, he may 
command as many male inhabitants of his county as he thinks 
proper, and any military company or companies in the county, 
armed and equipped, to assist him in overcoming the resistance, 
and, if necessary, in seizing, arresting and confining the resistera 
and their aiders and abettors, to be punished according to law. 

See Penal Code, § 457. 

The sheriff being ex offlcio a conservator of the public peace, it is his duty 
to arrest all persons, with their abettors, who oppose the execution of legal 
process. Cayle v. Hurtin, 10 Johns. 85. 

He has also power, under the statute, to command a bystander to assist in 
oreTooming a riotous assemblage. Id. 

And those so ordered may arrest the offenders even during the temporary 
absence of the sheriff. Id. 

And should those thus commanded, suffer an offender knowingly to escape, 
titey would be liable to punishment. Id. 

Under tha Code of Prooeduie, §g 185, 410, the coroner may call to Ms aid the 



48 



Thb Code of Cbdonal Fbooedusb 



power of the county in a proper case, in executing an order of arrest in an ae- 
tion in which a sheriff is a party. Slater v. Wood, 9 Bosw. 16. 

The mere fact tliat the officer, at the time of summoning the power of the 
county, had not proper cause for so doing, does not relieve the persons sum- 
moned, from the duty of obeying. Slater v. Wood^ 9 Bosw. 16. 

What are sufficient grounds for summoning assistance. Id. 46. 

However, a person acting in aid of an officer, and by his commandment in 
overcoming resistance to the execution of a process is a trespasser, if the offi- 
cer is not justified by the process. Elder v. Morrison, 10 Wend. 137; Oy stead 
V. Shed, 12 Mass. 511. 

The bystander obeys at his peril. If the officer has authority to do the act for 
the doing of which aid is required, the bystander is bound to obey and is justi- 
fied; and if he refuses or neglects, is guilty of a misdemeanor. Elder v. Mor^ 
rimm, 10 Wend. 137; Leonard v. Stacey, 6 Mod. 140. 

§ 103. His duty to certify to coiirt the names of reeist- 
ers and their abettors. — The officer must certify to the court 
from which the process issued the names of the resisters and 
their aiders and abettors, to the end that they may be proceeded 
against for contempt. 

§ 104. Duty of a -person commanded to aid the officer.— 

Every person commanded by a public officer to assist him in the 
execution of process, as provided in section one hundred and two^ 
who, without lawful cause, refuses or neglects to obey the com* 
mand, is guilty of a misdemeanor. 
See Penal Ck>de, g 456. 

The bystander, however, obeys at his peril. If the officer has authority to 
do the act for the doing of which aid is required, the bystander is bound to 
obey and is justified; and if he refuses or neglects, he is guilty of a misde- 
meanor. Elder Y, Morrison, 10 Wend. 187; Coyles v. Hurtin, 10 Johns. 85; 
Slater v. Wood, 9 Bosw. 16. 

§ 105. When governor to order out a military force to 
aid in executing process. — If it appear to the governor that 
the power of the county is not Bufficient to enable the sherifi to 
execute process delivered to him, he must, on the application of 
the sheriff, order such a military force from any other county or 
counties as is necessary. 

§ 106. Magistrates and officers to command rioters to 
difi^perse. — ^When persons, to the number of five or more, armed 
with dangerous weapons, or to the number of ten or more, whether 
armed or not, are unlawfully or riotously assembled in a city, vil- 



OF THE State of New York. 49 

or town, the sheriff of the county and his under sheriff and 
deputies, the mayor and aldermen of the city, or the supervisor 
of the town, or president or chief executive officer of the village, 
and the justices of the peace or the police justices of the city, 
village or town, or such of them as can fortliwith be collected, 
must go among the persons assembled and command them, in the 
name of the people of the state, immediately to disperse. 

§ 107. To arrest rioters, if they do not disperse. — If the 
persons assembled do not immediately disperse, the magistrates 
and officers must arrest them, or cause them to be arrested, that 
they may be punished according to law ; and for that purj>08e, 
may command the aid of all persons present or within the county. 

To convict of a riot it mast be shown that defendant took an active part; 
mere presence not enoagh. Scott* a Case, 2 C. H. Rec. 25; Hodman's Case, 
id. 88 

It requires, however, no previous design or preconcert. People v. Ferris, 4 
HaU L. J. 209. 

If a crowd of three or more persons make an attack upon another with a 
preconcerted intent to conmiit an assault upon him, they are gailtj of riot. 
People V. WhiU, 55 Barb. 006; Hodman's Case, 2 C. H. Rec S8. ' 

§ 108. Consequences of reftisal to aid the magistrates 
or oflELoers. — If a person so commanded to aid the magistrates 
or officers, neglects to do so, he is deemed one of the rioters, and 
is punishable accordingly. 

§ 109. Consequences of neglect or reftisal of a magis- 
trate or officer to act. — If a magistrate or officer having notice 
of an unlawful or riotous assembly, mentioned in section one 
hundred and six, neglects to proceed to the place of the assembly, 
or as near thereto as he can with safety, and to exercise the 
authority with which he is invested for suppressing the same and 
arresting the offenders, he is guilty of a misdemeanor. 

§110. Proceedings, if rioters do not disperse. — If the 

persons assembled, and commanded to disperse, do not immedi- 
ately disperse, any two of the magistrates or officers mentioned 
in section one hundred and six, may command the aid of a 
Bufficient number of persons, and may proceed in such manner as 
in their judgment is necessary, to disperse the assembly and 
arrest the offenders. 
7 



60 The Code of Criminal Pbooedubb 



§ 111. OfBLoers who may order out the military. — When 

there is an unlawful or riotous assembly, with intent to commit 
a felony, or to offer violence to person or property, or to resist by 
force the laws of the state, and the fact is made to appear to the 
governor, or to a judge of the supreme court, or to a county 
ljudge, or to the sheriff of the county, or to the mayor, recorder 
or city judge of a city, either of those officers may issue an order 
directed to the commanding officer of a division, brigade, regi- 
ment, battalion or company, to order his command, or any part of 
it (describing the kind and number of troops), to appear at a 
specified time and place to aid the civil authorities in suppressing 
violence and enforcing the law. 

§ 112. Commanding officer and troops to obey the 
order. — The commanding officer, to whom the order is given, 
must forthwith obey it ; and the troops requii*ed must appear at 
the time and place appointed, armed and equipped with ammu- 
nition as for inspection, and render such aid. 

§ 113. Armed force to obey orders. — When an armed 
force is called out for the purpose of suppressing an unlawful or 
riotous assembly, it must obey the orders in relation thereto, of 
either of the officers mentioned in section one hundred and eleven. 

§ 114. Conduct of the troops. — Every endeavor must be 
used, both by the magistrates and civil officers, and by the officer 
commanding the troops, which can be made consistently with the 
preservation of life, to induce or force the rioters to disperse, 
before an attack is made upon them by which their lives may be 
endangered. 

§115. Gk>vemor may, in certain cases, proclaim a 
county in a state of insurrection. — When the governor is 
satisfied that the execution of civil or criminal process has been 
forcibly resisted in any county, by bodies of men, or that com- 
binations to resist the execution of process by force exist in any 
county, and that the power of the county has been exerted, and 
has not been sufficient to enable the officer having the process to 
execute it, he may, on the application of the officer, or of the 
district attorney or county judge of the county, by proclamation 
to be published in the state paper, and in such papers in the 



or THE Statb of Nbw Yobk. 



ooQnty as he may direct, declare the county to be in a state of 
insurrection. 

§ 116. After proclamation. — After the proclamation men* 
tioned in the last section, the governor may order into the service 
of the state such namber and description of volunteer or uniform 
companies, or other militia of the state, as he deems necessary, to 
serve for such term, and under the command of such officer or 
officers as he may direct. 

§117. May revoke the prodamatiGiu — The governor, 
when he thinks proper, may revoke the proclamation authorized 
bj section one hundred and fifteen, or declare that it shall cease, 
it the time and in the manner directed by him. 



62 The Cods of Criminal Pbocbdube 



PART III. 

OF JTBIOIAL PBOOBEDINOS FOR THE REMOVAL OF PUBLIO 
OFFIOERS, BY IMPEAOHMENT OR OTHERWISE. 

Title I. Of Impbaohmekts. 

11. Of the removal of justioes of the peaoe, polioe 
justioes, and justioe of jubtioes' 00urt8 and their 

CLERKS. 

TITLE L 

OF IMPEACHMENTS. 

Impeachment to be delivered to president of the senate 
Copy of impeachment served on defendant 
Service, how made. 

Proceedings, if defendant do not appear. 
Defendant may object to deficiency of, or deny impeachment. 
Form of objection or denial 
Proceedings thereon. 
Two-thirds necessary to conviction. 
Judgment on conviction, how pronounced. 
Adoption of resolution. 
Nature of the judgment. 

OfQcer, when impeached, disqualified to act imtil acquitted. 
Presiding officer, when president of the senate is impeached. 
Impeachment, not a bar to indictment. 



fiBDnoN 118. 
119. 
120. 
121. 
122. 
123. 

m 

125. 
126. 
127. 
128. 
129. 
180. 
181. 



§ 118. Impeacliment to be delivered to president of the 

senate. — When an officer of the state is impeached by the 
assembly, the articles of impeachment must be delivered to the 
president of the senate. 
See Penal Code, § 723; State Const., art. VI, § 1. 

An associate judge may deliver an opinion. A presiding judge is liable 
for preventing his associate from delivering his opinion. Addison's Trial, 114, 
161; S. C, 4 Dall., 225; Porter's Trial, 61. See, also, Barnard's Trial. 

§119. Copy of Impeachment served on defendant. — 

The president of the senate must thereupon cause a copy of the 
articles of impeachment, with a notice to appear and answer the 
eame, at the time and place appointed for the meeting of the 



OF THE StATB of NeW ToRK. 



58 



conrt to be served on the defendant not less than twenty days be- 
fore the day fixed for the meeting of the conrt. 

§ 120. Service, how made. — The service mnst be upon the 
defendant personally, or if he cannot, upon diligent inquiry, be 
found in the state, the court upon proof of that fact, may order 
publication to be made in such manner as it deems proper, of a 
notice requiring him to appear at a specified time and place, and 
answer the articles of impeachment, 

§ 121. Prooeedings, if defendant do not appear. — If the 

defendant do not appear, the court, upon proof of service or pub- 
lication as provided in the last two sections, may of its own 
motion, or for cause shown, assign another day or place for hear- 
ing the impeachment ; or may then, or at any other time which 
it may appoint, proceed in the absence of the defendant, to trial 
and judgment. 

§ 122. Defendant may object to sufficiency o^ or deny 
impeachment. — When the defendant appears, he must answer 
the articles of impeachment ; which he may do, either by object- 
ing to their suflSciency, or that of any article therein, or by deny- 
ing the truth of the same. 

§ 123. Form of olijection or denial. — If the defendant 
object to the sufficiency of the impeachment, the objection must 
be in writing, but need not be in any specific form ; it being 
sufficient, if it present intelligibly the grounds of the objection. 
If he deny the truth of the impeachment, the denial may be oral, 
and without oath, and must be entered upon the minutes. 

§ 124. Proceedings thereon. — If an objection to the suffi« 

dency of the impeachment be not sustained by a majority of the 
members of the court who heard the argument, the defendant 
must forthwith answer the articles of impeachment. If he plead 
guilty, or refuse to plead, the court must render judgment of 
conviction against him. If he denv the matters charged the court 
must, at such time as it may appoint, proceed to try the impeach- 
ment, and may adjourn the trial from time to time until concluded. 

He may appear by counsel, as in civil actions. N.Y. Const., art. I, § 6; 8 R. 
8. 188, g 12. See, also. Mathtmn v. Satoyer, 16 Wend. 461. and Oarling v. Van 
AJUn, 66 N. Y. 81. 



M Tax CoDB or OsocmAL Fbookdubk 



§ 125. Two-thirda neoesBary to convictioii. — The defend- 
ant cannot be convicted on an impeachment, without the concur- 
rence of two-thirds of the members present during the trial ; and 
if such two-thirds do not concur in a conviction, the defendant 
must be declared acquitted. 

State Const., art. VI, § 1. 

§ 126. Judgmant on conviction, how prononncecL — After 
conviction the court must immediately, or at such other time as 
it may appoint, pronounce judgment, in the form of a resolution, 
entered upon the minutes of the court. The vote upon the pas- 
sage thereof must be taken by yeas and nays, and must also be 
entered upon the minutes. 

. §127. Adoption of resolution. — On the adoption of the 
resolution by a majority of the members present, who voted on 
the question of acquittal or conviction, it becomes the judgment 
of the court. 

§ 128. Nature of the judgment — Upon conviction, the 
judgment must be either : 

1. That the defendant be removed from office ; or 

2. That he l)e removed from office and disqualified to hold and 
enjoy a particular office or class of offices, or any office of profit, 
trust or honor whatever under this state. 

State Const., art. VI, g 1. 

The law of 1816, providing tbat any person convicted of dueling, etc.. may 
be adjudged disqualified from holding any office of trust or emolument, civil 
or military, is constitutional, and a conviction under it is valid. Barker v. 
People, 20 Johns. 457; Cow. 686; 2 Wheel. C. C. 19. 

§ 129. Officer, when impeached, disqtialifled to act until 
acqtiitted. — No officer shall exercise his office, after articles of 
impeachment against him shall have been delivered to the senate, 
until he is acquitted. 
State Const., art. VI, § 1; 8 R. S. 184, § 19. 

§ 130. Freaiding officer, when president of the senate ifl 
impeached* — It the president of the senate bo inip&ichcd, notice 
of the inipcaclnnent must be immediately givcu to the senate hy 
tlie assembly, that another president may be clioscn. 



ow THB Stats or Nbw York. 



65 



§ 13L Impeachment not a bar to indictment. — If the 

offense for which the defendant is impeached be a crime, the 
prosecntion thereof i& not barred by die impeachment 
State Ckmst., art, YI, § 1, 



TITLE IL 

OF THE RSMOVAL OK JUSTICES OF THE PEACE, POLICE JUS- 
TICES, AND JUSTICES OF JUSTICES' COURTS, AND THEIR 
CLERKS. 

§ 132. Justices of tlie peace, police justices, justices of justices' 
courts, and their clerks, arc removable by the supreme court at a 
^neral term. 
State Const., art. VI. § 18. 

The legislature maj abolish or abridge the term of the office of police joitice. 
Coulter V. Murray, 15 Abb. Pr. (N. S.) 129; WenzUr v. PeopU, 58 N. Y. 616. 
See, also, PeopU t. Keeler, 17 N. T. 820; PeapU v. Shea, 7 Hun. 809. 

The power of romoTal of a police justice for misconduct, given to a major of 
acitj hy its charter, does not oust the supreme court of the jurisdiction con- 
ferred bj this secUon. Matter of King, 25 State Bep. 792; 6 N. X. Sapp* 421. 



66 The Code of Criminal Fsooedubb 



PART IV. 

PBOOEEDINGS IN CRIMINAL ACTIONS PB06BCUTED 
BY INDICTMENT. 

Of the local jurisdiction of public offenses. 
Of the time of commencino criminal actions. 
Of the information, and proceedinos thereon to thb 
commitment inclusive. 

Of the PROCEEDINGS AFTER COMMITMENT, AND BEFORE 
INDICTMENT 

Of the indictment. 

Of the proceedings on the indictment before trial. 

Of the TRIAL. 

Of the proceedings after trial, and before judgment. 
Of the judgment and execution. 
General provisions relating to punishment of orimb. 
Of appeals. 

Of miscellaneous proceedings. 

TITLE I. 

OF THE LOCAL JURISDICTION OF PUBLIC OFFENSES. 

Bbotiok 188. When a person leaves this state to elude its laws. 

184. When a crime is committed partly in one county and partly io 
another. 

186. When a crime is committed on the boundary of two or more 
counties, or within five hundred yards thereof. 

186. Jurisdiction of crime on board of vesseL 

187. Of crime committed in the state on board of any railway 

train, etc. 

188. Indictment for libel. 

189. Conviction or acquittal in another state, a bar, where the juris* 

diction is concurrent. 
140. Conviction or acquittal in another county, a bar, where the 
jurisdiction is concurrent. 

g 133. When a person leavee this state to elude its laws. 

A person who leaves this state, with intent to elude any law 
thereof against duelling or prize-fighting, or challenges theretOj 



OF THE 



Title I. 

n. 
m. 

IV. 
VI. 

vn. 
vni. 

IX. 
X. 
XI. 
XIL 



OF THE StATB of NeW YoRK. 



67 



or to do any act forbidden by such a law, or, who being a resident 
of this state, does an act out of it, which would be punishable as 
a violation of sncli a law, may be indicted and tried in any county 
of this state. 

See 28 Am. Law Reg. (N. S.) 22; 6 Crim. Law Mag. 155 ; 12 id. 498. 

An indictmeat for abortion, which cliarged defendant with doing the act 
constituting the crime, is sufficient although the proof shows that defendant 
was absent at the time the crime was committed, but that he counseled, in- 
duced and procured its commission. People v. Bliven^ 112 N. Y. 79. 

A citizen of this state, who has entered into a conspiracy to violate its laws, 
cannot escape punishment because the act he planned was accomplished dur- 
ing his absence from the state. Pe(^ple v. LyoUf 1 N. Y. Cr. Rep. 400; 99 N. 
Y. 219. 

\Vliere an offense is committed within this state by means of an innocent 
agent, the employer is guilty as a principal, and if found within this state may 
be tried therein, though he did no act in this state and was at the time the 
offense was committed in another state. Adams v. People^ 1 N. Y. 178. 

And it is no answer to an indictment, that the defendant owes allegiance to 
another state or sovereignty. Adams v. People, 1 N. Y. 178. 

§ 134. When a crime is cominitted partly in one county 
and partly in another. — When a crime is committed, partly 
in one county and partly in another, or the acts or effects thereof, 
eonstitnting or requisite to the consummation of the offense, 
occur in two or more counties, the jurisdiction is in either county. 

See People Dimiek, 107 N. Y. 83; 5 N. Y. Cr. Rep. 201; People v. Crotty, 
30 Stote Rep. 45. 9 N. Y. Supp. 937. 

§ 135. When a crime is committed on the boundary of 
two or more counties, or within five hundred yards 
thereofl — When a crime is committed on the boundary of two 
or more counties, or within five hundred yards thereof, the juris- 
diction is in either county. 

See People v. Davis, 56 N. Y. 95; 86 id. 77; Archei' v. iStaU (Ind.). 84 Alb. 
L. J. 50; Matter of MeBarland, 59 Hun, 806. 

This section is limited to courts proceeding by indictment and confers no 
jarisdiction on courts of special sessions or magistrates holding such courts, 
Peopfe V. Bates, 38 Hun, 181; 4 N. Y. Cr. Rep. 216. 

Where the constitution provides that crimes shall be tried in the counties 
where committed, the legislature may not make an exception in case of crimes 
committed within one hundred yards of the county boundary . State v. Lou>e, 
«1 W. Va. 788: 45 Am. Rep. 570. 
8 



58 



Thb Code of Criminal Fbocedube 



$ 136. Jurfaadictdoii of crime on board a veosel. — When 

a crime is oommitted in this state on board of a vessel navigatiog 
a river, lake or canal, or lying therein in the course of her voy- 
age, or in respect to any portion of the cargo or lading of such 
boat or vessel, the jurisdiction is in any county through which, 
or any part of which, such river or canal passes, or in which such 
lake is situated or on which it borders, or in the county where 
such voyage terminates, or would terminate if completed. 

An offense oommitted on board a vessel navigating a river most be tried in 
some county through which it passed, and not in its port of destination . Peo- 
pU V. Htdu, 8 HiU, S09. 

An offense committed on a steamboat close to the Long Island shore, in 
Suffolk county, upon a trip from the city of New York to Norwich, Conn., is 
not indictable in the county of New York. Manly v. People, 7 N. Y. 295; 
MaMns v. People, 16 id. 344. 

In order to confer jurisdiction' over an offense committed on board a boat 
upon a canal in respect to the cargo thereof, it must be averred in the indict- 
ment and proved that the crime was committed on board the boat or vessel, 
and on that trip or voyage she had passed through some part of the county 
where the indictment was found. Larkin v. People, 61 Barb. 226. 

§ 137. Of crime committed in the state on board of any 
railway train, etc. — TVlien a crime is committed in this state, 
in or on board of any railway engine, train or car, making a 
passage or trip on or over any railway in this state, or in 
respect to any portion of the lading or freightage of any snch 
railway train or engine car, the jurisdiction is in any county 
through which, or any part of which, the railway train or car 
passes, or has passed in the course of the same passage or trip, 
or in any county where such passage or trip terminates, or would 
terminate if completed. 

See PeopU v. Dowling, 84 N. Y. 478; 23 Alb. L. J. 353. 

§ 138. Indictment for libel. — When a crime of libel is 
committed by publication in any paper in this state, against a 
person residing in tlie state, the jurisdiction is in either the 
county where the paper is published, or in the county where the 
party libeled resides. But the defendant may have the place of 
trial changed to the county where the libel is printed, on executing 
a bond to the complainant in the penal sum of not less than two 
liundred and fifty dollars nor more than one thousand dollars, 
conditioned, in case the defendant is convicted, for the payment 



or TBM Stats of New York. 



69 



of die ocnnplaiiiant's reasonable and neeeMarj trayeling expenses 
ill going to and from his place of residence and the place of trial, 
and his neoesBary expenses in attendance thereon, which bond 
most be signed bj two sufficient sureties, to be approved bj a 
judge of a court of record exercising criminal jurisdiction. 

Whenever the crime of hbel is committed against a person not 
a resident of this state, the defendant must be indicted and the 
trial thereof had in the county where the libel is printed and 
published. But if the paper does not, upon its face, purport to 
be printed or published in a particular county of this state, the 
defendant may be indicted and the trial thereof had in any county 
where the paper is circulated. In no case, however, can the 
defendant be indicted for the printing or publication of one libel 
in more than one county of this state, 
r See Pena Code, §m 

§ 139. Conviction or acquittal in another state, a bar, 
where the jnriBdiction is concurrent. — When an act charged 
u a crime is within the jurisdiction of another state, territory or 
country, as well as within the jurisdiction of this state, a convic- 
tion or acquittal thereof in the former, is a bar to a prosecution 
or indictment therefor in this state. 

See Penal Code, g 679; Fed. Const., Fifth Amendment. 

§ 140. Ckmviction or acquittal in another county, a bar, 
when tihe Jurisdiction is concurrent. — When a crime ia 
within the jurisdiction of two or more counties of this state, a 
omyiction or acquittal thereof in one county is a bar to a prosecu* 
tion or indictment thereof in another. 



TITLE n. 

OF THX TIMS OF OOMMEKOING GBIMINAL ACTIONS. 

BaonoH 141. Prosecution for murder may be commenced at any time. 
142. Limitation of five years. 
14a. Defendant out of sUte. 

144 Indictment deemed found, when presented in court and filed. 



60 



The Coda of Chimin al Prooeduks 



§ 141. Prosecutloxi fbr murder may be commenced at 
any time. — There is no limitation of time within which a 
prosecution for murder must be commenced. It may be com- 
menced at any time after the death of the person killed. 

§ H2. Iiimitation of five years. — An indictment for a 
felony, other than murder, must be found within live years after 
its commission, except where a less time is prescribed by statute. 
And an indictment for a misdemeanor must be found within two 
years after its commission. 

See PeopU v. O'DonneU, 46 Hun, 862; People v. Durrin, 2 N.Y.Cr. Rep. 888. 

§ 143. Defendant out of state. — If, when the crime is com- 
mitted, the defendant be out of the state, the indictment may be 
found within the term herein limited after his coming within the 
state ; and no time during which the defendant is not an inhabit- 
ant of, or usually resident within, the state, is part of the limitation. 

§ 144. Indictment deemed found when presented in 
court and filed* — An indictment is found, within the meaning 
of the last three sections^ when it is duly presented by the grand 
jury in open court, and there received and filed. 



TITLE III. 

OF THE INFORMATION AND PEOCEEDINGS THEREON TO THB 
COMMITMENT, INCLUSIVE. 

Chapter L The information. 

II. The warrant of arrest 
in. Arrest by an ofQcer under a warrant, 
rv. Arrest by an officer without a warrant 
V. Arrest by a private person, 
yi. Retaking, after an escape or rescue. 

VTL Examination of the case, and discharge of the defendant Of 
holding him to answer. 



CHAPTER I. 

THE INFORMATION. 



SsonoN 145. 

146. 
147. 



Information defined. 
Magistrate defined. 
Who are magistratei^ 



OF THE State of New York. 



61 



§U5. Information deflnecL— The information is the alle- 
gition made to a magifitrate that a person has been goilty of some 
designated crime. 

See Heuiiti v. Neuiburgw, 66 Hun, 283; People v. Johmon, 46 Hun, 671 ; Pco- 
fU T. Noah, 2A SUte Rep. 875. 

A person arrested after the filing of the coroner's inquisition is entitled to a 
baring before a magistrate as though arrested on an ordinary information. 
Motter of Banimsar, 63 How. 255; 10 Abb. N. C. 442; 1 N. Y. Cr. Rep. 86. 
Bat see IVp^ McQUrin, 91 N. Y. 241; 12 Abb. N. C. 172. 

§ 146. Magistrate delined. — A magistrate is an officer hav- 
ing power to issue a warrant for the arrest of a person charged 
with a crime. 

§ 147. Who are magistrates. — The following persons are 
magistrates: 

1. The justices of the supreme court ; 

2. The judges of any city court ; 

3. The county judges and special county judges; 

4. The city judge of the city of New York and the judges of 
the court of general sessions in the city and county of New York ; 

5. The justices of the peace; 

6. The police and other special justices, appointed or elected in 
a city, village or town ; 

7. The mayors and recorders of cities. But in the city of New 
York, the only magistrates authorized to commit children to in- 
atitntions, are the justices ot* the supreme court, the recorder, the 
city judge of the cit}^ of New York, and judges authorized to hold 
the court of general sessions, and the police justices. 

Amended 1892, chap. 279; in effect Sept. 1, 1892. 

See PeopU v. McOUnn, 91 N. Y. 241; 12 Abb. N. C. 172; Piople v. ^^owak, 
24Sute Rep. 275; PeopU v. Bates, 38 Hun, 181; 4 N. Y. Cr. Rep. 215; Matter 
^McFarUmd, 59 Hun, 806. 



CHAPTEK n. ^ 

THE WABBANT OF ARBE8T. 

temoH 148. Examination of the prosecutor and his witnesses, upon the 
information. 

149. Depositions, what to contain. 

150. In what case warrant of arrest may be issued. 

151. Form of the warrant 

182. Name or description of the defendant, in the warrant and state- 
ment of the offense. 
108. Warrant to be directed to and executed by a peace officer. 
154. Who are peace offlcem 



62 The Code of Cbimikal Fbooxditbb 



Section 156. Warrant issued bj certain Jadgen. 

168. Warrant issued by other magistrates. 

157. Indorsement on the warrant, for service in another coon^, how 

and upon what proof to be made. 
158i Defendant, arrested for felony. 
159. Defendant, arrested for a misdemeanor. 
180. Proceedings on taking bail from the defendant, in such caaa 

161. Proceedings, where he is admitted to bail in sach case, bat bail 

is not given. 

162. Prisoner carried from county to city. 
168. Power and privilege of officer. 

164. When magistrate issuing the warrant is unable to act 

165. Defendant in all cases to be taken before a magistrate, without 

delay. 

166. Defendant, before another magistrate than the one who i 

the warrant 



§ 148. Examination of theproeeoutor and his witneeaes, 
upon the information. — When an inf ormation i& laid before a 
magistrate^ of the commiaBioii of a crime, be must examine on 
oatb tbe informant and prosecutor, and any witnesses be may 
produce, and take tbeir depositions in writing, and cause them to 
be subscribed by the parties making them. 

See Tracy v. Seamans, 7 State Rep. 145; Pe4)pl6 v. NawaJc, 24 id. 275. 
, The law does not require the information to be reduced to writing previously 
to issuing tbe warrant. Payne v. Barnes, 5 Barb. 465; Ex parte BomoeU, 94 
How. 847. 

The omission of the magistrate to reduce the complaint to writing does not 
maJce the prosecutor a trespasser. Sleight v. Ogle, 4 E. D. Smith, 445. 

The complaint need not be on oath, but tbe examination of complainant 
must be on oath. Ex parte BomeU, 84 How. 847. 

A magfistrate has no authority to order a person accused of a criminal offense 
to be committed until a subsequent day for examination without having first 
the accused brought before him. PrcUt y. Bill, 16 Barb. 808. 

Where the complaint is made on information the magistrate has power to 
issue subpoenas for witnesses. People v. IIick$, 15 Barb. 168. 

The same strictness is not required in an information as on an indictment. 
People V. Bof^ertsan, 8 Wheel. C. C. 180. 

The original information and depositions taken before the warrant was 
issued, however formerly drawn up, are not in themselves evidence against 
the accused at tbe trial. People v. BesteU, 8 Hill, 200. 

A written complaint made before a magistrate alleging that certain goods 
had been stolen, and that the complainant has probable cause to suspect and 
does suspect that A. stole them, is insufficient to justify the issuing a warrant 
for the arrest of the accused. Blodgett v. Bom, 18 Hun, 182. 

The omission of complainant or his witnesses to sig^ the deposition as re- 
quired by this section is an irregularity, which will be held to be waived un- 



OF THE State of New Yobk. 



6S 



lesB defendant hns interpoeed the objection at the first available opportanity 
PwpU V. Winness^ 8 N, Y. Cr. Rep. 89; citing Pienon v. People, 79 N. T. 424. 

Section 809, Penal Code of California, authorizes a proceeding hj informa- 
tkm onlj where a defendant has been examined and committed as provided in 
seelion 873 of the Penal Code. Held, that where prisoner has been committed 
bj the magistrate npon the oral testimony of the witnesses, and without re- 
dacing them to writing (as required hj the section referred to), that an infor- 
mation against him was rightlj dismissed and constituted no bar to another 
information. Kalloeh ▼. Superior Ct, 56 Cal. 229. 

§ 149. Depositlans, what to oontaixi. — The depositions 
must set fortli the facts stated by the prosecutor and his wit- 
nessea, tending to establish the commission of the crime and the 
guilt of the defendant. 

See Loamu Reader, 41 Hun, 269; Tracy Beamam, 7 State Rep. 146; 
FeopU Pratt, 22 Hun, 800. 

The depositions must set forth the facts tending to establish the crime (per- 
jurj), and not merely the conclusion of the witnesses. Matter of Rothaker, 11 
Abb. N. C. 122. 

Hie deposition may be upon information and belief where the acts and cir- 
comstances on which such information and belief are founded are given. 
PtopU Y.McIrUoek, 5 N. Y. Cr. Bep. 88. 

§150. ]b what case wanant of arrest xna^;^ be iflsoed. — 

If the magistrate be satisfied therefrom, that the crime com- 
plained of has been committed, and that there is reasonable 
groimd to believe that the defendant has committed it, he must 
issae a warrant of arrest 

See People v. Melntosh, 5 N. T. Cr. Rep. 40; Fraeer Board, etc., 17 State 
Bep. 875; Traey v. Seamans, 7 id. 146; KiUoran v. Barton, 26 Hun, 648. 

It is eBOogh when a magistrate is reasonablj certain that a crime has been 
committed. Pratt r. Bogardua, 49 Barb. 89; AbboU v. Booth, 60 id. 661. 

Not neeessarj that, in a criminal warrant, to set out the circumstances of the 
offense. Atehinson v. Spencer, 9 Wend. 62. 

Just grounds of suspicion sufficient. Samuel v. Payne, Doug. 369; Halley 

Mix, 8 Wend. 850; Oowlea v. Dttnham, 2 C. & P. 666. 

A justiee of the peaee, before he is authorized to issue a warrant for the ar^ 
rest of a person, must be satisfied, bj examination upon oath of the complain- 
ant, that a crime has been committed. WilHneon v. Eobinson, 6 How. 110. 

A justice has jurisdiction to issue a warrant of arrest though he abuse it 
grossly. CampbeU v. Bwalt, 7 How. 899; Stewart v. Hawley, 21 Wend. 553. 

§ 151. Form of the warrant. — A warrant of arrest is an 
order in writing in the name of the people, signed by a magis- 
trate, commanding the arrest of the defendant, and may be 
substantially in the following form, the blanks being properly 
filled: 



64 



The Code of Criminal Pbocbdubb. 



" County of 

" In tbe name of the people of the State of New York, to any 
peace officer in the : 

" Information, upon oath, having been this day laid before me 
that the crime of has been committed and accusing 

thereof, 

*' You are therefore commanded forthwith to arrest the above- 
named , and bring him befpre , at 
" Dated at , this day of , 18 



Justice of llie Peace:' 

The warrant must direct that the defendant be brought before 
the magistrate issuing the warrant, or if the oflFence was com- 
mitted in another town, and is one of which a court of special 
sessions has jurisdiction to try, or which a magistrate has jurisdic- 
tion to hear and determine, before a magistrate of the town in 
which the offense was committed. 

In effect as amended, Sept. 1, 1893; Laws 1898, ch. 458. 

See Smoran v. Barton, 26 Hun, 648; Peaple v. Johiison, 46 id. 671; Frawr 
V. Board, etc, 17 State Rep. 875; People v. Memh 92 N. Y. 420. 

A warrant stating that ** information upon oath having been this day laid 
before me that the crime of malicious trespass upon lands owned or occupied 
by * * * has been committed, and accusing * ♦ ♦ thereof," is suffi- 
cient in form. It is not necessary to set out the circumstances of the offense. 
People V. Upton, 29 State Rep. 778. 

§ 152. Name or description of the defendant, in the 
warrant and statement of the offense. — The warrant must 
specify the name of the defendant, or if it be unknown to the 
magistrate, the defendant may be designated therein by any 
name. It must also state an ofiense in respect to which the 
magistrate has authority to issue the warrant, and the time of 
issuing it, and the city, town or village where it is issued, and be 
signed by the magistrate with his name of oflSce 

See People t. Beatty, 39 Hun, 477; 4 N. Y. Cr. Rep. 288. 

Not necessary in a criminal warrant to set out the circumstances of the 
offense. Atchin^oii v. Spencer, 9 Wend. 62; People v. Upton, 29 State Rep. 778. 

It is sufficient if a criminal warrant indicate with reasonable certainty the 
offeuBo sought to be charged. Pratt v. Bogardu^, 49 Barb. 87. 

Requisites of a criminal warrant as to time, place and the description of the 
offense. Blj/the v. Tompkins, 2 Abb. 468. 

Warrant for larceny good though it omit to state the value of the property 
stolen. Payne Barnes, 5 Barb. 465. 



OF THB State of New Yobk. 



65 



A warrant reciting a complaint against John R. Miller for a felonj, and com- 
iDADding the officer to arrest the said William Miller, is no justification for the 
arrest of John K. Miller, though the person intended. Miller y. Foley, 28 
Bub. 930. 

A misnomer of a person in a process on which an arrest is made, subjects 
the actors to an action for false imprisonment. Stall v. A'/y, 4 Wend. 552. 

Id a criminal proceeding a warrant at common law must be under seal. 
Beekman v. TVac^, 20 Wend. 77; People v. Holcomb, 8 Park. 658; Smith v. 
BiMdaU, 8 Hill, 495. 

Warrants of arrest need not contain the facts on which the charge is predi- 
cated, but are sufficient if the nature of the offense be clearly specified. Peo- 
fU McLeod, 1 Hill, 877. 

An omission in a warrant of arrest which is merely clerical •* and which does 
not mislead any one," will not render such warrant invalid. Payne v. Barnes, 
6 Barb. 465. 

§153. Warrant to be directed to and executed 
ofllcer. — The warrant must be directed to, and executed by, a 
peace officer. 

Warrant not directed to the proper officer is void. MttsuU y. Hubbard, 6 
Barb. 654. 

A warrant legally Issued can only be directed to an officer of the county in 
which the justice of the peace who issued it was a magistrate. People v. Shaver, 
A PltIe. 45. 

Where a warrant is issued, directed to the sheriff or any constable of the 
county, the justice cannot, by indorsement thereon, authorize a private person 
to make the arrest; the warrant itself must be directed to the person by whom 
the arrest is made, or it is no protection. Abbott v. Booth, 51 Barb. 546. 

§ 154. Who are peace officers.— A peace officer is a sheriff 
of a county, or his under-sheriff or deputy, or a constable, marshal, 
police constable or policeman of a city, town or village. 

§ 155. Warrant issued by certain Judges. — If the war- 
rant be issued by a judge of the supremo court, or of the superior 
court, or court of common pleas, recorder, city judge or judge of 
a court of general sessions in the city and county of New York, 
or by a county judge, or by the recorder of a city where jurisdic- 
tion is conferred by law upon such recorder, or by a judge of the 
city court, it may be directed generally to any peace officer in the 
state, and may be executed by any of those officers to whom it 
may be delivered. 

lo effect, as amended. Sept 1, 1896; Laws 1898, ch. 462. 

See Moak v. De Fanst, 5 HiU. 607. 

§ 156. Warrant by other magistrates. — If it be issned by 
iny other magistrate, it may be directed generally to any peace officer 
in the eoantv in which it is iBsued, and xnajr be ezecnted in that 
9 



66 The Codb of Criminal Pbooedube 



county ; or if the defendant be in another county, it may be exe- 
cnted therein, upon the written direction of a niagigtrate of such 
other county indorsed upon tlie warrant, signed by him with his 
name of office, and dated at the city, town or village where it is 
made, to the following effect : " This warrant may be executed 
in the county of Monroe," [or as the case may be.] 

A jastice of the peace, for a misdemeanor committed within his view, cannot 
pursue the offender and arrest him outside the justice's jurisdiction. Butolph 
V. Blust, SLans. 84; 4 How. Pr. 481. 

Where a person arrested by virtue of a criminal warrant, indorsed pursuant 
to statute, Js discharged from arrest by a justice of the peace of the county 
where he is arrested, on giving a recognizance, the warrant has spent itself, 
and the officer has no right to arrest the prisoner again without new process. 
Doyle V. Ru^seU, 30 Ba'rb. 300. 

A justice of the peace has no power to issue process of arrest for a crime 
committed in another county, though the offender be in the county where the 
justice resides. People v. Cassels, 5 Hill, 167; id. 607. 

A person arrested by virtue of a warrant, indorsed pursuant to statute, for 
an offense punishable by imprisonment in the state prison, cannot be lot to 
bail in the county where the arrest is made, but must be taken to the county 
in which the warrant was issued. Clark v. Cleveland, 6 Hill, 344. See People 
V. CletM, 77 N. Y. 39; also, Garslone^s Case, 10 Abb. 182; People, ex rel,, v. 
Chapman, 80 How. 202. 

Where an offender arrested under a warrant, indorsed in pursuance of the 
act •*for the better apprehending of felons," etc., was taken to the county 
where the magistrate resided who issued the warrant, he not being a justice 
of the county where the offense was committed, it was held that the action 
for false imprisonment was properly brought, he not having complied with 
the requirements of the statute. Green v. Rumaey, 2 Wend. 611. 

§ 157. Indorsement on^e warrant, for service in 
another coTinty , how and upon what proof to be made. — 

The indorsement mentioned in the last section cannot, however, 
be made, unless upon the oath of a credible witness, in writing, 
indorsed on or annexed to the warrant, proving the handwriting 
of the magistrate by whom it was issued. Upon this proof, the 
magistrate indorsing the warrant is exempted from liability to a 
civil or criminal action, though it afterward appear that the 
warrant was illegally or improperly issued. 
See cases cited under last section. 

§ 158. Defendant, arrested fbr felony. — If the crime 
charged in the warrant be a felony the officer making the arrest 
must take the defendant before the magistrate who issued the 



OP THE State of New York, 



67 



warrant, or some other magistrate in the same county, as provided 
in section 164. 

See Peopte v. Frink, 41 Hun, 198; Frtuer v. Board, etc., 17 State Rep. 778; 
Pi4>pU V. NatagK 4 N. Y. Cr. Rep. 297. 

If the offense charged in the warrant be punishable with death or imprison- 
ment in a state's prison, the officer making the arrest shall convey the prisoner 
to the county where the warrant was originally issued, before some magistrate 
thereof, etc. People v. Chapman, 80 How. 202; People v. CUws, 77 N. Y. 89; 
and cases cited under section 156, ante, 

§ 159. Befendauty arrested for a miBdemeanor. — If the 

crime charged in the warrant be a misdemeanor, and the aefend- 
ant be arrested in another connty, the officer mnst, upon being 
required bj the defendant, take him before a magistrate in that 
county, who must admit the defendant to bail, for his appearance 
before the magistrate named in the warrant, and take bail from 
him accordingly. 

If the offense charged in the warrant be not punishable by death or by im- 
prisonment in a state's prison, the prisoner may let to bail by a magistrate of 
the county in which he is arrested. People v. Chapman, 80 How, 202; Peo- 
fU T. CletM, 77 N. Y. 39. 

§ 160. Proceedings on taking bail firom the defendant 
in such case. — On taking bail the magistrate must certify that 
fact on the warrant, and deliver the warrant and undertakiDg of 
bail to the officer having charge of the defendant. The officer 
must then discharge the defendant from arrest, and, without 
delay, deliver the warrant and undertaking to the magistrate 
before whom the defendant is required to appear. 

§ 161. Proceedings, where he is admitted to bail in sucn 
case, but bail is not given. — If, on the admission of the 
defendant to bail, as provided in section one hundred and fifty- 
nine, bail be not forthwith given, the officer must take the 
defendant before a magistrate as directed by the warrant, or some 
other magistrate in the same town or county, as provided in sec- 
tion one hundred and sixty-four. 

In effect, as amended, Sept. 1, 1893; Laws 1893, eh. 458. 

See Fra$er v. Board, etc,, 17 State Rep. 875. 

§ 162. Priflcmer carried fSrom county to city. — An offi- 
cer who has arrested a defendant on a criminal charge, in any 
ooonty, may carry such prisoner through such parts of any 



68 Thb Codb 07 Cbduhal Pbocedube. 



coonty or connties as shall be in the ordinary route of travel from 
the plac6 where the prisoner shall have been arrested, to the 
place where he is to be conveyed and delivered under the pro- 
cess by which the arrest shall have been made ; and snoh convey- 
aFice shall not be deemed an escape. 

A prisoner in custody and passing through a county not liable to arrest on 
civil process. Love v. Humphrey, 9 Wend. 204. 

§168. Power c^d privilege of officer. —While passing 
through such other county or counties the officers having the 
prisoner in their charge shall noi be liable to arrest on civil pro- 
cess ; and they shall have the like power to require any citizen 
to aid in securing such prisoner, and to retake him if he escapes, 
as if they were in their own county ; and a refusal or neglect to 
render such aid shall be an oifense, in the same manner as if they 
were officers of the county where such aid shall be re^^uired. 

§ 164. When magistrate Iwmilng the warrant is unable 
to act. — When, by the preceding sections of this chapter, the 
defendant is required to be taken before the magistrate who issued 
the warrant, or before a magistrate of the town in wiiich the oti'ense 
was committed, he may, if that magistrate be absent or unable to 
^ct, be taken before the nearest or most accessible magistrate in the 
town in which the magistrate before whom the warrant is return- 
able resides, if there be such a magistrate accessible and qualified 
to act, and otherwise, before the nearest or most accessible magis- 
trate in the same county. The officer must, at the same time, de- 
liver to the magistrate the warrant, with his return indorsed and 
subscribed by him. 

In effect, as amended, Sept. 1, 1893; Laws 1893, eh. 458. 

See People v. Frink, 41 Hun, 198; People v, Namgh, 4 N. Y. Cr. Rep. 297; 
FroMT V. Board etc, 17 State Rep. 875. 

Persons arrested under any warrant issued for any offense, where no pro- 
Tidion is otherwise made, shall be brought before the magistrate who issued 
the warrant, or if he be absent or his office be vacant, before the nearest 
magistrate in the same county. People v. Chapman, 80 How. 202; People v. 
CUws, 77 N. Y. 89. 

§ 165. Defendant in all oases to be taken before a 
magistrate without delay. — The* defendant must in all 
eases l»e taken before the magistrate without unnecessary delay, 
and he may give bail at any hour of the day or night. 

A magistrate cannot commit a prisoner under arrest for a future hearing 
until he has been brought before him. Pratt v. ITiU, 16 Barb. 308. 

A justice of the peace issued a warrant on Saturday on a criminal complaint, 
and on it indorsed a direction to the constable to commit the parties until next 
MoDd&jr tor ex&m\ntX\on, and the constable committed them and held them 
MsordiDgly, JIM, thtX both officers were treapaBsen. TVi« vmi^Mi 



OF THB StATB of NeW YoRK. 



69 



most be forthwith, taken before a magistrate. Pratt v. HUl, 16 Barb. 808; 
Havley v. Butler, 48 Barb. 101. 

The officer may detain the defendant a reasonable time to find a magistrate. 
Arnold v. SUeves, 10 Wend. 514, 515. 

May be held on a justice's warrant not exceeding twelve hours. Id. - 

§ 160. Defendant^ before another magistrate than the 
one who iasued the warrant. — If the defendant be taken 
before a magistrate other than the one who issued the warrant, 
the depositions on which the warrant was granted must be sent 
to that magistrate, or if they cannot be procured, the prosecutor 
ind his witnesses must be sunimioned to give their testimony 
anew. 



CHAPTER UL 

ABBX8T BT AN OFFIOKB, UNDER A WABXABIV 

8wnoH 167. Arrest defined. 

168. By whom an arrest may he made. 

169. Bvery person bound to aid an officer in an arrest 

170. When the arrest may be made. 

171. How an arrest is made. 

172. No further restraint allowed than is necessary. 

178. Officer must state his authority, and show warrant, if required. 

174. If defendant flee or resist, officer may use all necessary means 

to effect arrest. 

175, 176. When an officer may break open a door or window. 

§ 167. Arrest defined. Arrest is the taking of a person into' 
CQstod J that he may be held to answer for a crime. 

See 4 Alb. L. J. 198; 1 Bish. Crim. Proc. (8d ed.), § 156; 1 Wheeler Crim. Caa 
104. note; Sea/rk v. VieU, 2 Thomp. k Cook, 226. 

§ 168. By whom an arrest may be made.— An arrest 
my be: 

1. By a peace officer, under a warrant ; 

2. By a peace officer, without a warrant ; or 
8. By a private person. 

{ 169. Every person bound to aid an officer in an 

arrest. — Every persoti must aid an officer m the execution of a 



70 The Code of Criminal Peookduee 

warrant, if the officer require liis aid and be present and acting in 
its execution. 

See Coyles v. Ilurtin, 10 Johns. 85; Elder v. Morrison, 10 Wend. 137. 

§ 170. When the arrest may be made. — If the crime 
charged be a felony, the arrest may be made on any day, and at 
any time of the day or during any night. If it be a miBde- 
meanor, the arrest cannot be made on Sunday, or at night, unlesa 
by direction of the magistrate indorsed upon the warrant. 

In Murphy v. Koon, 20 Abb. N. C. 259; 8 N. Y. State liep. 280, the action 
was brought to recover damages for an alleged assault and battery and false 
imprisonment. A warrant was issued by a police justice, commanding the ap- 
prehension of this plaintiff on the charge of larceny, to- wit: the stealing of a 
dog of the value of ten dollars. The warrant was handed to one of the de- 
fendants, who took with him the other, at about three o'clock in the morning, 
and went to the plaintiff's residence, and. after rapping, gained admission, en- 
tered the house, and arrested the plaintiff. There was no authority to arrest in 
the night-time indorsed upon the warrant. Heldy that the defendants were 
not justified in making the arrest at the time they did, and that the court prop- 
erly charged that there was a false imprisonment as soon as the defendants took 
the plaintiff into custody. 

§ 171. How an arrest is made. — An arrest is made by an 
actual restraint of the person of the defendant, or by his sub- 
mission to the custody of the officer. 

See Gold ads. BiueU, 1 Wend. 210; Rapalje's Crim. Proc., § 10. 

§ 172. No further restraint allowed than is necessary. ^ 
^The defendant is not to be subjected to any more restraint than 
is necessary for his arrest and detention. 

§ 173. Officer must state his authority, and show war- 
rant, if required. — The defendant must be informed by the 
officer that he acts under the authority of the warrant, and he 
must also show the warrant, if required. 

Bee 4 Alh. L. J. 85, 149. 

In People v. Shanley, 40 Hun, 478, defendant was indicted and convicted of 
an assault in the second degree for having resisted one K., a police officer who 
attempted to arrest him for a misdemeanor, not committed in the officer's pres- 
ence. A warrant had been issued nnd was at the time in the office of the chief 
of police, but not in the actual possession of the police officer. The defendant 
knew that K. was a police officer and had heard that the warrant had been is- 
•aed. 



OF THE State of New Toek. 71 

The ooort charged that the warrant was in the coDstructive possession of the 
4ifficer» and declined to charge that it was the dutj of the officer to disclose to 
the defendant his authority and the process under which he arrested hioL 
HM, error; that the language of section 178 of the Code of Criminal Proced- 
ure, regulating arrests by officers under warrant, required the officer to have 
the warrant in his actual pNWsession, ready to be shown to the defendant if re- 
quired licamed, P. J., said: ** On common-law principles, aside from statute, 
this same doctrine is laid down in Codd v. Cabe, 1 Excli. T>iv. 352, which fol- 
lowed OaUiard v. Laxton, 2 Best & Smith, 363. The former of those cases 
was almost exactly like the present. A warrant had been issued against Codd 
and placed in the hands of one constable. Another constable, not being in 
the possession of the warrant, arrested him. Codd did not demand to see the 
warrant, resisted the arrest and greatly injured the officer. For this resistance 
and assault Codd was convicted. The conviction was reversed by the three 
judges of the court of appeals, Bramwell, Mellor and Denmau, and they stated 
that they had the concurrence of other judges whom they had consulted. 
Their decision is directly in point and shows the present view in England of 
the common law. The other case was similar. If the remark in Arnold v. 
SU^teM, 10 Wend. 515, was correct, that an officer is not bound to show his 
warrant, which remark is followed (with a sernble) in Belloirs v. Shannon^ 2 
Hill, 86. certainly that rule is changed by section 173, above cited. So that 
argument derived from those cases is of no weight. The same may be said of 
the remarks in 1 Bishop's Criminal Procedure, 191, 192. The Code has 
declared that the officer must show his warrant if requested. And it follows 
iDevitably that he must have it with him." See 51 N.J. L. 189; 31 Cent. L.J. 499. 

§ 174. If defendant flee or resist, officer may use all 
necessary means to effect arrest. — If, after notice of inten- 
tion to arrest the defendant, he either flee or forcibly resist, the 
officer may use all necessary means to effect the arrest. 

If a felony has actually been conmiitted, an officer, in arresting the offender 
or preventing his escape, will be justified in taking his life, providing there Is 
tn absolote necessity for so doing. It is otherwise in case of an arrest for mis- 
demeanor. Conraddy v. People, 5 Park. 237; Rey v. Murphy, 1 Crawf. k Dix 
C. C. 20; Gardiner v. Thebodeau, 14 La, Ann. 732; State v. O'NeU, 1 Iloust. 
Crim. Cas. 468. 

All force necessary may bo employed by an officer alike in a felony and mis- 
demeanor in making an arrest. Memner v. Comr.y 20 Gratt. 976; Brooks v. 
Gwir., 61 Penn. St. 352; Golden v. Slate, 1 So. Car. 292; Burdett v. Coleman, 
14 East. 163, 190. 

§175. Whenofflcermaybreakopenadoor or window. — 

The officer may break open an outer or inner door or window of 
any building, to execute the warrant, if, after notice of his 
authority and purpose, he bo refused admittance. 

See § 178, poH; 2 Hawk. P. C, chap. 14, §§ 3-7; 5 City Hall Rec. 141; 2 
Alb. L. J. 808; Olapp, 10 Johns. 265. 



72 Thb Codb of Obdcinal Fbooedube 



§ 176. When ofBLcer may break open a door or win- 
dow. — An officer may break open an onter or inner door 
or window of any building, for the purpose of liberating a per- 
son, who, having entered for the purpose of making an arrest, i» 
detained therein, or when necessary for his own liberation. 

If tbe officer, having lawfully entered the house through an open outer 
door, is locked in by inmates, he may break out or be rescued by his associates 
breaking in. I'Bish. Crim. Proc., § 202; White v. Wiltshire, Cro. Jac, 556; 1 
Chit. Crim. Law, 58; 2 Hawk. P. C, chap. 14, § 11; 1 Hale P. C. 459. 



CHAPTER IV. 

ARBEST BY AN OFFIOEB WriHOUT A WABBAHT. 

Bbotion 177. In what cases allowed. 

178. May break open a door or window, if admittance refused. 

179. May arrest at night, on reasonable suspicion of felony. 

180. Must state his authority, and cause of arrest, except whm 

party is committing felony or is pursued after escape. 

181. May ti^e before a magistrate, a person arrested by a bystander 

for breach of the peace. 

182. Magistrate may commit by verbal or written order, for ofPenBet 

committed in his presence. 



§ 177. In what caaes allowed. — A peace officer may, with- 
out a warrant, arrest a person : 

1. For a crime, committed or attempted in his presence ; 

2. When the person arrested has committed a felony, although 
not in his presence. 

8. When a felony has in fact been committed, itnd he has 
reasonable cause for believing the person to be arrested to have 
committed it. 

The English cases in regard to arrests without warrant are collected and 
elaborately reviewed by Mr. Greaves, the well-known editor of Rnssell on 
Crimes, published in Cox & Saunders' Criminal Acts (3d ed.), LXI, entitled 
*'The Law of Arrest without Warrants." 

See, also, 18 Eng. Rop. 860; 11 Cent. L. J. 821; 8 Grim. Law Mag. 12; 4 Id. 
193; Price v. Seelei/, 10 Clark & Finnelly, 28; 1 Bennett & Heard's Lead. Crim. 
Cas! 2d ed.) 117, and notes 183-193, 107-202; id. 220, note; Bum's JusUoe, tit. 
"Arrest"; 1 Alb. L. J. 28, 86, 149; Hurd Habeas Corpus (1st ed.), 408, 895 
(2d ed.); 1 Bish. Crim. Proc. (2d ed.), §§ 164, 173, 181, 186; 8 Whart. dim. 
Law (7th ed.), §§ 2927-2935; 1 Russell Crimes (5th Eng. ed.), 709-780; Id. 
(7th Am. ed.), 255-9; 8 Wait's Actions and Defenses, 811. 



OF THE StATB of NeW YoBK. 



78 



QaestioiiB as to the right to arrest without warrant arise in fonr classes of 

1. Where sach arrests are made bj a constable or other peace officer on a 
charge of felony. 

2. Where aach arrests are made by a private citizen. 

8. Where such arrests are made by a constable or peace officer on a charge 
of miademeanor. 
4. Where anch arrests are made by a private citizen. 

In TToy't Ca»e, 41 Mich. 804, Mr. Justice Campbell, speaking upon the sub- 
ject of arrest without warrant, says : " It must not be forgotten that there can 
be no arrest without due process of law. An arrest without warrant has never 
been lawful* except in those cases where the public security requires it, and 
this has only been recognized in felony and in breaches of the peace committed 
in presence of the officer. Quinn v. Heisel, 40 Mich. 576, and Drennan v. Pco- 
jU, 10 id. ie9." 

Where an arrest is made by a constable or other peace officer on a charge 
for a felony committed in his presence, without a warrant, the general rule is 
that he may arrest any person so committing such offense. 

Illinois: MUe* v. WuUm, 60 HI. 861. 

New York: WiUU v. Warren, 17 How. Pr. 100; 1 Hilt 590. 

A peace officer may arrest without warrant for a misdemeanor committed in 
his presence, if he acts promptly. Five hours' delay without cause takes away 
his authority to do so. WaM v. Walton^ 80 Minn. 506. 

Where an arrest is made by a constable or other peace officer on a charge of 
a past felony, without a warrant, the general rule is, that he has a right at 
common law, without a warrant, to arrest any one whom he suspects to be 
^ilty of felony, whether he acts upon his own knowledge or upon facts com- 
municated by others. 

California: People v. Pool, 27 Cal. 572. 

Canada (Upper): Rogerev, VanValkenburgh, 20 Q. B. 218; CoUrellY, Hue$- 
Um, 7 C. P. 277. 
CoNHBcncTUT: Knot v. Oay, 1 Root, 66. 
Dblawabb: State v. List, 1 Houst. Crim. Cas. 138. 
England: Goeden v. Elphick, 4 Exch. 445 ; 8 N. Y. Leg. Obs. 204. 
Illinoib: ShandUy v. WeUe, 71 IlL 78. 

Indiana: Doering v. State, 49 Ind. 56; 19 Am. Hop. 609, 672, note. 
Kentuckt: Jamieon v. Oaernett, 10 Bush, 221. 
Mains: Burke v. BeU, 86 Me. 817. 

Hassachxtsstts: Rohan v. Sawin, 5 Cush. 281; Com, v. Carey, 12 id. 246; 
Cm. V. McLaughlin, id. 615. 
Michigan: Drennan v. People, 10 Mich. 169. 

New York: EolUy v. 2fix, 8 Wend. 850; 20 Am. Dec 702, 705, note; Mat^ 
kr of Henry, 29 How. Pr. 187; Slater \. Wood, 9 Bosw. 15, 26; Burrn v. 
SW«n, 40 N. Y. 468; affirming 1 Rob. 555; 26 How. 278; Wileon v. King, 39 
N'. Y. Super. 884; Carpenter v. MiiU, 29 How. Pr. 478; Taylor v. Strong, 3 
Wend. 488; Brown Chadeey, 89 Barb. 253; HawUy v. Butler, 54 id. 490; 
48 id, 101; Melntyr^ Rademe, 46 N. Y. Super. Ci. 128. 

Though he has % Toid warrant. MiU«r v. 28 Barb. 680; 2 Wait's Pr. 44 

10 



74 



Thk Code of Criminal Pboobdube 



North Carolina: Neal v. Joyner, 89 N. C. 290. 

Rhode Island: Wade v. CJiaffee, 8 R. I. 224; 5 Am. Rep. 572. 574, note. 

Where an arrest is made bj a constable or other peace officer without war- 
rant, on a charge for a misdemeanor committed in his presence, or just termi- 
nated, involving a breach of the peace, the general rule is that he may arrest 
for a misdemeauor involving an affray or a breach of the peace continuing at 
the time of the arrest, or a well-founded apprehension of its renewal: Price v. 
Seeley, 10 Gark & Fin., 28; Henesay v. ConoUy, 18 Hun, 178; 6 N. Y. Weekly 
Dig. 88; although the cases are quite conflicting as to whether he may not ar- 
rest for any misdemeanor, whether it involve a breach of the peace or not, 
and the practitioner should examine the cases in his own state. 

Connecticut: Knot v. Gay, 1 Root, 66. 

Delaware: StcUe v. RusseU, 1 Houst. Crim. Cas. 122. 

England: HamtHiy v. Boultbee, 1 Moody & Rob. 15; Regina v. Light, Dears. 
& B. C. C. 832; Timothy v. Simpson, 1 Cr., Mees. & Rose. 757. and note, p. 765, 
Johnson & Co's. ed. 

Illinois: Newton v. Locklin, 77 111. 103; Shanley v. WelU, 71 id. 78; Lan^ 
caster v. Lane, 19 id. 242. 

Indiana: Nealis v. Hayward, 48 Ind. 19. 

Ireland: Murphy v. McClelland^ Irish L. R., 5 C. L. 440. 

Massachusetts: Com. v. Tobin, 108 Mass. 426; 17 Am. Rep. 875. 

Michigan: An insane person, Lott v. Sweet, 33 Mich. 808; Quinn ffeisel, 
40 id. 576. 

New Hampshire: Forriet v. Leavitt, 52 X. H. 481. 

New York: Henessy v. ConoUy, 13 Hun, 173; Goyles v. Hurtin, 10 Johns. 
85; PhiUips v. TruU, 11 id. 486; Butolph v. Blust, 41 How. Pr. 481; 5 Lans. 84; 
Mclntyre v. Radnus, 46 N. Y. Super. 123; Carpenter v. MiUs, 29 How. 478; 
Stage Horse Cases, 15 Abb. Pr. (N. S.) 51, 61; Wmis v. Warren, 17 How. 100; 
1 Uilt. 590; Meyer v. Clark, 41 N. Y. Super. 107, 113; Sternack v. Brooks, 7 
Daly, 142; Boyleston v. Kerr, 2 id. 220. 

See Sands v. Benedict, 2 Ilun, 479; 5 Thomp. & Cooke, 19. 

North Carolina: State v. Belk, 70 X. C. 12; State v. Freeman, 86 id. 688. 

Pennsylvanlv: Com. v. FisJier, 1 Leg. Gazette, 50; Com. v. Deacon, 8 
Serg. & Rawle, 47. 

Where an arrest is made by a constable or other peace officer without a war- 
rant, on a charge of past misdemeanor, the general rule is that he cannot at 
common law arrest for such an offense after it has been committed. 

2 Hawk. P. C, chap. 13; 1 Chit. Crim. Law, 20; 1 Bish. Crim. Proc. (3d ed.) 
181; 7 Am. & Eng. Encyc. of Law. 675; 1 id. 734; 1 Dill. Mun. Corp. (8d ed.), 
§210; 12 Cr. L. Mag. 422. 

Delaware: State v. Crocker, 1 Houst. Crim. Cas. 434. 

England: Regina v. Walker, 6 Cox Crim. Cas. 571; Dears. C. C. 858; Price 
V. Seeley, 10 Clark & Finnelly, 28. 

Georgia: See Johnson v. State, 30 Ga. 436. 

Illinois: Rafferty v. People, 69 111. Ill; 18 Am. Rep. 601; Shanley v Well^ 
71 111. 78, 82; Main v. McCarty, 15 id. 441. 
Iuei.and: Forbes v. Lloyd, Irish L. Rep., 10 C. L. 552. 
Kansas: See Prell v. McDonald, 7 Kans. 426. 



OF THE State op New Yosk. 



76 



MAsaACHUBBrrrs: Com. v. Carey, 12 Cush. 246; Cam. v. MeZaughlin, id. 
615; SeoU v. Eldridge, 27 N. E. Rep'p, 677. 
New Jebsbt: Webb v. 8CaU, 51 N. J. L. 189. 

In Puikertati v. Verberg, 78 Mich. 578; 18 Am. St. Rep. 578, it was held that 
the fact tbat a woman has the reputation of being a street* walker, and that 
the officer knows of her reputation, and believes her to be plying her vocation, 
^Dot jostifj his arresting her without a warrant while she is walking along 
the street, doing nothing to indicate such a purpose. 

New York: People v. Shanley, 40 Hun, 478; PhiUipe v. TruU, 11 Johns. 
486; Meyer v. Clark, 41 N. Y. Super. 107; PeopU v. Adler, 8 Park. 249; 
MeinerM v. Constantine, 21 Daily Beg. No. 128. 

In People t. Pratt, 22 Hun, 300, it was held that an officer had no authority 
to arrest, without warrant, a common prostitute, unless disorderly conduct is 
committed in his presence. 

A common prostitute, when sitting at a window, soliciting men from the 
street for immoral purposes, may be arrested by officer without warrant. 
Harft V. MeJDonald, 1 City Ct. Rep. 181. See Eatoley v. Butler, 54 Barb. 490; 
48 id. 101; Sands v. Benedict, 5 Thomp. & Cook, 19. 

North Carolina: State v. Belk, 76 N. C. 12. 

Ohio: See, under etatuU, WoI/y. State, 19 Ohio St. 248, 257. 

§178. Maybreakopen adooror window^ if admittanoe 
leftised. — To make an arrest, as provided in the last section, 
Ae officer may break open an outer or inner door or window of 
a building, if, after notice of his office and purpose, he be refused 
admittance. 

See g 175, ante. 

§ 179. May arrest at night, on reasonable suspicion of 
fik>ny. — He may also, at night, without a warrant, arrest any 
person whom he has reasonable cause for believing to have com- 
mitted a felony, and is justified in making the arrest, though it 
afterward appear that a felony had been committed, but that the 
person arrested did not commit it. 

See People v. Ryan, 28 State Rep. 490. 

§ 180. Must state his authority, and cause of arrest, 
^oept where party is committing felony or is pursued 
after escape. — When arresting a person without a warrant the 
officer must inform him of the authority of the officer and the 
cause of the arrest, except when the person arrested is in the 
^tctoal commission of a crime, or is pursued immediately after 
in escape. 



76 The Codb of Criminal Pbocbdure 



§ 181. May take before a magistrate a person arxwted 
by a byBtander for breach of the peace. — A peace officer 
may take before a magistrate a person who, being engaged in a 
breach of the peace, is arrested by a bystander and delivered to 
him, 

§ 182. Magistrate may commit by verbal or written 
order, for offenses committed in his presence. — When a 
crime is committed in the presence of a magistrate, he may, by a 
verbal or written order, command any person to an-est the offender, 
and may thereupon proceed as if the offender had been brought 
Defore him on a warrant of arrest. 

See FarreU v. Warren, 8 Wend. 258; Butolph v. Blust, 5 Lans. 84; 41 How, 
481; Sanda v. Benedict, 2 Hun, 479; Parsons v. Brainard, 17 Wend. 022; 
Lindsay v. People, 67 Barb. 560. 



CHAPTER V, 

ABBEST BT A FBHTATE PEBSOif* 

BaonoN 188. In what cases allowed. 

184. Must Inform the party of the cause of arrest, except when tetn* 

ally committing the offense or on pursuit after escape. 

185. Must immediately take prisoner before a magistratCp or delirer 

him to a peace officer. 

§ 183. In what cases allowed. — A private person maj 
arrest another : 

1. For a crime committed or attempted in his presence ; 

2. When the person arrested has committed a felony, although 
not in his presence. 

Subdlv. 1. See PhiUips v. TruU, 11 Johns. 487; PeopU v. WolMn, 7 N. T. 
Leg. Obs. 89; Keenan v. State, 8 Wise. 132; Lang v. State, 12 Ga, 298; Price 
V. Seeley, 10 Clark & Finnelly, 28; Judson v. Heardon, 16 Minn. 431; People v. 
Morehovse, 6 N. Y. Supp. 763; 25 State Rep. 294. 

Subdiv. 2. Where an arrest is made bj a private citizen without warrant, on 
a charge of a past felony, the general rule is that two things mast ooncor 
which the party arresting must prove at his peril: 

(a) A felony must have been committed by some person. 

(&) Such private person must have had reasonable cause to beUeve the party 
arrested to be the guilty person. 

Alabama: MorreU y. Quarles, 85 Ala. 544. 



or THs State o7 Kkw York. 



77 



GUTADA ftTprmV Bogerw v. Van VaUcenburgh, 20 Q. B. 220; MeKemsie ▼. 
Mm, 8 id. 100; AMeif /HimfM. 5 E. B. (O. 8.) 749; Patterson y. Seott, 
»Q.B. 642. 

CosKacTiCOT: Wreafard v. iSimifA, 2 Root, 171. 

England: Luier v. Ferryman, L. R., 4 H. L. 521; reversing L. R., 8 Exch. 
197. 

Georgia: Habersham v. 8taU, 66 Ga. 61; Lang v. 8taU, 12 id. 298. 
Illuiou: Dodde y. Board, 48 HI. 95; JTartA v. Smith, 49 id. 896; 9mi^y, 
IkMeUy, 66 id. 464. 
Ikdiana: See Doering y. iSlfdrfe, 49 Ind. 56. 

New Jebskt: Beuek v. McOregor, 82 X. J. Law, 70; Spencer v. -iniww, id. 
100. 

See &*r<Hl^ v. Ehlere. 81 N. J. Law, 44. 

New York: ^ott^y v. liix, 3 Wend. 850; 20 Am. Dec. 702, 705, note; Bume 
T. Etben, 40 N. Y. 468; PeopU v. AdUr, 8 Park. 249; Broton v. Chadeey, 89 
Btrb. 258; mici2«y y. BuOer, 54 id. 490; 48 id. 101. 

North Carolina: State v. Bryant, 65 X. C. 827. 

Pejc^sylvania: Wakeleyy, Hart, 6 Binn. 316. 

Where an arrest is made bj a private citizen without warrant, on a charge 
of a past misdemeanor, the general rule is he has no right to do bo. 

Ilunois: See Smith v. BanneUy, 66 III. 464. 

Lvdiana: Doering v. State, 49 Ind. 56. 
: Kentucky: Jamison v. Oaemett, 10 Bush, 221. 

New York: People v. Adler, 8 Park. 249. 

§ 184. Must inform the party of the caiuse of arresty 
ezoept when actually committing the oilbnse or on pii]> 
suit after escape. — A private person, before making an arrest, 
most inform the person to be arrested of the cause thereof, and 
require him to submit, except when he is in the actual commis- 
sion of the crime, or when he is arrested on pursuit inmiediately 
after its commission. 

Notice of arrest must be given expresslj or by implication. 27 CaL 572 ; 76 
N. C. 10; 9 Coke, 65; 1 Moody C. C 207. 

So a private person arresting another must notify him of his intention. 05 
N. C. 827. 

Kot so, however, when party arrested was engaged in the commission of a 
crime. 27 Gal. 572. 

§ 185. Must immediately take prisoner before a magis* 
trate, or deliver him to a peace officer.— A private person, 
who has arrested another for the commission of a crime, must, 
withoot mmeoeesarj delay, take him before a magistrate, ot 
deliyer him to a peace oflScer. 



78 Thk Code of Criminal Psoosdubb 



CHAPTER VL 

BETAKING, AFTER AN E80APB OR RE80ITB. 

BBOnoN 186. May be at any time, or in any place in the state 

187. May break open a door or window, if admittance refused. 

§ 186. May be at any tune, or in any place in the stata. 

If a person arrested escape or be rescued, the person, from whose 
custody he escaped or was rescued, may immediatety pursue and 
retake him, at any time, and in any place in the state. 

See 1 Bish. Crim. Proc., § 163; Cooper v. Adanis, 2 Blackf. 2M; Com. v. 
Sheriff, 1 Grant (Penn.), 187. 

§ 187. May break open a door or window, if admittance 
refiised. — To retake the person escaping or rescued, the person 
pursuing may, after notice of liis intention and refusal of admit- 
tance, break open an outer or inner door or window of a building. 



CHAPTER Vri. 

SXAHIKATION OF THE CASE, AND DISCnABOK OF THE DEFENDANT OB 

HOLDING HIM TO ANSWER. 

SaonoN 188. Magistrate to inform defendant of the charge, and his right to 
counsel. 

189. Time to send, and sending for counseL 

190. On appearance of counsel, or waiting for him a reasonable time 

examination to proceed. 

191. When to be completed; adjournment 

192. On adjournment, defendant to be committed, or discharged on 

deposit of monej. 

193. Form of commitment. 

194. Depositions, to be read on examination, and witnesses examined. 

195. Examination of witnesses to be in presence of defendant, and 

witnesses to be cross-examined in his behalf. 

196. Defendant to be informed of his right to make a statement. 

197. Waiver of his right, and its effect. 

198. 199. Statement, how taken. 

200. How reduced to writing, and authenticated. 

201. After statement or waiver, defendant's witnesses to be < 

202. Witnesses to be kept apart 
208. Who may be present at examination. 
201 Testimony, how taken and authenticated. 



t 



or THB State of Nkw Tobk. 



7» 



SBcnoN 205. Depomtions and statement, how and by whom kept. 

aOft. Defendant entitled to copies of depositions and statemfluL 

207. Defendant, when and how to be discharged* 

208. When and how to be committed. | 

209. Order for commitment. 

210. Certificate of bail being taken. 

211. Defendant to choose how he shall be tried. 
. 212. Order for bail, on commitment. 

213, 214. Form of commitment. 

215. Undenaking of witnesses to appear, when and how taken. 

216. Security for appearance of witness, when and how required. 

217. Infants and married women may be required to give security 

for appearance as witnesses. 

218. Witness to be committed, on refusal to give security for appear- 

ance. 

219. Witness, unable to give security, may be conditionally examined. 

220. Last section not applicable to prosecutor or accomplice. 

221. Magistrate to return depositions, statement and undertakings 

of witnesses, to the court 

§ 188. Magistrate to inform defendant of the cliarge, 
and his right to counseL — When the defendant is brought 
before a magistrate upon an arrest either with or without warrant 
on a charge of having committed a crime, the magistrate must 
immediately inform him of the charge against him, and of his 
right to the aid of counsel in every stage of the proceedings, and 
before any further proceedings are had. ♦ 

See State Const., art. 1, § 6. 

" Right to aid of counsel, " see § 8, ante. 

The provisions of this section are only applicable to proceedings prosecuted 
by indictment. People v. Cook, 45 Hun, 86. 

hiPeopU V. Mondon, 103 N. Y. 221; 4 N. Y. Cr. Rep. 581; 84 Alb. L. J. 
438, defendant was an Italian laborer, having an imperfect understanding of 
the English language. He was under arrest, without warrant, charged with 
marder. A coroner's inquest was being held. The prisoner was taken by the 
sheriff, in whose custody he was, and whose power he could not resist, before 
the coroner's inquest then engaged in an investigation against himself. He 
did not go there voluntarily. He was sworn by the coroner a.s a witness; was 
without counsel, and without means to employ counsel. He was not informed 
UuLthe could not be compelled to be a witness against himself, nor that he 
need not give an answer which would tend to criminate himself. Ueld, that 
the prisoner's attendance before the coroner was compulsory, and the testimony 
taken was involuntary and inadmissible under the Constitution. 

This case was distingvithed in People v. Chapleau, 121 N. Y. ; 80 State 
Rep. m. 

A person against whom an inquisition has been found by a coroner's jury, 
wh^er arrested before or after the filing thereof, is entitled to a hearing be- 



80 



The Code of Crdcinal Pbooedubb 



fore a magistrate in the same manner as if he had been arrested npon an ordi- 
nary information aa defined by section 145. Matter of Banuear, 68 How. Pr. 
255. 

In People v. McOloin, 91 N. Y. 241; 13 Abb. N. i\ 173, it was held that sec- 
tions 188-200, Code Crim. Proc., refer in terms only to the judicial examina- 
tions therein provided for, regularly instituted before one of the magistrates 
described in section 147 for the examination of criminals, and do not include a 
statement made after arrest to a coroner, not acting in an official capacity, bat 
simply as a clerk to t^e down said statement. 

§ 189. Time to send, and sending for counseL — He mufit 
also allow the defendant a reasonable time to send for couii^l, 
and adjonm the examination for that purpose ; and must, upon 
the request of the defendant, require a peace officer to take a 
message to such counsel in the town or city, as the defendant 
may name. The officer must, without delay and without fee, 
perform that duty. 
See references under § 188, ante. 

§ 190. On appearance of counsel, or waiting for him 
a reasonable time, examination to proceed. — The magis- 
trate, immediately after tiie appearance of counsel, or if none ap- 
pear and the defendant require the aid of counsel, must, after 
waiting a reasonable time therefor, proceed to examine the case, 
unless the defendant waives examination and elects to give bail, 
in which case the magistrate must admit the defendant to bail if 
the crime is bailable, as provided in section two hundred and ten; 
and in that case witnesses in attendance or shown to be material for 
the people may be required to appear and testify, or to be ex- 
amined conditionally as prescribed in sections two hundred and 
fifteen, two hundred and sixteen, two hundred and seventeen, 
two hundred and eighteen^ two hundred and nineteen and two 
hundred and twenty. 

See references under § 188, ante, 

% 191. When to be completed ; adjournment. — The ex- 
amination must be completed at one session, unless the magistrate, 
for good cause shown, adjourn it. The adjournment cannot be 
for more than two days at each time, unless by consent or on mo- 
tion of the defendant. 

See PeopU v. McGloin, 91 N. T. 248; 12 Abb. N. C. 172; People v. Mondan, 
108 N. Y. 221; reversing 88 Hun, 191. 



oar THB Statb of Nbw Yobk. 



81 



A nugistrate has no aathoritj to commit for a hearing on a subsequent day 
ontil the accused has been first brought before him. PraU v. Hill, 16 Barb. 808, 

A state magistrate may commit for a further hearing touching a crime 
igsinst the United States. Bx parte Smith, 5 Cow. 273. 

In a temporary commitment by a magistrate for further examination on a 
charge of larceny, not necessary to state whether grand or petit. People v. 
NoA, 5 Park. 478; 16 Abb. Pr. 281. 

§ 192. On acUoununent, defendant to T3e committed, or 
discharged on deposit of money. — If an adjonrnmcnt be had 
for any cause, the magistrate must commit the defendant for 
examination, or discharge him from custody, upon his giving bail 
to appear during the examination, or upon the deposit of money 
as proTided in this Code, to make sure of his appearance at the 
time to which the examination is adjourned. 

See People v. MeOloin, 91 N. Y. 248; 12 Abb. N. CW72: PeapU v. Mondon, 
m K. Y. 221; reversing 88 Hon, 191. I| 

§ 193. Form of commitment. — The commitment for exami- 
nation is by an indorsement signed by the magistrate, on the war- 
rant of arrest, to the following effect : " The within named A. 
B., having been brought before me under this warrant, is com- 
mitted for examination, to the sheriff of the county of ^ 
or the city and county of New York, " to the keeper of the city 
prison of the city of New York." 

See PeapU McQMn, 91 N. Y. 248; 12 Abb. N. C. 172. 

§ 194. Depositions, to T3e read on examination, and wit< 
nesses examined. — At the examination, the magistrate must, in 
the first place, read to the defendant the depositions of the wit- 
neases examined on the ^taking of the information, and if the 
defendant request it, or elects to have the examination, must sum* 
mon for crosB-examination the witnesses so examined, if they be 
in the county. He must also issue subpoenas for additional wit- 
nessee required by the prosecutor or defendant. 

See PeapU V. MeOUin, 91 N. Y. 248 ; 12 Abb. N. C. 172; People v. Mondon, 
88 Hun, 191; 108 N. Y. 221; PeopU ReHeU, 3 Hill, 289; Son v. People, 12 
Wend. 344. 

§ 195. Examination of witnesses to be in presence of 
defendant, and witnesses to be cross-examined in his 
behalf. — The witnesses must be examined in the presence of 
the defendant, and may be cross^xamined in his behalf. 
11 



82 Thb Code of Cbdonal Pbocedube 



See PeopU v. McQloin, 91 N. T. 248; 12 Abb. N. C. 172; PeopU v. BetteO, 
8 HUl, 289; Biibee y. PeopU, 5 id. 33. 

^ 196. Defendant to T3e informed of his right to make a 
statement. — When the examination of the witnesses on the 
part of the people is closed, the magistrate must inform the 
defendant, that it is his right to make a statement in relation to 
the charge against him (stating to him the nature thereof) ; that 
the statement is designed to enable him, if he sees fit, to answer 
the charge and to explain the facts alleged against him ; that he is 
at liberty to waive making a statement ; and that his waiver cannot 
be used against him on the triaL 

See People v. McMahon, 2 Park. 669, 670; People v. Hendrickaon, 1 id. 416; 
People V. McQloin, 91 N. Y. 248; 12 Abb. N. C. 172; PeopU v. M<mdon, 103 
N. Y. 221; 4 N. Y. Cr. Rep. 561; PeopU v. CItapleau, 30 State Rep. 992. 

§ 197. Waiver 0hiB right and its effect. — If the defend- 
ant waive his right to make a statement, the magistrate must 
make a note thereof, immediately following the depositions of the 
witnesses against the defendant. 

See PeopU v. McOloin, 91 N. Y. 248; 12 Abb. N. C. 172; PeopU v. Mondon, 
88 Hud, 191. 

§198. statement, how taken.— If the defendant choose 
to make a statement, the magistrate must proceed to take it in 
writing, without oath, and must put to the defendant the follow- 
ing questions only : 

What is your name and age ? 

Where were you born ? 

Where do you reside, and how long have you resided there I 
What is your business or profession ? 

Give any explanation you may think proper, of the circum- 
stances appearing in the testimony against you, and state any 
facts which you think will tend to your exculpation. 

See BeUinger v. PeopU, 8 Wend. 595; PeopU v. Moore, 15 id. 419; MatUr 
of Boiu^eil, 34 How. Pr. 347; PeopU v. McGloin, 91 N. Y. 248; PeopU Mon- 
doji, 103 id. 221; 4 N. Y. Cr. Rep. 561. 

§ 199. Statement, how taken. — The answer of the defend- 
ant to each of the questions must be distinctly read to him as it 
is taken down. He may thereupon correct or add to his answer, 
* and it must be corrected until it is made conformable to what he 
declares to be the truth. 



► 



or TEX State of Nbw York. 



88 



See PeopU MeOMn, 91 N. T. 248; 12 Abb. N. C. 172; People v. Mmdan, 
SSHon, 191. 

§ 200. How reduced to writing and authenticated* — 

The statement mnst be reduced to writing by the magistrate, or 
under his direction, and authenticated in the following manner: 

1. The authentication must set forth, in detail, that the defend- 
ant was informed of his rights as provided in section one hundred 
and ninety-six, and that, after being so informed, he made the 
statement ; 

2. It mnst contain the questions put to him, and his answers 
thereto, as provided in sections one hundred and ninety-eight and 
one hundred and ninety-nine ; 

3. It may be signed by the defendant, or he may refuse to sign 
it; but if he refuse to sign, his reason therefor must be stated 
as he gives it ; 

4. It must be signed and certified by the magistrate. 

See People v. Webeter, 3 Park. 603 ; 14 How. 242; People v. McOloin, 91 N. Y. 
Ml; 12 Abb. N. C. 172; Pe^ v. Chapleau, 121 N. Y. 266 ; People v. J?m. 
teU, 3 HUl, 289; People v. Moore, 15 Wend. 419. 

The omiBsion of a complaiDant or bis witnesses to sign the deposition taken 
before a committing magistrate as required by the Code of Criminal Procedure, 
is an irregularity which will be held to be waived unless the defendant haa 
interposed the objection at the first available opportunity. People v. Winnesi^ 
8N. Y. Cr. Rep. 89. 

§ 201 . After statement of waiver, defendant's witnesses 
to be examined. — After the waiver of the defendant to make 
a statement, pr after he has made it, his witnesses, if he prodnce 
any, must be sworn and examined. 

§ 202. Witnesses to be kept apart. — The witnesses pro- 
duced on the part either of the people or of the defendant cannot 
be present at the examination of the defendant ; and while a wit- 
ness is nnder examination, the magistrate may exclude all wftnesses 
who have not been examined. He may also cause the witnesses 
to be kept separate, and to be prevented from conversing with 
each other until they are all examined. 

See 1 Qreenl. Ev. (14th ed.), g 482; Thompson Trials, § 275; 16 Am. St. 25. 



84 The Coda of Criminal Proobdube 



§ 203. Who may be present at examination. — The mag- 
istrate may also exclade from tiie examination every person, ex- 
cept the clerk of the magistrate, the prosecutor and his counsel, 
the attorney-general, the district attorney of the county, the de- 
fendant and his counsel and the oi&cer having the defendant in 
custody. 

§ 201. Testimony, how taken and authentioated.— ^ 

The testimony given by each witness must be reduced to writing, 
as a deposition, by the magistrate or under bis direction, and 
authenticated in the following manner : 

1. The authentication must state the name and age of the wit- 
ness, his place of residence, and his business or profession ; 

2. It must, unless deposition by question and answer be waived 
by the defendant and the witness, contain the questions put to 
the witness and his answers thereto, each answer being distinctly 
read to h^'m as it is taken down and being corrected or added to, 
until it is made conformable to what he declares to be the truth ; 

3. If a question put be objected to on either side, and over- 
ruled, or the witness decline answering it, that fact, with the 
ground on which the question was overruled or the answer 
declined, must be stated ; 

4. The deposition must be signed by the witness, or if he 
refuse to sign it, his reason for refusing must be stated in writing 
as he gives it ; 

•6. It must be signed and certified by the magistrate. 

See People v. Johnson, 46 Hun, 671; People v, Winnesa, 3 N. Y. Cr. Rep. 89. 

§ 205. DepositlonB and statement ; how and by whom 
kept. — The magistrate or his clerk must keep the depositions 
taken on the information or on the examination, and the state- 
ment of the defendant, if any, until they ar^ returned to the 
proper court ; and must not permit them to be inspected by any 
person, except a judge of a court having jurisdiction of the 
offense, the attorney general, the district attorney of the county, 
and the defendant and his counsel, and the complainant and his 

counsel. 
See People t. Johnion, 46 Hon, 671. 

§ 206. Defendant entitled to oopieB of depositions and 
statement. — If the defendant be held to answer the charge, the 



OF THB State of New York. 



85 



magistrate or his derk having the cofltody of the depoaitioDB taken 
on the information or examination, and of the' statement of the 
defendant, most, on payment of his fees at the rate of five cents 
for every hundred words, and within two days after demand, fur- 
nish to the defendant, or his counsel, a copy of the depositions 
and statement, or permit either of them to take a copy. 

§ 207. Defendant, when and how to be diBohaigecL — 

After hearing the proofs, and the statement of the defendant, if 
he have made one, if it appear, either that a crime has not been 
committed, or that there is no sufficient cause to believe the 
defendant guilty thereof, the magistrate must order the defendant 
to be discharged, by an indorsement on the depositions and state- 
ment, signed by him, to the following eflFect : " There bein^ no 
Bnffieient cause to believe the within named A. B. guilty of the 
offense within mentioned, I order him to be discharged " 
See 8ecor v. Babeoek, 2 Johns. 203. 

After a prisoner has given bail to the court of sessions the ' committing 
magistrate cannot discharge him. Sandrock v. Knop, 81 How. Pr. 191. 

§ 208. When and how to be committed. — If, however, it 
appear from the examination that a crime has been committed 
and that there is sufficient cause to believe the defendant guilty 
thereof, the magistrate must, in like manner, indorse on the depo- 
sitions and statement, an order, signed by him, to the following 
effect : " It appearing to me by the within depositions [and state- 
ment, if any] that the crime therein mentioned [or any other 
crime according to the fact, stating generally the nature thereof] 
has been committed, and that there is sufficient cause to believe 
the within named guilty thereof, I order that he be held to answer 
tho same." 

See P«?pfo V. Johnson, 46 Hun, 671; People v. McCurdy, 68 Cal. 576; MaUer 
of Hogan, 55 How. Pr. 458; Lindsay v. People, 67 Barb. 548; MtUter of Smith, 
6 Cow. 278; Pra^t v. Hill, 16 Barb. 303; People v. Bhoncr, 4 Park. 166. 

The warraDt of commitment need not be under seal. Oall v. Hall, 42 N. Y. 
«7; Bennac r. People, 4 Barb. 31; Millet v. Baker, 42 id. 215; People v. liato- 
M. 61 id. 619. 

A person taken to jail under a commitment which is illegal cannot be held 
bj snbsequentlj making out a legal commitment. 8hank*$ Case, 15 Abb. Pr. 
(N. S.) 89. See Matter of Barre, 14 Abb. Pr. (N. S.) 426; People v. Connor, 
15 id. 430. 

The priBoner maj be held until the warrant is perfected. Matter of Cran' 
dofi. 2 CaL 144. 



d 



86 



Thb Cods of Criminal Fboobdube 



§ 209. Order for commitmexit. — If the crime be not bail* 
able, tlie following words, or words to the same effect, most be 
added to the indorsement : And that he be committed to the 
sheriff of the county of [or in the city and county of 

New York, " to the keeper of the city prison of the city of New 
York."] 

§ 210. Certiflcate of baU T3eiiig taken. — If the crime bo 
bailable, and bail be taken by the magistrate, the following words, 
or words to the same effect, must be added to the indorsement 
. mentioned in section two hundred and eight: "And I have 
admitted him to bail to answer, by the undertaking hereto 
annexed " 
See People t. HurUmiU 44 Barb. 126. 

§ 211. Defendant to choose how he shall be tried. — If 

the crime with which the defendant is charged be one triable, as 
hereinbefore provided, by a court of special sessions of the county 
in which the same was committed, the magistrate, before holding 
the defendant to answer, must inform him of his right to be tried 
by a jury after indictment, and must ask him how he will be 
tried. If the defendant shall require to be tried by a jury 
after indictment, he can only be held to answer to a court having 
authority to inquire by the intervention of a grand jury into 
offenses triable in the county. If he shall not so require, he may 
be held to answer at the court of special sessions. 

Bee People v. McOann, 43 Hun, 56; People v. Burleigh, 1 N. Y. Cr. Rep. 
622. 

In People v. Austin, 49 Hun, 367, the court say: "This last section (§ 211) 
seems to have been adopted for the purpose of preserving a practice which 
prevailed prior to the adoption of the Code of Criminal Procedure. People v. 
Putnam, 8 Park. 386; Hill v. PeopU, 30 N. Y. 863." 

In People v. Stark, 17 State Rep. 237, defendant was convicted in a court of 
special sessions of a violation of the excise law. Held, that he was not entitled 
to give bail to await the action of the grand jury. The court in speaking of this 
section say: ** This provision must necessarily relate to crimes also triable by jury 
after indictment; and can have no application to cases in which courts of 
special sessions have exclusive jurisdiction. Moreover the inclusion of the 
offense with which the defendant was charged in the list of those of which 
courts of special sessions have exclusive jurisdiction, was by an amendment of 
section 56, subsequent to the enactment of section 211, and that amendment, 
being plainly inconsistent with the provisions of the latter section, so far as it 
related to the offense in question, (among others), those provisions must be held 
to have been pro tarUo repealed thereby.^ 



OF THS State of Nkw York. 



87 



§ 212. Order for bail, on oommitment. — If the crime be 
bailable and the defendant be admitted to bail, bnt bail have not 
been taken, the following words, or words to the same effect, 
must be added to the indorsement mentioned in section two hun- 
dred and eight, and that he be admitted to bail in the sum of 
dollars, and be committed to the sheriff of the county of 
[or in the city and county of New York, " to the keeper of the 
city prison of the city of New York,"] until he gives such baiL 

§ 213. Form of camxnitznent. — If the magistrate order the 
defendant to be conmiitted, as provided in sections two hundred 
and nine and two hundred and twelve, he must make out a com- 
mitment, signed by him, with his name of oiBce, and deliver it^ 
with the defendant, to the officer to whom he is committed, or if 
that officer be not present, to a peace officer, who must immedi- 
ately deliver the defendant into the proper custody, together with 
the oommitment. 

§ 214. Form of commitineiit. — The conmiitment must be 
to the following effect : 

" County op Albany [or as the case may be]. 

" In the name of the people of the State of New York : 

" To the sheriff of the county of Albany " [or in the city and 
county of New York, " to the keeper of the city prison of the 
dty and county of New York 

"An order having this day been made by me, that A. B. be 
held to answer to the court of upon a charge of 

[stating briefly the nature of the crime], you are commanded to 
receive him into your custody, and detain him until he be legally 
discharged. 

" Dated at the Oi4y of Alba/ny [or as the case may be], this 

day of , 18 . 

^ "CD., 

" Justice of the Peace:' 
[Or as the case may be.] 

In People v. Johnson, 110 N. Y. 134, 142, one of the commitraents rocited 
that defendant was held on a charge of "burglary in the third degree": an- 
other that he was held upon a charge of " grand larceny in the first degree." 
Hdd, these statements were a substantial compliance with the provision of the 
section; that a reference to the statutory definition of the crime showed, with snfll- 
dent cUmmfww and predsion for the purpose in view, the nature of the crime. 



88 The Code of Criminal Fsocedube 



§ 215. TJndertakixig of witnesses to appear; when and 
how taken. — On holding the defendant to answer, the magis- 
trate may take from each of the material witnesaes examined 
before him on the part of the people, a written undertaking, to 
the eif ect that he will appear and testify at the court to which the 
depositions and statement are to be sent, or that he \rill forfeit 
the sum of one hundred dollars. 

§ 216. Security for appearance of accomplice as wit- 
ness. — When the magistrate is satisfied, by proof on oath, that 
there is reason to believe that any such witness is an accomplice 
in the commission of the crime charged, he may order the wit- 
ness to enter into a written undertaking with such sureties, and 
in snch sum, as he may deem proper, for his appearance as speci- 
fied in the last section. 

§217. Witness under sixteen — Children under the age 

of sixteen years, wlicn witnesses, may be committed as provided 
by section two hundred and ninety-one of tiie Penal Code, snb- 
ject to the order of the trial court. [Amended 1892, c/i. 279 ; 
in effect Sept. 1, 1892. 

§ 218. Witness to be committed on refusal to give se- 
curity for appearance. — If a witness, required to enter into 
an undertaking to appear and testify, either with or witliout sure- 
ties, refuse compliance with the order for that purpose, the mag- 
istrate must commit him to prison until he comply or be legally 
discharged. 

§ 219. Witness may be conditionally examined on 
behalf of people. — A witne^ss may be conditionally examined 
on behalf of the jjcople in the maimer and with the effect pro- 
vided by title twelve, chaptert hree of this Code, for taking ex- 
amination of witnesses conditionally on behalf of the defeiulant. 
A copy of the order and affidavit upon which the application is 
made, together with notice of the time and place where the ex- 
amination is to be taken, shall be served on the defendant, and 
his counsel, if he have any, at least two days before the time fixed 
for such examination, and the defendant may be present person- 
ally upon such examination to confront the witness produced 
against him, if the defendant have no counsel the order shall con- 
tain a provision assigning counsel to him for the purpose of such 



OT THB State of New Yobk. 



89 



examination, npon whom a copy of said order, aflSdavit and notioe 
shall be served. 

§ 220. Repealed in 1883, chap. 416, § 4. 

§ 221. Magiitrate to return depofitions, itatementi 
and undertakings of witnesses, to the court. — ^When a 
magistrate has discharged a defendant, or has held him to answer, 
as provided in sections two hundred and seven and two hnndred 
and eight, he must return to the next court of oyer and terminer 
or court of sessions of the county, or city court having power to 
inquire into the offense by the intervention of a grand jury, at or 
before its opening on the first day, the warrant, if any, the deposi- 
tions, the statement of the defendant, if he have made one, and 
all undertakings of bail, or for the appearance of witnesses, taken 
by him. 



TITLE IV. 

OF PBOOEEDING6 AFTBH OOMMIT>£ENT, AND BSFORB 
INDICTMENT. 

Ohaftbb L Preliminary provisions. 

XL Formation of the grand jury; its powers and dutlfls. 

CHAPTER I. 

PBELIMINABr PROVISIONS. 
SiscnoN 222. Crimes ; how prosecuted. 

§ 232. GrimeB ; how prosecuted. — All crimes prosecated 
in a conrt of oyer and terminer, or in a court of sessions^ or in a 
city court, must be prosecuted by indictment. 

State Const., art. I, § 6; Fed. Cbnst., art. V. 

The right to be charged by indictment or presentment is a fundamental 
right of a party which cannot be waived by him so as to deprive such party of 
afterward setting up the want of jurisdiction in the court to try him. 

MatUr of McCixiOcey, 40 Fed. Rep. 71; 13 Cr. L. Mag. 210. 



90 Ths Oodb of Criminal Pbookdusb 



CHAPTER n. 

TOBMATIOK OF THE GRAND JUBT, ITS POWERS AND DUmS. 

BwnON 223, 224. Grand jury defined. 

226, 226, 227. For what courts to be drawn; the order 

228. MifldeBcription. 

220. Mode of selecting grand Jurors. 

230. If sixteen grand Jurors do not appear, additional number to be 
ordered. 

2dl, 282, 288. Manner of designating the additional grand Jurors. 
284. Summoning the additional grand Jurors, and compelling th6ii 
attendance. 

885. When new grand Jury may be summoned for the same court 

286. Qrand Jury, how drawn when more than a sufficient numbet 

attends. 

287. Who may challenge an individual grand Juror. 

288. Causes of discharge of the panel. 

289. Causes of challenge to an individual grand Juror. 

240. Manner of taking and trying the challenges. 

241. Decision upon the challenge. 

242. Effect of allowing a challenge to an individual grand Jural; 
248. Violation of last section 

244. Appointment of foreman. 

246, 246, 247. Oath of the foreman and the other grand Jarom 

248. Charge of the court. 

249. Retirement of the grand Jury. 

250. Appointment of a clerk, and his duties. 

251. Discharge of the grand Jury, 

252. Power of grand jury to inquire into crimes, etc. 
258. Foreman may administer oaths. 

254. Definition of indictment. 

255. Evidence receivable before the grand Jury. 

256. Same. 

257. Grand jury not bound to hear evidence for the defendant, bot 

may order explanatory evidence to be produced. 

258. De^ee of evidence to warrant an indictment 

259. Grand jurors must declare their knowledge as to commission of 

a crime. 

260. Grand jury must inquire as to persons imprisoned on criminal 

charges and not indicted ; the condition of public prisons, 
and the misconduct of public officers. 

261. Grand jury entitled to access to public prisons, and to examine 

public records. 

262» 263, 264. When and from whom they may ask advice, and who 
may be present during their sessions. 

265. Secrets of the grand jury to be kept. 

266. Grand jury; when bound to disclose the testimony of a witnesa. 

267. Grand Juror not to be questioned for his conduct as such. 



OF THB State of New Yobk. 



91 



§ 223. Ghrand jnxy defined. — A grand jury is a body of 
men, retumed at stated periods from the citizens of the conntji 
before a court of competent jurisdiction, and chosen by lot, and 
sworn to inquire of crimes committed or triable in the county. 

See 12 Am. St. 900, note; 1 Chic Leg. News, 20; 4 Crim. L. Mag. 471; 8 
id. 711 : 27 Cmi. L. J. 4; 9 Amer. & Eng. Ency, of Law, 1. 

In Matter of Bain, 121 U. S. 1, the court say: " The importance of the part 
plajed bj the grand jury in England cannot be better illustrated than by the 
language of Justice F^eld, in a charge to a grand jury, reported in 2 Sawy. 667. 
'The institution of the grand jury/ he says, * is of very ancient origin in the 
history of England — it goes back many centuries. For a long period its 
powers were not clearly defined; and it would seem, from the accounts of 
commentators on the laws of that country, that it was at first a body which not 
only accused, but which also tried, public offenders. However this may have 
been in its origin, it was at the time of the settlement of this country an in- 
forming and accusing tribunal only, without whose previous action no person 
charged with a felony could, except in certain special cases, be put upon his 
trial. And in the struggles which at times arose in England between the 
powers of the king and the rights of the subject, it often stood as a barrier 
igainst persecution in his name; until, at length, it came to be regarded as an 
institution by which the subject was rendered secure against oppression from 
unfounded prosecutions of the crown. In this country, from the popular 
character of our institutions, there has seldom been any contest between the 
government and the citizen which required the existence of the grand jury as 
a protection against oppressive action of the government. Tet the institution 
was adopted in this country, and is continued from considerations similar to 
thrjse which give to it its chief value in England, and is designed as a means, 
not only of bringing to trial persons accused of public offenses upon just 
grounds, but also as a means of protecting the citizen against unfounded 
accusation, whether it comes from government, or be prompted by partisan 
passion or private enmity. No person shall be required, according to the 
fundamental law of the country, except in the cases mentioned, to answer for 
any of the higher crimes unless this body. conHisting of not less than sixteen 
nor more than twenty-three good and lawful men, selected from the body of 
the district, shall declare, upon careful deliberation, under the solemnity of 
an oath, that there is good reason for his accusatitm and trial."' 

**The grand jury is merely an appendage of the court, of which the judge 
is the head or controlling power." Thomp. Trials, g 1G8. 

In PeopU, ex rel., v. Sheriff, 11 Civ. Proc. Rep. (County Ct. Chautauqua 
County), it is said that the grand jury " is no part of the court; the court can 
exist without it." 

But in Matter of Choate (Gen. Term, Ist Dept.), 41 Alb. L. J. 287, Barrett, J., 
■aid: It is clear from the elementary writers, and from what the court of 
appeals implied in the Hockley Case, 24 N. Y. 78. that the grand jury room 
is an enlargement of the court-room and part of the court sitting. 

• ♦ ♦ In People v. NaughUyii, Mr. Justice Pratt held that the grand jury 
was a constituent part of the court of oyer and terminer, and that its pro- 



92 Thb Code of Criminal Psooedurs 



ceedings were a part of the proceedings of that court. See page 488. In 
People, ex rel, Hockley, v. Kelly^ 21 How. Pr. 64, the supreme court of 
this department at general term held that the grand jury was an adjunct of 
the court as well as the petit jury. It was there insisted that the commitment 
was illegal because the contempt did not occur in the presence of the court, 
but iu the grand jury room before the jury as an independent body. Leonard, 
J., answered this contention by saying that ' when summoned, sworn and 
organized the grand jury are a constituent part of the court for the perform- 
ance of the functions and duties devolved upon the court, as much as a body 
of twelve petit jurors impanelled for the trial of a person charged with crime. 
* * * When the witness has been brought before the grand jury to testify 
he is for the time in the custody or under the control of the court and the 
grand jury. He stands in the same relation to the court as a witness on the 
stand before the court and a petit jury.' " See, also, Bergh'B Case, 16 Abb. Pr. 
(N. S.) 266; People v. Briggs, 60 How. Pr. 21. 

§ 224. Grand jury defined, — The grand jury must coneist 
of not less than sixteen and not more than twenty -three persons, 
and the presence of at least sixteen is necessary for the transaction 
of any business. 

A common -law grand jury must contain not over twenty-three nor under 
twelve. 4 Bl. Com. 803. 

It is error to swear twenty-four persons as a grand jury. People v. King, 
2 Caines. 98. 

A conviction will not be reversed because the indictment purports to have 
been found by twenty-four grand jurors, if the objections were not taken in 
court below. Conkey v. People, 1 Abb. Dec. 418; 5 Park. 31. 

§ 225. For what courts to be drawn ; the order. — A 

grand jury must be drawn for every term of the following courts: 

1. The court of oyer and terminer, except in the city and 
county of New York, and the county of Kings, and except for 
extraordinary or adjourned terras ; 

2. The court of general sessions of the city and county of New 
York and the court of sessions of the county of Kings ; and 

3. The city courts whenever an indictment can be there found. 
See People v. Rugg, 9« N. Y. 545; 3 N. Y. Cr. llep. 176. 

§ 226. For what courts to be drawn; the order A 

grand jury may also be drawn. 

1. For every other court of sessions, when specially ordered 
by the court or by the board of supervisors ; 

2. For the court of oyer and terminer in the city and county 
of New York, upon the order of a judge of the supreme court| 
elected in the first judicial district ; 



OF THB State of New Tobk. 



93 



3. For the coart of ojer and terminer of the county of Kings, 
upon the order of a jadge of the supreme court elected in tihe 
second judicial district. 

See PeopU v. Rugg, 98 N. Y. 545; 3 N. Y. Cr. Rep. 172. 

§ 227. For what courts to be drawn ; the order. — II 

made by the court or a judge thereof, the order for a grand jury 
must be entered upon its minutes, and a copy thereof filed with 
the county clerk at least twenty days before the term for which 
the jury is ordered. If made by the board of supervisors a 
copy thereof, certified by the clerk of the board, must be filed 
with the county clerk, at least twenty days before the term ; and 
when so filed, is conclusive evidence of the authority for drawing 
the jury. 

See Peaplf v. Rugg, 98 N. Y. 545 ; 8 N. Y. Cr. Rep. 176. 

§ 228. MisdeBcription in order. — A misdescription of the 
title of the court in an order for a grand jury does not affect the 
vaUdity of the order, if it din be plainly understood therefrom 
what court is intended. 

§ 229. Mode of selecting grand jurors. — The mode of 
selecting grand jurors is prescribed by special statutes. 

See 2 Birdseye's SUtutes, 1268: Code Civil Proc., § 1041. 

g 280. If sixteen grand Jnrors do not appear, additional 
number to be ordered. — If at any court of oyer and terminer 
or court of sessions, except in the counties of Genesee, Orleans, 
md St. Lawrence, there shall not appear at least sixteen persons, 
duly qualified to serve as grand jurors, who have been summoned, 
or if the number of grand jurors attending shall be reduced below 
sixteen, such court must, by order to be entered in its minutesi 
require the clerk of the county to draw, and the sheriff to sunmiODi 
such additional number of grand jurors as shall be necessary, and 
must specify the number required in the order. 

§ 231. Manner of designating the additional grand 
jurors. — The clerk of the county must forthwith bring into the 
oourt the box containing the names of the grand jurors, from 
which grand jurors in the county are required to be drawn ; and 
he mu8t| in the presence of the court, prooeed publidy to draw 



94 



The Cods of Cbiminal Pbooedubs 



the number of grand jurors specified in the order ; and when such 
drawing is completed, he must make two lists of the persons so 
drawn, each of which must be ceitiiied bj him to be a correct list 
of the names of the persons so drawn by him, one of which he must 
file in his office, and the other he must deliver to the sheriff. 

§ 232. Manner of designating the additional grand 
jurors. — The sheriff must accordingly, in the manner required 
in respect to the grand jurors originally drawn, forthwith summon 
the persons whose names are drawn or designated in the list, 
provided in section two hundred and thirty-one, to appear in 
the court requiring their attendance at the time designated, and 
they must attend and serve as if they had been originally sum- 
moned as grand jurors, and subject to the same penalties, unlesi 
excused or discharged by the court. 

§ 283. Manner of designating the additional grand 
Jurors. — In the connties of Genese^ Orleans and St. Lawrence, 
the names of the persons required to complete the grand jiiiy may 
in the discretion of the court, be drawn as provided in the last 
section, or may be publicly designated by the court, from the by* 
standers or the body of the county. 

§234. Summoning the additional grand jurors, and 
compelling their attendance. — The sheriff must accordingly, 
in the manner required in respect to the grand jurors originally 
drawn, forthwith summon the persons whose names are drawn or 
designated, as provided in the last two sections, who must attend 
and serve as if they had been originally summoned as grand 
jurors, and are subject to the same penalties, unless excused or 
discharged by the court. 

§ 235. When new grand jury niay be summoned fbr the 
same court. — If a crime be committed during the sitting of 
the court, after the discharge of the grand jury, the court may, 
in its discretion, direct an order to be entered, that the sheriff 
summon another grand jury ; and the same shall be summoned, 
in the manner prescribed for grand juries in general. 

See AUen People, 57 Barb. 888. 



OF THK State of New York. 



95 



§^6. Grand Jury, how drawn when more than a 
BnfBciftnt number attends* — Wlien more than twenty-three 
persons summoned as grand jurors attend for service, the clerk 
mnst prepare separate ballots containing their names, folded as 
nearly alike afi possible, and so that the names cannot be seen, and 
must deposit them in a box. He must then openly draw out of 
the box twenty-three ballots ; and the persons whose names are 
drawn constitute the grand jury. Tlie names remaining in the 
box, as well as those drawn, must be returned to the box of drawn 
grand jurors. 

§ 237. Who may challenge an individual grand Juror. — 

The district attorney in behalf of the people and also a person 
held to answer a charge for a crime may challenge an individual 
grand juror. {Amended 1892, ch, 279 ; in effect Sept. 1, 1892. 
See 2 Hawk P. C, ch. 25, § 16; 1 Bish. Crim. Proc., § 876. 

§ 238. OaufleB of discharge of fhe paneL — There is no 
ehallenge allowed to the panel or to the array of the grand jury, 
bnt the court may, in its discretion, at any time discharge the 
panel and order another to be summoned, for one or more of the 
following causes : 

1. That the requisite number of ballots was not drawn from the 
grand jury box of the county ; 

2. That notice of the drawing of the grand jury was not 
given; 

3. That the drawing was not had, in the presence of the officers 
designated by law ; and 

4. That the drawing was not had, at least fourteen days before 
the court 

See PeapU v. Booghkerk, 96 N. T. 158; People v. Fitzpatnek, 80 Hun, 498; 
66 How. Pr. 14; 1 N. T. Cr. Rep. 438; PeopU v. Petre^i, 30 Hun, 102, 108; 92 
N. Y. 128: Carpenter v. People, 64 id. 483; People v. Jetoett, 8 Wend. 214; 
People HarrioU, 3 Park. 112; Dolanv. PeopU, 64 N. Y. 485 ; PeopU Duff, 
65 How. Pr. 374, 375 ; U. 8, v. TaUman, 10 Blatchf. 31. 

§239. Oauses of challenge to an individual grand 
juror. — A challenge to an individual grand juror may be inter- 
poeed for one or more of the following causes, and for these 
only: 

1. That he is a minor; 

2. That he is an alien ; 

3. That he is insane; 



96 



The Codk of Criminal Pkooedlke 



4. That he is the prosecutor upon a charge against the defendant ; 

6. That he is a witness for either party, if the court is satiisfied 
in the exercise of a sound discretion that he cannot act impar- 
tially and without prejudice to the substantial ri^^hts of the party 
challenging. [Amended 1892, ch. 279 ; in effect Sept. 1, 1892. 

6. That a state of mind exists on his part, in reference to the 
case or to either party, which satisfies the court, in the exercise 
of sound discretion, that he cannot act impartially and without 
prejudice to the substantial rights of the party challenging. 

See Abbott's Crim. Brief, § 94; 4 Criin. Law Mag. 174; People v. Hoogh- 
kerk, 96 N. Y. 158. 

Not essential that a grand juror shall be a freeholder. Dolan v. People, 64 
N. r. 485; People v. Jewett, 6 Wend. 386. But see State v. Hamlin, 47 Conn. 
95; 86 Am. Rep. 54. 

The following is taken from 23 Alb. L. J. 324: 

The question whether the personal incompetency of a grand juror can be 
taken advantage of after indictment found is much mooted. In the affirmative 
are Alabama, Virginia, Maine, New Hampshire, Vermont, North Carolina, 
New Jersey, Tennessee, Georgia, Mississippi, Texas, Arkansas, Nebraska and 
Rhode Island. In the negative, Massachusetts, New York, Indiana, Pennsyl- 
vania, Minnesota. But it is almost universally held that the objection must 
be raised before general issue, either on motion to quash, or by plea in abate- 
ment. State V. Easter, 30 Ohio St. 542 ; 27 Am. Rep. 478; Whart. Cr. PI., § 
850, etc. Thus, in State v. Easter, supra, it was held not a good plea to an 
indictment for murder, that one of the grand jury which found the indictment 
was a nephew of the murdered man. This case contains a learned review of 
the authorities, but does not decide the question whether the objection would 
be good after indictment and before general issue. 

In WaUaee v. State, 2 Lea. 29. among recent cases, it was held that objec- 
tions to the manner of selection and appointment of a grand jury can only be 
taken by plea in abatement. And in Reich v. State, 55 Ga. 73; 21 Am. Rep. 
265, it was held that it is a good plea in abatement that one of the grand 
jurors was an alien; and so that the venire summoning the grand jury was not 
sealed. State v. Flemming, 66 Me. 142; 22 Am. Rep. 552. 

The most recent reported decision on this point is State v. Davis, 12 R. I. 
492, holding that an objection to a grand juror for want of the statutory quali- 
fications may be raised by plea of abatement. The court in this well-consid- 
ered case observe: " The attorney-general contends that the objection comes 
too late after the jury has been impanelled and sworn. He cites cases which 
hold that such is the rule: Cam v. Smith, 9 Mass. 107, 110; Com. v. Oee, 6 
Cush. 174; People v. Jewett, 8 Wend. 814, 821: at least If the accused has 
previously been held to answer. People v. Beatty, 14 Cal. 566. Other cases 
hold that the objection may be taken by plea in abatement. State v. Rocka- 
feOoiD, 6N. J. Law, 332; Com. v. Cherry, 2 Va. Cas. 20; Stanley v. State, 16 
Tex. 557; StaU v. Middleton, 5 Port. 484; Barney v. State. 12 S. & Marsh. 68; 
State V. Dvnean. 6 Yer^?. 271; B'^le v. State. 17 Ohio, 222: ffuHng v. State, 
id. 583; Eitrol v. State. 9 Fla. 9. We think these latter cases rest on the 



OF TBK StATB of NeW YoBK. 



97 



itronger maons. It in certainly not reasonable to require a person, who has 
not been beld to answer, to object to the jaror before he is impanelled; for he 
naj b« on the other side of the globe, or he may have no reason to suppose 
he is going to be indicted, being guiltless. And even if a person has been held 
to answer, he maj be in prison, or sick at home, or if in court, he may be ig- 
•orant, without fault, of the disqualification of the juror until after he has 
been sworn. Indeed, a person may be indicted for an offense committed pend- 
taig the inquest. Moreover, the action of the grand jury is ex parte and pre- 
hminary, and it is contrary to principle to hold that a person shall forfeit his 
rights by not intervening in a proceeding to which he is not a party. No Eng- 
lish case has been cited, but English treatises of authority recognize the plea. 
I Hale P. C. 155; Bacon Abr., Juries, A; 1 Chitty Crim. Law, 309. The stat- 
ute 11 Henry IV, chap. 9, which has been referred to as the source of the Eng- 
lish rule, is deemed to be declaratory of the common law. StcUe v. Foster, 9 
Tex. 65; Com. v. Cherry, 2 Va. Cas. 20." 

In 8kUe v. Ilamiin, 47 Conn. 95; 36 Am. Rep. 54, it was held that any objection 
to the competency of a grand juror, on account of his previous expression of opin- 
ion that the accused is guilty, must be taken before the grand jury is sworn. The 
eoart said: The expression of an opinion that an accused person is guilty, by a 
grand juror before he was sworn, appears never to have been a ground of chal- 
lenge in the English courts. Some respectable authorities in this country hold 
that it is, but these generally hold that the exception must be taken before the 
grand jury is sworn. The common law requires grand jurors to be good and 
lawful freeholders and inhabitants of the county, and where that law prevails 
a disqoalified grand juror may be challenged before indictment found. 8 Bac. 
ibr., Juries, A; 1 Chitty Crim. Law, 309; U. 8. v. WiUiams, 1 Dill. 492. 
In People v. Jewett, 3 Wend. 314, it is said: * There are causes of challenge to 
grand jurors, and these may be urged by those accused, whether in prison or 
aat on recognizance, and it is even said that a person wholly disinterested may 
18 amicus curia suggest that a grand juror is disqualified. But such objection 
to be availing must be made previous to the jurors being impaneled and sworn. 
In the case of U. 8, v. Burr, before the circuit court of the United States at 
Kicbmond, Va., the prisoner was allowed to challenge grand jurors, on the 
groand that they had formed and expressed opinions of the prisoner's guilt. 
Bat the challenges were made before the grand jury was impaneled and 
sworn. Burr*B trial by Robertson, 38. In Iktcker's Case, 8 Mass., the court 
aid that Burr's Case was solitary in allowing challenges to grand jurors, and 
a juror objected to by the amicus curia was sworn. In Com, v. Smith, 9 Mass. 
107. it was held that objections to the personal qualification of a grand juror 
or to the legality of the returns cannot affect any indictments found by the 
Jwy after they have been received by the court and filed. In Mimck v. Peo- 
fU, 40 IlL 268, it was held that if an expression of opinion by a grand juror 
were a ground of challenge, the objection must be taken before the juror is 
•woHL In Indiana a person under prosecution for crime, and in custody or on 
bail, may challenge for good cause any person returned or placed on the grand 
jury. Hudson v. Stats, 1 Blackf. 317; Jones v. State, 2 id. 475; State v. mm- 
i»n, 5 id. 75; Bdrdin State, 22 Jod. 847; Mershom v. State, 51 id. 14. In 
IMia T. SttU, the ooart say that *no doubt challenges to the polls may be 
18 



98 The Code of Cbiminal Pbooedure 



made where any of the jurors have not the necessary qualifications. These 
challenges, however, must be made before the jury are sworn and charged." 
In Pennsylvania the defendants in the case of Cam. v. Clarke 2 Browne, 825, 
being in jail on a charge of homicide, were allowed to challenge grand jurors 
for favor before the grand jury were sworn. In New Jersey the court in the 
case of StcUe v. Rockafellow, 1 Halst. 332, held that it was a good plea in 
abatement to an indictment for rape that one of the grand jurors by whom the 
bill was found was not a freeholder as required by the statutes of that state. 
In SicUe V. Richey, 5 Halst., a plea in abatement of the indictment, that two ox 
the grand jurors who found it had expressed an opinion before they were 
sworn, was not sustained. See, also, U. 8. v. White, 5 Cr. C. C. 457; Baying* 
tan V. State, 2 Port. 100; State v. Easton, 80 Ohio St. 542; 27 Am. Rep. 478; Gibits 
V. State, 45 N. J. Law, 879 ; 46 Am. Kep. 782. If a disqualification discovered 
after indictment found can be taken advantage of, it must be one that is pro- 
nounced such by the common law, or by the statute (if it be a matter of stat- 
ute), and one that absolutely disqualifies, as alienage or the want of a freehold.'* 

§ 240. Maimer of taking and trjning the challenges. — 

Cballenges to individual grand jurors may be oral, and must be 
entered upon tbe minutes, and tried by the court in the same 
manner as challenges in the case of a trial jury. 
See Code Civ. Proc, § 1180. 

The provision that the challenge must be tried and determined by^the court 
only, IS constitutional. Peojde Tweed, 11 Hon, 195; Weston v. People, 9 
id. 140. 

§ 241. Decision upon the challenge. — The court must allow 
or disallow the challenge, and the clerk must enter its decision 
upon the minutes. 

§ 242. Effect of allowing a challenge to an individual 
grand jtiror. — If a challenge to an individual grand juror be 
allowed for any of the causes mentioned in subdivisions one, two 
or three of section two hundred and thirty-nine, he must be 
forthwith discharged from the grand jury. If such challenge 
be allowed for any of the causes mentioned in subdivisions four, 
five or six of section two hundred and thirty-nine, the juror chal- 
lenged cannot be present at or take part in the consideration of 
the charge against tlie defendant mentioned in or who interposed 
the challenge, or in the deliberations or vote of the grand jury 
thereon. [Amended 1892, ch, 279; in effect Sept. 1, 1892. 

§ 243. Violation of last section. — The grand jury must 
inform the court of a violation of the last section, and the same 
is Dunishable by the court as a contempt. 



OF THE State of New York. 



See People, ex rel,, t. Court of Oyer and Terminer, 101 N. Y. 251; 3 How. 
(N. S.) 418; 4 N. Y. Cr. Bep. 75. 

§ 244. Api)oi]it]xi0]it of foxBxnaiL — From the persons sum- 
moned to serve as grand jurcm, and appearing, the court most 
appoint a foreman. The court must also appoint a foreman when 
a person already appointed is discharged or excused before the 
grand jury are dismissed. 

§ 245. Oath of the foreman and fhe other grand jurors. 

The following oath must be administered to the foreman of the 
grand jury : " You, as foreman of this grand jury, shall diligently 
inquire and true presentment make, of all such matters and 
things as shall be given you in charge ; the counsel of the people 
of this state, your fellows' and your own you shall keep secret ; 
you shall present no person from envy, hatred or malice ; nor 
shall you leave anyone unprescnted through fear, favor, aflfection 
or reward, or hope thereof ; but you shall present all things truly 
as they come to your knowledge, according to the best of your 
understanding. So help you God. " 

§ 246. Oafh of fhe foreman and the other grand jurors. 

The following oath must be immediately thereupon administered 
to the other grand jurors present : " The same oath which your 
foreman has now taken before you on his part, you and each of 
you shall well and truly observe on your part. So help you God.'* 

§ 247. Oath of fhe foreman and the other grand jurors. 
If, after the foreman and the grand jurors then present are sworn, 
any other grand juror appear, and be admitted as such, the oath, 
as prescribed in section two hundred and forty-five, must be 
administered to him, commencing, " You, as one of this grand 
jury,'' and so on, to the end. 

§ 248. Charge of the court. — The grand jury being impan. 
nded and sworn, must be charged by the court. In doing so, the 
court must read to them the provisions of this Code, from section 
two hundred and fifty-two to section two hundred and sixty^ 
seven, both indnsive, or give them a copy thereof, and must 
give them such information as it may deem proper, ns to the 
natnre of their duties, and any charges and crimes returned 



100 Thu Codb of Criminal Peoceduek 



to the court, or likely to come before the grand jury. The court 
need not, however, charge them respecting violations of a particu- 
lar statute, excepting when so requested by the district attorney. 
lAmended 1892, cA. 279 ; in efeot Sept. 1, 1892. 

§ 249. Betirement of the grand jury. — The grand juiy 
must then retire to a private room and inquire into the offenses 
cognizable by them. 

§ 250. Appointment of a derk, and his duties. — The 

grand jury must appoint one of their number as clerk, who is to 
preserve minutes of their proceedings (except of the votes of the 
individual members on a presentment or indictment), and of the 
evidence given before them. 
See People v. Baker, 10 How. Pr. 567. 

§ 251. Discharge of the grand jtiry.— The grand jury, on 
the completion of the business before them, must be discharged 
by the court ; but whether the business be completed or not, they 
are discharged by the final adjournment of the court. 

Grand jury cannot be discharged retroactively by an order providing that it 
shall take effect as of a date prior to their action as a grand Jury. People v. 
Fitzpatrick, 30 Hun. 493; 60 How. 14. 

§ 252. Power of grand jury to inquire into crimes, eto» 

The grand jury has power, and it is their duty, to inquire into all 
crimes committed or triable in the county, and to present them to 
the court. 

See People v. Equitable Oas light Co., N. Y. Cr. Rep. 191; People v. Fy- 
ler, 2 Park. 566; French v. People, 3 id. 114; People v. Page, id. 600; Peoj^ 
V. Horton, 4 id. 222; People v. Heffeman, 5 id. 393. 

§ 253. Foreman may administer oaths.— The foreman 
may administer an oath to any witness appearing before the 
grand jury. 

§ 254. Definition of an indictment. — An indictment is an 
accusation in writing, presented by a grand jury to a competent 
court, charging a person with a crime. 

What indictment should contain, see g 275, po$t. 

See 4 Bl. Com. 299; 1 Chit. Crim. Law, 168; Coke Litt. 126; People v. Dtf- 
mar, 106 N. Y. 509; People v. Gates, 18 Wend. 317; People v. WhiU, 24 id. 
570; People v. Dunn, 53 Hun, 884. 



OF THE StATB of NkW YoRK. JQl 

§355. Evidanoe rsoGivable before the grand Jury.— In 

the investigation of a charge, fop the purpose of indictment, the 
grand jury can receive no other evidence than : 

1. Snch as is given by witnesses produced and sworn before 
them, OP furnished by legal documentary evidence ; or 

2. The deposition of a witness, in the cases mentioned in the 
iird subdivision of section eight 

See PeopU v. HyUr, 2 Park. 566; People v. Dunn, 63 Hun, 884; PeopU v. 
Briggs, 60 How. Pr. 17; United States v. Reed, 2 Blatchf. 435; PeopU v. Tin- 
der, 19 Oal. 539; U. 8. v. KUpatrick, 16 Fed. 765. 

§ 256. Evidence receivable before the grand Jury. The 

gfrand jury can receive none but legal evidence. 
See PeopU v. HyUr, 2 Park. 566; PeopU v. Briggs, 60 How. Pi-. 17; People 
T. Saiiek, 4 N. T. Cr. Rep. 834; PeopU v. Dunn, 58 Hun, 884; U, A v. KOpah 
riek, 16 Fed. Rep'r. 765; PeopU v. Singer, 18 Abb. N. C. 101, note. 

§ 257. QraDd jury not boimd to hear evidence for the 
itefftTidant, but may order explanatory evidence to h# 
produced* — The grand jury is not bound to hear evidence sub- 
mitted for the defendant ; but it is their duty to weigh all the 
evidence submitted to them, and when they have reason to beheve 
that other evidence, within their reach, will explain away the 
charge, they should order such evidence to be produced ; and for 
that purpose may require the district attorney to issue process 
for the witnesses. 

The grand jury have not power to require the accused to appear before tben> 
even for the purpose of giving opportunity for voluntary explanations. Peo- 
fU V. Singer, 18 Abb. N. C. 96; 5 N. Y. Cr. Rep. 2. 

§ 358. Degree of evidence, to warrant an indictment, — 

The grand jury ought to find an indictment, when all the evi- 
dence before them, taken together, is such as in their judgment 
would, if unexplained or uncontradicted, warrant a conviction 
by the trial jury. 

See PeopU v. Baker, 10 How, Pr. 567; People v. Ilyler, 2 Park. 570; PeopU 
V. Prite, 6 N. Y. Cr. Rep. 144; 63 Han, 185. 

§ 259. Orand jurors must declare their knowledge as 
to commission of a crime. — If a member of the grand jury 
icnow, or have reason to believe, that a crime has been commit- 
ted, which is triable in the county, lie must declare the same to 
his fellow jurors, who must thereupon investigate the same. 



-102 The Code of Criminal Progedubb 



§ 260. Grand Jury must inquire as to persons impris- 
oned on criminal charges and not indicted ; the condition 
of public prisons, and the misconduct of public officers.— 

The grand jury must inquire : 

1. Into the case of every person imprisoned in the jail of the 
ooanty, on a criminal charge, and not indicted ; 

2. Into the condition and management of the public prisona 
in the county ; and 

3. Into the willful and corrupt misconduct in office of public 
officers of every description in the county. 

§ 261. Grand jury entitled to access to public prisons, 
and to examine public records. — They are also entitled to 
free access, at all reasonable times, to the public prisons, and to the 
examination, without charge, of all public records in the county. 

§ 262. When and fh>m whom they may ask advice, and 
who may be present during their sessions. — The grand 
jury may, in any case, ask the advice of any judge of the court, 
or of the district attorney of the county. 

§ 263. When and ttom whom they may ask advice, asuBL 
who may be present during their sessions. — Whenever 
reqmred by the grand jury, it shall be the duty of the district 
attorney of the county to attend them for the purpose of exam- 
ining witnesses in their presence, or of giving them advice upon 
any legal matter, and of issuing subpoenas or other process for 
witnesses. 

§ 264. When and from whom they may -ask advice, anU 
who may be present during their sessions. — The district 
attorney of the county must be allowed, at all times, to appear 
before the grand jury, at his request, for the purpose of giving 
information relative to any matter before them, but no disti ict 
attorney, officer or other person, shall be present with the grand 
jury during the expression of their opinions, or the giving of 
their votes upon any matter. 

§265. Secrets of the grand jury to be kept. — Every 
member of the grand jury must keep secret whatever he himself, 
or any other grand juror, may have »aid, or in what manner he, 
or any other grand juror, may have voted, on a matter before them. 
See 4 Bl. Com. 126. 



OF THE State of New Toss. 



103 



§ 266. Ghrand Jury, when bound to diadoBe the testi* 
mony of a witneee. — A member of the grand jiuy may, how* 
ever, be required by any court, to disclose the testimony of a 
witness examined before the grand jury, for the purpose of ascer- 
taining whether it is consistent with that given by the witness 
before the court ; or to disclose the testimony given before them 
bj any person upon a charge against him for perjury in giving 
liif testimony, or upon his trial therefor. 

See 13 Cr. L. Mag. 5S3. 

§ 267. Orand juror not to be questioned for his conduct 

aisuch. — A grand juror cannot be questioned for anything he 
may say, or any vote he may give, in the grand jury relative to 
a matter legally pending before the jury, except for a perjury of 
which he may have been guilty, in making an accusation or giving 
teBtimony to his fellow jurors. 



TITLE V. 

OF THE INDICTMENT. 

Chafteb I. Finding and presentation of the indictment, 
n. Fonn of the indictment, 
ni. Amendment of the indictment. 

IV. Arraignment of the defendant. 

V. Setting aside the indictment. 

VI. Demurrer. 

VII. Plea. 

Vin. Removal of the action before trial. 



CHAPTEE L 

FIADUIO AND PBESENTATTON OF THE INDIOTICENT* 

SMffm 808L Indictment must be found by twelve grand jurors, and indorsed 
by foreman. 

SOQ. If not so found, depositions, etc., must be returned to the court, 

with dismissal indorsed. 
tTO. Effect of dismissal. 

tn. Names of witnesses must be indorsed upon indictment 

Indictment must be presented in presence of the grand jury 
and tiled. 



104 The Code of CfiiHiirAL Procedure 



§268. Iiidietinent must be fomid by twelve 
and indorsed by fioreman.— An indictment cannot be found 
witliont the concurrence of at least twelve grand jurors. When 
so found it must be indorsed, " a true bill," and the indorsement 
must be signed by the foreman of the grand jury. 

That twelve grand jurors must concur, see 1 Bish. Crim. Proc., § 697; Peo- 
ple V. Shattuck, 6 Abb. N. C. 83; Dawson v. People, 25 N. Y. 408. 

As to indorsement hy foreman, see 1 Bish. Crim. Law, g 698; MoGhiffle 
8taU, 17 Ga. 497; State v. Brown, 31 Vt. 602; WUl v. State, 23 Ind. 150. 

See as to ** signing." Hamilton v. State, 103 Ind. 96; 53 Am. Rep. 491, note. 

In Brotherton v. People, 75 N. Y. 162, the court say: ** The certificate of the 
foreman is no part of the indictment, but is the statutory mode of authenticat- 
ing it, and the record furnishes evidence that it was so authenticated." Stats 

Taggart, 88 Me. 298; StaU v. Hogan, 31 Mo. 342. 

§ 269. If not so fbxind, depositioxiSy etc., must be 
returned to the court, with diRmissal indorsed. — If 

twelve grand jurors do not concur in finding an indictment, 
the depositions (and statement, if any) transmitted to them, must 
be returned to the court, with an indorsement thereon, signed 
by the foreman, to the effect that the char^'C is dismissed. 

The grand jurors may l>e examined as to whet ler or not twelve grand jurors 
concurred in the finding. PeopU v. Stuittuck, 6 ibb. N. C. 33. See Peo^ v. 
Briggs, 60 How. Pr. 17. 

Should return not a true bill " or ** not found." 1 Bish. Crim. Proc., § 697r 
StaU V. Eorton, 63 N. C. 595, Esterlong v. State, 85 Miss. 210. 

§ 270. Effect of Hionniflflftl — The dismissal of a charge does 
not, however, prevent its being again submitted to a grand jury 
as often as the court may so direct. But without such direction 
it cannot be again submitted. 

A criminal charge may be re-submitted to the grand jury as often as the court 
may so direct. People v. Lynch, 20 Weekly Dig. 9. See People, er ^-fl., v. 
Sheriff, 11 Civ. Proc. 186. 

In PeopU V. Warren, 109 N. Y. 617, defendant struck one D. a blow on De- 
cember 18, inflicting injuries which proved his death on January 5, follow- 
ing. A presentation to the grand jury was made during the life-time of D. 
upon a complaint of assault and battery, but it failed to find an irdictment. 
After the death of D. an indictment charging defendant with the crime of 
manslaughter in the second degree was found for the same assault. Held, that 
it was not necessary to obtain leave of the court before submitting to the grand 
farj the complaint on which it found said indictment. That a conviction even 
of the offense of assault and battery would have been no bar to a proseoation 
lor the graver crime subsequently developed. 



OF TAB StATX of NeW Yo£K. 



105 



§271. NamieB of witaiesaeB must be Indorsed upon 

ment. — ^When an indictment is found the names of the witnessea 
examined before the grand jorj, or whose depositions may have 
been read before them, as provided in section two hundred and 
fifty*fiye, must be indorsed upon the indictment before it is pre- 
lented to the court. If not so indorsed, the court must, upon 
the application of the defendant, at any time before trial, direct 
the names of such witnesses as they appear upon the minutes of the 
grand jury, to be furnished to him forthwith. 

See Pw^ T. NaughUm, 88 How. Pr. 480; 7 Abb. Pr. (N. S.) 421; Eighmjf 
T. People, 79 N, Y. 646; PeapU v. Jaehne, 4 N. T. Cr. Rep. 166; State v. Shores^ 
81 W. Va. 491; 18 Am. St. Rep. 875. 

§ 27S. Indiotment must be presented in presence of 
the grand Jury and filed. — An indictment, when found by 
the grand jury, as prescribed in section two hundred and sixty- 
eight, must be presented by their foreman in their presence to 
the court, and mast be filed with the clerk, and remain in his 
office as a public record, but it must not t.L shown to any person 
other than a public ofScer, until the defendant has been arrested 
or has appeared. 

In Dawmn v. PeopU, 25 N. Y. 406-406, the court say: ** There being no 
words in the statute indicating an intention on the part of the legislature that 
the indictment should be void if not so filed, this provision must be regarded 
fts merelj diroetory. 8 Mass. 282; 6 Wend. 486; 6 HiU, 42; id. 646; 8 Den. 
526; 9 Paige, 17;. 2 N. Y. 184; 1 Burr. 447; Smith's Com. on Statutes, g§ 670- 



CHAPTER n. 

TOBM OF THE INDICrMKNT. 

SaonoH 278. Fonns of pleading heretofore existing, abolished* 

274. First pleading for the people, is indictment 

275. Indictment, what to contain. 

276. Form of indictment 

277. When defendant is indicted by fictitious or erroneons name, his 

true name may be inserted in subsequent proceedings. 

278. 272. Indictment must charge but one crime and in one fonn, 

except where it may be committed by different means. 

260. Statement as to time when crime was committed. 

261. Statement as to person injured or intended to be injured. 
282. Construction of words used in indictment. 

288. Words used in a statute need not be strictly pursoQC). 

14 



106 The Code of Criminal Pbooedukb 



Section 284. Indictment when snffldent. 

285. Indictment not sufficient for defect of fonn, not tending to 

prejudice defendant. 

286. Presumptions of law and matters of which judicial notice Ii 

taken, need not he stated. 

287. Pleading a judgment or determination of, or proceeding beforo 

a court or officer of special jurisdiction. 
• 288. Private statute, how pleaded. 

289. Pleading in indictment for libeL 

290. Pleading in indictment for forgery, where the instrument has 

been destroyed or withheld by defendant. 

291. Pleading in indictment for perjury or subornation of perjury. 

292. Upon indictment against several, one or more may be convicted 

or acquitted. 

§ 373. Forms of pleading heretofore existing aboUuuied 

All the forms of pleading in criminal actionB, heretofore existing, 
Hre abolished ; and hereafter, the forms of pleading, and the rules 
by which the sufficiency of pleadings is to be determined, are 
those prescribed by this Code. 

See People v. WiUson, 109 N. Y. 851; People v. Dumar, 106 id. 509; People 
T. Conray, 97 id. 62; People v. Bugg, 98 id. 536; Pe^'^uie v. Menken, 86 Hun, 
94; 8 N. Y. Cr. Rep. 237; People v. Petrea, 30 Hun, 98; 64 How. 189; 1 N. Y. 
Cr. Rep. 198; affirmed, 92 N. Y. 128; 65 How. 59 ; 1 N. Y. Cr. Rep. 288; People 
T. Duun, 58 Hun, 884. 

§ 274. First pleading for the people, is indictment.— 

The first pleading on the part of the people is the indictment 

§275. Indictment, what to oontain.— The indictment 
most contain : 

1. The title of the action, specifying the name of the court to 
which the indictment is presented, and the names of the parties ; 

2. A plain and concise statement of the act constituting the 
crime, without unnecessary repetition. 

See People v. Bliven, 112 N. Y. 87; P€<}ple v. WiUson, 109 id. 351; People v. 
IHmick, 107 id. 29; 41 Hun, 621; PeopU v. Dunn, 53 id. 384; People v. 
Burns, id. 276; People v. Everest, 51 id. 23; People v. Klock, 48 id. 276; Peo- 
pie V. Barber, id. 199; People v. Beavey, 38 id. 421; People y, Moore, 37 
id. 87; People v. Bellows, 1 How. Pr. (N. S.) 151; People v. Peck, 2 N. Y. 
Cr. Rep. 315; People v. FarreU, 28 State Rep. 44; 

Where an indictment consists of two counts, only one of which is submitted 
to the jury, a reversal by the general term of a conyiction thereon, on the 
ground of the insufficiency of the evidence under that count, will not be in- 
terfered with, although the evidence authorized a convictioQ under tL^ other 
count. Peo^ v. Conroy, 97 N. Y. 62; 2 N. Y. Cr. Rep. 565. 



OF THE State of New York. 



107 



Does not prohibit the charging of the offense in different form in different 
counts; and sach an Indictment is not sabject to the objection tliat it charges 
more than one crime. People Btigg, 98 N. T. 587. 

The common-law doctrine as to repugnant allegations still obtains onder 
tills section, for if there be inconsistent or incongraoas allegations in a count, 
the crime cannot be said to be stated plainly, or at all. Accordingly, where 
the charging part of the indictment alleges a tampering with a certificate of a 
statement relating to the result of an election, and afterward a mere copj of a 
statement is set forth, the count is bad for repugnancy. People Wiee, 3 N. 
Y. Cr. Rep. 308; 2 How. Pr. (N. S.) 98. 

Sections 275, 276, Code Crim. Proc., do not deprive the people of the right 
to state the acts constituting the supposed crime in different counts in different 
language appropriate to meet such circumstances ind features of the event as 
may be developed on the trial, especially where there was no eye-witness of 
the event and the facts must be proved by circumstantial evidence. People v. 
Menken, 86 Hun, 93; 8 N. Y. Cr. Rep. 238. 

Objection that indictment does not conform to sections 275-6 can only be 
taken by demurrer. People v. Conroy, 97 N. Y. 62; 2 N. Y. Cr. Rep. 565; Peo- 
fUr, Carr, 8 id. 578. 

Under this section the Indictment must charge both the crime and the act 
ttnstituting it; the omission of either is fatal. People v. Dumar, 106 N. Y. 
502; 42 Hun, 88; 5 N. Y. Cr. Rep. 57. 

An indictment charging the defendant with having committed the crime of 
peijury by giving material evidence in an action between certain parties for 
a limited divorce, contains a sufficient statement of the nature of the action in 
which it is claimed that the perjury was committed. People v. Onmshaio, 20 
Week. Dig. 116; 83 Hun, 507. 

§ 276. Form of indictment — The indictment should be 
dgned bj the district attorney, and may be substantially in the 
following form : 

Court of oyer and termmer of the county of [stating 
the proper county] ;* or, 

Court of oyer and terminer of the city and county of New 
York; or, 

Court of sessions of the county of [stating the proper 

county] ; or, 

Court of general sessions of the city and county of New 
York ; or. 

City court of the city of [stating the proper city]. 

The Pkople of thb State of New Yobk^ 
agamst 
A. B. 



108 



Thb Cods of CBnaNix Pbocedubb 



The grand jury of the 
[here insert the name of the county, or of the city, or of the 
city and county, in which the indictment is found], by thii 
indictment, accuse A. B. of the crime of [here insert the name 
of the crime, if it have one, such as treason, murder, arson, man- 
slaughter, or the like, or if it be a misdemeanor, having no 
general name, such as libel, assault, or the like, insert a brief 
description of it, as it is given by statute], committed as follows : 

The said A. B., on the day of , eighteen 

hundred and , at the town [or city or village, as the 

case may be] of in this county [here set forth the act 

charged as an offense]. 

•A. B., 

District Attorney of the comity of 

See People v. Lenhardt, 104 N. Y. 696; People v. BcUoios, 1 How. Pr. (N. S.) 
151; PeopU v. WiUson, 109 N. Y. 351; People v. FarreU, 28 State Bep. 44; 
PeopU Harrie, id. 298; People v. Dumar, 106 N. Y. 510; People WiUet, 
102 id. 246; People v. Conroy, 97 id. 68; People v. Dimick, 107 id. 27; 5 N. Y, 
Cr. Rep. 187; People v. Menken, 36 Hun, 92; Peoj^ v. Bums, 63 id. 276; Peo- 
ple V. Everest, 51 id. 28; People ▼. Orimehaw, 33 id. 507; People v. Barber, 
48 id. 199; People v. Bieh, 2 N. Y. Cr. Bep. 315. 

§ 277. When defendant is indicted by fictitious or erro- 
neous name, his true name maybe inserted in subsequent 

(>roceediiigs. — If a defendant is indicted by a lictitious or 
erroneous name, and in any stage of the proceedings liis true 
name is discovered, it may be inserted in the subsequent proceed- 
ings, referring to the fact of his being indicted by the nam^ 
mentioned in the indictment. 

See People v. EverTiardU 104 N. Y. 596; WaUer v. People, 32 id. 163; Lasure 
V. State, 19 Ohio, 43; 8taU v. Burns, 8 Nev. 251; Poue v. State, 69 Ala. 281: 
44 Am. Rep. 513; People v. Smith, 1 Park. 327; Barnesdotta v. People, 10 
Hun. 137; 69 N. Y. 612; PeopU v. Burns, 2 N. Y. Cr. Rep. 398. 

§ 278. Indictment must charge but one crime and in 
one form, except where it may be committed by differ- 
ent means. — The indictment must cliarge but one crime and io 
one form^ e^^cept as in the next section provided : 

See People v. IHmick, 107 N, Y. 31; Peoj^ v. Dumar, 106 id. 510; People 
V. WtOson, 109 id. 351; PeopU CDonneU, 46 Hun, 360; PeopU t. CdUakan, 
29 Hun, 580; PeopU v. CoU, 2 N. Y. Cr. Rep. 109, 110; PeopU v. Ward, 3 id. 
484; PeopU v. LenJiardt, 4 id. 326; PeopU v. Powell, id. 586; PeopU v. Kloek, 
48 Hon, 276; PeopU v. Bums, 53 id. 276; 25 State Bep. 99; People Emerson, 



OF TH« Statb of New YoJtK. 



109 



ii iTi; 58 Han, 488; Charbineau, 86 id. 401; 116 N. T. 488; r. 

Earrii, 28 State Rep. 300; People v. CroUy, 80 id. 44; People v. Bteresi, 51 
Hia, 20; PeopU T. Upton, 88 id. 110; PeopU v. Moore, 87 id. 87. 

An indictment under tbe act in relation to lotteries (1 R. 8. 666, § 29) charged 
that the accused " did unlawfully and knowingly offer to vend and to sell, and 
to barter and to furnish, and to supply and to procure, and to cause to be fur- 
BisLed and procured to and for " C. a lottery ticket. The indictment was 
mailed for duplicity in that it charged two separate and distinct offen8(*8, i. e., 
taale to C. and a sale to some third person for him. ffeld untenable; that the 
indictment charged but a single offer to furnish to C. a lottery ticket for a 
eoocideration; the fact that the offer gave the choice of modes did not trans- 
form it into two separate and distinct offenses. Read v. People, 81 N. Y. 881. 

An indictment containing two counts, the first charging the defendant with 
^land larceny » and the second charging him with having received the property 
aUeged in the first count to have been stolen, is not demurrable on the ground 
that more than one crime is charged therein in violation of sections 278 and 
279. Said sections are to be construed together and permit such an indictment. 
PeopU V. Infield, 1 N. Y. Cr. Rep. 146. 

§279. Charging crime in separate coontf.— The crime 
may be charged in separate counts to have been committed in a 
different manner, or by different means; and where the acts 
oomplained of may constitute different crimes, such crimes may 
be charged in separate counts. 

See People v. Dimick, 107 N. Y. 31; People v. WiUeoji, 109 id. 861; People 
T. Dumar, 106 id. 510; People v. Rose, 52 Hun, 85; People v. Everest, 51 id. 
»; People V. Klock, 48 id. 276; People v. Bums, 58 id. 276; People v. Emerson, 
id- 439; PeopU v. (/DonneU, 46 id. 360; Pe4)pU v. Menken, 86 id. 97; PeopU 
T. Dunn, 90 N. Y. 104; PeopU v. CaUahan, 29 Hun, 580; PeopU v. CoU, 2 N. 
Y. Cr. Rep. 108; PeopU v. Lenhardt, 4 id. 818. 

If more than one crime be charged, except as permitted hy the above section, 
the proper and only remedy is by demurrer; Code Crim. Proc., g§ 824, 831; 
Pe<^e V. McCarthy, 110 N. Y. 814. 

A count charging the use of different prohibited means to commit a crime is 
good. PeopU V. Davis, 56 N. Y. 95. 

A single felony may be charged in different ways in several counts, so as to 
meet the facts of the case. Harris v. PeopU, 6 Thomp, & Cook, 206. 

The second count in an indictment may refer to the allegations contained in 
the first, without repeating them. PeopU v. Graves, 5 Park. 184. 

The court has discretionary power to compel prosecution to elect one of 
several counts. Hawker v. PeopU, 75 N. Y. 487. 

There may be a Joinder of various counts stating the same offense distinctly 
and separately in various ways, so as to meet the evidence, and the court will 
not put the prosecutor to an election. Nelson v. PeopU, 5 Park. 89; 28 N. Y. 
»3; Lonergan v. PeopU, 6 Park. 209; 50 Barb. 266. 

A count charging an assault "with intent to do bodily harm," and also 
*'with inWiit to kill," is good. The words *' to do bodUy harm " are mere sur- 



110 . The Codb of Cbdonal Pbooedube 



plnsage, unless thej be added ''withoat justifiable or excusable oause.** 
Da/wion v. People, 25 N. Y. 899. 

A count for poisoning, which charges that the prisoner did administer, and 
did cause and procure to be administered,' etc., is not bad for duplicity. La- 
beau V. People, 6 Park. 871; 88 How. 66. 

Held, that counts for different offenses of the same g^rade and subject to the 
same punishment may be joined. People v. Oatee, 18 Wend. 811. 

Held, also, that counts for embezzlement and larceny may be joined in same 
indictment. Coats v. People, 4 Park. 662. 

A count for counterfeiting silver coin may be joined with one for having 
possession of such coin with intent to utter it, though the punishment be dif- 
ferent; but the prosecutor must elect. Queen* e Case, 6 C. H. Rec. 68. 

A count for forging a check may be joined with one for uttering and pub- 
lishing it, etc. People v. Ryndere, 12 Wend. 425. 

Two distinct offenses requiring different punishments cannot be alleged in 
the same count. ReM v. People, 1 Park. 481. 

And if so included and a conviction follows, judgment will be arrested. 
People V. Wright, 9 Wend. 193. 

Several distinct misdemeanors may be joined, and the prosecution cannot be 
put to an election. People v. Costello, 1 Den. 88. 

A count for selling spirituous liquors without license to divers citizens and 
to persons unknown, only embraces one offense. People v. Adams, 17 Wend. 
475; Uodgman v. People, 4 Den. 285. 

The joinder of several distinct misdemeanors is not ground for reversal on 
error, if the sentence be single and appropriate to either of the counts of the 
indictment. Pdinsky v. People, 73 N. Y. 65. 

A misjoinder of counts charging a misdemeanor and a felony does not enti- 
tle the defendant to have the indictment quashed, except in the discretion of 
the court. People v. Court of Gen. Sees., 12 Hun, 895. 

Though an indictment in different counts charge what are technically dis- 
tinct offenses, yet if it be apparent that each relates to the same transaction, it 
may be sustained. Taylor v. People, 12 Hun, 212. 

When but one and the same offense is charged in different counts, the dis- 
trict attorney must be put to an election. Armstrong v. People, 70 N. Y. 88. 

When an indictment contains a count for rape and one for an assault with 
intent to commit rape, the district attorney is not bound to elect between them. 
People v. Satterlee, 5 Hun, 107. 

When the ownership of property is variously charged in different counts, 
the district attorney must elect between them. Phelps v. People, 4 Hun, 401. 

§ 280. Statement as to time when crime was committed. 

The precise time at which the crime was committed need not be 
stated in the indictment ; but it may be alleged to have been 
committed at any time before the finding thereof, except where 
the time is a material ingredient in the crime. 

See People v. Jackson, 111 N. Y. 869; 11 Crim. L. Mag. 223; People v. Em^ 
$cn, 68 Hun, 440; 20 State Rep. 16: People v. Krank, 12 id. 846; 46 Hun, 684 



OF THE StATB of NeW YoSE. 



Ill 



At common law, the time of the oiFense mast always be alleged, bat it is mere 
form, unless some special reason renders it ImperatiTe. 1 Lish. Crim. Proc.» 
§ 886; 1 Stark. Crim. Plead. 54; Turner v. People, 33 Mich. 863. 

The doctnne is general that where time is material, it most, to the extent of 
such materialitj, be alleged correctly and proved as laid. 1 Bish. Crim. Proc., 
^ 399; Daey State, 17 Ga. 439; State v. Caverly, 51 N. H. 446. 

An indictment is good if the day and year can be collected from the whole 
statement, thongh not specially averred. Oill v. People, 8 Hun, 187; 5 Thomp. 
ACook, 308. affirmed 60 N Y. 643. 

The time and place when and where a crime was committed most be stated 
with certainty in the indictment, but it is not necessary to prove them as. 
suted, anless they are necessary ingredients. People v. Stocking, 50 Barb. 
573; 32 How. 48; 6 Park. 263. 

§ 281. Statement as to person injured or intended to be 
iiyured. — When an offense inyolyes the commission of, or an 
attempt to conmiit a private injury, and is described with sof • 
ficient certainty in other respects to identify the act, an erroneous 
all^tion as to the person injured, or intended to be injured, is 
not materiaL 

See People v. JohMon, 6 N. Y. Cr. Rep. 219; 104 N. Y. 213; People v. Dunn, 
S5 State Bep. 464; 58 Hnn, 387; PeopU v. Richards, 5 N. Y. Cr. Bep. 867; 44 
Hun. 286; People CUmenU, 5 N. Y. Cr. Rep. 287; Kennedy v. People, 89 N. 
Y.245. 

§ 282. Cionstraction of words used in indictment.— The 
woids used in an indictment must be construed in their usual 
acceptation in conmion language, except words and phrases defined 
by law, which are to be construed according to their legal meaning. 

See People v. FarreU, 28 State Rep. 44; PeopU v. Dunn, 53 Hun, 885, 387; 
?eopU V. Kloek, 48 id. 277; Peof^ v. Wi$e, 3 N. Y. Cr. Rep. 305; 2 How. Pr. 
(N. S.) 98; PeopU v. Duma/r, 106 N. Y. 510. 

§ 283. Words used in a statute need not be strictly 
pursued. — Words used in a statute to define a crime need not 
be strictly pursued in the indictment ; but other words, convey- 
ing the same meaning, may be used. 

See Rapalje's Crim. Proc., § 90; PeopU v. Dimick, 5 N. Y Cr. Rep. 187; 41 
Hon, 621; PeopU Buddenneck, 4 N. Y. Cr. Rep. 252. 

An indictment is good if it foUows the language of the statute defining the 
crime. PeopU v. FarreU, 28 State Rep. 44; PeopU v. KeUy, 3 N. Y. Cr. Rep. 
272; PeopU Weldon, 111 N. Y. 574; PeopU v. BmUh, 6 N. Y. Cr. Rep. 472: 
People V. Bums, 58 Hun, 274; Phelpe v. PeopU, 72 N. Y. 334; PeopU v. Van 
M, 4 How. Pr. 86; PeopU v. King, 110 N. Y. 418; 6 Am. St. Rep. 389. 



113 The Code ot Criminal Pbooedube 



Bat this rule presnpposes that the statute creating the offetise is a vand 
exercise of the legislative power. People v. West, 106 N. Y. 295. 

The pleader need not use the very words of the statnte. People Whedon, 
2 N. Y. Cr. Rep. 830; Fraeer r. People, 54 Barb. 306; People v. Jcehne, 108 
N. Y. 182. But see People v. Van Pelt, 4 How. Pr. 86. 

If words of similar import are employed it is sufELdent. Matter of Oray, 3 
N. Y. Cr. Rep. 306; UnUed States v. Wilson, 24 Fed. Rep. 286; TuUy v. Peo^ 
pie, 67 N. Y. 15. 

§284. Indictment) when sujUdent. — The indictment is 
snflBcient, if it can be understood therefrom : 

1. That it is entitled in a court having authority to reoeive it 
though the name of the court be not accurately stated ; 

2. That it was found by a grand jury of the county, or if in a 
city court, of the city in which the court was held ; 

8. That the defendant is named, or if his name cannot be 
discovered, that he is described by a fictitious name, with the 
statement that it has been found impossible to discover his real 
name; 

4. That the crime was committed at some place within the jm^ 
isdiction of the court ; except where, as provided by sections one 
hundred and thirty-three to one hundred and thirty-eight, both 
inclusive, the act, though done without the local jurisdiction of 
the county, is triable therein ; 

5. That the crime was committed at some time prior to the 
finding of the indictment ; 

6. That the act or omission, charged as the crime, is plainly and 
concisely set forth ; 

7. That the act or omission, charged as the crime, is btated with 
such a degree of oertainty, as to enable the court to pronounce 
judgment, upon a conviction, according to the right of the ca^e. 

See Peoples. Reavey, 4 N. Y. Cr. Rep. 14; People v. Buddensieck, 4 N, Y. 
Cr. Rep. 251; 5 id. 71; 103 N. Y. 496; PeopU v. Bovoe, 3 id. 160; PeopU v. 
Jackson, 111 N. Y. 369; People v. Wise, 8 N. Y. Cr. Rep. 305; 2 How. Pr. 
(N. S.) 98 ; People v. Gonroy, 97 N. Y. 68; PeopU v. Boine, 34 Hun, 588; Pe^h 
pU V. Deetey, 35 id. 311; People v. Dunn, 53 id. 387; People v. Upton, 88 id. 
113; People Y. Reavey, id. 421; People v. FarreU, 28 State Rep. 44; PeopU v. 
CroUy, 80 id. 45; Peopl^i v. Dimick, 107 N. Y. 30. 

An indictment is good if it contains sufficient averment to inform defendant 
of the nature of the accusation against him, to prepare his defense and to 
admit of the record as a bar to a second prosecution for the same offense. 
Peoj^ V. FarreU, 28 State Rep. 44; Pontius v. People, 82 N. Y. 889; FroMer v. 
PeopU, 54 Barb. 806; PeopU v. Dunn, 7 N. Y. Cr. Rep. 189; 58 Hun, 887. 



OF THE State of New York. 



118 



NotwitlisUQ^ng the liberality with which indictments may now be con- 
atruedthej mast allege facts which show tliat the crime has been committed. 
?wpU Y. Hdight, 26 State Rep. 84. 

hi People Y. Dununr, 106 N. Y. 009, the coart saj: 

" The indictment, therefov, most charge the crime, and it most also state the 
let constitating the crime. The omission of either of these things would 
DMessarilj be fatal to the indictment. If there was no accusation of a crime, 
the paper, however formal in other respects, would not be an indictment, 
ind so there would be no criminal action. If it contained no statement of the 
act constitating the crime, there would be no description of the offense, and 
neither an acquittal nor a conviction would enable the defendant to withstand 
a further prosecution for the same crime." 

The name of the crime in an indictment is mere matter of form which may 
iffmaj not be stated, and if stated incorrectly, it does not vitiate or control the 
character of the crime as against specific allegations of fact in the indictment 
constituting it. People v. SuUican, 4 N. Y. Cr. Rep. 193. 197. 

In People v. Bliven, 112 N. Y. 79, it was held that an indictment which 
chirges the defendant with doing the act constituting the crime is sufficient, 
ilthough the proof shows that he was absent at the time the crime was com- 
mittpd, bat that he counseled, induced and procured its commission. 

It is well settled in this state, that where an offense may be committed by 
doing any one of several things the indictment may, in a single count, group 
them all together and charge the defendant to have committed them all, and 
1 conviction may be had on proof of the conmiitting of any one. People v. 
Smith, 6 N. Y. Cr. Rep. 473; Bork v. People, 91 N. Y. 13; 1 N. Y. Cr. Rep. 
379; PeopU V. Dane, 56 N. Y. 95; People v. KeUy, 8 N. Y. Cr. Rep. 272; 
PeopU V. WeM, 6 id. 382. 

If one of several counts in an indictment is good, that is sufficient to sustain 
t conviction under a general verdict of guilty. People v. Davie, 56 N. Y. 95; 
hople V. Willett, 102 id. 251; People v. IHmick, 107 id. 80; 5 N. Y. Cr. Rep. 
187. 

§ 285. Indictment not insufficient for defldct of form, not 
tending to prejudice defendant. — No indictment is insufficient 
Dor can the trial, judgment, or other proceedings thereon be 
affected, by reason of an imperfection in matter of form, which 
does not tend to the prejudice of the substantial rights of the 
deff^ndant, upon the merits. 

See People v. Buddensierk, 103 N. Y. 496; People v. Dimiek, 107 id. 29; People 

ClemenU, id. 210; PeopU v. Weldon, 111 id. 575; People v. WUlett, 102 id. 
aSM; Satiser v. People, 8 Hun, 802; People v. Haight, 54 id. 9; People v. 
Ihinn, 53 Hiin, 887; People v. Osterhout, 84 id. 261; 8 N. Y. Cr. Rep. 445; 
Sawhez V. PeopU, 22 N. Y. 150; Briggs v. PeopU, 8 Barb. 547; Peo^ v. FUU 
«i^«r,24 How. Pr. 841; PeopU v. Oregg, 85 State Rep. 761. 

This section is general in its application and is intended to cure defects in 
fonn under the general rules of pleading. Peop^ v. Williams, 18 State Rep. 
406. 

15 



114 



The Code of Criminal Pbocedure 



Tlioagli the indictment contains neither the title of the action nor a state^ 
ment of the court in which it is found and presented, yet if it appear that it 
is found in the proper court and action, and that no prejudice to defendant can 
ensue, the court is bound, under this section, to disregard such omissions; 
People Y, Peck, 2 N. Y. Cr. Rep. 817. • 

The name of the crime in an indictment is mere matter of form which majr 
or may not be stated; and if stated incorrectly, it does not vitiate or control the 
character of the crime as against specific allegations of fact in the indictment 
constituting it. People v. Sullivan, 4 N. Y. Cr. Rep. 194, 

§ 286. Presumptions of law and matters of which judi- 
cial notice is taken, need not be stated. — Neither presnmp- 
tions of law, nor matters of which judicial notice is taken, need 
be stated in an indictment. 

See Rapalje's Crim. Proc., 288, 239; People v. Dunn, 53 Hun, 387. 

As to judicial notice, see Moak's Van Santv. PI. 254; 24 Am. L. Reg. (N. S.) 
558; Whart. Ev., § 276; 10 Abb. N. C. 107, note; 49 Am. Rep. 201; 89 Am. 
Dec. 663, note; 4 L. R. A. 33. 

§ 287. Pleading a judgment or determination oi^ or 
proceeding before^ a court or officer of special jurisdic- 
tion. — In pleading a judgment or other determination of a court 
or oflBcer of special jurisdiction, it is not necessary to state the 
facts conferring jurisdiction ; but the judgment or determina- 
tion may be stated to have been duly given or made. The facts 
constituting jurisdiction, however, must be established on the 
trial. 

See Eighmy v. Peopl\ 79 N. Y. 556: People v. Buma, 53 Hun, 687. 

§ 288. Private statute^ liow pleaded. — In pleading a pri- 
vate statute, or a right derived therefrom, it is sufficient to refer 
to the statute, by its title and the day of its passage, and the 
court must thereupon take judicial notice thereof. 

See fJode of Civ. Procedure, § 530. 

§ 289. Pleading in indictment for libel. — An mdictment 
for libel need not set forth any extrinsic facts for the purpose of 
showing the application of the party libeled, of the defamatory 
matter on which the indictment is founded ; but it is sufficient 
to state generally, that the same was published concerning him ; 
and the fact that it was so published, must be established on the 
trial. 

Matter not Ubelous on its face must be rendered so by innuendo; PeopU 
Isaacs. 1 N. Y. Cr. Rep. 148. 



OF THB StATB OB* KeW YoBK. 



116 



§S90. Flieadi2ig in indictanent for foacgearj^ WhMB the 
instrament has been destroyed, or withheld by defsnd- 
ant. — When an instrument, which is the subject of an indict- 
ment for f oi^ry, has been destroyed or withheld by the act op 
procurement of the defendant, and the fact of the destruction 
or withholding is alleged in the indictment, and established on 
the trial, the misdescription of the instrument is immaterial. 

See Peopfc v. BctdgUy, 16 Wend. 58; People v. Kingsley, 2 Cow. 522. 

§ 291. Pleading in indictment for peijury or suborna- 
tion of perjury. — In an indictment for perjury or subornation 
of perjury, it is sufficient to set forth the substance of the con 
troversy or matter in respect to which the crime was committed, 
and in what court, or before whom, the oath alleged to be false 
was taken, and that the court or person before whom it was taken 
had authority to administer it, with proper allegations of the 
flinty of the matter on which the perjury is assigned ; but the 
indictment need not set forth the pleadings, record or proceedings 
with which the oath is connected, nor the commission or authority 
of the court or person where or before whom the perjury was 
eommitted. 

See People v. WUUams, 18 State Rep. 403; Geston v. People, 4 Lans. 487; 61 
Barb. 35; People v. Robertson, 3 Wheeler Crim. Cas. 180; People v. Clements, 107 
N Y. 305; TuUle v. PeopU, 36 id. 431; People v. Eoag, 2 Park. 9; BurM v. 
Peoj^, 55 Barb. 531; 5 Lans. 189; Campbell v. People, 8 Wend. 636; O BHUy 
T. People, 9 Abb. N. C. 77; Harris v. People^ 4 Hun, 1; Ortner v. People, id* 
833; People v. Sweetman, 3 Park. 358; People v. McKinney, id. 510; People v. 
VamiT, 5 Wend. 272; PeopU v. Eighmy, 79 X. Y. 556; Stratton v. People, 
81 id. 629; PeopU v. OHmshaw, 2 N. Y. Gr. Rep. 390. 

§ 292. TTpon indictment against several, one or more 
may be convicted or acquitted. — Upon an indictment against 
several defendants any one or more may be convicted or acquitted. 

See 1 Bish. Crim. Proc.. §§ 1036, 1625; ChaUerton v. People, 15 Abb. Pr. 147; 
Klein v. People, 81 N. Y. 229; Bex v. Hempstead, Ruas. k Ryan, 344. 

In indictments for offenses necessarily joint, joint defendants may be con- 
victed of different grades. Shorese v. Com,, 5 Penn. St. 83; R.v, Butterworth, 
Ros. ft Ryan, 520. 

Where two defendants are charged with murder in the same indictment, the 
Juy may find one guilty of murder and another of manslaughter. United 
States V. Harding, 1 Wall. Jr. 127; Mack v. State, 32 Miss. 406. 

If the act iB indivisible, such as conspiracy or riots, then one cannot be con- 
victed without the other. Stephens v. State, 14 Ohio, 388; State v. MeD,, 6 
Benaet, m; AddLs, 884L See WkUe v. PeopU, 82 N. Y. 460. 



A 



116 Thb Code of Criminal Pbooxdube 



On an indictment against two for a conspiracy to cheat, the Judgment should 
be against each defendant severally and not against them Jointly. March v. 
People, 7 Barb. 891. 

As to separate trials, § 891, post. 



CHAPTER m. 

AMENDMENT OF THE INDICTMENT. 

Section 298. When amendment allowed. 
294. Trial to proceed. 
296. Eflfect of verdict, etc. 

§ 293. When amendment allowed. — Upon the trial of an 
indictment, when a variance between the allegation therein and 
the proof, in respect to time, or in the name or description of any 
place, person or thing, shall appear, the court may, in its judg- 
ment, if the defendant cannot be thereby prejudiced in his defense 
on the merits, direct the indictment to be amended, according to 
the proof, on such terms as to the postponement of the trial, to 
be had before the same or another jury, as the court may deem 
reasonable. 

See 1 Bisli. Crim. Proc. (3d ed.). § 708; 14 Am. Dec. 585, note; Rapalje's 
Crim. Proc, § 109; Pe^le v. Jackson, 111 N. Y. 369; People v, Petren, 92 id. 
145; Matter of Bain, 121 U. S. 1; Rex v. WUkea. 4 Burr. 2527; Com, v. CMd, 
13 Pick. 200; Com-, v. Maliar, 16 id. 120; Com. v. Brew, 3 Cush. 279; People v. 
CampheU, 4 Park. 387; State v. Moore, 24 S. C. 150; 58 Am. Rep. 241. 

This section is constitutional. People v. Johnson, 104 X. Y. 216; 5 N. Y. 
Cr. Rep. 217; 4 id. 591; People v. Hei-man, 45 Hun, 176; 27 Week. Dig. 118: 
PeopU V. Richards, 5 N. Y. Cr Rep. 867; 44 Hun, 288. 

An indictment for grand larceny, charging the stealing of coin/* cannot be 
tunended upon the trial, to conform to the proofs, by substituting currency for 
coin, where the effect of the amendment will be to change the grade of the 
offense proven from petit to grand larceny. People v. Poacher, 30 Hun, 576. 

Where, upon a trial for larceny, there is a variance between the allegation and 
proof as to the owner of the goods alleged to have been stolen, the indictment 
may be amended in that respect. The name of the owner is no material attri- 
bute of the crime charged. People v. Herman, 27 Week. Dig, 118; 45 Hun, 
176; StaU v. Dominique, 39 La. Ann. 323; Knight v. State, 64 Miss. 802. 

The indictment charged defendant with having seduced, under promise of 
marriage, one Mary Oliphant, an unmarried female of previous chaste character. 
On the trial the first witness called was complainant, who testified that her 
name was in fact Mary Olivert. Held, that there was no error in allowing the 



OF THE State of New York. 



IIT 



indictment to be amended to conform to the proof. People Johnson, 104 
X. Y. 218. See, alfto, State v. Buchanan, 85 La. Ann. 89; People v. Hogan, 37 
State Rep. 117. 

Ad amendment of the corporate title of a bank specified in the indictment 
is aathorized by this section. People y. Dunn, 58 Han, 882. 

§ 294. Trial to proceed. — After such amendment, the trial, 
whenever the same shall be proceeded with, shall proceed in the 
same manner and with the same consequences, as if no such vari^ 
ance had occurred. 

dud. People v. Johnson, 104 N. Y. 216; Peoj^ v. JackeonAH id. 862; C N. 
Y. Cr. Rep. 217; PeapU v. Richarde, 44 Hun, 286; 5 N. Y. Cr. Rep. 867; Peo- 
pU V. Merman, 45 Hun, 176. 

§ 295. EfTect of verdict, etc. — A verdict and judgment, 
which shall be given after the making of any such amendment, 
shall be of the same force and effect, as if the indictment had 
originallj been found in its amended form. 

died, People v. Johneon, 104 N. Y. 216; PeopU v. Jackson, 111 id. 869. 



CHAPTER IV. 

ABBAIONMBNT OF THB DEFENDAOT. 

%mmxm 296. Defendant must be arraigned in the court in which indictment 
is found, if triable therein, or if not, in that to which it is 
sent or removed. 

297. If indictment be for felony, defendant must be present; if for 

misdemeanor, he may appear by counsel. 
jM^ When personal appearance is necessary, if defendant be in cufr 

tody, he must be brought before the court. 
299. If discharged on bail or deposit, bench warrant to issue 

800. Bench warrant, by whom and how issued. 

801. Form of bench warrant. 

802. Direction in bench warrant, if indictment be for misdemeanor. 
808. If offense be bailable, order for bail to be indorsed on bench 

warrant. 

804. Bench warrant, how served. 

805. Proceedings on bench warrant, when defendant is brought 

before magistrate of another county. 

806. Ordering defendant into custody, or increasing bail, when 

indictment is for felony. 

807. Defendant, if present, to be committed; if not, bench warrant 

to issue. 

806L Defendant appearing for arraignment without counsel, to be 
informed of his right to coudmL 



118 The Code of Cbimikal Phoobdubb 



Hacaos 800. Arnugnment, how made. 

810. If he gave another name, subMquent prooeedingB to be had bj 

that name, referring to name, in the indictment 

811. Time allowed defendant to answer indictment. 

812. How defendant may answer indictment 

§ 296. Defendant must be arraigned In the oonrt in 
which indictment is found, if triable therein, or if not, 
in that to which it is sent or removed. — When an indict- 
nient is filed, the defendant must be aiTaigned thereon, before the 
court in which it is found, or before the court to which it is sent 
or removed. 

See 1 Bisb. Crim. Proc. (3d ed.), ^72Set seq,; 21 How. Pr. 149; 52 Cal. 480; 
M Ind. 159; 31 Mich. 471; 59 Mo. 154; 1 Tex. App. 248, 225. 

In a crimiiial case an arraignment and plea are essential and necessary pre- 
liminaries to a legal trial apon an indictment. People v. Bradner, 107 N. Y. 9. 

Any form of arraignment is safBcient by wbicb tbe prisoner admits bis 
identity and demands a trial. People Frogt, 5 Pai^. 52. 

There is in this Code no provision for compelling a corporation which has 
been indicted to appear before tbe court and plead to tbe indictment. People 
T. Ga94ig7U Co,. 6 N. Y. Cr. Rep. 189. 

When failure to arraign a prisoner affords no ground for reversal of a con- 
viction. People V. Osterhout, 34 Hun, 260. 

A trial without an arraignment is a nullity. Sanders v. SttUe, 97 Ind. 147. 

§ 297. If indictment be for felony, defendant must be 
present ; if for misdemeanor, he may appear by coun- 
sel. — If an indictment be for a felony, the defendant must be 
personally present when arraigned ; but if for a misdemeanor only, 
his personal appearance is unnecessary, and he may appear upon 
the arraignment by counsel. 

No provision of tbis Code compels a corporation to plead to an indictment. 
People V. EquUabU Gas-light Co., 6 N. Y. Cr. Rep. 189. ' 

§ 298. When personal appearance is necessary^ if 
defendant be in custody, he must be brought before 
the court. — When his personal appearance is necessary, if he 
be in custody, the court may direct the officer in whose custody 
he is, to bring him before it to be arraigned. 

§ 299. If discharged on bail or deposit, bench warrant 

to issue. — If the defendant have been discharged on bail, or 
have deposited money instead thereof, and do not appear to be 
arraigned, or if the defendant be for any cause absent when hi* 



OF THK State of New York. 



lie 



per6(»ial attendaDoe is necessary, the court, in addition to the for- 
feiture of any undertaking of bail, or of any money deposited, 
may direct the clerk to issue a bench warrant for his arrest. 

§ 300. Bench warranty by whom, and how iiaoed. — 

The clerk, on the application of the district attorney, may accord- 
ingly at any time after the order, whether the court be sitting or 
not, issue a bench warrant to one or more counties. A bench 
warrant for the arrest of any defendant indicted may also be is- 
sued by the district attorney at any time after the indictment is 
found. 

§ 301. Form of bench warrant. — The bench warrant ia- 
•ued upon the indictment must, if the crime be a felony, be 
substantially in the following form : 

" County of Albany [or as the case may be]. 

" In the name of the people of the state of New York : 

To any peace officer in this state. An indictment having been 
found on the day of , eighteen hundred and 

, in the court of sessions of the county of Albany [or as 
the case may be], charging C. D. with the crime of [designating 
it generaUy]. 

" You are therefore commanded, forthwith to arrest the abov^' 
named C. D., and bring him before that court [or if the indict- 
ment have been sent or removed to another court], before the 
court of oyer and terminer of that county [or as the case may be] 
to answer the indictment ; or if the court have adjourned for the 
term, that you deliver him into the custody of the sheriff of the 
county of Albany [or, as the case may be, or in the city or county 
of New York, to the keeper of the city prison of the city of New 
York]. 

City [or town] of , the day of 

sighteen hundred and 

^ By order of the court. 

E. F., Clerky or 

O. H., Distnct AUomey of the ctmnpg 

Belates oolj to bench warrants issued by tbe clerk, and not to sucb as are 
iwied bj the district attorney hhnself. People, w reL Sherwin, v. Mead, 28 
Hu, 237; affirmed, 92 N. Y. 415. 



120 Thb Code of Cbuonal F&ooedube 



§ 302. Directloii in bench warrant if indictment be fbr 
misdemeanor, — If the crime be a miBdemeanor, the bench 
warrant must be in a similar form, adding to the body thereof a 
direction to the following effect : " Or if he require it, that you 
take him before any magistrate in that county, or in the county 
in which you arrest him, that he may give bail to answer the 
indictment." 

See People, ex rei. Shertoin, v. Mead, 28 Hun, 227; 64 How. Pr. 41, 262; 92 
N. Y. 415. 

§ 803. If oftense be bailable, order fbr bail to be indorsed 
on bench warrant. — If the . crime charged be bailable, the 
court, upon directing the bench warrant to issue, may fix the 
amount of bail ; and in such case an indorsement must be made 
upon the bench warrant and signed by the clerk, to the following 
effect: ^'The defendant is to be admitted to bail in the sum 
of doUars." 

§ 304. Bench warrant, how served. — The bench warrant 
may be served in any county, in the same manner as a warrant of 
arrest, except, that when served in another county, it need not 
be indorsed by a magistrate of that county. 

§ 305. Proceedings on bench warrant when defendant 
is brought before magistrate of another county. — If the 

defendant be brought before a magistrate of another county for 
the purpose of giving bail, the magistrate must proceed in 
respect thereto, in the same manner as if the defendant had been 
brought before him upon a warrant of arrest, and the same pro- 
ceedings may bo had thereon, as provided in sections one hundred 
and fifty-nine to one hundred and sixty-one, both inclusive. 

§ 306. Ordering defendant into custody, or increasing 
ball, when indictment is for felony. — If the defendant, 
before the finding of an indictment, has given bail for his appear- 
ance to answer the charge, the court, to which the indictment is 
presented or sent or removed for trial, may order the defendant 
to be committed to actual custody, either without bail, or unless 
he give bail in an increased amount, to be specified in the order. 

§ 307. Defendant, if present, to be committed ; if not^ 
bench warrant to issue. — If the defendant be present when 



OF THB St^TJB of NbW YoBK. 



121 



the order is made, he must be forthwith committed accordingly. 
If he be not present, a bench warrant must be issued and pro- 
ceeded upon, in the manner provided in this chapter. 

§ 308. Defendant appearing for arraignment without 
counsel, to be informed of his right to counsel.— If the de- 
fendant appear for arraignment, without counsel, he must be asked 
if he desire the aid of counsel, and if he does, the court must 
assign counsel. When services are rendered by counsel in pursu- 
ance of such assignment in a case where the offense charged in the 
indictment is punishable by death, the court in which the defend- 
ant is tried may, in its discretion, and upon satisfactory proof that 
such defendant is wholly destitute of means, award to such coun- 
sel reasonable compensation for his services which shall be a 
charge upon the county in which the indictment in the action is 
found, to be paid out of the proper fund upon the certificate of 
the judge or justice presiding at the trial. 

In effect, as amended, Sept. 1, 1898; Laws 1808, ch. 521. 

Where counsel assigned by the court to defend a prisoner deposes that a 
proper discharge of his duties requires an appeal, the court should provide the 
proper means for that purpose, and in a propter case will direct that at the ex- 
pense of the county a copy of the stenographer's minutes on the trial shall be 
made, to which the prisoner's counsel may have access. People v. WilUtt, '6 
N. Y. Cr. Rep. 54: 1 How. Pr. (N. S.) 197. 

Counsel assigned to defend prisoners is not entitled to compensation from 
the count} for his services rendered under such assignment. People, ex rel. 
Brown, v. Suvervisors of Onondaga County, 4 N. Y. Cr. Rep. 102; 8 How. Pr. 
(N. S.) 6; PeopU, ex rd. Banwm, v. Board, etc., 78 N. Y. (522; J'eople, ex rel. 
Hadiey, v. SuperviwTB, 28 How. Pr. 22. 

§ 309. Arraignment, how made. — The arraignment must 
be made by the court, or by the clerk or district attorney, under 
its direction, and consists in stating the charge in the indictment 
to the defendant, and in asking him whether he pleads guilty op 
not guilty thereto. If the defendant demand it, the indictment 
most be read, or a copy thereof furnished to him before requiring 
him to plead. 

dud. People v. Equitable Gas-ligM Co,, 6 N. Y. Cr. Rep. 190. 

In PeopHe v. Frost, 6 Park. 54, the court say: **Sir WiUiam Blackstone 
says (4 Com. 322): * To arraign is nothing else but to call the prisoner to the 
btr of the court to answer the matter charged upon him in the indictment.' 2 
Hale P. C 116. When brought to the bar he is called upon by name to hold 
up his hand. * However/ adds the learned writer, ' it is not an indispensable 
ceremony, for being calculated for the purpose of identifying the person, any 
other acknowledgment will answer the purpose as well.' " See 1 Bish. Crim. 
Proc. (3d ed.), § 728 <rf %eq.; PeopU v. Bradner, 107 N. Y. 9. 

§310. If he gave another name, subsequent proceed* 
ings to be had by that name, referring to name in the 
Indictment. — If when arraigned the defendant allege that 
mother name is his true name, the eourt must direct an entry 
thereof in the minutes of the arraignment; and the subsequent 
16 



12S The Code of Csimikal Pboobdubb 



proceedings on the indictment may be had against him, by that 
name, referring also to the name by which he is indicted. 
Cited, People v. Bradner, 107 N. Y. 1. 

§ 311. Time allowed defendant to answer indictment.— 

If, on the arraignment, the defendant require it, he must be 
allowed until the next day, or such further time may be allowed 
him as the court deems reasonable, to answer the indictment. 

§ 812. How defendant may answer indictment. — In 
answer to the indictment, the defendant may either move the 
court to set the same aside, or may demur or plead thereto. 

See People v. Petrea, 92 N. Y. 128, 145; People v. Clements, 5 N. Y Cr, Rep. 
292; PeopU v. Price, 6 id. 143. 

A motion to set aside an indictment cannot be made until tlie defendant is 
arraigned thereupon. People v. EquitaJble Oas-light Co,, 6 N. Y. Cr. Rep. 189. 
8ee § 815, post. 

If the indictment is lost after plea, the trial may proceed on a copy. SchuUs 
V. 8t(Ue, 15 Tex. App. 258; 49 Am. Rep. 194; StaU v. Oardner, 18 Lea, 184; 
49 Am. Rep. 660. 



CHAPTER V. 
SETTINO ASIDE THE INDICTBCENT. 

Sbotion 818. Indictment, when set aside on motion. 

814. Defendant, when precluded from objecting to indictment in vaf 

other manner. 
816. Motion, when heard. 

816. If denied, defendant must immediately demur or plead. 

817. If granted, defendant discharged, unless the case be submitted 

to the same or another grand jury. 

818. EflPect of order for re-submission. 

819. When new indictment not found. 

820. Order to set aside indictment, no bar to another prosecution 

§ 313. Indictment, when set aside on motion. — The 

indictment must be set aside by the court in which the defendant 
is arraigned, and upon his motion, in either of the following 
cases: 

1. When it is not found, indorsed and presented as prescribed 
in sections two hundred and sixty-eight and two hundred and 
seventy- two ; 



OF THB StATB of NkW YoBK. 



128 



8. When a person has been permitted to be present during the 
MBsion of the grand jnrj, while the charge embraced in the 
indictment wa» under consideration, except as provided in sec* 
tions two hnndred and sixty-two, two hundred and sixty-three 
and two hundred and sixty-four. 

See People v. Bradner, 107 N. Y. 1; People v. Petrea, 92 id. 145; 80 Hun, 98, 
101; S4 How. Pr. 139. 

A defendant in moving to set aside an indictment is not confined to the 
^ands specified in this section. People Clements, 5 N. T. Cr. Bep. 288; 
People V. Price, 6 id. 141, 145, note. Contra, People v, EqmtoJbieOaeMgU Co^^ 
«N.Y. Cr. Bep. 189. 

The provisions of this section have reference only to motions based on the 
gionnds therein stated, and require the motions based on those grounds be made 
before pleading to the indictment. People v. Clements, 5 N. T. Cr. Rep. 288. 

A defendant cannot compel the exhibition to himself or his counsel, of the 
ainaies^of the grand jorj, or the testimony of the people's witnesses before it, 
for any other purpose than to enable him to set aside the indictment on the 
grounds specified in this section. People v, Eiehmondf 5 N. Y. Cr. Rep. 97. 

§ 314. Defendant, when precluded from objecting to 
indictment in any other manner. — If the motion to set 
idde the indictment be not made, the defendant is precluded 
from afterward taking the objections mentioned in the last section* 

§ 315. Motion, when heard. — The motion to set aside an 
indictment mast be heard at the time of the arraignment, unlesB, 
for good cause, the court postpone the hearing to another time. 

A motion to set aside an indictment cannot be made until the defendant is 
tmigned thereupon. People v. Oas-ligJU Co., 6 N. Y. Cr. Rep. 189. 

§ 316. If denied, defendant must immediately demur 
or plead. — If the motion be denied, the defendant must imme- 
diately answer the indictment, either by demurring or pleading 
thereto. 

§ 317. If granted, defendant discharged, unless the 
case be submitted to the same or another grand jury. — 

If the motion be granted, the court must order that the defend- 
ant, if in custody, be discharged therefrom, or if under bail, that 
his bail be exonerated, or if he have deposited money instead of 
bail, that the money be refunded to him, unless the court direct 
ihat the case be resubmitted to the same or another grand jury. 
See P«p20y. Olem&nti, 5 N. Y. Cr. Bep. 289, 897. 



124 



Thb Code of CsoimAL Psocedubb 



§ 318. Effect of order for re-submissioiu — If the court 
dii-ect that the case be renBubmitted, the defendwit, if ah'eady in 
custody, must so remain, unless he be admitted to bail; or if 
already admitted to bail, or money have been deposited instead 
thereof, the bail or money is answerable for the appearance of the 
defendant to answer a new indictmont. 

See People v. Clements, 5 N. Y. Cr. R . p. 209; People v. Price, C id. 145. 

§ 319. When new Indictment not found. — Unless a new 
indictment be found, before the next grand jury of the county or 
city is discharged, the court must, on the discharge of such grand 
jury, make the order prescribed by section three hundred and 
seventeen. 

§ 320. Order to set aside indictment no bar to another 
prosecution. — An order to set aside an indictment, as provided 
in this chapter, is no bar to a future Drosecution for the same 
offense. 



CHAPTER VI. 

DEMUBREK. 

BaonoN 821. Only pleading for defendant, is demurrer or plea. 

822. Demurrer or plea, when put in. 

823. Grounds of demurrer. 

824. Demurrer, how put in, and its form. 

825. When heard. 

826. Judgment on demurrer. 

827. If allowed. Judgment a bar to another prosecution, unless direc- 

tion that the case be re-submitted to the same or another grand 
jury. 

828. If re-submission not ordered, defendant discharged. 

829. Proceedings, if re-submission ordered. 

830. If demurrer disallowed, defendant may be permitted to plead; 

when he must do so, and effect of his omission. 

831. When objections, forming ground of demurrer, may be taken at 

the trial, or in arrest of judgment. 

§ 321. Only pleading for defendant, is demurrer or 
plea. — The only pleading on the part of the defendant is either 
a demurrer or a plea. 

Sfle 1 Bish. Crim. Proc., § 776; Peoplev. Petrea,9SiN. Y. 128; People v. Con- 
teay, 97 id. 68, 70; People Bradner, 107 id. 0. 



OF THE State of New York. 



125 



§ 322. Bemurrer or plea, when put in« — Both the demur- 
ler and the plea must be put in, either at the time of the arraign- 
ment, or at such other time as may be allowed to the defendant 
for that purpose. 

See 1 Bish. Crim. Proc, § 775. 

323. Ghrounds of demurrer. — The defendant may demur to 
the indictment, when it appears upon the face thereof : 

1. That the grand jury, by which it was found, had no legal 
authority to inquire into the crime charged, by reason of its not 
being within the local jurisdiction of the county ; or 

2. That the indictment does not conform substantially to the 
requirements of sections two hundred and seventy-five and two 
hundred and seventy-six ; or 

3. That more than one crime is charged in the indictment 
within the meaning of sections two hundred and seventy-eight 
or two hundred and seventy-nine ; or 

4. That the facts stated do not constitute a crime ; or 

5. That the indictment contains matter, which, if true, would 
constitute a legal justification or excuse for the acts charged, or 
otlier legal bar to the prosecution. 

See PeopU v. Clements, 107 N. Y. 210; People v. Conway, 07 id. 63; 2 N. Y. Cr. 
Rep. 577; 20 Week. Dig. 244; People v. Richards, 44 Hun, 288; 5 N. Y. Cr. Rep. 
870; People v. Carr, 3 id. 582; People v. CoopeVy id. 119; People v. Wise, id. 304; 
People V. Cole, 2 id. 110; People v. Peek, id. 317; People v. Durrin, id. 334; 
People V. Upton, 38 Hun, 107; 4 N. Y. Cr. Rep. 455: People v. Menken, 36 Hun, 
99; 3 N. Y. Cr. Rep. 233; People v. O'Donnell, 46 Hun, 360. 

§ 324. Demurrer, how put in, and its form. — The demur- 
rer must be in writing, signed either by the defendant or his 
counsel, and filed. It must distinctly specify the grounds of 
objection to the indictment, or it may be disregarded. 

See PeopU MeCaHhy, 110 N. Y. 314. 

§ 325. When heard. — Upon the demurrer being filed, the 
objections presented thereby must be heard at such time as the 
court may appoint. 

§ 326. Judgment on demurrer. — The court must give 
judgment upon the demurrer, either allowing or disallowing it ; 
and an order to that effect must be entered upon the minutes. 
See P^opU T. Cooper, 8 N. T. Cr. Rep, 119. 



136 Thb Code of Qbdonal Fbooedube 



§ 327. If allowed, judgment a bar to another proseoa* 
tion, unless direction that the case be re-submitted to 
the same or another grand jury. — If the demurrer be 
allowed, the judgment is final upon the indictment demurred to, 
and IB a bar to another prosecution for the same ofiEense, unless 
the court, being of opinion that the objection on which the demur- 
rer is allowed may be avoided in a new indictment, direct the 
case to be re-submitted to the same or another grand jurj. 

See People v. Richards, 44 Hun, 288; 5 N. Y. Cr. Rep. 870; People v. ClemefUe, 
id. 297. 

§ 328. If re-submission not ordered, defendant dis- 
charged, — If the court do not direct the case to be re-submitted 
the defendant, if in custody, must be discharged, or if admitted 
to bail, his bail is exonerated, or if he have deposited money 
instead of bail, the money must be refunded to him. 

See §§ 817, 818, ante; People v. Petrea, 92 N. Y. 128, 144; People t. 
dements, 5 N. Y. Cr. Rep. 297; PeopU v. (TDonneU, 46 Hun, 862. 

§ 329. Froceedings, if re-submission ordered. — If the 

court direct that the case be submitted anew, the same proceed- 
ings must be had thereon as are prescribed in sections three hun- 
dred and eighteen and three hundred and nineteen. 
See People v. Petrea, 92 N. Y. 128, 145, 

§ 330. If demurrer disallowed, defendant may be i)er* 
mitted to plead ; when he must do so, and effect of his 
omission. — If the demurrer be disallowed, the court must per- 
mit the defendant, at his election, to plead, which he must do 
forthwith, or at such time as the court may allow. If he do not 
plead, judgment must be pronounced against him, if the crime 
charged is a misdemeanor, otherwise a plea of not guilty " most 
be entered. 

See § 842, post; People v. Persons, 2 N. Y. Cr. Rep. 114; People v. 
Cooper, 3 id. 119; PeopU v. Crotty, 80 State Rep. 46. 

§ 331. When objections, forming ground of demurrer, 
may be taken at the trial or in arrest of judgment. — 

The objections mentioned in section three hundred and twenty- 
three can only be taken by demurrer, except that the objection to 
the jurisdiction of the court over the subject of the indictment 
or that the facts stated do not constitute a crime, may be taken at 
the trial, under the plea of not guilty, and in arrest of judgment. 



OF THK State of Nkw Yobk. 



laT 



8» People McCarthy, 110 N. Y. 814; PeopU v. Buddendeek, 108 id. 497; 
65. T. Cr. Rep. 71; 4 id. 280, 252; People y. Upton, 88 Hun, 110. Ill; PeopU 
T. KeOj^, 31 id. 228; 2 N. Y. Cr. Rep. 18; People v. OeUrhaut. 84 Hun, 262- 
P€opU V. MmOceh. 8 N. Y. Cr. Rep. 283; PeopU v. atof>eM, id. 582. 



CHAPTER Vn. 

PLXA* 

Bnnav 332. The different kinds of pleaa. 
888. Plea, how put in. 

834. Its form. 

835. Plea of guilty, how put in. 

888. Plea of insanity. 

837. Plea may be withdrawn by permission of the court. 

838. What is denied by a plea of not guilty. 

889. What may be given in evidence under it. 
840, 341. What is deemed a former acquittal. 

842. If defendant refuse to answer indictment, plea of not guilty to 
be entered. 

§ 332. The different kinds of pleas — There are three kinds 
of pleas to an indictment; a plea of (1) guilty, (2) not guilty, 
(3) a former judgment of conviction or acqnittal of the crime 
charged, which may be pleaded either with or without the pleA of 
guilty. But no conviction shall be had npon a plea of guilty in 
either of the following cases : {a) where the crime cliarged is or 
may be punishable by death, or (i) where the crime charged is or 
may be punishable by imprisonment in a state prison for the term 
of life. 

See PeopU GignaraU, 110 N. Y. 20; PeopU v. Petrea, 92 id. 128, 145; 30 
Hun, 98, 101. 

§ 333. Plea, how put In,— Every plea must be oral, and 
most be entered upon the minutes of the court. 

See PeopU r. Petrea, 80 Hun, 98, 101; PeopU v. (TNeil, 47 Hun, 157; Peo^ 
pU V. Oeterhout, 84 id. 2d2. 
Afl to Standing mute, see note to % 842, poet. 

§ 334. Its form. — The plea must be entered in substantially 
the following form: 

1. If the defendant plead guilty to the crime charged m the 
indictment, the defendant pleads that he is guilty 



128 



The Code of Criminal Pbocedubb 



2. If he plead guilty to any lesser crime than that charged in 
the indictment, " the defendant pleads guilty to the crime of • 
(naming it). 

3. If he pleads not guilty, the defendant pleads not guilty." 

4. If he plead a former conviction or acquittal : " The defend- 
ant pleads, that he has already been convicted (or acquitted, as 
the case may be), of the crime charged in this indictment, by the 

judgment of the court of (naming it), rendered at — - 

(naming the place), on the day of 

§ 835. Plea of gxiilty, how put in. — A plea of guilty can 
only be put in by the defendant himself in open court, except 
upon an indictment against a corporation, in which case it may 
be put in by counsel. 
See 1 Bish. Crim. Proc., § 7Wa. 

There is no provision of this Code which compels a corporation to plead to 
an indictment. People v. Equitable Gas-light Co,, 6 N. Y. Cr. Rep. 189. 

A plea of guilty obtained by duress or fraud is a nullity. Sanders y. State, 
97 Ind. 147; 4 Crim. L. Mag. 359. 

§ 336. Plea of insanity. — Whenever a person in confine- 
ment nnder indictment desires to offer the plea of insanity, he 
may present such plea at the time of his arraignment, as a speci- 
fication under the plea of not guilty. 
See 2 Crim. L. Mag. 612 ; PwpU V. McElvaine, 125 N. Y. 596. 

§ 337. Flea may be withdrawn by permission of the 
court. — The court may, in its discretion, at any time before 
judgment upon a plea of guilty, permit it to be withdrawn, and 
a plea of not guilty substituted. 

See '* Withdrawal of Plea of Guilty," 11 Crim. L. Mag. 479; People v. Joyce, 
4 N. Y. Cr. Rep. 348; Com, v. Mahoney, 115 Mass. 151; Pattee v. StaU, 109 
Ind. 645; State v. Oehlslager, 38 Iowa. 297. 

§ 338. What is denied by a plea of not guilty. — The 

plea of Dot guilty is a denial of every material allegation in the 
indictment. 

See § 831, ante; People v. Bradley, 33 State Rep. 565. 
Former conviction cannot be given nnder a plea of not guilty. People v. 
Benjamin, 2 Park. 201. 



OF THE State of New York. 



129 



§ 339. What may be given in evidence under it. — AH 

matters of fact, tending to establish a defense, other than that 
specified in the third subdivision of section three hundred and 
thirty-two, may be given in evidence under the plea of not guilty. 

See PeopU v. Cignarale, 110 N. Y. 29; People v. DurHn, 2 N. Y. Cr. Rep. 
888. 

§ 340. What is deemed a former acquittal. — If the 
defendant were formerly acquitted on the ground of a varianoe 
between the indictment and the proof, or the indictment were 
dismissed upon an objection to its form or substance, without a 
judgment of acquittal, it is not deemed an acquittal of the same 
offense. 

An acquittal on the ground of variance between the indictment and proof 
is not sufficient where the variance consisted in a failure to establish the jMir- 
ticular offense charged. Canter v. People, 1 Abb. Dec. 805. 

§ 341. What is deemed a former acquittaL — When, how- 
ever, the defendant was acquitted on the merits, he is deemed 
acquitted of the same offense, notwithstanding a defect in form 
or substance in the indictment on which he was acquitted. 

It must appear that the defendant was put in jeopardy bj the former trial. 
CanUr v. People, 1 Abb. Dec. 305. See People v. Barrett, 1 Johns. 66. 

A former acquittal, though upon a defective indictment, may be pleaded in 
bar. In the absence of proof to the contrary, it will be presumed to have been 
upon the merits. Croft v. People, 15 Hun, 484. 

§ 342. If defendant reftuse to answer indictment, plea 
of not guilty to be entered. — If the defendant refuse to 
answer an indictment by demurrer or plea, a plea of not gxiOty 
must be entered. 

See Abbott's Crim. Brief, 18; People y. Osterhout, 84 Hun, 262; 8 N. Y. Cr. 
Rep. 445; Beg. v. Bernard, 1 Fost. & Fin. 240; United States v. Berger, 19 
BUtchf. 249; EUenwood v. Com., 10 Mete. 222; Com, t. MeKenna, 125 Mass. 
397. 

As to standing mute, see 4 Bl. Com. 485; 2 Hawk. P. C, chap. 80, g 14; 1 
Chit. Crim. Law, 424; 1 East P. C. 185; 8 Am. Jur. 158; Beg. v. Berry, 1 Q. 
a D. 447; 17 Eng. Rep. 107; MaU&r of Smith, 8 Crim. Law Mag. 887. 

17 



130 



Thb Oodb of Osiminal Pbooedusb 



CHAPTER Vm. 

BBMOYAL OF THB ACnON/BEFOBB TBIAI^ 

8ectioBr848. Existing writs and proceedings, to remove indictment before 
trial abolished. 

844. When, and in what case, indictment may be removed before 

trial 

845. If former trial were had, indictment may be removed before the 

new trial 

846. Application for removal, how made. 

847. Stay of trial, how obtained, to enable defendant to apply for 

removal 

848. Decision on application for stay, to be indorsed on papers and 

filed. 

849. If application for stay be denied, no other application can be 

made. 

860. Violation of last section a misdemeanor and contempt, and ordei 
of removal to be vacated. 

851. Order of removal to be filed, and pleadings and proceedings to 

be transmitted. 

852. Proceedings on removal, if defendant be in custody. 

858. Order for removal must be filed, before a juror is sworn 
Authority of the court to which indictment is removed. 

§ 843. Existing writs and proceedingSy to remove 
indictment before trial abolished* — All writs and other 
proceedings heretofore existing, for the removal, upon the appli- 
cation of the defendant, of criminal actions prosecuted by indict- 
ment, from one court to another before trial, are abolish^ 
See Abbott's Crim. Brief, § 67. 

The district attorney may remove a criminal cause to the supreme oourt as a 
matter of course and of right. People v. VermUyea, 7 Cow. 109, 140-141; 
People V. Baker, 8 Park. 187, 188, 191; 3 Abb. Pr. 42; Baker v. Munro, 6 Cow. 
896; 1 Chit. Crim. Law (5th Am. ed.), 378, note 1. 

" The writ of certiorari is demandable as of right by the crown (R. v. Eaton, 
2 T. R. 89), and issues as of course where the attorney-general or other 
officer of the crown applies for it, either as a prosecutor or as conducting the 
defense on behalf of the crown (Id. ; B. v. Leiiin, 4 Burr. 2458), and this even 
though the certiorari be expressly taken away bj statute; for, unless named, 
the crown is not bound by statute." Arch. Cr. PI. & Ev. (17th Eng. ed.) 95; 
Com. V. Capp, 48 Penn. St. R. 58. 56. 

" The writ of certiorari is demandable of absolute right only by the king 
himself, and to him the court is bound to grant it (4 Burr. 2458; 2 T. R. 89; 
Hawk., b. 2, chap. 27, § 27; 1 East, 303, note d; Hand's Prac. 87; Dick. Sess. 
882); and, therefore, when it is applied for by the attorney -general or other 
officer of the crown, either as a prosecutor, or when he takes up the defense 



OF THE Stats of Nkw Yobk. 



131 



of the ptaiy indicted on account of his being an officer of the crown or for 
some other reason, it must issae as a matter of course, and the court has no 
discretion to exercise (4 Burr. 2458; 1 East, 808, note d; Hand's Prac. 87; Bex 
T. Thanuu, Mich. Term, 1815), and even where a statute takes away the cer- 
tiffrari it does not extend to the crown (2 Chit. Rep. 186)." 1 Chit. Crim. Law 
(oih Am. ed.), 378. 

Hawkins says (2 Hawk. Pleas Crown, Curwood's ed.. p. 401, § 27): *'Sec. 
27. It hath been adjudged that wherever a certiorari is by law gran table for 
in indictment the court is bound of right to award it at the instance of the 
king, because every indictment is the suit of the king, and he has a preroga- 
tive of suing it in what court he pleases. But it seems to be agreed that it is 
left to the discretion of the court either to grant or deny it at the prayer of the 
defendant." 

" The application for the certiorari, whether to a court or judge, except 
when made by the attorney-general, should be supported by an affidavit stat- 
ing the grounds for it. As to what grounds are sufficient, see ante, 625; It. v. 
Inhabitants of Clare, 4 Burr. 2458; B. v. Stannard, 4 T. R. 161; R. v. Burgeu, 
1 Eenyon, 185; " 1 Bum's Justice (80th ed.), 684. 

And general words in an act taking away the certiorari will not bind the 
crown unless such an intention is to be collected from other parts of the act. 
R. V. AlUn, 15 East, 883, 842; B. v. Anon, 2 CTiitty, 186; B. v. Habe, 5 T. R. 
542; B. V. Danes, id. 626; B, v. Cumberland, 6 id. 1»4; " 1 Bum's Justice 
(80th ed.), 618; Queen v. Spencer, Ad. & Ell. 485; 86 Eng. C. L. R. 264. 

"The rule that a statute taking away certiorari does not bind the crown 
unless named, is not limited to cases where the crown has an actual interest, 
bat extends to all prosecutions in the name of the king." The King v. BouU- 
&M,4 Ad. & Ell. 498; 81 Eng. C. L. R. 226. See, also, People v. Herkimer, 
4 Cow. 846. 

Kodce of the application need not be given to defendant. People v. Carolin^ 
115 N. T. 658; People v. Vaa, 6 Abb. N. C. 211. 

§ 344. When, and in what cases, indictment may be 
removed before triaL — A criminal action, prosecuted by 
indictment, may, at any time before trial, on the application of 
the defendant, be removed from the court in which it is pending, 
IB provided in this chapter, in the f oUowiug cases : 

1. From a court of sessions or a city court, t9 the court of oyer 
and terminer of the same county, for good cause shown ; 

2. From a court of oyer and terminer or sessions, or a city 
court to the court of oyer and terminer of another county, on the 
ground that a fair and impartial trial cannot be had in the 
?oimty or city where the indictment is pending. 

5 N. T. Cr. Rep. 160, note; Abbott's Crim.'Brief, 88. See People, ex rd., v. 
Oyer and Terminer, 101 N. Y. 251; 4 N. Y.'Cr. Rep. 75; 8 How. Pr. (N. S.) 
418: People Squire, 1 N. Y. State Rep. 684; 4 N. Y. Cr. R«'p. 444; People 
r. Wifyfck, 1 Alb. L. J. 195; McFarland's Ca^te, 7 Abb. Pr. (X. S.) 848. 



132 The Code of Ckiminal Pbocedube 



At common law the venue in a criminal case maj be changed on application 
of the prisoner. Stats v. Albee, 61 N. 11. 428; 60 Am. Rep. 825. 

An order changing the place of trial in a criminal action on the ground of 
the disqualification of the judge, is without jurisdiction and void. People v. 
McOarvey, 56 Cal. 327. 

' * A statute allowing a change of venue is not void as conflicting with the consti. 
tutional right to be tried in the couuty where the prisoner is indicted. 1 Bish. 
Crim. Proc., § 50; Dula v. StcUe, 8 Yerg. 511; Perteet v. People, 70 111. 171. 
But the change can only be made with his consent. State v. Denton, 6 Cold. 
589; Wheder v. StaUy 24 Wis. 52; Dongan v. StaU, 80 Ark. 41; Cochrane v. 
Statey 6 Md. 400; Bramlett v. State, 81 Ala. 876; State v. OtU, 18 Minn. 841; 
Gut V. State, 9 Wall. 85; 1 Bish. Crim. Law, g§ 995-998; Cooley Const. Lim. 
819, and note." Smith, J., in State v. Albee, 61 N. H. 428; 60 Am. Rep. 825. 

In People v. Rourke, 11 Abb. N. C. 89, it was held that the facts, that an in- 
dictment was found in the court of sessions, raises a constitutional question 
which has been decided by that court upon a motion to quash; that the law 
does not prescribe a maximum punishment for the offense charged, and that 
owing to local excitement there will be difficulty in procuring a fair trial, do 
not present grounds which authorize its removal to the court of oyer and ter- 
miner of the same county for trial. 

If a defendant desires a change of place of trial of a criminal action by rea- 
son solely of newspaper denunciation, he must, especially where the place of 
publication of said newspapers is a large city, where the choice of jurors is 
great and varied, show that this denunciation has had some effect by way of 
ix>pular expression prejudicial to his rights. People v. Sharp, 5 N. Y. Cr. 
Rep. 155. 

In deciding an application for changing the place of trial, the court should 
be governed by the facts shown and not by the impressions and conclusions of 
witnesses and parties. People v. Bailroad Co., 4 Park. 602; 16 How. Pr. 106. 

The venue will not be changed upon affidavits expressing mere belief that the 
prisoner cannot obtain a fair and impartial trial in the county where the indict- 
ment is found. People v. Bodine, 7 Hill, 147; People v. Sammia, 8 Hun, 560. 

But the affidavits must set forth the facts and circumstances so that the 
court may judge whether the application is well founded. People v. Bodine, 
7 Hill, 147; People v. SammU, 8 Hun, 560. 

It is a sufficient reason for changing the place of trial that a fair and impar- 
tial trial cannot be had in the county in which the venue is laid. People v. 
Long Island R. Co,, 4 Park. 602; 16 How. Pr. 106. 

To entitle a defendant to a removal of a criminal action to another county he 
must make out a clear and convincing case that by reason of popular passion 
or prejudice he cannot have a fair trial in a county where the venue is laid. 
People V. Sharp, 5 N. Y. Cr. Rep. 155; People v Sammis, 8 Hun, 660; People 
VcrmUyea, 7 Cow. 139; People v. Bodine, 7 Hill, 147. See, also, 5 N. Y. 
Cr. Rep. 160, note; 25 W. L. Bull. 866. 

Ordinarily, where the place of trial is changed in a criminal case, an adjoin- 
ing county should be selected. People v. Baker, 3 Park. 181; 3 Abb. Pr. 42. 

Bat if the necessity which requires the change calls for it, a more remote 
county may be designated. Peo^^ v. Baker, 8 Park. 181 ; 8 Abb. Pr. 42. 



OF THE State of New York. 



133 



§ 345. If former trial were had, indictment may be 
removed before the new triaL — If one or more trials be had, 
and a new trial is necessary, either by reason of the discharge of 
a jury without a verdict, or of the granting of a new trial, the 
remoTal may be allowed at any time before the new trial. 

§ 346. Application for removal, how made. — The appli- 
cation for the order of removal must be made to the supreme 
court, at a special terra in the district, upon notice of at least ten 
days to the district attorney of the county where the indictment 
is pending, with a copy of the aflSdavits or other papers on which 
the application is founded. 
See Pe<>pU v. Baker, 8 Park. 181. 

The granting of an order for removal rests ^in the sound discretion of the 
court. People v. Sessions, 10 Abb. N. C. 192; 62 How. 415. 

Where the qaestions urged as a ground for removal have already been 
passed upon bj the court having present jurisdiction, an order of removal 
will not be granted. People v. Eourke, 11 Abb. N. C. 89; distinguished, Peo- 
pU V. Clark, 5 N. Y. L. J, 243, 

§ 347. Stay of trial, how obtained to enable defendant 
to api>ly for removaL — To enable the defendant to make tiie 
^application, a judge of the supreme court may, in his discretion, 
upon good cause shown by athdavit, make an order staying the 
trial of the indictment, until the application can be made and 
decided. 

The application should ordinarily be upon notice to the district attorney; 
and the affidavit should state with precision and accuracy the exact situation 
of the indictment, the steps already taken in the court from which removal is 
sought, and the supposed intended action in each court, while the application 
is being made. People v. Hourke, 11 Abb. N. C. 89. 

§ 348. Decision on application for stay, to be indorsed 
on papers and filed. — When an application for an order to 
stay the trial is made to the supreme court, it must indorse its 
decision on the aflSdavits or other papers presented, and cause 
them to be immediately filed with the clerk of the court in which 
the indictment is pending. 

§ 349. If application for stay be denied, no other appli- 
cation Cft '" be made. — If the application for an order to stay 
the trial has been made before one judge and denied, a similar 
application cannot be made to another judge. 



184 



Thb Code of Cbuonal Fsockdusb 



§ 350. Violation of last section a misdemeanor and 
contempt, and order of removal to be vacated. — A yiolar 
tion of the last section is pnDishable not only as a misdemeanor 
but as a contempt of the court in which the indictment is pend« 
ing; and that court must vacate an order of removal made in 
violation thereof. 

See People, ex reL, v. Court of Oyer and Terminer, 101 N. T. 251; 4 N. Y. 
Cr. Rep. 76. 

§ 861. Order of removal to be flled^ and pleadings and 
proceedings to be transmitted. — 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. 

§ 352. Proceedings on removal, if defendant be in cus- 
tody. — If the defendant be in custody, and the removal be to 
the court of oyer and terminer of another county than that where 
the indictment is pending, the order must provide for the removal 
of the defendant, by the sheriff of the county where he is im- 
prisoned, to the custody of the proper oflScer of the county to 
which the action is removed, and he must be forthwith removed 
accordingly. 

§ 353. Order for removal must be filed before a juror is 
sworn; authority of the court to which indictment is 
removed. — An order for the removal of the action is of no 
effect unless a certified copy thereof be filed, as required by sec- 
tion three hundred and fifty-one, before a juror is sworn to try 
the indictment. When thn?? filed, the court to which the action 
is removed must proceed to trial and judgment therein. 



OF THS Statb of Nxw Yorx. 



136 



TITLE VI. 

or THX PBOOSGBDINGS OK THE INDIOTMBNT, BXFOBX TMIAU 

Okaree L The mode of trial. 

n. Fonnation of the trial Joij. 
DL Challenging the Jury. 

CHAPTER I. 

THE MODS OF TBIAI- 

flBonoN 854. Issue of fact defined. 

855. How tried. 

856. Appearance. 

857. Preparation for triaL 

1 854. iBSiie of tBuot defined. — An iflsue of &ct arisesi 

1. Upon a plea of not guilty ; or 

2. Upon a plea of a former conyietion or acquittal of the same 
crime. 

§ 355. How tried. — An issue of fact must be tried by a jury 
of the county in which the indictment was found, unlees the 
action be removed, by order of the supreme court, into the court 
of oyer and terminer of another county, as provided in the second 
subdivision of section tliree hundred and forty-four. 

The provisions of the sixth amendment to the Federal Cnnstitation, that ** In 
lU criminal prosecutions the accused shall enjoy the right to a speedy and 
public trial by an impartial jury/' etc. , relates only to proceedings in the federal 
courts. People V, PenhoUow, 42 Hun, 103; PeapU v. WillxarM, 35 id. 518; 
TwUcheUY, Cam.. 7 Wall. 821; mther» v. Buckley, 20 How. (U. S.) 84, 90, 
W; WaUcer v. Sauvinet, 92 U. S. 90; U, 8. v. CruiksJiank, id. 542; Joseph v. 
BidweU, 28 La. Ann. 882; 26 Am. Rep. 102; Prescottv. State, 19 Ohio St. 184; 
2 Am. Rep. 888. 

Article 1, section 2 of the State Constitution provides: 

** The trial bj jury in all cases in which it has been heretofore used shall 
remain inviolate forever; but a jury trial may bo waived by the parties in all 
civil cases in the manner to be prescribed by law." 

The jury intended is a common-law jury of twelve men. Petiple v. Wync 
hamer, IS N. Y. 378; narrU v. Pcople{l\\.), 40 Alb. L. J. 28; Peoplev, Cl-ark, 33 
Hun, 376. 

The word "heretofore," in this clause of the constitution of 1846, means 
before 1846, and not simply before 1777: People v. Wyiichamer, 13 N, Y. 378. 

A corporation is entitled to a jury wherever an individual is. People, ex rel. 
Baldwin, v. Sawi, 87 Barb. 440. 



186 The Cods of Criminal Pbooeduse 



In this state a trial hy twelve jurors cannot le^llj be waived hj the prisoner 
in a criminal case. People v. Cancemi, 18 N. Y. 128. See, also, Abbott's Crim. 
Brief, 88; Coolej Const. Lim. 819; State v. Carman, 63 Iowa, 180; 50 Am. Rep. 
741; State v. Kaufmaih, 51 Iowa. 578; 33 Am. Rep. 148; 20 Alb. L. J. 291; State 
v. Davis, 6Q Mo. 684; 27 Am. Rep. 387; Harris v. People, 15 Am. St. 153. 

In a criminal prosecution it is the right of the accused to require the charge 
to be proved in the vicinity or neighborhood where the fact happened. Com. 
V. Parker, 2 Pick. 550, 553; Com. v. Costley, 118 Mass. 1; State v. Albee, 61 
N. H. 423; 60 Am. Rep. 325, 327, and cases cited. See, also. Swart v. Kimball, 
44 Mich. 443; Blake v. Eocrman, 56 Hun, 453. 

An accessory can only l>e indicted and tried in the county where his offense 
was committed although the principal offense was committed in another 
county. People v. Hall, 57 How. Pr. 342, 847-348. 

§ 356. Appearance. — If the indictment be for a misdemeanor, 
the trial may be had in the absence of the defendant, if he appear 
by counsel ; but if the indictment be for a felony, the defendant 
must be personally present. 

See § 297, aiUe, §§ 427, 434, post; 11 Crim. L. Mag. 173. 

One indicted for felony must sit in the dock during trial, unless on bail. 
Tucker's Case, 5 C. H. Rec. 164. 

A prisoner tried for felony must be present at the impaneling of the jury. 
State V. Smith, 90 Mo. 37; 59 Am. Rep. 4. 

The judgment record of a conviction for felony need not show the constant 
presence of the prisoner during trial. StepTtens v. People, 19 N. Y. 549; 4 
Park. 396. 

During a trial for felony the prisoner stepped to an ante-room, connecting 
with the court-room by swinging doors and only fifteen or twenty feet distant, 
to telephone to a witness, and was absent five minutes. This was against the 
district attorney's objection. During such absence the prisoner's counsel con- 
tinned the cross-examination of a witness. Held, not a violation of the require- 
ment that the prisoner sliall " be personally present during the trial." People 
V. Bragle, 10 Abb. N. C. 300; 63 How. Pr. 143; 88 N. Y. 5a5; 42 Am. Rep. 269. 

It is error to refuse to allow the prisoner with his counsel to accompany the 
jury when they view the scene of the alleged crime, under section 411 of this 
Code. People v. Palmer, 5 X. Y. Cr. Rep. 106; 43 Ilun. 407. But see People v. 
Bonn4^, 19 Cal. 426. 

If, after the jury have retired for deliberation, they return into court and ask 
certain questions as to the evidence, it is error in the court to answer the same 
in the absence of the prisoner. He is entitled to be personally present when 
any instruction is given to the jury having a tendency to influence the verdict. 
Maurer v. Peo])le, 43 N. Y. 1. 

The personal pre.sence of the defendant is not necessary on tne argument or 
at the decision of the appellate court. People v. Clark, 1 Park. 860. 

^A defendant indicted for a misdemeanor cannot be tried in his absence, un- 
less he has unequivocally waived his right, and given express authority to his 
attorney to submit to such trial. People v. Wilkes, 5 How. Pr. 105. 



OF THE State of New Yoke. 



18T 



On a motioii to qoaah it is not necessarj that tbe defendant be present in ooort 
during the argument. People v. Vail, 57 How. Pr. 81; 6 Abb. N. C. 306. 

§ 357. Preparation for trial — After his plea, tlie defend- 
aut is entitled to at least two days to prepare for his trial, if he 
require it. 



CHAPTER 11. 

FOBMATION OF THE TRIAL JUBT. 
Section 858. Jurors in criminal courts. 

§ 358. Jurors in criminal conrts. — The trial jury is f ormed, 
as prescribed by the Code of Civil Procedure. 

See People v. Jackstm, 111 N. Y. 869; 11 Crim. L. Mag. 228; People v. John^ 
ton, 110 N. Y. 140; 46 Hun. 672. 

The legislature maj regulate the manner of procuring a jury. Stokes v. 
PeopU, 53 X. Y. 164; Gardner v. People, 6 Park. 155. 

Where mere irregularities in drawing a jury are not prejudicial to defend- 
ant, they are not grounds of error. Cox v. People, 80 N. Y. 500; FrUry v. 
Pe4^, 2 Keyes, 425; Ferrie v. People, 35 N. Y. 125; Dolan v. People, 64 id. 
485 Pet^ple v. Petrel, 30 Hun, 98; 92 X. Y. 128. 

Qualifications of jurors. Code Civ. Proc., 1027-1082, inclusive; forma. 
tion of the jury. Id., g§ 1163-1180. inclusive; Id., §§ 1190, 3350, 3851. 

An alien is not entitled to a special jury. Id., § 1 190. 

Trial jurors in Kings county. Id., §§ 1029, 1126-1162, 1174, 1191. 

Trial jurors in the city and county of New York. Id., §§ 1029, 1079-1125, 
1174, 1191. 



CHAPTER III. 

CHALLENGING THE JURY. 
Definition and division of challenges. 

When there are several defendants, they must unite in fhflly 

challenges. 
Challenge to the panel, defined. 
Upon what founded. 
When and how taken. 

If suficiency of the facts be denied, adverse party may except; 

exception, how made and tried. 
If exception overruled, court may allow denial of challenge; If 

allowed, may permit challenge to be amended. 

18 



BMHON 850. 

861. 
862. 
868. 
864. 

865. 



188 The Oodb of Cbiminal Procedure 



Section 806. Denial of challenge, how made, and trial thereof. 
8(17. Who may he examined on trial of challenge. 

868. If challenge allowed, Jury to he discharged; if difiaUowed, Jary 

to be impanneled. 

869. Defendant to be informed of his right to challenge an indiTidnal 

Juror. 

870. Kinds of challenge to individual juror. 

871. Challenge, when taken. 

872. Piremptory chaUenge. 

878. Number of peremptory challenges to which defendant if entlttod 

874. Definition and kinds of challenge for cause. 

875. General causes of challenge. 

876. Particular causes of challenge. 

877. Grounds of challenge for implied bias. 

878. Grounds of challenge for actual bias. 

879. Exemption, not a groimd of challenge. 

880. Causes of challenge, how stated. 

881. Exceptions to chaJlenge and denial thereol 

882. Challenge, how tried, if denied. 

888. Juror challenged may be examined as a witneii. 

884. Rules of evidence on trial of challenge. 

885. Challenges, first by defendant and then by the peopla 

886. Order of challenges. 

887. Jury to be sworn, etc. 

§ 859. Definition and division of chollengeB. — A challenge 

Is an objection made to trial jurors, and is of two kinds : 

1. To the panel ; 

2. To an individual juror. 

See People v. Petrea, 80 Hun, 98, 103. 

§ 360. When there are several defendants, they must 
unite in their challenges. — When several defendants are 
tried together they cannot sever their challenges, but must join 
therein. 

See Abl)otf8 Crim. Brief, g 300; Rapalje's Crim. Proc., § ISH; 8tate Earle, 
18 Am. Rep. 109; PtopU v. MrCdUa, 8 Cal. 301. 

§ 361. CJhallenge to the panel defined.— A challenge to 
the panel is an objection made to all the trial jurors returned, 
and may be taken as well to the panel returned for the term, as 
to an additio nal panel order to complete the jury. 

In People v. Paekenham, 115 N. Y. 200, it was held that the objection that 
jurors liad been dij^cliarpred from the panel and excused from further service 
during the term is not one tliat may be taken on a criminal trial by a challenge 
to the panel. See, also, People v. Jaekwn, 111 N. Y. 889. 



OF THE Stats of Nkw Tors. 189 

A prisoner can waive a challenge to the array after it is allowed. Pienan 
People, 79 N. Y. 484. 

A challenge which has been overmled is not waived by asking the parties 
if they have any objections to the jarors that have been drawn, and a reply in 
the negative. Hathaway v. Bdmer, 25 Barb. 29. 

§ 362. TJpoxL what foundecL — A challenge to the panel can 
be founded only on a material departure, to the prejadice of the 
defendant, from the forms prescribed by the Code of Civil Pro- 
cedure, in respect to the drawing and return of the jury, or on 
the intentiond omission of the sheriff to summon one or more 
of the jurors drawn. 

See People v. Petrea, 93 N. Y. 128. 145; PeapU v. MeQuadey 21 Abb. N. C. 
449. 

An irregularity in the drawing of the jurors which cannot affect the right of 
the prisoner is not ground for cliallenge to the array. Ferris v. People, 35 N. 
T. 125: 48 Barb. 17: 1 Abb. (N. S.) 198; Friery v. People, 2 Keyes. 434; 2 
Abb. Dec. 315; 54 Barb. 319. 

Not good ground that the panel was certified by the deputy clerk. People v. 
Fuller, 2 Park. 16: or on the ground that a certain class of persons were ex* 
daded in the selection of grand jurors. People v. Jetcett, 8 Wend, 314. 

Good ground for challenge, that certain jurors had not been dul^itimmoned. 
Mcauekey v. People, 5 Park. 308. 

Mode of selecting and relieving jurors when liable to challenge to the array. 
Gardiner v. People, 6 Park. 155. 

It is no cause for challenge to the array that two sets of jurors were drawn 
tt the same time from the jury box for two distinct courts, if they be kept 
entirely separate. Crane v. Dygert, 4 Wend. 075. 

Nor that the panel was drawn more than fourteen days before the sitting of 
the court. Id. 

A challenge to the array, if not made before the jurors are sworn, is waived. 
AVff York V. MoMn, 4 E.' D. Smith, 142; 1 Abb. 344. 

The district attorney need not verify his answer to the challenge to the 
array. Gardiner v. Peojtl^, 6 Park. 155. 

The withdrawal of a challenge to the array is a waiver of any irregularity 
in the drawing of the*jury. Pierson v. People, 18 Hun, 239 ; 79 N. Y. 
424. 

§ 3G3. When and how taken. — A challenge to the panel 
inu.st be taken before a juror is sworn, and must be in writing, 
specifying distinctly the facts constitutin«j^ the ground of chalhin «rc*. 

Challenge must be in writing. People v. Petrea, 30 Hun, 98, 103. 

A challenge made in the alternative is bad. Cox v. People, 19 Hun, 430; 8C 
X. Y. 500. A challenge to the array, if not made before the jurors are sworn, 
is waived. New Forfcv. Mason, 4 E. D. Smith, 143; 1 Abb. 344. An objec 
tion to a juror must be made when he is called upon a panel or it is waived. 
Seeord v. Burling, 1 How. 175. See Lindsley v. People, 6 Park. 333. 



140 



The CioDB of Criminal Pbooedubb 



§ 364. If suiQciency of the facts be denied, adverse 
party may except; exception, how made and tried. — 

If the sufficiency of the facts alleged as a ground of challenge be 
denied, the adverse party may except to tlie cliallenge. The 
exception need not be in writing, but must be entered upon the 
minutes of the court ; and thereupon the court must proceed to 
try the sufficiency of the challenge, assuming the facts alleged 
therein to be true. 
See § 881, post; People v, Petrea, 30 Hun, 98, 108. 

It seems that a verification of a chaUeDge is required. A demurrer to the 
challenge is not the proper way to raise the objection of want of yerificatioo 
Cox V. People, 80 N. Y. 500; 19 Hun, 430. 

The district attorney need not verify his answer to the array. Oardiner v 
PeopU, 6 Park. 155. 

§ 365. If exception overruled, court may allow denial 
of cliallenge ; if allowed, may permit challenge to be 
amended. — If, on the exception, the court deem the challenge 
BuflScient, it may, if justice require it, permit the party excepting, 
to withdraw his exception, and to deny the facts alleged in the 
challenge. If the exception be allowed, the court may, in like 
manner, permit an amendment of the challenge. 

See People v. Petrea, 30 Hun, 98, 103. 

§ 366. Denial of challenge, how made, and trial thereot 

If the challenge be denied, the denial may, in like manner, be 
oral, and must be entered upon the minutes of the court ; and 
the court must proceed to try the question of fact. 
See PeopU v. Petrea, 80 Hun, 98, 103. 

If the plaintiff challenge the array for the default of the clerk in selecting 
the jurors, the defendant should join issue on the cl^llenge, and triers be ap- 
pointed. Oardiur v. Turner, 9 Johns. 260. 

A principal challenge for favor is triable by the court. Pringle v. Euse, 1 
Cow. 432; PeopU v. VermUyea. 7 id. 108; RandaWa Case, 5 C. H. Rec. 141. 

A challenge for principal cause may be tried by the court, and the decision 
of the court thereon is final. Stout v. People, 4 Park. 71; id. 133. 

§ 367. Who may be examined on trial of challenge.— 
Upon the trial of the challenge, the oflScers, whether judicial or 
ministerial, whose irregularity is complained of, as well as anj 
other persons, may be examined to prove or disprove the facts 
alleged as the ground of the challenge. 



OF THE State of New York. 



Ul 



§ 868. If chall en ge allowed, jury to be discharged; if 
disallowed, jury to be impanneled.— If , either upon an 
exception to the challenge or a denial of the facts, the challenge 
be aUowed, the conrt must discharge the jury, so far as the trial 
of the indictment in question is concerned. If the challenge be 
disallowed, the court must direct the I'ury to be impanneled. 

§ 369. Defendant to be informed of his right to chal- 
lenge an individual juror. — Before a juror is called, the 
defendant must be informed by the court, or under its direction, 
that if he intend to challenge an individual juror, he must do so 
when the juror appears, and before he is sworn. 

See Peopk v. Carpenter, 86 Hun, 315; 16 Abb. X. C. 128; 8 N. Y. Cr. Rep. 
98; afflnned, 102 N. Y. 247; 4 N. Y. Cr. Rep. 185; People McLaughlin, 8 
id. 120. 

§ 370. Kinds of challenge to individual Juror. — A chat 
lenge to an individual juror may be taken either bj the people or 
by the defendant, and is either 

1. Peremptory, or 

2. For cause. 

Bee 1 Bifib. Crim. Proc.. § 940; Fonts v. 8taU, 8 Obio, 98; MaUieon 8taU, 
6 Mo. 899; WUey v. ^e, 4 Blackf. 458; Schaefer v. BtaU, 8 Wis. 828; PeopU 
T. CoTkif, 2 Park. 586. 

The law giving tbe prosecution tbe rigbt of peremptory cbaUenge is consti- 
tutional. W<aUT V. PeopU, 82 N. Y. 147; 6 Park. 16; 18 Abb. Pr. 147. 

§ 371. Challenge, when taken.— A challenge must be taken 
when the juror appears, and before he is sworn ; but the court 
may, in its discretion, for good cause, set aside a juror at any time 
before evidence is given in the action. 

Tbe administering of tbe oatb to eacb juror as be is found competent is a law- 
ful mode of swearing, and precludes a subsequent peremptory cballenge to 
tucb juror. People v. Carpenter, 4 N. Y. Cr. Rep. 89; 88 Hun, 491. 

After eacb juror bas been separately sworn, tbe subsequent swearing of tbe 
jury as a body, at tbe request of defendant, does not vacate sucb oatb pre- 
viously administered tosucb juror, and defendant's absolute rigbt to cballenge 
peremptorily a juror previously sworn is not tbereby revived. People v. Car- 
penter, 4 N. Y. Cr. Rep. 89; 88 Hun, 491. 

A juror may be peremptorily cballenged at any time before be is sworn, 
wbetber be bas taken bis seat in tbe jury box or not. People v. Carpenter, 8 
N. Y. Cr. Bep. 92; 86 Hun, 817; 16 Abb. N. C. 130. In tbat case during tbe 
aelectioxi of tbe Jury tbe trial judge stated tbat all cballenges must be exbausted 
before tbe Jnxon took tbelr seats in tbe box. Defendant's counsel tben said 



142 The Code of Cbxmdxal Prookdure 



he accepted a certain Juror. After the jary had been completed and had taken 
their seats in the box but had not been sworn, defendant's counsel peremp- 
torily challenged the juror whom he had previously accepted. His number of 
peremptory challenges had not been exhausted. The judge refused to allow 
the challenge and said it was too late; held, that the defendant had not waived 
his right to peremptory challengfi and that the ruling was erroneous. 

Where a juror, after an examination as to his fitness, is peremptorily chal- 
lenged and does not sit, the question whether there was error in said examina- 
tion is not brought up on appeal from the judgment. People v. Petmecky, 2 
N. T. Cr. Rep. 450. 

Error in the examination of a juror subsequently peremptorily challenged 
by defendant is not ground for reversal, it not appearing that defendant's 
peremptory challenges were thereby exhausted. People v. Petmecky, 3 N. Y. 
Cr. Rep. 450. See, also. People v. McOungU, 41 Cal. 420; 4 Am. & Eng. Encyc 
of Law, 829, note 3; 21 Abb. N. C. 458. 

Under this section it is within the discretion of the trial judge to grant a 
request to discharge a juror after he has been accepted and sworn. 

The appellate court is not at liberty to review this discretion in the absence 
of its abuse. People v. BeekwUh, 3 N. Y. State Rep. 104; 108 N. Y. 889; 5 
N. Y. Cr. Rep. 232. 

§ 372. Peremptory challenge. — A peremptory challenge is 
an objec5tion to a juror, for which no reason need be given, but 
npon which the court must exclude him. 

See Thompson Trials, § 41; Rapalje*s Crim. Proc., § 185; People v. Cbr^MTi- 
<«r, 88 Hun, 490; 4 N. Y. Cr. Rep. 39. 

§ 373. — Number of peremptory ohallenges. — Fer- 

emptory challenges must be taken in number as follows : 

1. If the crime charged be punishable with death, thirty ; 

2. If punishable with, imprisonment for life, or for a term of 
ten years or more, twenty ; 

3. In all other cases, five. 

The subject of peremptory challenge has always been under legislative con- 
trol, and if it were a right given by common law, the legislative will could 
regulate it. Walter v. People, 32 N. Y. 147. 

In Hayee v. SOUe, 120 U. S. 08, the court say: " Experience has shown that 
one of the most effective means to free the jury-box from men unfit to be there 
is the exercise of the peremptory challenge. The public prosecutor may have 
the strongest reasons to distrust the character of a juror offered, from his 
habits and associations, and yet find it difficult to formulate and sustain a legal 
objection to him. In such cases the peremptory challenge is a protection 
against his being accepted. The number of such challenges must necessarily 
depend upon the discretion of the legislature, and may vary according to the 
condition of different communities, and the difficulties in them of securing in- 
telligent and impartial jurors. The whole matter is under its control. Stokei 



or THB Statb of Nsw York. 



143 



T. PmfU, 58 N. Y. 164; WaUer y. PeopU, 82 id. 147, 159; Com, v. Darsey, 108 
Mias. 412, 418. Originally, bj the common law, the crown ooald challenge 
peremptorilj withoat limitation as to number. By act of parliament passed in 
the time of Edward I, the right to challenge was restricted to challenges for 
CAOM. Bat, hj a rale of court, the crown was not obliged to show cause until 
the whole panel was called. Those not accepted on the call were directed to 
stand aside. If, when the panel was gone through, a full jury was obtained, 
it was taken for the trial. If, however, a full jury was not obtained, the crown 
was required to show cause against the Jurors who had been directed to stand 
Afiide; and, if no sufficient cause was shown, the jury was completed from 
them. In this country the power of the legislature of a State to prescribe the 
namber of peremptory challenges is limited only by the necessity of having 
an impartial jury. In our large cities there is Huch a mixed population, there 
is such a tendency of the criminal classes to resort to them, and such an un- 
fortunate disposition on the part of business men to escape from jury duty, 
that it requires special care on the part of the government to secure their com- 
petent and impartial jurors. And to that end it may be a wise proceeding on 
the part of the legislature to enlarge the number of peremptory challenges in 
criminal cases tried in those cities. The accused cannot complain if he is still 
tried by an impartial jury. He can demand nothing more. Northern Pae, E. 
Co. V. Herbert, 116 U. 8. 642. The Hght to challenge is the right to reject, 
not to select a juror. If from those who remain, an impartial jury is ol> 
tiined, the constitutional right of the accused is maintained." 

§ 374. Definition and kinds of challenge for cause. — 

A challenge for eanse is an objection to a particular juror, and is 
either, 

1. General, that the juror is disqualified from serving in any 
Ctte; or 

S. Particular, that he is disqualified from serving in the case on 
trial 

§375. General caiuiee of challenge. — General causes of 
challenge are : 

1. A conviction for a felony , 

2. A want of any of the qualifications prescribed by the Oode 
of CSvil Procedure, to render a person a competent juror. 

As to general provisions regarding the necessary qualifications of Jurors, 
Me Code Qvil Proc., §^ 1027. 1028. 
Disqualification of public officers. Id., § 1029. 
Qualifications in Kings county. Id., §§ 1029, 1126. 
Qualifications in the city and county of Xew York. Id., §§ lOM, 1079. 

§ 376. Particular causes of ckallenge. — Particular causes 
of challenge are of two kinds : 



144 The Cod£ of Criminal Prooedube 



1. For such a bias, as, when the existence of the facts is ascer- 
tained, does in judgment of law disqualify the juror, and which 
is known in this Code as implied bias ; 

2. For the existence of a state of mind on the part of the 
juror, in reference to the case, or to either party, which satisfies 
the court, in the exercise of a sound discretion, that such juror 
cannot try the issue impartially and without prejudice to the sub- 
stantial rights of the party challenging, and which is known in 
this Code as actual bias. But the previous expression or forma- 
tion of an opinion or impression in reference to the guilt or 
innocence of the defendant, or a present opinion or impression in 
reference thereto, is not asufiicient ground of challenge for actual 
bias, to any person otherwise legally qualified, if he declare on 
oath, that he believes that such opinion or impression will not 
infiuence his verdict, and that he can render an impartial verdict 
according to the evidence, and the court is satisfied, that he does 
not entertain such a present opinion or impression as would influ- 
ence his verdict. 

See note on Competency of Jurors in Criminal Cases/' 6 N. T. Or. Rep. 80. 

Note on •* Challenging Jurors," 21 Abb. N. C. 453; Abbott's Crim. Brief, 128. 

An existing opinion by a person called as a juror of the guilt or innocence of 
the accused is prima facie a disqualification, and the declaration required of the 
Juror to avoid the objection must be certain and unequivocal. People 
McQwide, 110 N. Y. 284; 21 Abb. N. C. 417. 

A person called as a juror on a challenge for bias, testified in substance, that 
he had an opinion in the case which amounted to a conviction, founded upon 
a careful perusal of the testimony given on a former trial, and declared his 
belief that he could render an impartial verdict, was not absolute, but was 
qualified by a doubt. HM, that as matter of law the overruling of the chal- 
lenge was error, and that the error was not cured by the fact that defendant 
had not exhausted his peremptory challenges, and might have excluded the 
juror. PeapU v. McQuade, 110 N. Y. 285, 801, 302; 21 Abb. N. C. 284. 

On the trial of an indictment for murder, a juror challenged for actual bias 
testified that he had read the newspaper and had formed an opinion which it 
would take evidence to remove, but that if accepted he would act entirely on 
the evidence and would not be in any degree influenced by what he had read; 
he was held competent. Hdd, no error. People v. "^^elch, 1 N. Y. Cr. Rep. 
486; 17 Week. Dig. 28; People v. Cornetti, 92 N. Y. 85; People v. Caeey, 96 id. 
115; People v. Crowley, 102 N. Y. 237; 4 N. Y. Cr. Rep. 261; PeopU v. Otto, 88 
Hun, 97; 101 N. Y. 690; People v. WU^on, 109 id. 345; Ouetig v. State, 66 Ind. 
94; 82 Am. Rep. 99; People v. Wdh Let Mon, 87 State Rep'r, 284. 

On examination by the district attorney, a juror testified that he knew of no 
reason why he could not render an impartial verdict upon the evidence. In 
answer to the prisoner's couusel he stated that he had read in the newspapers 



OF THB State of New Yobk. 



145 



•boat the occairence, bat had fonned no opinion as to the guilt or innocence 
of the prisoner ; that his mind was free from any impression in regard 
thereto, bat that he was of the opinion from what he had read that the cat- 
astrophe was the result of culpable negligence on the part of some one, and 
tlutt it would require evidence to remove the impression . Held, a competent 
juror. People T. Buddenneck, 108 N. Y. 486; 9 Crim. Law Mag. 93 ; affirmii g 
4 N. T. Cr. Rep. 230. 

Merely reading newspapers does not disqualify unless a determination i.s ai- 
rived at deliberately. Abbot v. People, 86 N. Y. 460. 

A fixed and definite opinion in the case on the merits disqualifies. Balbo v. 
PeopU, 80 N. Y. 384. 

The existence of a prejudice or bias in the mind, or opinion of a juror against 
tnj supposed or proposed defense, is not a legal basis for a challenge to the 
favor. People v. Carpenter, 4 N. Y. Cr. Rep. 89; 88 Hun, 490; 102 N. Y. 284; 
1 N. Y. State Rep. 652. 

The qualifications of the juror relate to the condition of his mind at the time 
of his selection, not to a mental condition which may be produced by a sub- 
sequent or hypothetical event, e. g,, the possible defense of insanity. People v. 
Beai>ey, 4 N. Y. Cr. Rep. 89; 88 Hun, 490. 

This section does not require that a juror to be acceptable should say that he 
knows that he would not be infiuenced by his previous or present opinion or 
impression, but only that he believes he would not be, and that he believes he 
can render an impartial verdict. People v. WiUett, 8 N. Y. Cr. Rep. 824; 86 
Hon, 500. 

A juror is competent who testifies that he has an impression as to the guilt 
or innocence of the prisoner, but that his impressions will not influence his 
verdict; that he can render an impartial verdict according to the evidence; 
and that he will give the prisoner the benefit of every reasonable doubt, and 
acquit him if much doubt exists. People v. Cktrk, 4 X. Y. Cr. Rep. 572 ; 
108 N. Y. 785. 

In People v. (yUeil, 109 N. Y. 251, 268, the district attorney, as each juror 
WIS called, informed him that two members of the board of aldermen of 1884 
would be examined as witnesses, and it was supposed that they would testify 
they were engaged with defendant in the transaction out of which the indict- 
ment arose; the juror was then asked, and was permitted to answer under ob- 
jection and exception, if he had such a prejudice against such persons so tes- 
tifying as woald prevent him from giving to such testimony such weight as 
it might be entitled to in law. Held, no error. 

§ 377. Qrounds of challenge for implied bias. — A chal- 
lenge for implied bias may be taken for all or any of the follow- 
ing causes, and for no other : 

1. Consangainitj or affinity within the ninth degree, to the 
person alleged to be in jorod by the crime charged, or on whose 
complaint the prosecution was instituted, or to the defendant ; 

2. Bearing to him the relation of guardian or ward, attorney 
or dient, or dBent -of the attorney, or ooonsel for the people, or 

19 



146 Thb Code or Obiminal Pbooju)ubb 



defendant, master or servant, or landlord or tenant, or being a 
member of the family of the defendant, or of the person alleged 
to be injnred bj the offense chai^ged, or on whose complaint the 
prosecution was instituted, or in his employment on wages ; 

3. Being a party adverse to the defendant in a civil action, or 
Iiaving complained against or been accused by him in a criminal 
prosecution ; 

4. Having served on the grand jury which found the indict- 
ment, or on a coroner's jury which inquired into the death of t 
person whose death is the subject of the indictment ; 

5. Having served on a trial jury which has tried another person 
for the cnme charged in the indictment ; 

6. Having been one of a jury formerly sworn to try the same 
indictment^ and whose verdict was set aside, or which was dis- 
obeiged without a verdict, after the cause was submitted to it ; 

7. Having served as a juror, in a civil action brought against 
the defendant, for the act charged as a crime ; 

8. If the crime charged be punishable with death, the enter- 
taining of such conscientious opinions as would preclude his 
finding the defendant guilty ; in which case he shall neither be 
permitted nor compelled to serve as a juror. 

See People v. Carpenter, 4 N. T. Cr. Rep. 46; 88 Hnn, 492. 

Sabdiv. 1. That a juror's father had married the defendant's brother^ 
widow is no ground of principal challenge. Cain Ingham, 7 Cow. 478; 
Eggleston v. Bmithby, 17 Johns. 188. 

Subdiv. 2. The fact that a person called as a juror is well acquainted with 
one of the counsel for defendant, and had adyised with him on some occasioA 
not connected with the case on trial, is not a cause of challenge for bias. Pea- 
pU MeQuade, 110 N. Y. 284; 11 Grim. L. Mag. 90; 21 Abb. N. C. 417. 

Subdiv. 6. Barclay v. People, 8 Alb. L. J. 104. 

Subdiv. 8. PeopU v. Carolin, 116 N. T. 658; 7 N. T. Cr. Rep. 122; 24 Btate 
Rep. 697; Pe4>pU Damon, 18 Wend. 861; People v. Ryan, 2 Wheeler Crim. 
Cas. 47; Walter ▼. PeopU, 82 N. Y. 147; 6 Park. 16; People ▼. Jonee, 1 Edm. 
Sel. Cas. 112; People v. TJumas, 8 Alb. L. J. 210; OordUm v. People, 88 N. Y. 
611, 612; O'Brien People,d» id. 276; 8 Abb. Pr. (N. B.) 871; 48 Barb. 274; 
Lawehberg People, 6 Park. 425; People Wileon, 8 id. 199. Bee, also, 1 
Thomp. Trials, § 74 et seq. 

Upon a challenge of the district attorney to a juror, the latter said, on his 
examination, that he would not convict on circumstantial evidence. Bdd, 
that the challenge vras properlj sustained. PtopU Ah Chung , 64 Cal. 408. 



§378. Qrounicbof itdtaUengefbr aoti^ — A challenge 
for aGtaal buM mkj be taken for the oanie mentioii^ ift the 



or THs Stats of Nvw Yobx. 



147 



second sabdivisioii of section three hundred and seventyHUZ, and 
for DO other cause. 
See 21 Abb. N. G. 447; 1 Thomp. Trials, g M. 

g 379. Ezemptioii not a ground of Ghallenge. — An 

dzemption from service on a jury is not a cause of challenge, but 
the privilege of the person exempted. 

General gioands of exemption. Code avil Proc., §§ 1080, 1081. 

QronndB of exemption in Kings count j. Id., §§ 1127, 1128. In the dtj 
and county of New York. Id., §§ 1081, 1088. 

One who is exempted from jury duty may waive his privilege and legally 
ictasajaror. CTniM ^6to^ Zm, 4 Mackey, 498; 54 Am. Rep. 203; QttenY. 
BUUe, 69 Md. 123; 43 Am. Rep. 542; _27 Alb. L. J. 393. 

§ 380. OaiiBes of ahaTIenge, how stated. — in a challenge 
for implied bias, one or more of the causes stated in section three 
hundred and seventy-seven must be alleged. In a challenge for 
ictnal btaS) the cause stated in the second subdivision of section 
three hundred and seventy-six must be alleged. In either case 
the challenge may be oral, but must be entered upon the minutes 
of theooQii. 

See People v. Otto, 101 N. Y. 690; 4 N. Y. Cr. Rep. 155; Freeman Pea- 
pie, 4 Denio, 9. 

§ 381. ExceptionB to challenge and denial thereof. ~ 
The adverse party may except to the challenge, in the same 
manner as to a challenge to the panel ; and the same proceedings 
iMtft be had thereon, sb prescribed in section three hmndral and 
sixty-four, except that, if the challenge be allowed, the jury most 
beexchided. The adreiBe party may also orally deny the facts 
dl^ed SB the groond of -diallenge. 

§ 382. Challenge, how tried, if denied. — If the facts be 
denied, the challenge must be tried by the court which must 
either allow or disallow the same and direct an entry accordingly 
on the minutes. If the challenge be allowed, the juror must be 
discharged. 

See Oreenfidd v. Peopid, 74 N. Y. 277; State v. Pike, 49 N. H. 899; 6 Am. 
Be|iL548. 

§ 383. Juror challenged may be examtaied ee a witnesB, 

Upon the trial of a challenge to an individual juror, the juror 
dudlenged may be examined as a witness, to prove or disprove 



14A Thb Oodb of Cbdonal Pbooedube 



the chaDenge ; and is bound to answer every question pertinent 
to every inquiry therein. 
See Peo]^ Welch, 1 N. T. Cr, Rep. 488. 

§ 384. BuleB of evidenoe on trial of challenges. — Other 

witnesses may also be examined on either side ; and the rules ot 
evidence applicable to the trial of other issues, govern the admis- 
sion or exclusion of testimony, on the trial of the challenge. 
See People v. Welch, 1 N. T. Cr. Rep. 488. 

§ 385. Ohallenges, first by people and then by the 
defendant. — Challenges to an individual juror must be taken 
first by the })eople and then by the defendant. 

Bee PeopU JfcQtiodtf. 110 N. Y. 284; 21 Abb. N. C. 417. 

§ 386. Order of ohallenges. — Challenges of either party 
must be taken : 
' 1. To the panel ; 

2. To an individual juror, for a general disqualification ; 

3. To an individual juror, for implied bias ; 

4. To an individual juror, for actual bias ; 
6. Peremptory. 

Bee 21 Abb. N. C. 464; PeopU v. Welch, 1 N. Y. Cr. Rep. 4Ba 

§387. Jury to be sworn, etc. — The first twelve personi 
who appear, as their names are drawn and called, who are 
approved as indifferent between the parties, and are not difh 
charged or excused, must be sworn ; and constitute the jury to 
try the issue. 



TITLE Vn. 

OF THE TRIAL. 

L The trial 

n. Conduct of the Jozy, after the cause Is aalMiiitted to t 
m. ThevardicL 



or THX State of Nkw Yobk. 



149 



CHAPTER L 

THE TKIAL. 

BMOO11888L In what order trial to proceed. 

S80. Defendant presumed innocent, until contrary proved; in OMe ci 

reasonable doubt, entitled to acquittal 
S9Q. When reasonable doubt of which degree he is guil^, he must 

be convicted of the lowest 
2f^l. Separate trial of defendants jointly indicted. 
892. Rules of evidence in civil cases applicable to criminal cipct, 

except where otherwise provided in this Code. 

898. Defendant as witness. 

894. Compensation of witness. 

895. Confession of defendant, when evidence, and its effect 

896. 397. Evidence on trial for treason. 
888. Evidence on trial for conspiracy. 

899. Conviction cannot be had on testimony of accomplice, odImb 

corroborated. 

400. If testimony show higher crime than that charged, court maj 

discharge jury, and hold defendant to answer a new indict- 
ment. 

401. If new indictment not found, defendant to be tried on the orig- 

inal indictment. 

40d. Court may discharge jury, where it has not jurisdiction of the 
offense, or the facts do not constitute an offense. 

408. Proceedings, if jury discharged for want of jurisdiction of the 
offense, when committed out of the state. 

404-407. Proceedings in such case, when offense committed in tha 
state. 

406, 409. Proceedings, if jury discharged because the facts do not 
constitute an offense. 

410. When evidence on either side is closed, court may advise acquit- 

tal; effect of the advice. 

411. View of premises, when ordered, and how conducted. 

412. Duty of officer as to jury. 

418. Knowledge of juror, to be declared in court, and juror to be 

sworn as witness. 

414. Jurors may be permitted to separate during the trial ; if kept 

together, oath of the officers. 

415. Jurors not to converse together on the subject of the trial, nor 

form an opinion until the cause is submitted. 

416. Proceedings, where juror becomes imable to perform his dut^ 

before conclusion of trial. 

417. Court to decide questions of law arising during triaL 
418L On indictment for libel, jury to determine law and fact 

419. In all other cases, court to decide questions of law, subject to 

light of defendant to except. 



ISO Thb Oodb of Obdoval Pboohdusb 



8BCTiON4dO. Charge to joxy. 

421. Jury may decida in court, or retire in the custody of officers • 

oath of the officers. 

422. When defendant on bail appears for trial, he may be committed. 

§ 388. In what order trial to proceed. — The joiy having 
been impanneled and sworn, the trial must Droceed in the follow- 
ing order: 

1. The district attorney, or other connsel for the people, must 
open the case, and offer the evidence in support of the indictment ; 

2. The defendant or his counsel may then open his defense, 
and offer his evidence in support thereof ; 

3. The parties may then, respectively, offer rebutting testi- 
mony, but the court, for good reason, in furtherance of justice, 
may permit them to offer evidence upon their original case ; 

4. When the evidence is concluded, unless the case is submitted 
to the jury on either side, or on both sides, without argument, 
the defendant or his counsel must commence, and the counsel for 
the people conclude the argument to the jury ; 

5. The court must then charge the jury. 

§ 889. Defendant presumed innocent, until contrary 
proved ; in case of reasonable doubt, entitled to aoquittaL 

A defendant in a criminal action is presumed to be innocent| 
nntil the contrary be proved ; and in case of a reasonable doubt 
whether his guilt is satisfactorily shown, he is entitled to an 
acquittal. 

To convict a defendant the jury are required to find that the facts presented, 
remove reasonable doubt of his guilt, and to support such conclusion, it must 
be founded on testimony giving facts legitimately pointing in that direction. 
People V. Newton, 3 N. Y. Cr. Rep. 406. 

The guilt must be established beyond a reasonable doubt, not beyond a pos. 
Bible doubt. People v. Riley, 3 N. Y. Cr. Rep. 876; Poole v. People, 80 N. Y. 
646. 

An instruction that a reasonable doubt was a real, substantial and well- 
founded doubt, and not a mere possibility that the defendant is innocent," and 
that the testimony of one witness, if true, is sufficient to warrant a convic- 
tion," is correct. State v. Oann, 72 Mo. 874. 

The term ''reasonable doubt" implies that there may be doubts which are 
not reasonable; it means a substantial, well-founded doubt. 8taU y. Bounds, 
76 Me. 128. 

A reasonable doubt does not mean aU doubt. U. 8, v. Wright, 16 Fed. Bep. 
112L 



OF THB StATB of NeW YoBK. 



161 



In Fw^ V. QviOi^^ 100 T. 609; 8 1?. T- Cr. Bep. Wl. the trial judge, 
in duirging the jaiy, defined a reasonable doobt as follows: "It is not a 
mere guess or surmise that a man may not be guilty; it is such a doubt as a 
retaonable man maj entertain after a fair review and consideration of the 
eridenoe. A doubt for which some good reason arising from the evidence can 
be given. When jou find such a doubt as that in a case, it is your duty to 
give the prisoner the fullest and amplest benefit of it.'* HeZd, no error. See.; 
ilso, RaiMdje's Crim. Proc., g 866; Lotoenitcin's Trial, pp. 19^-203; BUl£ng$'$ 
Trial (Moak's argument), 16-18; State v. PQrt€r, 64 Iowa, 237; Cm v. People, 
109 m. 457; PeopU v. Willed, 86 Hun, 500; People v. Cmg^r, 4 N. T. Cr. Rep. 
•0; 88 Hun, 500; PeopU v. Stott, 4 N. Y. (.'r. Bep. 806 ; Brown v. State (Ind.), 
5 N. K Rep. 900; Watt v. People, 136 111. 9; 1 L. R. A. 403. Judge Seymour 
D. Thompson's article (11 Crim. L. Mag. 1) on *'The Doctrine of Reasonable 
Xhnht." Thompson's Trials, §§ 2164-2195, 2488; 16 Irish Law Times, 351. 

It is a doubt arising from a candid and impartial investigation of all the 
eridence, and such a doubt as in the graver transactions of life would cause a 
reasonable and prudent man to hesitate. Dunn v. People, 109 III. 685. 

In charging the jury on the trial of Fanny Hyde (Pamphlet Trial, p. 157) the 
court said : It is the duty of the court to say to yon, in that respect, that a 
reasonable doubt is not a whim, a conjecture, or a supposition, but a reasonable 
and subetantial doubt, such as might be entertained by intelligent men, and it 
rests either on the absence of some necessary link in the chain of evidence, or 
on some substantial fact which the evidence has established." 

In State v. Meyer, 58 Vt. 457, the respondent requested tbe court to charge 
the jury that " if they believe that the evidence, upon any essential point 
in the case, admits of the slightest doubt consistent with reason, the prisoner 
is entitled to the benefit of that doubt and should be acquitted." The court 
instructed the jury that if they believed " that the evidence upon any essential 
point in the case admits of any reasonable doubt, a doubt consistent with rea- 
son, the prisoner is entitled to the benefit of it." Held, no error. 

Instructions that from tbe evidence the jury were to deduce the guilt or 
innocence of defendant," held, erroneous because repugnant to the doctrine of 
the presumption of innocence and reasonable doubt. Hackett v. State, 13 Tex. 
App. 406. An instruction defining a reasonable doubt as one for which the 
jary can give a reason based upon the testimony is erroneous. Cotoan v. State, 
22 Neb. 519. Unless a juror is so convinced of the guilt of the accused that 
mora] certainty is reached, there may be* said to remain a reasonable doubt in 
the mind. Territory v. Oioens, 3 Mont. 137; Territory v. McAndrem, id. 158. 

An instruction which limits a reasonable doubt to something which is sug- 
gested by or arises from the evidence adduced, gives too narrow a definition of 
that which is implied by a reasonable doubt. WrigJU v. State, 69 Ind. 163. 
See, also. Wade v. State, 71 id. 535. 

hi Mike v. 27. A, 108 U. S. 304; 23 Alb. L. J. 327, the trial judge charged 
the jury as follows: " The prisoner's guilt must be established beyond reason- 
able doubt. Proof beyond a reasonable doubt is such as will produce an abiding 
conriction in the mind to a moral certainty that the fact exists that is claimed 
to exist, so that yon feel certain that it exists. A balance of proof is not suffi- 
cieat. A jaror in a criminal case ought not to condemn unless the evidence 



152 The Cods of Csiminal Psooedu&e 



exclades from his mind all reasonable doubt; unless he be so conyinced by the 
evidence, no matter what the class of the evidence, of the defendant's guilt, 
that a prudent man would feel safe to act upon that conviction in matters of 
the highest concern and importance to his own dearest persona] interests." 
Od writ of error to review, the court say: ** The evidence upon which a jury is 
justified in returning a verdict of guilty must be sufficient to produce a convic- 
tion of guilt, to the exclusion of all reasonable doubt. Attempts to explain 
the term * reasonable doubt/ do not usually result in making it any clearer to 
the minds of the jury. The language used in this case, however, was certainly 
very favorable to the accused and is sustained by respectable authority. Cam, 
V. Webtler, 5 Cush. 820; Arnold v. 8taU, 23 Ind. 170; Staie v. Nash, 7 Iowa, 
847; State v. Ostrander, 18 id. 485; Donnelly v. State, 2 Dutcher, 601; Winter 
V. State, 20 Ala. 89; OUes v. State, 6 Ga. 276. ' We think there was no error 
in the charge of which the plaintiff in error can justly complain.' " 

It is error to charge that reasonable doubt, if guilt means doubt, suggested 
by or arising out of the proof made, and that in considering the evidence and 
arriving at a verdict, ** what is called common sense is perhaps the juror's best 
guide." Densmore v. State, 67 Ind. 806; 83 Am. Rep. 96. 

When requested in a criminal case to charge as to the doctrine of reasonable 
doubt, the judge is bound to do so, though the form of the charge requested 
was not strictly legal. Madden v. State, 67 Ga. 151, 

A refusal of a request to charge in a criminal case that defendant is pre- 
sumed to be innocent until the contrary is proved " is error. People v. Van 
Houter, 23 Week. Dig. 265. 

In Butler v. State, 7 Baxt. 35, it was held, that an omission to explain to the 
Jury what is a reasonable doubt was not error. 

The trial court is not required, in charging the jury, to sub-divide the point 
of reasonable doubt by limiting it to any particular branch of the case. People 
V. Rtiavey, 4 N. Y. Cr. Rep. 2; People v. Cruger, id. 60; 38 Hun, 500; WaXker 
V. People, 88 X. Y. 86; Weaver v. People, 132 111. 536, 

On the trial of an indictment for murder it is error for the court to charge 
that the defendant must satisfy the jury that some one of bis defenses was true. 
If the jury has a reasonable doubt as to the truth of any one of them the de- 
fendant is entitled to an acquittal. People v. Downs, 29 State Rep. 117; 56 
Hun, 6 : affirmed. 123 N. Y. 558. 

In People v. Schryver, 42 N. Y. 1; 1 Am. Rep. 480, it was held that on a 
trial for homicide the prisoner is not bouod to prove justification beyond a 
reasonable doubt, but only by a preponderance of evidence. See, also. People 
V. McCarthy, 110 N. Y. 316; Sartyer v. People, 91 id. 667; 1 N. Y. Cr. Rep. 249; 
People V. WUlett, 3 id. 334; 36 Hun, 500. 

The rule that in criminal cases the defendant is entitled to the benefit of a 
reasonable doubt applies not only to the case as made by the prosecution but 
to any defense interposed. People v. Riordan, 117 N. Y. 73, and cases cited. 

In People v. Stone, 117 N. Y. 480, a trial for murder where the defense 
was an alibi, after the court had charged that if there was in the case a reason- 
able doubt it was the duty of the jury to acquit, charged that an aliJbi, when 
established to the satisfaction of the jury," was a conclusive defense, adding: 
** It need not be established beyond a reasonable doubt, but it should be estab- 



GW THE State of New York. 



158 



fished to the satisfaction of the jaiy." Defendant's counsel excepted to so 
much thereof as stated, "it should be established to the satisfaction of the 
jaiy" and zeqaested the court to charge that *'if, taking the whole case 
together, the evidence for the prosecution and the evidence respecting the 
Mi, thej have any doubt of the guilt of the prisoner, thej must acquit/' 
The court replied: ** I have so charged already." Held, that this was equiva- 
lent to saying that bis intention on the whole was to so instruct the jury, and 
if the jury could have understood the charge this adoption by the court of the 
correct rule must have removed any erroneous impression, and so the excep- 
tion was not tenable. Peckham and Gray, JJ., dissent. 

An action to recover a penalty is no less a civil action because the people are 
the party plaintiff ; and it is not error for the court to decline on request to 
charge the jury that they must be satisfied beyond a reasonable doubt of the vio- 
lation by defendants before they could find against them. People v. Briggi, 114 
N. T. 64. See Freund v. PcUen, 10 Daly, 382; 10 Abb. N.C. 311; Dams v. Borne, 
etc., B,Co,, 56Hun, 872; Continental Ins. Co. v. Jachnichen, llOInd.59; 59 Am. 
Rep. 194; Welch v. Jugenheimer, 56 Iowa. 11; 41 Am. Rep. 77; Hills v. Chod- 
year, 4 Lea, 283; 40 Am. Hep. 5; Mead v. Husted, 52 Conn. 58; 52 Am. Rep. 
554; BeU v McOinness, 40 Ohio St. 204; 48 Am. Rep. 678; People v. Ehening 
News, 51 Mich. 12. See, also, 18 Eng Rep. 129; 48 Am. Rep. 675; 7 Abb. 
N. C. 857; 15 Alb. L. J. 444 ; 84 State Rep'r, 21. 

Evidence of character is competent to be submitted to a jury for the purpose 
of raising a doubt, but it is not essential that a case must be doubtful before 
Bach evidence can be considered. People v. Pollock, 51 Hun, 613; 22 State 
Rep. 64; PeopU v. PavUk, 7 N. Y. Cr. Rep. 30; Com, v. Leonard, 140 Mass. 
473; 54 Am. Rep. 485; State v. BaHh, 25 S. C. 175; 60 Am. Rep. 496; State v. 
Daley, 53 Vt. 442; 38 Am. Rep. 694; State v. Sauer, 88 Minn. 438. 

See 9 Cr. L. Mag. 443; St<Ue v. Spooner, 12 Cr. L. Mag. 219; Com. v. Cleary 
(Pi.X 8 L. B. A. 801. 

§ 390. When reasonable doubt of which degree he is 
g:aaty, he must be convicted of the lowest. — When it 
appears, that a defendant has committed a crime, and there is 
reasonable ground of doubt, in which of two or more degrees he 
is gnilty, he can be convicted of the lowest of those degrees only. 

See Penal Code, §§ 10, 85; People v. Lamb, 2 Abb. Pr. (N. 8.) 148; affirming 
54 Barb. 842. 

In People v. Doums, 56 Hun, 6, affirmed, 123 N. T, 588, it was held that a 
jury has no right to convict a man of a less degree of a crime, simply because 
h doubts whether he committed a greater degree, but the elements which con- 
ititute such degree must be themselves proved. 

It is error to refuse to charge that the prisoner is entitled to the benefit ci 
the doubt in every proposition which the jury pass upon as a matter of fact, 
which distinguishes the crime from intentional premeditated killing, and 
makes it a leaser degree of crime. PeopU v. WiUett, 8 N. Y. Cr. Rep. 324; 36 
•Han, 500. 

20 



154 The Codi:: of Cbiminal Pbocjsdubb 

If upon the whole evidence there is a reasonable doabt of the guilt of tbe 
aocased he is entitled to the benefit of that doubt as well with respect to the 
degree of crime as to every essential requisite of that degree, and in these 
respects the burden never shifts from the prosecution. People v. WUlett, 8 
N. Y. Cr. Rep. 824; 30 Hun, 600. 

§ 391. Separate trial of defendantB jointly indicted. — 

When two or more defendants are jointly indicted for a felony, 
any defendant requiring it, must be tried separately. In other 
cases, defendants, jointly indicted, may be tried separately or 
jointly, in the discretion of the court. 

Where two or more persons are jointly indicted for a felonj, either is ab- 
solutely entitled to a separate trial if he demands it. Babcoek v. People, 15 
Hun, 347. 

Where four are jointly indicted, three of them cannot insist upon the fourth 
being tried with them. Armsby v. P«>p/<!, 2 Th. & C. 157; KMy v. People, 55 
N. Y. 565; 14 Am, Rep. 848. 

Persons jointly indicted for an offense arising out of the same transaction 
may be convicted of different degrees of the same crime. Klein v. PeopiU, 81 
N. Y. 229; White v. Pe*ypU, 82 id. 465. 

When separate trials are in the discretion of the court the order may be made 
on the motion of either the district attorney or the defendant. People v. 
Stockham, 1 Park. 428. 

On joint indictment for the crime of feloniously and by false pretenses ob- 
tainiojLT signatures to a written instrument with intent to defraud, the court 
may, in its discretion, order separate trials. People v. Clark, 102 N. Y. 735; 
4 >f. Y. Cr. Rep. 575. 

The district attorney will determine the order of separate trials. Patterson 
V. People, 46 Barb. 625. 

Where, after a jury lias been impaneled and a witness sworn, one of the de- 
fendants is ordered to be tried separately, the jury and witness must l>e re- 
sworn. Babcoek v. People, 15 Hun, 347. 

By statute (Laws 1876, chap. 182, g 1 ; 1 Birdseye's Stat., 1082, par. 120) all per- 
sons jointly indicted shall, upon the trial of either, bo competent witnesses for 
each other the same as if not included in the same indictment. Bee People v. 
i>ott?/i/i/7,84y.Y.484; Taylor v. People .1^ Huu.2H;WixeonY. People,6FsiTk.n9, 

§ 802. Rules of evidence in civil cases applicable in 
criminal cases, except where otherwise provided in 
this Oode. — The rules of evidence in civil cases are applicable 
also to criminal cases, except as otlierwise provided in this Code. 
Wlienever in any criminal proceed in trs a cliild actually or appa- 
rently under the a^e of twelve years oflFered as a witness does not 
in the opinion of the court or magistrate understand the nature 
of an oath, the evidence of such child may be received though not 
given under oath if, in the opinion of the court or magistrate such 
child is possessed of sufficient intelligence to justify the reception 
of the evidence. But no person shall be held or convicted of an 
offense upon such testimony unsupported by other evidence* 
[Amended 1892, ch. 279 ; in effect Sept. 1, 1892. 

See People v. KeUy, 85 Hun, 804; 8 N. Y. Cr. Rep. 46; PeopiU ▼. Bums, 2 id. 
427; 88 Hun, 800; People v. Brovoer, 58 id. 219; 24 State Rep. 989; People v. 
Murphy, 101 N. Y. 126; 8 How. Pr. (N. S.) 469; Peopie v. Thayer, 1 Park. 596; 
PwpU Beach, 87 N. Y. 512-518. 



ow THS Stats 07 Kxw Yosk. 



155 



g 893. Deftmdant m witmees. ~ The defendant in all cam 
may testify as a witness in his own behalf, but his neglect or 
refasal to testify does not create anj presnmption against him. 

See Abbott* 8 Crim. Brief, 887; 27 Am. Rep. 140; Rapalje's Crim. Proc., g 805; 
4Crim. L. Mag. 828. 

Thifl seetion is not Tiolative of the oonstitational provision that no porsoa 
■ball be eompelled in any eriminal case to be a witness againAt himself. Peo- 
fU Omrtney, 1 N. Y. Cr. Bep. 657, 573; W N. Y. 490. 

Defendant by offering himself as a witness waives his privilege. Ckmnan 
V. PtapU, 50 N. Y. 240. 

A penon indicted, testifying in his own behalf, is sabject to cross-examina- 
tion like other witnesses. ConnorB v. People, 50 N. Y. 440; People v. Courtney^ 
M id. 490; I N. Y. Cr, Bep. 557,573; 81 Hun, 202; PeopU v. Ca«ey, 72 N. Y. 894; 
PeapU V. Brandon, 42 id. 265; Stover v. People, 56 id. 820; People v. OuicUd, 
100 id. 507. See, also. State v. Ober, 52 N. H. 459; 18 Am. Rep. 88; State v. 
WetUwnrth, 65 Me. 284; 20 Am. Rep. 688; Thomae v. State, 108 Ind. 488; Com, 
V. Nichols, 114 Mass. 285; 19 Am. Rep. 346 ; Keyeev. State, 12 Cr. L. Mag. 600. 

The range and extent of a cross-examination is as a general rule within the 
discretion of the court, subject to the limitation that it must relate to matters 
pertinent to tl^ issue, or which tend to discredit the witness or impeach his 
BDoral character. People v. Oyer and Terminer, 88 N. Y. 438; Brown* b Caee, 
73 id. 571; Ryan*B Case, 79 id. 594; People v. Crapo, 76 id. 290; People v. Casey, 
73 id. 894; People v. Clark, 102 id. 785; People v. Noelke, 94 id. 137. 

If this limitation is not disregarded, the court will only interfere where there 
W been an abuse of discretion. People v Oyer, etc., 83 N. Y. 460; Oreat 
Western Turnpike Co, v. Loomis, 83 id. 127; LeBeau v. People, 84 id. 280; 
People T. Casey, 72 id. 898. 

Mere charges or accusations, or even indictments, may not be inquired into 
ooeroes-examination since they are consistent with innocence and may exist 
without moral delinquency. People v. Irving, 95 N. Y. 544; People v. Crapo, 
76 id. 288; 83 Am. Rep. 802; PeopU v. Broxcn, 72 X. Y. 571; 28 Am. Rep. 183; 
Ryan v. PeopU, 79 N. Y. 594. 

In People v. Brov)n,l% N. Y. 571, the question asked the party testifying in 
hiB own behalf was how many times he had been arrested, and it was held 
inadmissible. 

In People v. Crapo, 76 N. Y. 288, the prisoner was on trial for burglary and 
larceny, and was asked, on cross-examination, if he had not been arrested on 
a charge of bigamy. Held, that the question was inadmissible. 

In People v. Irving, 95 N. Y. 541, it was held that defendant might be asked, 
on cross-examination, whether he had not committed an assault upon another 
person. 

On an indictment for selling lottery tickets the prisoner, on cross^xamina- 
tion, may be asked whether he had been in that business and had been con- 
victed of mailing lottery circulars. People v. Noelke, 94 N. Y. 187; 46 Am. 
Hep. 128. 

When a prisoner is examined in his own behalf the credit to which he is 
ntitlfld is for the Jury. Spiegel v. Edys, 118 N. Y. 661; Connors v. People, 



156 Thb Code of Chimin al Pboosdurb 



SO id. 240; People v. Moett, 28 Han, 60; People y. Brandon, 42 N. T. 265; 
Neutman y. People, 68 Barb. 680. 

In People t. Kieman, 8 N. Y. Cr. Rep. 247, the tria] judge charged the 
jurj that defendant, who had testified, "has doabtless everj interest in this 
world to falsify, if falsifying would bring any immunity to him, and he is 
undoubtedly to be judged bearing that in mind, but he is not to be discredited 
for that reason." Held, no error. See, also, MoeU v. People, 85 N. Y. 873. 

In People v. Grouiley, 102 N. Y. 284; 4 N. Y. Cr. Rep. 168, the court charged 
the jury, in reference to the defendant's testimony, that while his evidence 
was to be considered as that of any other witness, they should, in determining 
his credibility, consider the fact that he stood charged with the commission 
of a serious criminal offense. Held, no error. See, also, State v. SUngerland 
6 Crim. L. Mag. 690. 

"But his neglect or refusal to testify does not create any presumption 
against him." The declaration is not in accord with experience, but its prac- 
tical meaning is that the court and jury must, so far as they can, determine 
his case without prejudice or inference against him, founded upon his omis- 
sion to testify. People v. Rose, 52 Hun, 39. 

If the prisoner elect to testify in his own behalf, his failure to explain a 
fact tending to prove his guilt raises a presumption against him. Blover 
People, 56 N. Y. 315. 

When a person charged with murder defends upon the ground that the killing 
was accidental, and neglects to call his wife, who was present at the killing, as a 
witness, that is a circumstance that the j ury may consider in coming to a con- 
clusion. People V. Hotey, 92 N. Y. 560; 29 Hun, 389; 1 N. Y. Cr. Rep. 
188. 

On his third trial for arson defendant failed to call a witness who had testi- 
fied on the previous trials. Held, that whether any inference waste be drawn 
against the prisoner was for the jury. The court refused to rule that " it was 
the duty of the government, rather than the defense, to bold him (the absentee) 
as a witness." Held, no error. Com, v. HaekeU, 140 Mass. 128. 

No presumption is raised against the defendant by reason of his failure to 
introduce evidence which is equally accessible to the prosecution and to the 
defense. People v. Sweeney, 4 N. Y. Cr. Rep. 276 ; 41 Hun, 832 ; StaU v. 
Botier, 55 Iowa, 517; Com. v. Webster, 5 Cush. 295. 

A failure to give evidence of good character cannot be considered by the jury 
as a circumstance against the accused. Orrnsby v. People, 53 N. Y. 472. 

No presumption arises against a defendant from his failure to call his ac- 
complice as a witness. SliUe v. CouHm, 58 Iowa, 250. 

§ 394. Compensation of witness. — The rules as to the com- 
pensation of witnesses attending trials in criminal cases, pre- 
scribed bj special statutes, are continued as there defined. 
See § 731, post. 



§ 395. ConfiaBsion of defendant, when evidence, and its 
effect. — A confession of a defendant, whether in the course of 



OF THE State of New York. 



167 



judicial proceedings or to a private person, can be given in evi- 
deuce against him, unless made under the iuHuence of fear pr(»- 
dnced by threats, or unless made upon a stipulation of the district 
attomej, that he shall not be prosecuted therefor ; but is not suf- 
ficient to warrant his conviction, without additional proof that 
the crime charged has been committed. 

See, generally, 1 Greenl. Ev. (14tli ed.), § 218 et uq,; Abbott's Crim. Brief, 
§474; 46 Am. Rep. 253; 86 Eng. Rep. 279; 19 Cent. L. J. 68; 1 Whart. Crim. 
Law, 689, 690; 6 Am. State Rep. 242; dissenting opinion of FoUett, J., in 
the Mtmdon Case, 4 N. Y. Or. Rep. 120. 

This section was intended to apply only to yolantary confessions and not to 
change the statutory rales relating to the examination of persons charged 
with crime. People v. Mondan, 103 N. Y. 211; 4 N. Y. Cr. Rep. 559; People 

Chapk4iu, 121 N. Y.; 30 State Rep. 992; PeopU v. McCaOam, 8 N. Y. Cr. 
Rep. 189; affirmed. 108 N. Y. 588. 

The role established by this section is founded upon the common- law rule 
on the subject of confessions, but is much more definite and stringent. Peo- 
pU V. Mandon, 103 N. Y. 211. 

A declaration made by one accused of a crime denying any criminal act, and 
explaining to her own advantage a suspicious circumstance — e. g,, the exist- 
ence of foot tracks — is not to be deemed a confession under this section. Pe6- 
fde V. MeCaUam, 3 N. Y. Cr. Rep. 189; affirmed. 103 N. Y. 588. 

A statement by a police officer to the prisoner, after she knew that she was 
Bospected of the crime, that '* th^y had found enough to convict her. and she 
might as well own up/' is not a threat within the meaning of this section." 
PeopU V. MeCaOam, 8 N. Y. Cr. Rep. 189. 

A confession freely and voluntarily made is evidence of the most satisfactory 
character. People v. Bennett, 37 N. Y. 133. See, also. 1 Greenl. Ev., § 215; 
1 Archb. Crim. PI. 125; 1 Phil. Ev. 533-4; Stark. Ev. 73. 

It is not error to refuse to charge that confessions are the weakest and most 
Bospicious of all testimony. People v. Bennett, 37 N. Y. 117; 4 Abb. Pr. (N. S.) 
89; 93 Am. Dec. 551. 

In the absence of proof of such threats or inducements as would render the 
prisoner's confessions inadmissible, a refusal of the court to charge that if 
the jury believed from the evidence that the prisoner was induced to make 
the confessions under any inducements or hope of reward held out to him, they 
should exclude the evidence, is not error. Woodford v. People, 62 N. Y. 117; 
SO Am. Rep. 464. 

Before a confession is received in evidence defendant is entitled to show 
that it was obtained from him through fear and by promise of immunity. 
Permitting him to show the facts afterward, and then striking out the con- 
fession, is not sufficient. Peopie v. Fox, 121 N Y. 449. 

While the court must decide preliminarily the question as to whether 
threats or promises induced the confession, yet where this is a question of 
to, depending on conflicting evidence, it should be submitted to the Joiy. 
fwple T. Kurim, 42 Hun, 886. 



158 Ths Oodb ov Gbiminal Pbdoedubb 



Defeadaat liating made aa alBdaTit that he and foar othm oommitled a 
Tobberj, for which he was on trial, may contradict tnch confeaaion by iihow. 
ing that none of those four persons were at the place of the crime at the time 
stated in the affidavit. People v. Fax, 8 N. T. Sapp. 859. 

A confession of a defendant in a criminal action Tolnntarilj made is com- 
petent evidence against him althoagh made when ander arrest. People 
Druse, 108 N. Y. 655; 5 N. Y. Cr. Rep. 10; Cox v. People. 80 N. Y. 000; PeopU 
V. WenU, 87 id. 808; People v. Montgomery, 18 Abb. (N. S.) 209; Pople v. 
Murphy, 68 N. Y. 597; Hartung v. P^opU, 4 Park. 819; O Brion v. People, 48 
Barb. 274; People v. Rogers, 18 N. Y. 9; People v. Tkager, 1 Park. 595; People 
V. CiMpleau, 121 N. Y. 266 ; 80 N. Y. State Rep. 989; Maseey v. BtaU, 10 Tex. 
App. 645; Jackeon v. 8UUe, 69 Ala. 249; Hopt v. Utah, 110 U. S. 574. 

Where the district attorney informed the prisoner, after his arrest, that he 
need not make certain statements which he- did make, as they would probably 
be used against him, held, that such statements, being voluntary, might be re- 
ceived in evidence against the accused on the trial. Willett v. People, 27 Hun, 
469; affirmed, 92 N. Y. 29, but on another point. See, also. People v. Simpmm, 
48 Mich. 474. 

In People v. Kurtz, 42 Hun, 335, the prisoner was traveling under arrest with 
a detective, employed by the district attorney, who conversed with him upon 
the crime for which he was arrested. It seems that the detective had suggested 
a confession. The prisoner asked what he was " to get out of the thing,*' to 
which the detective answered, that the only benefit to be gotten out of the thing 
by the prisoner was the benefit that any state's witness would get. On reaching 
the district attorney's office the detective said if the prisoner wanted to make 
a statement he could, but he must use his own judgment. The district attor- 
ney replied that any statement must be voluntary. It did not appear that he 
knew of the detective's statement of the benefit a state's witness would get. 
The prisoner was not allowed to communicate with counsel before making his 
confession. Held, that under this section the admission against the prisoner was 
error. In that case the prisoner's counsel asked the court to charge that if the 
jury found that the alleged statement was made on a stipulation of the district 
attorney, that the prisoner should not be prosecuted therefor, they must reject 
it. The judge refused so to charge, but did charge that they might take into 
consideration any evidence there might be in the case tending to show that 
such a stipulation was made, in determining whether the statement or con- 
feesion made in the district attorney's office was or was not true. Held, that 
although it was not necessary to decide the question in this oaae, the court 
were of the opinion that the judge erred in refusing so to charge. See, also, 
as to confessions made to detectives, Seldt v. State, 20 Neb. 492; 57 Am. Bep. 
885; U. 8, v. Stone, 2 Crim. L. Mag. 770. 

Where a prisoner has made involuntary confessions, evidence maj be re- 
ceived of facts ascertained in consequence thereof, without proving his state* 
ment as to those facts, unless he requires proof of his confession so far as it 
relates theieta Ihiffy v. People, 26 N. Y. 589. 

In Pe(^ V. O'HeO, 5 N. Y. Cr. Rep. 802; 48 Hon, 87, a witness testified to 
facts which implicated both himself and defendant in the crime of agreeing to 
receive a bril>e. These facts had been previously stated by the witness to the 



or THX Statb ow Nsw Yobk. 



169 



dtatriei attoniey, and witims bad been by bim promised immonity. Defendant 
objected to tbis eridenoe on the ground tbat it was in the natare of a oonfeasioa 
giTen under a promise of immunitj. Hdd, that the testimony was evidence 
in chief and not a confession, and was admissible against defendant. 

In PMple v. WdecU, 51 Mich. 612, the prisoner was visited during the night 
in his cell by three persons in succession who were none of them officials, but 
who held out promises of favor in order to obtain a confession. Held, that 
admissions of guilt thus obtained were inadmissible. The court say: " No re 
lianoe can be placed upon admissions of guilt so obtained; for the very obvi- 
ous reason that they are not made because they are true, but because, whether 
tme or false, the accused is led to believe it is for his interest to make them. 
suae V. Phelpt, 11 Vt. 116; 34 Am. Dec. 672; Slate v. Walker, 84 Vt. 2»6; 
Hector v. State, 2 Mo. 166; 22 Am. Dec. 454; J^aU v. BatUek, 4 How. 563; 
8UU V. Guild, 10 N. J. Law, 168; 18 Am. Dec. 404; Spea/rs v. State, 2 Ohio 
8t.583; Commimofur, etc., v. Taylor, 5 Cush. 605; Commineioner, etc., v. 7WA> 
erman, 10 Qnj, 190; Smith v. State, 10 Ind. 106; Miller v. People, 39 111. 457; 
Cain v. State, 18 Tex. 887; Davis v. State, 2 Tex. App. 588; Van Buren v. 
State, 24 Miss. 512; Jordan v. State, 32 id. 382; People v. Barrie, 49 Cal. 842; 
State V. Tork, 87 N. H. 175; MiUer v. State, 40 Ala. 58; Porter v. State, 55 id. 
•5; State v. Whitfield, 70 N. C. 856; State v. Hagan, 54 Mo. 192. and Flagg v. 
PeopUy 40 Mich. 406." 

Where a coroner's inquest is held before it has been ascertained that a crime 
has been committed, or before any person has been arrested charged with the 
crime, and a witness is sworn before the coroner's jury, his testimony, should 
he afterward be charged with the crime, may be used against him on his trial, 
tlthoagh at the time of his examination he was aware that it was suspected a 
erime had been committed, and that he was the criminal. People v. Jfondon, 
m N. Y. 211; 4 N. T. Cr. Rep. 559; ffendrickson v. PeopU, 10 N. Y. 9; 1 
Park. 896, 400; 8 How. Pr. 404; People v. Thayer, 1 Park. 595; People v. 
McOraney, 6 id. 49. 

In State v. Carriek, 16 Nev. 120, a statement made by a defendant to two of 
his bondsmen that he was short in his accounts, at the time when he was not 
charged with the crime or under arrest, when no proceedings were threatened 
or any promise made to shield him from a criminal prosecution, was held 
admissible. 

But if, at the time of his examination before the coroner, it appears that a 
crime has been committed, and that he is in custody as the supposed criminal, 
he is not regarded merely as a witness, but as a party accused, called before a 
tribunal vested with power to investigate preliminarily the question of his 
gailt, and he is to be treated in the same manner as if brought before a com- 
mitting magistrate, and an examination, not taken in conformity with the stat- 
ute, cannot be used against him on the trial for the offense. Code Crim. 
P^., §§ 188, 196, 198; People v. Mondon, 108 N. Y. 211; 57 Am. Rep. 709. 

In that case an Italian laborer, imperfectly understanding the English Ian- 
guge, was arrested without warrant for murder, and compulsorily taken by 
the sheriff before a coroner then engaged in investigating the murder. He 
W ■worn as a witness, had no counsel nor means to procure any, and was not 
ioiormed that he could not be compelled to testify nor to give self -criminating 



i 



f 

160 Thk Code of CBDaNAL Pbooedubb 



answers. Heldt that his testimonj so given was inadmissible on his trial for 
the murder. The court say: " In Hendrickson v. People, 10 N. Y. 18, the wife 
of the defendant died suddenly in the morning, and in the evening of the 
same day a coroner's inquest was held. The defendant was called and sworn 
as a witness upon the inquest. At that time it did not appear that any crime 
had been committed, or that the defendant had been charged with any crime, 
or even suspected, except so far as the nature of some of the questions asked 
of him might indicate such a suspicion. On his subsequent trial on an indict- 
ment for the murder of his wife, the statements made by him at the coroner's 
inquest were held admissible, on the ground that he was not examined as a 
party charged with the crime; that it had not appeared even that a crime had 
been conmiitted, and that he had simply testified as a witness on the inquiry 
as to the cause of the death. "In People v. McMahon, 15 N. Y. 384, the 
defendant was arrested by a constable, without warrant, on a charge of having 
murdered his wife. The constable took him before the coroner, who was 
holding an inquest on the body, by whom he was sworn and examined 
as a witness. It was held that the evidence thus given was not admissible 
on the prisoner's trial for the murder, and his conviction was reversed upon 
that ground. In the judgment all the judges who heard the case concurred. 
The next case is Teachaut v. People, 41 N. Y. 7. In that case the defendant 
appeared at the coroner's inquest, in pursuance of a subpoena to testify, and vol- 
nntarily attended. He was not under arrest, but was informed by one Dalley 
that it was charged that his wife had been poisoned, and that he would be 
arrested for the crime. Before he was sworn he was informed by the coroner that 
there were rumors that his wife came to her death by foul means, and that some 
of those rumors implicated him, and that he was not obliged to testify unless 
he chose. He said he had no objection to telling all he knew. The learned 
judge delivering the opinion preludes it by a reference to these facts as show- 
ing that the statements made were voluntary in every legal sense, and held 
that a mere consciousness of being suspected of a crime did not so disqualify 
him that his testimony, in other respects freely and voluntarily given before the 
eoroner, could not be used against him on his trial on a charge subsequently 
made of such crime. On that ground he held the evidence properly admitted, 
at the same time referring with approval to the McMahon Com, and distinctly 
limiting the rule of exclusion to cases within its bounds. The present case is 
identical in all its essential features with the McMahon Case. In both cases 
the prisoner had been arrested without warrant, as a suspected murderer. 
While under arrest he was taken by the officer having him in charge before the 
coroner's inquest and examined^ on oath as to circumstances tending to connect 
him with the crime. The present case is even more clear than the McMahon 
Case, for here the homicide had been shown before he was examined; the pris- 
oner was informed that he was charged with the murder, the alleged instru* 
ment of death was produced, and the prisoner was interrogated as to his 
motive for the alleged killing, his whereabouts, and other inculpating matters. 
There has been no case overruling the McMahon CaMe, and we are not re- 
ferred to any decision, either in this country or in England, at variance with 
it, although there are many which sustain it, and even go further in the direc- 
tion of excluding examinations under oath, before a magistrate, of persons 



OF THE State of New York. 



161 



afterward fmtnpon trial on crimisal charges. Bex y. Lems, 6 C. & P. 161; Rm 
Dan$. Id. 177; WheUing'B Case, 8 id. 238; Hawarth's Case, 4 id. 254, note. 
The court at Genera] Term in the present case seem to regard the case of 
People V. McOiain, 91 N. Y. 241; 12 Abb. N. C. 172, as sustaining the course 
pursued by the prosecution, and consequently overruling the McMahon Caee, 
but a brief examination will show that there is no analogy between tlie two 
cttses. The case of McGloin was not that of the examination of a prisoner on 
oath before a magistrate, before whom he was taken involuntarily while in 
custody and interrogated by the magistrate, who, to all appearance, had power 
to require him to answer; but it was a clear case of a voluntary confession. 
The prisoner was not taken before any magistrate. While under arrest he 
said to the inspector of police, who had him in charge, that he would make a 
statement. The inspector then said he would send for Coroner Herman to take 
it. The coroner was then sent for, and came to police head- quarters, and took 
down in writing the confession dictated by the prisoner, the coroner asking no 
questions, and not acting in any official capacity, but as a mere amanuensis to 
take down the confession and prove the contents. Whether sworn or unsworn 
is immaterial, as the confession was in no respect compulsory, but was volun* 
tarily offered by the prisoner. It was not taken before a magistrate upon a 
judicial investigation against the person accused of the commission of the crime. 
It lacked this essential element of the McMahon Case, and is in no respect in 
ccmflict with it.*' 

In Fecple v. ChapUau, 121 N. Y.; 30 State Rep. 989, the defendant, accused 
of murder in the first degree, after having been informed by the coroner as to 
his right to depose or not, and that it might be used against him, was allowed 
at his own request to make a statement before the coroner's jury which was 
then reduced to writing, but the prisoner refused to sign it next morning. 
ffdd, that such statement was admissible on his trial to prove the homicide. 

Where it does not appear affirmatively that defendant had been cautioned 
by the magistrate before making a statement, as required by the Code, but 
does not appear that he had been so cautioned, it will not be presumed that a 
magistrate failed in his duty and omitted to caution defendant. People v. 
8toU, 6 N. Y. Or. Rep. 61. 

In People v. Deacons, 109 N. Y. 374, it was held that the finding of the body 
of the person charged to have been murdered, with unmistakable marks 
thereon of a murder committed, is sufficient "additional proof" to meet the 
requirements of this section. 

The "additional proof" may be either direct or circumstantial. People 
V. a»rr, 8 N. Y. Or. Rep. 578. 

Admissions of defendant that after assigning for value his wages to one C. 
he had received and spent them himself, are insufficient, without further evi- 
dence, to ooDvict him of larceny. The written assignment of the wages does 
not famish the proof, in addition to the confession, required by this section. 
People v. KOly, 8 N. Y. Cr. Rep. 414; 37 Hun, 160. 

In People t. Bunge, 8 N. Y. Cr. Rep. 85, it appeared that the defendants, 
being wholesale confectioners, sold to one of the witnesses for the prosecution, 
a compartment box acoomiMuiied by one hundred and fifty pieces of chewing 
gum, each piece being numbered, and according to the description given bj 
21 



169 Thb Code of Osdonal Fbocedurb 



the defendants to tlie parchaser at the time of the sale, intended to be sold to 
children for a penny apiece, each one of which drew a prize, contained in said 
box, consisting of an egg, small or large, according to the number, the whole 
seeming to form an Easter device. And it further appeared that one of the 
defendants admitted, at the time, that thej had bought the gum, and manu- 
factured and arranged the box themselves, and that they had made large sales 
thereof; the contrivance so purchased by the witness being exhibited to the 
jur}'. Held, sufficient evidence to support a conviction for contriving and as- 
sisting in contriving a lottery; that the additional proof that the offense was 
committed, other than defendant's confession, required by section 805, was to 
be found in the said purchase and the production of the contrivance before the 
Jury; also, that the indictment was supported, though it appeared that the 
purchase by the witness for the people was made only for the purpose of prov. 
ing the offense, and with no intention of using the contrivance as a lottery; 
and that, in any event, the evidence was sufficient to support the indictment 
for assisting in contriving a lottery. 

When, in addition to the confession of a defendant, there is proof of cir- 
cumstances which, although they may have an innocent construction, are 
nevertheless calculated to suggest the commission of the crime charged, and 
for the explanation of which the confession furnishes the key, the case cannot 
be taken from the jury for a non-compliance with the statute which declares 
that a defendant's confession " is not sufficient to warrant a conviction with- 
out additional proof that the crime charged has been committed." The words 
quoted seem to imply that the confession is to be treated as evidence of the 
corpus delicti, in other words, as competent proof of the body of the crime, 
though insufficient, without corroboration, to warrant a conviction. Pwple v. 
Jaehm, 108 N. Y. 182; 7 East. Rep. 298; 4 N. Y. Cr. Rep. 479; 8 N. Y. State 
Rep. 11. 

§ 396. Evidence on trial for treason. — Upon a trial for 
treason the defendant cannot be convicted, except upon the teeti* 
mony of two witnesses to the same overt act, or of one witness to 
one overt act, and another witness to a dijBPerent overt act of the 
same tresuson. But if two or more distinct treasons, of different 
kinds, be alleged in the indictment, two witnesses to prove differ- 
ent treasons are not sufficient to warrant a conviction. 

§ 897. Evidence on trial for treason. — Upon a trial for 
treason, evidence cannot be admitted, of an overt act not expressly 
charged in the indictment ; nor caii the defendant be convicted, 
unless one or more overt acts be expressly alleged therein. 

^ § 398. Evidence on trial for consplraoy. — Upon a trial 
for a conspiracy, in a case where an overt act is necessary to con- 
stitute the crime, the defendant cannot be convicted, unless one 



OF THX State of Kbw Yobk. 



163 



or more overt acts be expressly all^d in the indictment, nor 
nnless one or more of the acts alleged be proved ; but any other 
overt act, not alleged in the indictment, may be given ic ovidenoe. 
See Penal Code, g 171. 

§ 390. Conviction cannot be had on testimony of 
accomplice, unless corroborated. — A conviction cannot be 
bad upon the testimony of an accomplice, unless he be corrobora- 
ted by such other evidence as tends to connect the defendant 
with the commission of the crime. 

This section introduces a new rale as to an accomplice's evidence. Prior to 
this section a jary might convict npon such evidence alone. People v. Thorn' 
$eri, 3 N. Y. Cr. Eep. 563; People v. Costello, 1 Denio, 83; People v. Dyle, 21 N. 
Y. 578; Lindsay v. People, 63 id. 154; People v. WiUiams, 29 Hun, 533; 1 N. 
Y. Cr. Rep. 336. 

The rule as to the corroboration of accomplices is stated by the court in 
People V. Piath, 100 N. Y. 592, as follows: *' In cases where corroboration is 
required, there has been some diversity of opinion in tlio authorities as to the 
ptrticular facts which should be corroborated and the extent of the corroboration 
needed in order to comply with the rule; but it is now conceded to be the 
general rule, that it should tend to show the material facts necessary to 
establish the commission of a crime, and the identity of the person committing 
it. Wlien an offense was formerly proven by accomplices, it was the usual 
practice of trial courts to advise an acquittal, unless such evidence was in some 
respects corroborated by other testimony (although at common law a con- 
Tiction npon the evidence of the accomplice alone was sustainable). In those 
cases, the extent and degree of corroboration rested in the discretion of the 
trial court, and necessarily varied according to the circumstances of the case. 
Although such cases are not strictly analogous to those where corroboration is 
required by statute, they yet furnish some help in determining the degree of 
proof required in the latter case. The rule as to the corroboration of an ac- 
complice is stated in Roscoe Crim. Ev. 122, as follows: 'That there should 
be flome fact deposed to, independently altogether of the evidence of .the ac- 
oomplice, which, taken by itself, leads to^the inference, not only that a crime 
bas been conmiitted, but that the prisoner is implicated in it.' Russell Crimes, 
962, says: ' That it is not sufficient to corroborate an accomplice as to the 
facts of the case generally, but that he must be corroborated as to some 
material fact or facts which go to prove that the prisoner was connected with 
the crime charged.' 1 Greenl. Ev., § 881, lays down the rule as held by some, 
that it is ' essential that there should be corroborating proof that the prisoner 
•ctoally participated in the offense, and that when several prisoners are to be 
tried, confirmation is to be required as to all of them before all can be safely 
convicted; the confirmation of the witness as to the commission of the crime 
being regarded as no confirmation at all as it respects the prisoner.' " 

In iVcpfo T. miioU, 106 N. Y. 2»3; 7 N. Y. Cr. Rep. 126; 8 N. Y. State Rep. 
706, the court saj: "Each circumstance, taken by itself, is quite inconclusive, 
b«t when ocmsidexvd together, they certainly f omiBh some eorroborative eyi« 



164 The Code of Chimin al Procedure 



dence. It is not necessary that the corroborative evidence of itself, sboald be 
sufficient to show the commission of the crime or to connect the defendant with 
it. It is safficient if it tends to connect the defendant with the commission of 
the crime. Nor need the corroborative evidence be wholly inconsistent with the 
theory of the defendant's innocence. The court, before it should submit the 
case to the jury, should be satisfied that there is some corroborative evidence 
fairly tending to connect the defendant with the commission of the crime, and 
when there is, then it is for the jury to determine whether the corroboration is 
sufficient to satisfy them of the defendant's guilt. As we said in People v. 
Eperhardtf 104 N. Y. 591, ' the law is complied with if there is some evidence 
fairly tending to connect the defendant with the commission of the crime, .so 
that the connection will not rest entirely upon the evidence of the accom- 
plice.' " See, also. People v. 0*NeU, 109 N. Y. 267; People v. Jaehnc, 103 id. 282; 
People V. Rickevy 7 N. Y. Cr. Rep. 22; People v. Courtney, 28 Hun, 589; 1 N. Y. 
^ Rep. 64; PeopU v. Uooghkerk, 96 N. Y. 149; 67 IIow. Pr. 256; People v. Ryland, 
97 N. Y. 126; 28 Hun, 568; People v. WiUiams, 29 id. 520; People v. McCallam, 
6 N. Y. Cr. Rep. 543; Pec^e v. Sharp, id. 388; People v. Thomson, 8 id 562; 
People V. Rieker, 22 N.Y. State Rep. 654; People v. Emerson, 20 id. 18; People 
v. Runge, 3 N.Y. Cr. Rep. 85; FrMer v. People, 43 Barb. 306; People v. Hitynes^ 
55 id. 450: 38 How. Pr. 369; Peoi)le v. Lawton, 56 Barb. 126; Maine v. PeopU, 
9 Hun, 113; People v. Davis, 21 Wend. 309; PeopU v. Sherman, 103 N. Y. 513; 
Berry v. PeopU, 1 N. Y. Cr. Rep. 57; PeopU v. Kerr, 6 id. 406; State v. Maney, 
54 Conn. 178; 9 Crim. L. Mag. 32; 7 East. Rep. 605; Com, v. Holmes, 127 Mass. 
424; 34 Am. Rep. 341. 

Where an accomplice is allowed to testify he may be sufficiently corroborated 
by his wife. State v. Myers, 82 Mo. 558; 52 Am. liep. 389. 

One who purchases a lottery ticket for the purpose of detecting and punish- 
ing the vendor, and not with intent to aid in the commission of the offense, is 
not an '* accomplice " within the meaning of this section. PeopU v. Noelke, 
94 N. Y. 138; 29 Hun, 461; 1 N. Y. Cr. Rep. 257; PeopU v. Emerson, 6 
id. 157. 

Nor is a woman who submits to an abortion an " accomplice." PeopU v. 
Vedder, 98 N. Y. 630; 8 N. Y. Cr. Rep. 32. See, also, 28 Eng. Rep. 559; 20 
id. 372; PeopU v. Meyers, 5 N. Y. Cr. Rep. 126; People v. PatoeU, 4 id. 585; 
PeopU ^. BUven, 112 N. Y. 79. 

Nor a woman who goes with another to a physician's office, where the latter 
woman submitted, but not in presence of her companion, to an operation for 
abortion. Com, v. Drake, 124 Mass. 21. 

The excise law makes the person selling, alone guilty of a criminal act, 
therefore the purchaser is not an accomplice under this section. PeopU v. 
Smith, 28 Hun, 626: 1 N. Y. Cr. Rep. 72. 

A person who in no way aided or abetted a murder but in whose hands a 
knife was placed by the murderer after the murder is not an aocomplice. 
PeopU V. OgU, 6 N. Y. Cr. Rep. 165; 104 N. Y. 511. 

§400. If teBtimony show higher offense fhaa that 
charged, court may discharge jury, and hold defendant 
to answer a new indictment. — If it appear bj the teetimonj, 



or TAB State of Nbw Tobk. 



165 



that the facta proved oonstitute a crime of a higher nature than 
that charged in the indictment, the court may direct the jury to 
be discharged, and all proceedings on the indictment to be sus- 
pended, and may order the defendant to be committed, or con- 
tinned on or admitted to bail, to answer any new indictment 
which may be found against him for the higher offense. 
See Penal Code, g 685; Peopte v. DaHmore, 48 Hon, 828. 

§ 401. If new indiotmient not found, defendant to be 
tried on the original indictment. — If an indictment for the 
higher crime be dismissed by the grand jury, or be not found at 
or before the next term, the court must again proceed to try the 
defendant on the original indictment. 

§402. Court may discharge jxuy where it has not jm^ 
diction of the offense, or the fkcts do not constitute an 
offense. — The court may also direct the jury to be discharged, 
where it appears that it has not jurisdiction of the crime, or that 
the facts, as charged in the indictment, do not constitute a crime. 

§ 403. Proceedings, if jury discharged for want of jur* 
ifldiction of the offense, when committed out of the 
Ftate. — If the jury be discharged, because the court has not 
jurisdiction of the crime charged in the indictment, and it 
appear that it was committed out of the jurisdiction of this 
Btate, the court may order the defendunt to be discharged, or 
to be detained for a reasonable time specified in the order, 
until a communication can be sent by the district attorney 
tc the chief executive officer of the state, territory or district 
where the crime was committed 

§ 404. Proceedings in such case, when offense com. 
mitted in the state. — If the crime were committed within 
the exclusive jurisdiction of another county of this state, tlie 
court must direct the defendant to be committed for such time 
as it deems reasonable, to await a warrant from the proper county 
for his arrest ; or if the crime be a misdemeanor only, it may 
admit him to bail, in an undertaking, with sufficient sureties, that 
he will, within such time as the court may appoint, appear in 
inch court to await a warrant from the proper county for his arrest. 



166 Ths (Jqdb of Criminal Pbocedube 



^ 405. ProoeedingB in auoh case, when ofTenae committed 
in the state.— In the case provided for in the last section, the 
clerk must forthwith give notice to the district attorney of the 
proper county, that the defendant has been so committed or held 
to bail 

§ 406. Proceedings in such case, whenoflEbnse committed 
in the state. — If the defendant be not arrested, as provided in 
section four hundred and four, on a warrant from the proper 
county, he must be discharged from custody, or his bail in the 
action be exonerated, or money deposited instead of bail refunded, 
as the case may be ; and the sureties in the undertaking men* 
tioned in that section must be discharged. 

§ 407. Proceedings in such case, when offense committed 
in the state. — If the defendant be arrested, the same proceed* 
ings must be had thereupon, as upon the arrest of a defendant in 
another countjy, on a warrant of arrest issued by a magistrate. 
See §§ 156, 157, ante. 

§ 408. Proceedings, if jury discharged because thefeusts 
do not constitute an offense. — If the jury be discharged, 
because the facts as charged do not constitute a crime, the court 
must order the defendant, if in custody, to be discharged there- 
from, or if admitted to bail, that his bail be exonerated, or if he 
have deposited money instead of bail, that the money deposited 
be refunded to him, unless in its opinion a new indictment can 
be framed, upon which the defendant can be legally convicted , 
in which case, it may direct that the case be resubmitted to the 
same or another grand jnrv. 

§ 409. Proceedings, if jury discharged because the feusts 
do not constitute an offense. — It the court direct that the 
case be submitted anew, the same proceedings must be had thereon 
as are prescribed in sections 818 and 819. 

§ 410. When evidence on either side is closed, court 
may advise acquittal ; effect of the advice — If, at any 

time after the evidence on either side is closed, the court deem it 
insuflScient to warrant a conviction, it may advise the jury to 
acquit the defendant and they must follow the advice. 



OP TBB Stats or Nbw Yosk. 



167 



Tbe court (hould in a pioper cue direct an acqoittal. SaweU People, 5 
Han, (Ql; 69 N. T. WJ; People v. Bennett, 49 id. 187; Duffy v. People, 26 id. 
688; Babcock y. People, 15 Hun, 347; SuUivan y. People, 27 id. 87; People 
T. Idviagetony id. 107; PJwipieV. Dohring, 69 N. Y. 881. 

In People y. 16 Elun, 549, defendant plead not gnilty, and after trial, 

his ooonAei moyed the court to direct the jury to acq ait defendant; tbe motion 
WIS denied, and a motion to discharge was granted. Held error. The case 
should haye been sabmitted to the jury. 

The court has no power to direct a yerdict of guilty. Howell v. People, 5 
Hon, 620; 69 N. T. 607; Can y. People, 6 Abb. N. C. 151. See 10 Alb. L. J. 
S3; 1 Greenl. Ey., § 49, note. 

It is error for the court to charge the iurj to find a yerdict of gnilty eyen in 
a ease where the question of guilt or innocence depends wholly upon a ques- 
tion of law. United States y. Tayl<n', 8 Crim. L. Mag. 552, 555. 

§ 411. View of premises, when ordered, and how con- 
ducted. — When, in the opinion of the court, it is proper that 
the jury should view the place in which the crime is charged to 
have been committed, or in which any material fact occurred, it 
may order the jury to be conducted, in a body, under charge of 
proper officers, to the place, which must be shown to them by 
a jadge of the court, or by a person appointed by the court for 
that purpose. 

See Abbott's Trial Brief, 73-4; 26 Cent. L. J. 486; People y. Johneon,UO N. 
T. 143; 46 Hun, 673; People y. Buddeneieck, 108 N. T. 501; People y. Oyer and 
Terminer, 3 N. Y. Cr. Rep. 215; 86 Hun, 279; People y. Tyrrell, 8 N. Y. Cr. 
Bep. 142; People y. Palmer, 48 Hud, 407; 5 N. Y. Cr. Rep. 106, disapproyiog 
8hular y. iftate, 105 led. 289; 55 Am. Rep. 211. 

1 412. Duty of officer as to jnry. — The officers, mentioned 
m the last section, must be sworn to suffer no person to speak to 
or communicate with the jury, nor to do so themselves, on any 
Bubject connected with the trial, and to return them into court 
without unnecessary delay, or at a specified time. 

See People y. Johnson, 110 N. Y. 148; 46 Hun, 672; People v. Palmer, 48 
Han, 401; 5 N. Y. Cr. Rep. 106. 

§ 413. Knowledge of juror, to be declared in court, and 
juror to be sworn as witness. — If a juror have any personal 
knowledge, respecting a fact in controversy in a cause, he must 
declare it in open court, during the trial. If, during the retire- 
ment of the jury, a juror declare a fact, which could be evidence 
in the cause, as of his own knowledge, the jury must return into 
court. In either of these cases, the juror maldng the statement 



168 The Oodb of CBOinrAL Fbooedubb 



must be sworn as a witness, and examined in the presence of the 
parties. 

§ 414. Jurors may be permitted to separate during the 
trial ; if kept together, oath of the officers. — The jurors 
sworn to try an indictment may, at any time before the submis- 
sion of the cause to the jury, in the discretion of the court, be 
permitted to separate, or be kept in charge of proper officers. 
Such officers must be sworn to keep the jurors together until the 
next meeting of the court, to suflEer no person to speak to or com- 
municate with them, nor to do so themselves, on any subject con- 
nected with the trial, and to return them into court at the next 
meeting thereof. 

See 1 Bisli. Grim. Proc., §§ 994, 995; Rapalje's Crim. Pro., ^ 496; Stephens v. 
People, 19 N. Y. 549, 654; People v. Beagle, 60 Barb. 527; PeopU v. Front, 5 
Park. 53; People v. Montgomery, 18 Abb. Pr. (N. S.) 208; People v. Douglass, 
4 Cow. 26: Kelly v. State, 12 Cr. L Mag. 281. 

Even in a capital case, if the court permits the jary to separate before sab- 
mission and the defendant does not object until after verdict, the objection is 
waived. Henning v. State, 106 Ind. 386; 55 Am. Rep. 756. 

On a murder trial after the case was submitted to the jurj, members of the 
jury were permitted to go to a privy seventy-five yards distant, unattended by 
an officer. It was not shown that any one did or could communicate with them. 
Held, no error. State v. State, 64 Miss. 644; 60 Am. Rep. 70. 

During the trial of a capital felony the jury were lodged every night m a 
hotel. On the third night the hotel was destroyed by fire. The jury escaping 
became separated for an hour or more, some of them mingling with the crowd 
about the fire, others going home. On an examination by the court every juror 
swore that during the separation no one had spoken to him or in his presence 
on the subject of the trial. The prisoner did not object to the continuing of 
the trial, but refused to assent, or waive any right or advantage resulting to 
him from the separation. Conviction being had, held, that the prisoner was 
entitled to a new trial. Early v. State, 1 Tex. Ct. App. 248; 28 Am. Rep. 409. 

§ 415. Jurors not to converse together on the subject of 
the trial, nor form an opinion until the cause is submit- 
ted. — The jury must also, at each adjournment of the court, 
whether permitted to separate or kept in charge of oflScers, be 
admonished by the court, that it is their duty not to converse 
among themselves on any subject connected with the trial, or to 
form or express any opinion thereon, until the cause is finally 
submitted to them. 

See People, exrel., v. Oyer and Terminer, 8 N. Y. Cr. Rep. 211; 86 Hon, 279. 
Unless it is ehown that the prisoner has been prejadiced thereby, a Judge's 



OF THE State of New York. 



169 



ooisnon to mdmonish the jary on adjournment of court is not ground for a new 
tritl. People V. Draper, 2S Hun, 1; 1 N. Y. Cr. Rep. 188. 

A cliim that the trial court omitted to admonish the jurors as required can- 
not be considered on appeal where there is no part of the record showing dis- 
tiDctlj that this was not done, and no question appears to have been raised or 
exception taken in regard to the matter. People v. Bugg, 3 N. Y. Cr. Rep. 
172. 

^Vhere the case on appeal does not disclose anj failure on the part of the trial 
judge to admonish the jury at each adjournment, such failure will not be pre- 
sumed. Pe^yple V. Eeavey, 4 N. Y. Cr. Rep. 2; 88 Hun, 418. 

§ 410. Prooeedings, where juror becomes unable to per- 
form his duty before conclusion of triaL — If« before the 
ooncln&ion of the trial, a juror become sick, so as to be unable to 
perfonn his duty, the court may order him to be discharged, and 
another jury to be then or afterward impanneled. 

See Cooley Const. Lim. 327-8; 1 Bish. Crim. I^w, g 869. 

After the retirement of the jury on a murder trial, one of them was taken 
Tery ill; he was put in bed in a communicating room, a physician was sum- 
moned who attended him, there, not speaking to the others at all, nor to him 
on the subject of the trial. It appearing that the prisoner sustained no injury, 
kdd, that a verdict of guilty was not vitiated. Ooersen v. Com,, 106 Penn, 
St. 477; 51 Am. Rep. 534. 

§ 417. Court to decide questions of law arisini; during 
trial* — The court must decide all questions of law which arise 
in the course of the trial. 

See Thomp. Trials, ^§ 1015-1031; Rapalje's Crim. Proc., S 845; People v. 
Bego, 3 N. Y. Cr. Rep. 277; 36 Hun, 131. 

In People v. (yNeil, 49 Hun, 422, the court say: " A judgment will not be 
reversed merely because the judge submitted to the jury a question which he 
ought to determine himself, where it is ch-ar that he ought to have decided it 
in the same way the jury have found. MilUr v. Ins. Co.^ 2 E. 1). Smltli, 268; 
Cumpston v. McNair, 1 Wend. 457; Pangburn v. BaU, id. 845-352; IlaU v. 
Swfdam, 6 Barb. 83, 88; Thompson v. Roberts, 24 How. (U, 8.) 233-240." 

§ 418. On indictment for libel, jury to determine law 
andfhct. — On the trial of an indictment for libel, the jury 
have the right to determine the law and the fact. 

The State Constitution, art. I, § 8, provides as follows: " In all criminal prosecu- 
tions or indictments for libels, the truth inay be given in evidence to the jury, 
and if it shall appear to the jury, that the matter charged as libelous is true, 
tnd was published with good motives, and for justifiable ends, the party shall 
be acquitted; and the Jnry shall have the right to determine the law and the 
fict." See PeopU v. CromeU, 8 Johns. Cas. 337; State v. Syphrett, 27 So. 
Otf. 20; 18 Am. St. Bep. 616, 625, note. 

22 



170 



Ths Codb of Osdcin^l Pbooedubb 



§ 419. In all other caseB, court to decide questions ol 
law, subject to right of defendant to except. — On the trial 
of an indictment for any other crime than libel, questions of law 
are to be decided by the court, saving the right of the defendant 
to except ; questions of fact, by the jury. And although the 
jury have the power to find a general verdict, which includes 
questions of law as well as of fact, they are bound, nevertheless, 
to receive as law what is laid down as such by the court. 

See 1 Greenl. Ev., g 49; 20 Am. Dec. 133, note; 9 Crim. Law Mag. 627-632; 
8 id. 484; Thomp. Trials, § 2140; PeopU v. VrasweU, 3 Johns. Cas. 337. 

The jury in criminal cases are boand by the instructions of the court as to 
the law, to the same extent as in civil cases. Duffy v. People, 26 N. T. 689; 
Bk. VI (Reprint ed.), 187; People v. Upton, 38 Hun, 100; MeKenna v. Peopfo. 
81 N. Y. 360; PeopU v. UoimU, 5 Hun, 620; 69 N. Y. 607; PeopU v. Pine, 2 
Barb. 666; AUU v. Leonard, 58 N. Y. 291; PeopU v. Finnegan, 1 Park. 147. 
But see People v. Thayer, 1 Park. 596. Contra, Kane v. Com., 89 Penn. St. 
622; 33 Am. Rep. 787; 1 Crim. Law Mag. 47, 51, note ; HudeUon v. State, 94 
Ind. 426; 48 Am. Rep. 171. 

§ 420. Charge to jury* — In charging the jury, the court 
must state to them all matters of law which it thinks necessary 
for their information in giving their verdict; and must, if 
requested, in addition to what it may deem its duty to say, inform 
the jury that they are the exclusive judges of all questions of fact. 

A new trial will not be granted because the judge, though requested, de- 
clined to charge the jurj, there being no question of law in the case. PeopU 
V. Gray, 5 Wend. 289. 

Comments by the trial judge on the testimony, so long as the judge leaves 
aU the questions of fact to the jury and instructs them that they are the sole 
judges of matters of fact, are not the subject of legal exception. PeopU v. 
Carpenter Ali^. Y. Cr. Rep. 39; affirmed, id. 177; Winn^ v. McDonald, 89 N. 
Y. 239; Hart v. Ryan, 6 N. Y. Supp. 934; PeopU v. G'NeU, 112 N. Y. 363- 
864; AllU v. Leonard, 58 id. 291; Pe4)pU> v. Melnemey, 5 N. Y. Gr. Rep. 47. 

A statement of the court that the evidence is convincing enough to warrant 
the direction of a verdict if it was a civil case is not error where the question 
of defendant's guilt is left to the jury. United Statee v. Curtis, 11 Abb. N 
C. 1. 

A charge of the court which brings to the attention of the jury evidence 
relevant to a material fact in the case, and stating that if such evidence be true 
It tends to prove such fact, etc. , and in no way controlling or directing the 
Jury as to the force and effect of such evidence, is not error. People v. Wig- 
gine, 1 N. Y. Cr. Rep. 290. 

Where the courts properly submits to the jury a proposition covering the 
whole Issue, and instructs them that 'they must find it beyond a reasonable 
doubt, he cannot be required to sub-divide it, and charge separately m to each 



OF TBI State or Nbw Tobk. 



171 



of the elements neoessary to eoDstitate the crime, that it mast be established 
beyond a reasonable doubt Walker v. People, 1 N. Y. Cr. Bep. 22; 8 N. Y. 
M. 

Where the ooait, npon the failare of a jury to agree, addresses to them re- 
marks claimed to be improper, a general exception presents no question for 
leriew, unless it appears that no portion of such remarks was proper. Berrjf 
T. Prtjpfo, 1 N. Y. Cr. Rep. 48. 

Where the judge charges that the crime charged in the indictment is a mis- 
demeanor instead of a felony, snd no exception was taken, Tuld, no injury to 
•ccused. People v. Bragle, 88 N. Y. 585; 68 How. Pr. 148. 

Where the eourt charged that the prisoner is presumed to be a sane man 
QBtil he eonrinces you that he is insane, held, not error. O'Gonnell v. People, 
87 N. Y. 877; 6d How. Pr. 486. 

§ 421. Jury may decide in court, or retire in the custody 
of oflioers ; oath of the officers. — After hearing the charge, 
the jury may either decide in court, or may retire for deliberation. 
If they do not agree without retii*ing, one or more officers moat 
be sworn, to keep them together in some private and convenient 
place, and not to permit any person to speak to or communicate 
with them, nor do so themselves, unless it be by order of the 
court, or to ask them whether they have agreed upon a verdicti 
and to return them into court when they have so agreed, or when 
ordered by the court. 

See People, ex rel. ChoaU, v. Barrett, 56 Hun, 351; 24 Abb. N. C. 482. 

§ 422. When defendant on bail appears fbr trial, he may 
be committed. — When a defendant, who has given bail, appears 
foi trial, the court may, in its discretion, at any time after hia 
appearance for trial, order him to be committed to the custody of 
the proper otBcer of the county, to abide the judgment or further 
order of the court ; and he must be committed and held in cus- 
tody accordingly. 



CHAPTER II. 

OOBTDUCr OF THB JUBT AFTER THE CAUSE IS SUBlCnTED TO THE2L 

fiKmov 4S8. Room and aceonunodations for the jury after retirement, hon 
I provided. 

424. Acconmiodatioiis for the Jury, when kept together during the 
trial, or after retirement. 

486, 426. What papers the Jury may take with them. 



ITS Thb Codb of Criminal Pbocedubb 



Sbction 427. May return into court for information. 

428. When jury to be discharged before agreement 

429. Reason for discharge. 

480. When jury discharged or prevented from giving a verdict, cam 

to be again tried. 

481. Court may adjourn during absence of jury, as to other business. • 

but deemed open till verdict rendered or jury discharged. 

482. Final adjournment of court discharges jury. 



§423. Boom and accommodations for the jvry after 
retirement, how provided. — A room must be provided by the 
supervisors of the county (or if the trial be in a city court, by 
the corporate authorities of the city), for the use of the jury, upon 
their retirement for deliberation, with suitable furniture, fuel, 
lights and stationery. If the supervisors or corporate authorities 
neglect this duty, the court may order the sheriff to perform it ; 
and the expenses incurred by him in carrying the order into 
effect, when certified by the court, are a county charge. 



§ 424. Accommodations for the jury, when kept together 
during the trial, or after retirement. — Wliile the jury are 
kept together, either during the progress of the trial or after 
their retirement for deliberation, they must be provided by the 
sheriff, upon the order of the court, at the expense of the county 
(or if the trial be in a city court, at the expense of the city), with 
suitable and sufficient food and lodging. 

See 1 Bish. Crim. Proc., § 997; O'Shidds v. State, 55 Ga. 696; State v. O'Brien, 
7 R. I. 836; State v. Caulfield, 23 La. Ann. 148; Com. v. Roby, 12 Pick. 496; 
8taU V. Hamilton, 19 Ohio St. 116; PeopU v. Kelly, 46 Cal. 855; 55 Ga. 696. 



§ 425. What papers the jury may take with them. 

The court may permit the jury, upon retiring for deliberation, to 
take with them any paper or article which has been received as 
evidence in the cause, but only upon the consent of the defendant 
and the counsel for the people. 
See Abbott's Crim. Brief, 500. 

The fact that a jury took with them a copy of the statates bearing upon the 
crime ander consideration will not vitiate the verdict unless the prisoner la 
shown to have been prejudiced thereby. People v. Draper, 28 Han, 1; 1 N.Y. 
Cr Rep. 138: PeopU v. Seeley, 8 id. 226. 

As to the rule in civil cases, see Bailey's Trial Prac. 241. 



OF THE State of New Yobk. 



178 



§ 426. What papers the jury may take with them. — 

The jury may also take with them notes of the testimony or other 
proceedings on the trial, taken by themselves or any of them, 
but none taken by any other person. 

In Mitehdl v. Carter, 14 Han, 448, after the adjoarnment for the day, the 
jarr having been charged, occupied the court-room and found there the min- 
Qtes kept by the justice holding the court; some of the jurors read portions of 
the minutes, and commented thereon; and others attempted to read them but 
eoald not make them out. The minutes did not contain all the testimony, nor 
were they used by consent of counsel. Held, the verdict was properly set 
lade for irregularity. 

§ 427. May return into court, for information. — After 
the jury have retired for deliberation, if there be a disagreement 
between them, as to any part of the testimony, or if they desire 
to be informed of a point of law arising in the canse, they must 
require the officer to conduct them into court Upon their being 
broaght into court, the information required must be given after 
notice to the district attorney and to the counsel for the defend- 
ant, and in cases of felony, in the presence of the defendant. 

See 6Crim. L. Mag. 185; 4 Amer. & Eng. Encyc. of Law, 815; People v. Moore, 
60 Hun, 859; Comieh v. Graff, 86 id. 164; Maurer v. People, 43 N. Y. 1; Rob- 
erU V. 8taU, 111 Ind. 342; Bolls v. State, 52 Miss. 891. 

Where the jury return to court for further instructions, the prisoner's coun- 
■el must be notified, though the prisoner himself is present. People Ca4- 
tiano, 80 Hun, 888; 1 N. Y. Cr. Rep. 505. 

The jury being sworn to render a truthful verdict upon the evidence, the 
extent of the punishment in no way comes within the range of their province, 
ind the court may decline to instruct them on the subject. People v. Ryan, 55 
Hon, 217; Wood v. People, 1 id. 886. CorUra, People v. Camano, 80 id. 888. 

§ 428. When jury to be discharged before agreement- 
After the jury have retired to consider of their verdict, they can 
be discharged before they shall have agreed thereon only in the 
following casM : 

1. Upon the occurrence of some injury or casualty affecting 
the defendant, the jury or some one of them, or the court, ren- 
dering it inexpedient to keep them longer together ; or 

2. When after the lapse of such time as shall seem reasonable 
to the ^urt, they shall declare themselves unable to agree upon a 
▼erdict ; or 

3. When with, the leave of the court, the public prosecutor 
and the counsel for the defendant consent to such dischaiy^ 



174 Ths Oode or Gbqiinal Pxooedubb 



As to coercion of jury by the court, see Chranston v. Bailroad 0$,, 108 N. 
614; ffuntoan y. RusseR, 50 How. Pr. 155; PeopU, ex rd., y. NeiUon, 22 
Han, 1; Ermn y. Hamilton, 50 How. Pr. 38; State y. ifead, 53 id. 57; 
Berry y. Pijopfo, 1 N. Y. Cr. Rep. 43, 57; State y. 17 Kans. 462; State 

y. Lawrence, 38 Iowa, 51; Pierce y. Pierce^ 38 Mich. 412. In the case last 
cited the jury, after being out for one day, sent word to the judge that 
they could not agree. The judge sent back word that he did not belieye 
it yet. and added the suggestion that they had better agree that night, as he 
was going away and should not be back until the second day after, and they 
might not get discharged until he returned. The verdict was returned within 
an hour afterward. Held, that it must be set aside as obtained by duress. The 
court said: ''Jury trials can never be safe unless the yerdict is made as far as 
possible the unbiased and free conclusion of eyery juror. Eyery attempt to 
driye men into an agreement which they would not haye reached freely is a 
peryersion of justice. It may be discretionary with the trial judge to keep a 
Jury out until he is satisfied an honest and free agreement is not to be expected. 
But there is no legal propriety in keeping a jury confined unreasonably after 
they haye come to an agreement, and a yerdict obtained by the suggestion of 
such an altematiye is a yerdict obtained by what it would be hard to dis- 
tinguish from duress. It may be that the court is not bound to be present con- 
tinually on the chances of an agreement; but any unusual and prolonged de- 
lay is not to be fayored without giving an opportunity to find a sealed verdict. 
This error, however innocently committed, as we are bound to suppose it was, 
must nevertheless, in our opinion, be held fatal to the verdiet." 

§ 429. Beason for discharge. — Wheneyer the jury is die* 
charged without a yerdict, the reason for the discharge must be 
entered on the minutes. 

§ 430. When jury discharged or prevented trom, giving 
a verdict, cause to be ag^ain tried. — In all cases where a jury 
are discharged, or prevented from giving a verdict, by reason of 
an accident or other cause, except where the defendant is dis- 
charged from the indictment, during the progress of the trial, 
or after the cause is submitted to them, the cause may be again 
tried at die same or another term. 

See Peoj^ y. Goodwin, 18 Johns. 187; People t. PeagU, 60 Barb. 627; People 
V. DenUm, 2 Johns. Cas. 275. 

§ 431. Court may a4joum during absence of jury, as to 
other business, but deemed open till verdict rendered or 
Jury discharged. — While the jury are absent, the court may 
adjourn from time to time, as to other business ; but it is never- 
theless deemed open, for every purpose connected with the cause 



OF THS Stats of Nsw Yobk. 



175 



rahmitted to the jory, antil a verdict is rendered or the jary 
discharged. 

See Code dr, Proc, § 84; People OetM, 4 Abb. N. C. 206; People v. Jack- 
m, 111 N. Y. 802; People v, SuUivan, 115 id. 186. 

§ 432. Final a^joarmnant of court dischargeB Jury.— 

A final adjournment of the court discharges the jury, but anj 
term of a court maj be continued for the purpose of finishing a 
trial or receiving a verdict 



CHAPTER in. 

THE VERDICT. 

BVBQV 488. When the Jury ha^e agreed, to be brought into court and fhdr 
names cidled; if all do not appear, Jury to be discharged and 
cause again tried. 

484 In felony, defendant must be present; in misdemeanor, verdlot 
may be rendered in hia absence. 

486. Manner of taking the verdict 

486. Verdict may be general or special 

487. Qeneral veidict. 
48a Special verdict 

489, 4^ Special verdict; how rendered. 

441. Speciid verdict; how brought to argument 

442. Judgment thereon. 

448. When special verdict defective, new trial to be ordered. 

444. Upon indictment for crime consisting of different degrees, Jury 
may convict of any degree, or of any attempt to commit the 
crime. 

446. In other cases. Jury may convict of any offense necessarily 

included in that charge. 
446. On indictment against several. Jury may render a verdict as to 

some, and the cause be again tried as to the others. 
4I7» 448. In what cases court may direct a reconsideration of the 

verdict 

449. When Judgment may be given upon an informal verdict 
460. Polling the Jury. 

451. Recording the verdict 

462. Defendant, when to be discharged or detained after acquittaL 
4B8. Proceedings upon general verdict of conviction, or a special 
verdict 

464. When defendant acquitted on the ground of insanity, the fact 
to be stated with the Verdict; commitment of defendant to 
state Innatic asylum. 



176 Thb Code of Cboonal Pbooedurb 



§ 433. When the jury have agreed, to be brought into 
court and their names called ; if all do not a-ppeax^ jury 
to be discharged and cause again tried. — When the jurj 
have agreed upon their verdict, they must be conducted into court 
by the oflScer having ihem in charge. Their names must then be 
called, and if all do not appear, the rest must be discharged with- 
out giving a verdict. In that event, the cause may be again tried, 
at the same or another term. 

§ 434. In felony, defendant must be present ; in misde* 
meanor, verdict may be rendered in his absence. — If the 

indictment be for felony, the defendant must, before the verdict 
is received, appear in person. If it be for a misdemeanor, the 
verdict may be rendered in his absence. 

See §§ 297, 437, avte; Abbott's CMm. Brief, 606, § 821. 

Felonies. People v. Perkins, 1 Wend. 91; Son v. PeojOe, 12 id. 844; 8(tf- 
ford V. People, 1 Park. 474; Slate v. Eppe.lQ N. C. 65; Smith v. StaU, 61 Wia. 
615; 87 Am. Rep. 845; Beaumont v. StaU, 1 Tex. Ct, App. 538; 28 Am. Rep. 
424; Temple v. Com., 14 Bush, 769; 29 Am. Rep. 442; StnUhv. PeopU, 8 Colo. 
457; State v. Johns, 85 La. Ann. 208; Fdden v. StuU, 18 Neb. 828; Cook v. 
State, 60 Ala. 89; 81 Am. Rep. 81; State v. Jenkins, 84 N. C 812; 87 Am. Rep. 
648; Barton v. State, 67 Ga. 658; 44 Am. Rep. 748. 

Misdemeanors. People v. Wilkes, 5 Uow. Pr. 105. 

§ 435. Manner of taking the verdict.— If the jury appear, 
they must be asked by the court or the clerk, whether they have 
agreed upon their verdict; and if the foreman answer in the 
affirmative, they must, on being required, declare the same. 

§ 430. Verdict may be general or speciaL— The jury may 
either render a general verdict, or when they are in doubt as to 
the legal effect of the facts proved, they may, except upon an 
indictment for libel, find a special verdict. 

See PeopU v. Rugg, 98 N. Y. 551; 8 N. Y. Cr. Rep. 182; PeopU v. Taylor. 
id. 802; Hawker v. PeopU, 75 N. Y. 487; Conkeyv. People, 1 Abb. Dec. 418; 5 
Park. 81; People v. MeOeery, 6 id. 658; People v. Bruno, id. 657. 

§ 437. Gteneral verdict. — A general verdict upon a plea of 
not guilty is either " guilty " or " not guilty ; " which imports a 
conviction or acquittal of the oflFense charged in the indictment. 
Upon a plea of a former conviction or acquittal of the same 
oflFense, it is either "for the people," or " for the defendant" 



OF THs Stats of New York. 



177 



See PotMky PeopU, 11 Hon. 890; 78 N. Y. 05; Hawktr v. P^opU, 75 id. 487; 
PwpU Y, Rugg, 96 id. 551; 3 N. Y. Cr. Rep. 182; People v. Taylor, id. 802. 

A general verdict of guilty is the finding of the truth of all the material 
aocoants of the indictment, including value, where that is material; People y. 
B<frit, 1 N. Y. Cr. Rep. 898. 

General verdict of guilty is erroneous under an indictment for obstructing 
the highway, containing averments of continuance, when it appears that the 
defendant acted for his wife, who was the owner of the land. People v. 
UxingOon, 27 Hun, 105; 68 How. Pr. 242. 

Where the record on a former trial showed that there were two pleas, one 
of not guilty and the other a former acquittal made by the defendant to the 
ifidictment, yet the only verdict rendered by the jury appearing on the record 
is "guilty as charged in the indictment," held, that as the jury did not find 
against the defendant upon his plea of former acquittal, and as there is no 
verdict upon the issue raised by that plea and no judgment thereon, a new 
trial must be had to correct the error in that respect. People v. Bureh, 5 
N. Y. Cr. 82; 1 N. Y. State Rep. 751. 

§ 438. Si>ecial verdict. — A special verdict is that by which 
the jury find the facts only, leaving the judgment to the court 
It must present the conclusions of fact, as established By the 
evidence, and not the evidence to prove them ; and these con- 
dnsions of fact most be so presented as that nothing remains to 
the court but to draw from them conclusions of law. 

See PeopU v. Tayfew, 3 N. Y. Cr. Rep. 302; People v. Hale, 1 id. 553. 

Where, on a trial of an indictment of different counts, there is a specific 
Terdiet of guilty on one count and silence as to all others, it is a bar to the 
pioteeution on the eount as to which the verdict is silent. People y. Bowling, 
WN. Y.47a 

'* We find the prisoner guUty of receiving stolen goods, knowing them to 
be itolen," not sufficient under an indictment for feloniously receiving stolen 
property, knowing it to have been stolen. MUUr v. People, 25 Hun, 478. 

§ 439. Special verdict ; liow rendered. — The special ycf 
diet must be reduced to writing, by the jury or in their presence^ 
entered upon the minntoB of the court, read to the jorjy and 
agreed to by them, before they are discharged. 
Sm People ▼. Taglar, 8 N. Y. Cr. Bep. 802. 

§ 440. Special verdict; how rendered. — The special yer- 
diet need not be in any particular form, bnt ia snfElcient if it 
present intelligfbly the facts found by the jury. 
BmPeofUY.aOe, 1 N. T. Cr. Sep. S88. 
98 



178 The Codb of Obdcinal Pjsoobdube 



§ 441. Special verdict ; how brought to argument. — The 
special yerdict may be brought to argnment by either party, upon 
five clays' notice to the other, at the same or another term of the 
court ; and upon the hearing thereof, the counsel for the defend- 
ant may conclude the argument. 

) § 442. Judgment thereon. — The court must give judgment 
upon the special verdict as follows : 

1. If the plea be not guilty, and the facts prove the defendant 
guilty of the offense charged in the indictment, or of any other 
offense of which he could be convicted under that indictment, 
as provided in sections four hundred and forty-four and four 
hundred and forty-five, judgment must be given accordingly; 
but if otherwise, judgment of acquittal must be given ; 

2. If the plea be a former conviction or acquittal of the same 
offense, the court must give judgment of conviction or acquittal, 
according as the facts prove or fail to prove the former convictioD 
or acquittal. 

8ee P«?pfo V. Burch, 5 N. Y. Cr. Rep. 32; 1 N. Y. State Rep. 761. 

§ 443. When special verdict defective, new trial to be 
ordered. — If the jury do not, in a special verdict, pronounce 
affirmatively or negatively on the facts necessary to enable the 
court to give judgment, or if they find the evidence of facta 
menely, and not the conclusions of fact from the evidence, as 
established to their satisfaction, the court must order a new triaL 

§ 444. Upon indictment for offense consisting of difliar- 
ent degrees, jury may convict of any degree, or of any 
attempt to commit the offense. — Upon an indictment for a 
crime consisting of different degrees, the jury may find the 
defendant not guilty of the degree charged in the indictment, 
and guilty of any degree inferior thereto, or of an attempt to 
commit the crime. 

See § 890, ante; Penal Code, § 85, note; People v . Taylor, 8 N. Y. Cr. Rep. 802; 
People V. StiUican, 4 id. 193; People v. Pcamer, 48 Hun, 404 ; 5 N. Y. Cr. Rep. 
105: People v. Meegan, 104 N. Y. 581; People v. McDonald, 49 Han, 68. 

The jury should first consider and determAie whether the defendant is guilty 
of the crime charged, and if not so found, to consider lesser degrees. People 
^ V. Willson, 109 N. Y. 847. 

In People v. Downs, 56 Hun, 6, it was held that a Jury has no right to con- 
vict a defendant of a lesser degree of a crime simply because it doubts whether 



OF THE State of N«w Yobk. 



179 



)n eammitted a greater degree, bat the elements which coDstitate each degree 
mast be themselves proved. 

When requested to charge, that if doubt existed in the miud of the jury as 
to the g^rade of the offense committed, it was their duty to convict of the 
lesser, the court said that it had told the jury that the prisoner was entitled to 
ill reasonable doubt. Held, sufficient. Abbott v. People, 86 N. Y. 460. 

On a trial for grand larceny, first degree, may convict of grand larceny, 
second degree. People v. MeCallam, 8 N. Y. Cr. Rep. 199; or of petit larceny. 
PtapU V. McTameney, 80 Hun, 505; 1 N. Y. Cr. Rep. 437; 66 How. Pr. 70; 18 
Abb. N. C. 55. 

On an indictment for arson in the first degree, there may be a conviction for 
ittemptlng to commit arson in any of the leaser degrees. People v. Long, 2 
Edm. Sel. Cas. 129; People v. Uidien, 17 Uow. Pr. 224. 

Under an indictment for burglary defendant may be convicted of an attempt 
to commit the burglary charged. People v. Laicton, 56 Barb. 120; People v. 
Jackson, 8 Hill, 92; or of larceny. People v. hnyder, 3 Park. 23. 

Indictment need not allege facts or circumstances, which, if proven, would 
constitute the lesser crime. Thesf) are matters of evidence for the benefit of 
tbe accused. People v. McDonnell, 1 N. Y. Cr. Rep. 366; 92 N. Y. 657, mem. 

Indictment in common-law form sufficient, notwithstanding the statute, and 
permits a conviction for the offense charged in any degree, corresponding to 
the evidence. PeopU v. McDonneU, 92 N. Y 657; 1 N. Y. Cr. Rep. 368; Peo- 
TU v. Thompioti, 41 N. Y. 1; liuloff v. PeopU, 11 Abb. (N. S.) 245; 45 N. Y. 
218; KetfiM v. PeopU, 61 Barb. 807. 

§ 445. In other cases, Jury may convict of any offense 
necessarily included in that charge. — In all other cases, the 
defendant may be found guilty of any crime, the commission of 
wliich is necessarily included in that with which he is charged in 
the indictment. 

^ PeopU V. MeTameney, 18 Abb. N. C. 57; 66 How. Pr. 78; PeopU v. Pal^ 
•«-,43Hun,406; People v. Afeegan, 1(»4 N. Y. 531; PeopU v. Doiding, 1 N. Y. 
Cr. Rep. 581; PeopU v. McDonald, AS^ Hun, 68; People v. Kennedy, 57Hun,535. 

§ 446. On indictment against several, jury may render 
a Terdict as to some, and the cause be again tried as to 
the others. — On an indictment against one or more, if the jnry 
cannot agree upon a verdict as to all, they may render a verdict 
IS to those in regard to whom they do agree, or which a judg- 
ment must be entered accordingly ; and the case, as to the rest, 
may be tried by another jury. 

§447. In what cases court may direct a reconsideration 
of the verdict. — When there is a verdict of conviction, in 
which it appears to the court that the jury have mistaken 
law, the court may explain the reason for that opinion, a 



180 



The Code of Criminal Procedure 



the jury to reconsider their verdict ; and if, after the reconsidera- 
tion, they return the same verdict, it must be entered. But 
wlien there is a verdict of acquittal, the court cannot require the 
jury to reconsider it. 

See Hegeman Y. Cajitrel/, 40 N. Y. Super. 385; Root v . Sherwood, Q Johns, 
eS; BlackUy v. Sheldon, 7 id. 34. 

§ 448. In what cases court may direct a reconsideration 
of the verdict. — If the jury render a verdict which is neitlicr 
a general nor a special verdict, as defined in sections four hundred 
and thirty-seven and four hundred and thirty-eight, the court may, 
with proper instructions as to the law, direct them to reconsider 
it ; and it cannot be recorded, until it be rendered in some form, 
from which it can be clearly understood what is the intent of the 
jury, whether to render a general verdict, or to find the facta 
specially, and leave the judgment to the court. 

§ 449. When judgment may be given upon an informal 
verdict. — If the jury persist in finding an informal verdict, 
from which, however, it can be clearly understood, that their 
intention is to find in favor of the defendant, upon the issue, it 
must be entered in the terms in which it is found, and the court 
must give judg:ment of acquittal. But no judgment of convic- 
tion can be given, unless the jury exDresely find against the 
defendant, upon the issue, or judgment be given against him on 
a special verdict. 

. See People v. Burch, 5 N. Y. Cr. Rep. 32. 

» 55 450. Polling the jury. — When a verdict is rendered, and 
dcfore it is recorded, the jury ma? be polled, on the requirement 
ol either party ; in which case they must be severally asked 
whether it is their V4?rdict ; and if any one answer in the negative, 
the jury must be sent out for further xleliberation. 

See Ptople v. Burch, 5 N. Y. Cr. Rep. 32; Leighton v. People, lU Abb. N. C 
201: 88 N. Y. 117. 

§ 451. Recording the verdict. — When the verdict is given, 
and is such as the court may receive, the clerk must immediately 
ixjcord it in full upon the minutes, and must read it to the jury 
to' id inquire of them whether it is their verdict. If any juror 
disagree, the fact must be entered upon the minutes, and the jury 
again sent out ; but if no disagreement be expressed, the verdict 
is complete, and the jury must l>e discharged from the case 



or THB Stats of Nxw Yobk. 



181 



§ 452. Defendant^ wlien to be discharged or detained 
after acquittal. — If judgment of acquittal be giyen on a gen- 
end verdict, and the defendant be not detained for any other legal 
cause, he must be discharged as soon as the judgment is given ; 
except that when the acquittal is for a variance between the prouf 
and the indictment, which maj be obviated hj a new indictment, 
the court may order his detention, to the end that a new indict- 
ment may be preferred, in the same manner and with the like 
effect as provided in sections four hundred and eight and four 
hundred and nine. 

See People v. FuUer, 12 Abb. N. C. 196; PeopU v. Cruger, 88 Hun, 500. 

§ 453. Proceedings upon general verdict of conviction 
or a special verdict. — If a general verdict be rendered against 
the defendant, or a special verdict be given, he must be remanded ; 
if in custody, or if on bail, he may be committed to the proper 
oflScer of the county, to await the judgment of the court upon 
the verdict. When committed, his bail is exonerated, or if 
money be deposited instead of bail, it must be refunded to the 
defendant. 

§454. When defendant acquitted on the ground of^ 
iiiBanity,' the fiact to be stated with the verdict ; commit- 
ment of defendant to state lunatic asylum. — When the 
defense is insanity of the defendant the jury must be instructed, 
if they acquit him on that ground, to state the fact with their 
verdict. The court must, tliereupon, if the defendant be in cus- 
tody, and they deem his discharge dangerous to the public peace . 
or Bafety, order him to be committed to the state lunatic asylum, 
uitil he becomes sane. 

Bee People, ex rel, Mooney, v. WaUh, 21 Abb. N. C. 800, n. 



TITLE VIIL 

OYTHX PBOOKEDnrOS AFTER TRIAL AND BSFORB JUDOMXHT 

Obaftkb L Bill of exceptions. 
IL New trials. 

III. Arrest of judgment 



182 Thb Code of Osdonal Pbocbdubb 



CHAPTER 1. 

BILL OF BXOEPnONS. 

Section 4S5. In what cases. 

4S6. By whom settled, and how filed. 

467. To be settled at the trial, or the point noted in writing. 

458, 459. When and how settled, after the trial 

460. Enlarging the time therefor. 

461. Effect of not serving exceptions or amendments, within the 

time prescribed. 

§ 455. Ih what caseB. — On the trial ot an indictment, excep 
tions may be taken by the defendant, to a decision of the court| 
upon a matter of law, by which his substantial rights are preja- 
diced and not otherwise, in any of the following cases: 

1. In disallowing a challenge to the panel of the jury ; 

2. In admitting or rejecting testimony on the trial of a chal- 
lenge for actual bias to any juror who participated in the yerdiot, 
or in allowing or disallowing such challenge ; 

3. In admitting or rejecting witnesses or testimony, or in decid- 
ing any question of law, not a matter of discretion, or in chai^ng 
or instructing the jury upon the law, on the trial of the issue. 

See PeopU v. McQuade, 110 N. Y. 284; 21 Abb. N. C. 418. 43tf, 447; PeopU 
V. Welch, 1 N. Y. Cr. Rep. 488; PeopU v. Fetrea. id. 203; People v. Willett, Sid. 
827; 36 Hun, 504; People v. Petmecky, 2 N. Y. Cr. Rep. 458; People v. Sullivan, 
4 id. 197; Peoplev. Palmer, 109 N. Y. 419; 5N. Y. Cr. Rep. 105; Walker v. Peo- 
ple, 1 id. 7; Berry People, id. 43, 57; 19 Alb. L. J. 336; 77 N. Y. 688. 

g 456. By whom settled, and how filed. — A bill contain- 
ing the exceptions must be settled and signed by the presiding 
judge, and filed with the clerk. 

See People v. Bradner, 107 N. Y. 1; 44 Han, 235; People v. Buddermeek, 
103 N. Y. 478; People v. McQuade, 110 id. 284; Brigga v. Waldron, 83 id. 582. 

§ 457. To be settled at the trial, or the point noted in 
writing. — The bill of exceptions must be settled at the trial 
unless the court otherwise direct. If no such direction be given, 
the point of the exception must be particularly stated in writing, 
and delivered to the court, and must immediately be corrected or 
added to, until it is made conformable to the truth. 



OF THE StATB of NsW YoSK. 



188 



§ 458. When and how settled, after the triaL— If the bill 
of eiceptions be not settled at the trial it must be prepared and 
smedy within five days thereafter, on the district attorney, who 
may, within five days, serve on the defendant or his counsel, 
amendments thereto. The defendant may then, withiu fi\e days, 
eerre the district attorney with a notice to appear before the pre- 
siding judge of the court, at a specified time, whether in or out 
of court, not less than five nor more than ten days thereafter, to 
have the bill of exceptions settled. 

§ 459. Whan and how settled, after the triaL — At the 
time appointed, the judge must settle and sign the bill of 
exceptions. 

Bee PeopU y. Bradner, 44 Han, 286; 107 N. Y. 1. 

§ 460. Enlarging the time therefor. — The time for pre- 
paring the bill of exceptions or the amendments thereto, or for 
Kttling the same, may be enlarged by consent of the parties, or 
by the presiding judge, or by a judge of the supreme court, but 
by no other officer. 

§ 461. EflBdCt of not serving exceptions or amendments, 
within the time prescribed* — If the bill of exceptions be not 
served within the time prescribed in section four hundred and 
fifty-eight, or within the enlarged time therefor, as prescribed in 
the last section, the exceptions are deemed abandoned. If it be 
lerved, and the parties omit, within the time limited by section 
four hundred and fifty-eight, the one to prepare amendments, and 
the other to give notice of appearance before the judge, they are 
respectively deemed, the one to have agreed to the bill of excep- 
tions, and the other to the amendments. 



CHAPTER IL 

NEW TRIALS. 

EmmmiHSL New triaL 

468. When granted. 

464. Effect of granting new trial 

465. In what cases granted. 

466. Application, when to be mada 



184 



Th£ Cods of Csdonal Pboobdurb 



§ 462. New triaL — A new trial is a ro-examination of the 
iflsuo, in the same court, before another jury, after a yerdict lias 
been given. 

See § 544 post. PeopU v. DeekwUh, 5 N. Y. Cr. Rep. 288; 42 Hun. 367; 
People y. Palmer, 43 id. 409. 

§ 463. When granted. — A new trial can be granted by the 
oonrt in which the former trial was had only in the cases pro- 
vided in section four hundred and sixty-five. 

See People v. Bradner, 107 N. Y. 1; 44 Hun, 283; People v. Palmer, 43 id. 
409; 6 N. Y. Cr. Rep. 109; People v. Draper, 28 Hun, 8. 

§ 464. Effect of granting a new triaL — The granting ot a 
new trial places the parties in the same position as if no trial had 
been had. All the testimony must be produced anew ; and the 
former verdict cannot be used or referred to, either in evidence 
or in argument. 

See People v. Palmer, 109 N. Y. 413; 4 Am. St. Rep. 477; 5 N. Y. Cr. Rep. 109; 
48 Hun, 409; People v. Upton, 38 id. 110; People v. CignaraU, 110 N. Y. 33. 

In the course of the trial of an indictment for murder the district attorney 
referred to a former conviction of the defendant on trial under the i^ame in- 
dictment, and in his argument referred to the fact that a witness called for 
the defendant on the former trial was not called on this. Held, that while the 
language of the district attorney was improper and a technical violation of 
this section, yet as the facts showed defendant was not injured it was not a 
ground for reversal; that to justify a reversal on such a ground the court 
should be satisfied that justice requires it. People v. Oreenwall, 115 N. Y. 520. 

In Hatch v. State, 8 Tex. A pp. 416; 34 Am. Rep. 751, the public prosecutor 
in addressing the jury denouuc* '! <l<.'fendant as a ** fellow,*' f,jd a ** land thief," 
and "as guilty as hell;" and the prisoner having previously been convicted 
and got a new trial, the prosecutor said the new trial was obtained **by a 
dodge and technicality," and boasted of his ability to convict him before twelve 
honest men as many times as he could get a new trial. The statute forbade 
any allusion to a former conviction. On account of this language, the defend- 
ant being convicted, a now trial was granted, although the trial judge ad- 
monished the jury to disregard it. 

§ 465. In what cases granted. — The court in which a trial 
has been had upon an issue of fact has power to grant a new 
trial when a verdict has been rendered against the defendant, by 
which his substantial rights have been prejudioed, upon hia 
application, in the following cases : 

1. When the trial has been had in his absence, if the indict- 
ment be for a felony ; 



OF TAB StATB of NeW ToBX. 



186 



2. When the jury has received any evidence out of court, other 
than that resulting from a view, as provided in section four 
handred and eleven ; 

3. When the jury have separated without leave of the court, 
after retiring to deliberate upon tlieir verdict, or have been guilty 
of any misconduct by which a fair and due consideration of the 
case has been prevented ; 

4. When the verdict has been decided by lot, or by any means 
other than a fair expression of opinion on the part of all the jurors ; 

5. When the court has misdirected the jury in a matter of law, 
or has refused to instruct them as prescribed in section four hun- 
dred and twenty ; and the defendant has, at the trial, excepted 
to such misdirection or refusal ; 

6. When the verdict is contrary to law or clearly against 
evidence ; 

7. When it is made to appear, by affidavit, that upon another 
trial, the defendant can produce evidence such as if before 
received would probably have changed the verdict ; if such evi- 
dence has been discovered since the trial, is not cumulative ; and 
the failure to produce it on the trial was not owing to want of 
dili;]jenee. 

See People v. KeUy, 31 Hqd, 225; People v. Oaterhout, 3 N. Y. Cr. Rep. 446; 
PeopU V. Wentworih, 4 id. 200; PeopU v. Joyce, id. 844. 

As to the power of the appellate courts to order u uew trial, see 527-528. 

An appeal from a judgment of conviction brings before the general term for 
review the decision of the trial ourt upon a motion for a uew trial, as well as 
the proceedings upon the trial. People v. Mangano, 29 Hun, 259, 263. 

SnbdiT. 2. See People v. Johnson, 110 N. Y. 135; affirming 46 Hun, 667; 
PeapU V. Paltner, 43 id. 407, 409;1 5 N. Y. Cr. 100. 109; PeopU', ex rel. 
Chmte, V. Barrett, 80 State Rep. 732: PeopJ.^ v. TyrreU, 8 N. Y. Cr. Rep. 142. 

WTien, in a capital case after the testimony was closed, a part of the jury, in 
company with an oflScer, vislt<»d the scene of the homicide, it was held ground 
for a new trial. Edsttoood v. Pe^, 8 Park. 25; 14 N. Y. 562. 

Subdiv. 3. See PeopU v. KeUy, 94 N. Y. 526; 2 N. Y. Cr. Rep. 18; People v. 
Seeley, 3 id. 282; PeopU v. Menken, 86 Hun. 91; People, v. RUey, 3 N. Y. Cr. 
Rep. 884; Beebe v. PtopU, 5 Hill, 32; Pe^ypU v. Montgomery, 13 Abb. Pr. 
(N. S.) 207; Eoitwood v. PeopU, 8 Park. 25; PeopU v. Hartung, 4 id. 256; 
17 How. Pr.85; WiUon v. Pe4>pU, 4 Park. 619; 8 Abb. Pr. 187; PeopU v. 
Bmper, 28 Hun. 1; Eariy v. StaU, I Tex. App. 248; 28 Am. Rep. 409; Ktlly v. 
^te, 12 Grim. Law Mag. 281. 

It is not a ground for a new trial in a capital case that one of the jurors was 
apparently msleap, to the knowledge of the prisoner's counsel, who omitted to 
call the ooort's attention to it. PtopU v. Morristey, 1 Sheld. 295. 
S4 



186 Thb Codb of Criminal Fboobdusb 



If a jury take out with them certain written evidence read in evidence, to 
which is attached an affidavit not so read, it is ground for a new trial. MUchelTi 
Case, 1 City Hall Rec. 147. 

When a new trial is desired on the ground of irregularities of the jurors 
while in the jury room, affidavits of the jurors cannot be used on the motion. 
84 Am. Dec 617; 21 Am. L. Reg. (N. S.) 742; Wilson y. PeopU, 4 Park. 619; Peo- 
pie V. Hartung, 17 How. ?r. 85; Ostrander v. People, 28 Hun, 46; Wiggins v. 
Downer, 67 How. Pr. 65. 

A new trial will not be granted in a capital case merely because the jury 
read a newspaper containing a report of the trial but without any comments 
which would prejudice the prisoner. People v. Oaffney, 14 Abb. Pr. (N. S.) 
86; 1 Sheld. 804; affirmed, 50 N. Y. 424. 

SnbdiT. 4. WiUiams v. 8taU, 15 Lea, 129; 54 Am. Rep. 404; CochUn v. Peo- 
pU, 98 111. 410. 

Snbdiv. 5. See People v. Casey, 96 N. Y. 116; 2 N. Y. Cr. Rep. 194. 

A new trial will not be granted because the trial judge refused to charge the 
Jury, there being no question of law in the case. People v. Gray, 5 Wend. 
289. 

That the judge laid down an erroneous proposition and immediately corrected 
it, is no ground for a new trial. Eggler v. People, 56 N. Y. 642. 

SnbdiT. 6. See PeopU v. Stokes, 2 N. Y. Cr. Rep. 882; Sawyer v. PeopU, 27 
Hun, 286. 

A new trial may be granted where the verdict is clearly against the weight 
of evidence. Rogers v. People, 8 Park. 632; People v. Sha/y, 4 id. 344; Man- 
uel V. PeopU, 48 Barb. 548. 

SnbdiT. 7. See Peoj^ v. Stokes, 2 N. Y. Cr. Rep. 882; People v. Beekwith, 
42 Hun. 866; People v. Lane, 1 N. Y. Cr. Rep. 554; 81 Hun, 13; Geneva, etc., 
B. Co. V. Sage, 35 id. 95; Anderson v. Market Nat. Bank, 66 How. Pr. 8. 

When a new trial may be had on ground of newly-discovered evidence. 
PeopU V. Hovey, 80 Hun, 854; 1 N. Y. C*r. Rep. 324; 92 N. Y. 554; PeopU v. 
Leighton, 1 N. Y. Cr. Rep. 468; PeopU v Bradner, 107 N. Y. 1. 

A motion for a new trial upon the ground of newly-discovered evidence 
cannot be granted where such evidence is cumulative. PeopU v. Leighton, 1 
N. Y. Cr. Rep. 468; 80 Hun, 854. 

It must be shown affirmatively by the party seeking the new trial that the 
proposed evidence is not cumulative. PeopU v. Hovey, 80 Hun, 854; 1 N. Y. 
Cr. Rep. 824; affirmed. 98 N. Y. 651; PeopU v. Jones, 25 Weekly Dig. 541. 

Wiien the defendant in a criminal action testifies in his own behalf, but no 
evidence of good character is given on his part, on a motion for a new trial on 
affidavits showing defendant's good character, such evidence is not cumulative, 
and a new trial may be ordered when it appears such evidence, had it been 
given, might have changed the verdict. PeopU v. Lane, 81 Hun, 18. 

Newly-discovered evidence not sufficient unless it appears that it could not 
have been discovered with proper diligence on the trial. People v. Mack, 2 
Park. 678. 

In cases of doubt where the evidence is conflicting and the credibility of 
witnesses in question, and no error has been committed, a new trial will be 
denied. Id. 



OF THE State of New Yobk. 



187 



On a motion for a new trial on the gronnd of newly-diiooTered evidence, 
the court most consider not only the affidavits upon which the motion is based, 
bat the testimony and proceedings on the former trial, and also whether the 
newly-discovered evidence would, if given on the former trial, have changed 
the verdict. People v. Mavey, 30 Hun, 854; 1 N. T. Cr. Rep. 324; affirmed, 
93N. Y. 651. 

Evidence which existed and was known to defendant before the former trial 
|Cannot be considered newly-discovered, because he has since discovered that 
it might have been important if used on the trial. People v. Hovey, 30 Hun, 
854; 1 N. T. Cr. Rep. 824; affirmed, 98 N. Y. 651. 

A new trial should not be granted upon the application of defendant, where 
the alleged newly-discovered evidence is inconsistent with the testimony of 
the defendant on the former trial. People v. Hovey, 30 Hun, 854; 1 N. Y. 
Cr. Rep. 324; affirmed, 98 N. Y. 061. 

§ 466. Application, when to be made. — The application 
for a new trial must be made before judgment, except an applica- 
tion made nnder snbdivision seven of section four hundred and 
sixty-five, which may be made at any time within one year, and 
except in case of a sentence of death when the application may be 
made at any time before execution, and in case the court before 
which the trial was had is not in session so that the application 
can be made and determined before the execution, then the appli- 
cation may be made to any justice of the supreme court or special 
term thereof, within the judicial department where the conviction ^ 
was had. 

See People Bradr^, 107 N. Y. 10; P€4)ple v. Leighton, 1 N. Y. Cr. Rep. 
468; PeopU O'NeU, 47 Hun, 156; PeopU v. Palmer, 5 N. Y. Cr. Rep. 109; 
43 Hun, 409; People v. Beekvith, 42 id. 367; 5 N. Y. Cr. Rep. 233; People 
Wentworth, 4 id. 210; People v. Hofjey, 1 id. 324; 30 Hun, 354; 93 N. Y. 66L 



CHAPTER III. 
AB&EST OF JUDGMENT. 

Motion in arrest of Judgment, defined, and upon what defactt 
founded. 

Ck>urt may arrest Judgment without motion. 
Motion, when and how made. 
Defendant, when to be held or discharged. 



HMTKm 4i07. 

46a 
469. 
470. 



188 



Thb Oode of Criminal Pbocedubb 



§ 467. Motion In arrest of Judgment, defined, and upon 
what defects founded. — A motion in arrest of judgment is 
an a))pIication on the part of the defendant, that no judgment be 
rendered on a plea or verdict of guilty, or on a verdict against the 
defendant upon the plea of a former conviction or acquittal. It 
may be founded on any of the defects in the indictment mentioned 
in section three hundred and thirty -one. 

See PeopU v. D'Argencour, 82 Hun, 179; PeopU Menkm, 86 id. W; 8 N. 
Y. Cr. Rep. 242; People v. Upton, 88 Hun, 107; People v. Joyce, 4 N. Y. Cr. 
Rep. 848; People v. Bcckwith, 5 id. 283; 42 Ilun, 867; PeopU v. SuUwan, 40 
id. 888. 

Upon a motion in arrest of judgment only two objections are available; (1) 
** to the jurisdiction of the court over the subject of the indictment; " (2) ** that 
the facts stated do not constitute a crime." People v. Btuidermeck, 103 N. Y» 
487; 5 N. Y. Cr. Rep. 71. 

A motion for arrest of judgment in a criminal action cannot be made save 
for some defect that appears on the record; it cannot be based upon proof by 
affidavit of facts outside and constituting no part of the record. PeopU ▼. 
Kemy. 94 N. Y. 526. 

Upon the trial of an indictment the prisoner was not formally arraigned, 
nor did he formally plead. He was present, with counsel, at the trial, made 
no objection to the failure to arraign, nor did he request to plead. After ver- 
dict, these objections were first raised by a motion in arrest of j udgment. Held, 
that they were untenable, no substantial right of the prisoner having been 
taken away, and that the question was not a proper ground for such a motion. 
PeopU V. OsUrhout, 34 Hun, 260; 3 X. Y. Cr. Rep. 445. 

Motion in arrest is not confined to indictment but may include the whole 
record. People v. Bruno, 6 Park. 657. 

It cannot bring up a variance between the proof and the indictment. PeopU 
V. Onondaga Oen. Sees., 1 Wend. 296; Case v. PeopU, 6 Abb. N. C. 151. 

Neither can mistakes of the court on trial, nor of the jury, be considered. 
PeopU V. Thompson, 41 N. Y. 1; People v. Allen, 43 id. 28. 

A motion in arrest of judgment can only be made for defects on the record. 
Jacobou)8ky v. PeopU, 6 Hun, 524; 64 N. Y. 659. 

Cannot be made for defect of evidence. Id. 

A conviction in a capital case without a venire being returned and filed is 
sufficient ground. People v. McKay, 8 Johns. 212. 

A mere irregularity in the venire no ground. PeopU v. Herkimer County, 
etc., 20 Johns. 310. 

That the time laid in the indictment is beyond the period of limitation is no 
ground. People v. Van Santford, 9 Cow. 655. 

Where an indictment for misdemeanor contains two counts, one good and 
the other bad, judgment will not be arrested. £ane v. PeopU, 3 Wend. 363; 
8 id. 203; PeopU v. Davu, 46 Barb. 494; Frazer PeopU, 54 id. 806; People 

8Uin, 1 Park. 202; PeopU v. Oilkinson, 4 id. 26. 

One good count is sufficient to sustain a conviction. PeopU ▼. Daoia, 66 
N. T. 95. 



OF THE State of New York. 



169 



§468. Court may arrest judgment without motion. - 
The court may also, on its own view of any of these defecta, 
arrest the judgment without motion. 

§ 469. Motion, when and how made.— The motion must 
be made before or at the time when the defendant is called for 
judgment. If made before, it must be on notice to the district 
attorney, or in his presence. 

See People v. ITArgencour, 95 N. Y. 034; 32 Hun, 179. 

§470. Defendant, when to be held or discharged.— 
When judgment is arre8te<l, and it appears that tliuro is not evi- 
dence sutiicient to convict the defendant of any crime, lie must, 
if in custody, be disriiarged ; or, if under bail, his bail must ha 
excnerated; or, if money has been deposited instead of bail, it 
must be refunded; and in such case the arrest of judgment ope- 
rates as an acquittal of the charge upon which the indictment 
was found; but if there is reasonable ground to believe the 
defendant guilty, and a new indictment can be framed upon which 
he may be convicted, the court may order him to be reconiinitted 
or admitted to bail anew to answer the new indictment ; if tliere 
ifl reasonable ground to believe him guilty of another crime, he 
most be committed or held to answer therefor ; and in no case, 
when recommitted or held to answer, is the former verdict a bar 
to a new indictment. 



CHAPTER IV.* 

SUSPENSION OF JUDGMENT. 
Section 470a. SuspeDsion of judgment. 

470b. Kegardi'd as a conviction. 

§ 470a. Suspension of judgment— If the judgment be sus- 
pended after a plea or verdict of guilty or after a verdict ngainst 
the defendant upon a plea of a former conviction or acquittal the 
court may pronounce judgment at any time thereafter within the 
longest period for which the defendant might have been sentenced ; 
but not after the expiratitm of such ju-riod, unless tlu^ defendant 
siiail have been convicted of another crime committed during such 
period. 

§470b. Regarded as a conviction.— Tf judj^^ment l.o not. 
pronounced as in the last section jwovided, nev(M'lhel( s> ; 

•Added Laws 1893. ch. 651; in effect May 8. 1^9^. By section 2 of s-ud lu t. 
•11 acts aod parts of acts inconsistent witli tljc provisions of lliis a(^t are licreby 
repealed, io so far as iDCunsistent therewith. 



190 Thb Code of Criminal Procedure 



1. For the purpose of indictment and conviction of a fiecond 
offense, the plea or verdict and suspension of judgment shall be 
regarded as a conviction, and shall be pleaded according to the 
fact 

2. The said plea or verdict and suspension of judgment majr be 
proved in like manner as a conviction for the purpose of effectmg* 
the weight of the defendant's testimony in any action or proceed- 
ing, civil or criminal 

TITLE IX. 

OF THE JUDGMENT AND EXSOUTIOV. 

Chapter I. The judgment 
XL The execution. 



CHAPTER 1. 

THE JUDGMENT. 

SBCfTilui 471, 472. Time for pronouncing judgment, to be appoinlad the 

court 

478. In felony, defendant must be preisent; in misdemeanor, judg- 
ment may be pronounced in his absence. 

474. When defendant is in custody, how brought before the court foi 
judgment 

Sbction 475. How brought before the oourt, when he is on baiL 

476. i^nch warrant lu issue. 

477. Form of bench warrant. 

478. 479. Service of the bench warrant. 

480. Arraignment of defendant for judgment 

481. What cause may be shown against the judgment 

482. If no sufficient cause shown, judgment to be pronounced. 

483. Court may summarily inquire into circumstances in aggraTitiiM 

or mitigation of punishment 

484. Judgment to pay fine. 

485. The judgment rolL 

§ 4T1. Time for pronouncixig judgment to be appointed 
by the court. — After a plea or verdict of guilty, or after a 
verdict against the defendant on a plea of a former conviction or 
acquittal, if the judgment be not arrested, or a new trial granted, 
the court must appoint a time for pronouncing judgment. 

See People, ex rel. Ekans, v. MeEwen, 67 How. Pr. 106; 2 N. T. Cr. Rep. 
313; Moett v. People, 85 N. Y. 873; State v. Vote, 8 L. R. A. 767. 

There is no constitutional principle which requires that judgment on con- 
viction must be pronounced by the same judges before whom the trial was 
had. PeopU v. Bork, 96 N. Y. 198; Weed v. Pe^^e, 56 id. 628. 



OF THE State of New Yoek. 



191 



§ 472. Time for pronouncing Judgment to be ap* 
pointed by the court — The time appointed must be at least 
iwo days after the verdict, if the court intend to remain in session 
io long, or if not, as remote a time as can reasonably be allowed ; 
but any delay may he waived by the defendant. 

See PeapU v. Eoerhardt, 1C4 N. Y. 592. * 

§ 473. In falonyi defendant must be present ; in misde- 
meanor, judgment may be pronounced in his absence. — 

For the purpose of judgment, if the conviction be for a felony, 
the defendant must be persoually present ; if it be for a misde- 
meanor, judgment may be pronounced in his absence. 

§474. When defendant is in custody, how brought 
before the court for Judgment. — When the defendant is in 
custody, the court may direct the officer in whose custody he is 
to bring him before it for judgment ; and the otlicer must do so 
aooordingly. 

§ 475. How brought befbre the court when he is on bail 

If the defendant have been discharged on bail, or have deposited 
money instead thereof, and do not appear for judgment, when 
his personal attendance is necessary, the court, in addition to the 
forfeiture of the undertaking of bail or of the money deposited, 
may direct the derk to issue a bench warrant for his arrest. 

§ 476. Bench warrant to issue. — The clerk, on the applica- 
tion of the district attorney, may accordingly, at any time after 
the order, whether the court be sitting or not, issue a bench 
warrant into one or more counties. 

§ 477. Form of bench warrant. — The bench warrant must 
be substantially in the following form : 
"County of Albany ^ [or as the case may be.] 

"In the name of the people of the State of New 
[sKAL.] York — To any sheriflf, constable, marshal or police- 
man in this state. A. B. having been on the 
day of 9 13 9 convicted in the (xmrt of seasions of 

iU wmiy cf Albany [or as the case may be], of the crime oi 
[desigDating it generally]. 



198 



Thb Codb of CBDiiBrAL Pbooedubb 



*• You are therefore coininanded, forthwith to arrest the aboTe- 
named A. B., and bring him before that court for judgment ; or 
if the court have adjourned for the term, you are to deliver 
him into the custody of the sheriff of the county of Alhcmy [or 
as the case may be, or in the city and county of iJew York to 
the keeper of the city prison of tiie city of New York 

" City of Albany^ [or as the case may be] the day of 
, 18 

" By the order of the court. 

^ ^'E. Clerk.'' 

§ 478. Service of the bench warrant. — The bench waiv 
rant may be served in any county, in the same manner as a 
warrant of arrest ; except that when served in another county it 
need not be indorsed by a magistrate of that county. 

§ 479. Service of the bench warrant.— Whether the bench 
warrant be served in the county in which it was issued, or in 
another county, the officer must arrest the defendant and bring 
him before the court, or commit him to the officer mentioned in 
the warrant, according to the command thereof. 

§ 480. Arraignment of defendant for judgment. — When, 
the defendant appears for judgment, he must be asked by the 
clerk whether he have any legal cause to show why judgment 
should not be pronounced against him. 
See Uws 1889. ch. 882. § 70. 

Allocation necessary. Mesmer People, 45 N. Y. 1; Graham v. People, 68 
Barb. 468; 6 Lans. 149; People v. MeOeery, 6 Park. 658; Safford v. PeopU, 1 
id. 474; BUdebrandv. People, 1 Hun, 19; 8 Th. AC. 702; 56N. Y. 894; People y. 
Druse, 5 N. Y. Cr. Rep. 28; 103 N. Y. 655; State v. TreMetant, 20 So. Car. 868; 
47 Am. Rep. 840; MtUlen v. State, 45 Ala. 48; 6 Am. Rep. 691; McGue v. Com., 
78 Penn. St. 185; 21 Am. Rep. 7. note; Dodge v. People, 8 Neb. 221; Keeeh v. 
State, 15 Fla. 592; State v. Jennings, 24 Kans. 659. CorUra, State v. Eojft, 47 
Conn. 518; 3G Am. Rep. 89. Not necessary except in capital cases. Dressier 
V. /^e, 117 ni. 424; Stater. Taylor, 27 La. Ann. 898; 21 Am. Bep. 561; JwiM 
V. SMU, 51 Min. 718; 24 Am. Kep. 658. 

§ 481. Whatcatuae may beflhown againcrt the judgment 

He may show for cause, against the judgment^ 

1. That he is insane ; and if, in the opinion of the conrty 
there be reasonable ground for believing him to be insane, the 
question of his insanity most be tried as provided by this Coda 



o» THB Statb of New Tobk. 



198 



If, upon the trial of that qnestion, it is found that he is sane, 
judgment must be pronounced ; but if found insane, he must be 
oommitted to the state lunatic asylum until he becomes sane ; and 
when notice is given of that fact, he must be brought l>efore the 
oonrt for judgment; 

2. That he has good cause to offer, either in arrest of judg- 
ment, or for a new trial ; in which case the court may, in its dis- 
cretion, order the judgment to be deferred, and proceed to decide 
upon the motion in arrest of judgment or for a new trial. 

See People v. Oiterhaut, 34 Hun, 262; People v. Menken, 8 N. Y. Cr. Rep. 448. 

§ 482. If no suffioient cause shown, Judgment to be 
pronounced. — If no sufficient cause be alleged, or appear to 
the court, whj judgment should not be pronounced, it must 
thereupon be rendered. 

§ 483. Court may summarily inquire into ciroum- 
itances in aggravation or mitigation of punishment. — 

After a plea or verdict of guilty, in a case where a discretion is 
conferred upon the court as to the extent of the punishment, the 
court, upon the suggestion of either party, that there are circum- 
stances which may be properly taken into view, either in aggra- 
vation or mitigation of the punishment, may, in its discretion, 
hear the same summarily at a speciiied time, and upon such notice 
to the adverse party as it may direct. 
See v. Bradner, 107 N. Y. 12; People v. VermUyea, 7 Cow. 108. 

§ 484. Judgment to pay fine — The power to remit a fine 
imposed by any court, whether of record or not of record, im- 
posed for any criminal ofieose whatever, shall only be exercised 
as in this section provided. Any court of record, except an in- 
ferior court of local jurisdiction, which has imposed a fine for 
any crinndoal offense, or the presiding judge thereof, or any judge 
aQthorixed to preside therein, shall have power in his discretion, 
on five days' notice to the district attorney of the county in 
which flvch fine was imposed, to remit such fine or any portion 
thereof. In case of a fine imposed by a court not of record or 
by any inferior court of local jurisdiction for any criminal offense 
wbate?er, the oocinty judge of the county in which the fine was 
imposed, addincate of a fineimposed by such a court in the dty 
25. 



194 



The Code of CBDnNAL Pboordube 



of New York, the court of geueral Beseions, or any judge thereof 
upon five days' notice to the district attorney of the county in whicl 
such fine was imposed, shall have the same power. A judgmem 
that the defendant pay a fine may also direct that he be impris 
oned until the fine be satisfied, specifying the extent of the im 
prisonment, which cannot exceed one day for every one dollar o: 
the fine. 

See § 718, pott. PeopU, ex rel. Stokes, v. Eiitey, 4 N. T. Cr. Rep. 110; » 
Hun. 281: Matter of Hoffman, 1 N. Y. Cr. Rep. 484; Matter of Bray, 84 StaU 
Rep. 648; Matter of Bryant, 24 Fla. 278; 12 Am. St. Rep. 200, 202, note. 

§ 485. The Judgment-rolL — When judgment upon a con 
viction is rendered, the clerk must enter the same upon the 
minutes, stating briefly the offense for which the conviction has 
been had ; and must, upon the service upon him of notice ol 
appeal, immediately annex together and file the following papers, 
which constitute the judgment-roll : 

1. A copy of the minutes of a challenge interposed by the de- 
fendant to a grand juror, and the proceedings and decision 
thereon ; 

2. The indictment and a copy of the minutes of the plea oi 
demurrer ; 

3. A copy of the minutes of a challenge, which may have 
been interposed to the panel of the trial jury, or to a juror who 
participated in the verdict, and the proceedings and decisioo 
thereon; 

4. A copy of the minutes of the trial ; 

5. A copy of the minutes of the judgment ; 

6. A copy of the minutes of any proceedings upon a motion 
either for a new trial or in arrest of Judgment; 

7. The bill of exceptions, if there be our ; 

8. When the judgment is of death, the clerk, in addition to 
the foregoing, must forthwith cause to be prepared and printed the 
number of copies of the stenographer's minutes and judgment- 
roll which are required by the rules of the court of appeals, which 
plinll form the case and exceptions upon which the appeal shall be 
heard, and three copies shall also be furnished to the defendant's 

,* attorney and three to the district attorney and one to the gov 
/ ernor of the state, and the remainder distributed according to the 
rules of the court of appeals. The expense of preparing and 



OF THB State of New Yobk. 



195 



printing the minntes and judgment-roll shall be a connty chaise, 
payable out of the court fund upon the certificate of the county 
clerk, approved by the county judge of the county in which the 
conviction was had, but in the city and county of New York 
RQch expense shall be payable on the certificate of the clerk of 
the court in which the conviction was had, approved by the judge 
presiding at the trial. 

See PeopU y. Bradner, 107 N. Y. 11; People v. McQuade, 110 id. 284; 21 Abb. 
N.C. 448; People v. CarUan, 115 id. 618; People y. O'NeU, 47 Hun, 155; People 
T. (TDonneU, 46 id. 858; PeopU v. Sharp, 46 id. 504: People v. BeckwUh.42 id. 
868; People v. OsUrhoiU, 34 id. 262{ People v. Mangano, 29 ia. 263; O&trander 
t. People, id. 519; People v. Petrea, 80 id. 102; People v. Ho^, id. 557; PeopU 
f. Boek, 1 N. Y. Cr. Rep. 898; People v. Petmeeky, 2 id. 468; PeopU v. 2Vrr«fl» 
Sid. 148; PeopU ffaoens, id. 287; PeopU Joyce, 4 id. 844, 848; PeopU 
Sehad, 58 Han, 672; 85 State Rep. 148. 



CHAPTER II. 
THE EXECUTION. 

SVTTIOH 486. Authority for the execution of a judgment, except of death. 

487. Commitment of the defendant. 

488. Judgment of imprieonment; bj whom and how executed. 

489. Duty of sheriff. 

490. Duty of sheriff. 

§ 486. Authority for the execution of a Judgment, 
except of death. — ^When a judgment, except of death, has 
been pronounced, a certified copy of the entry thereof upon the 
minutes must be forthwith furnished to the officer whose duty it 
is to execute the judgment ; and no other warrant or authority 
is necessary to justify or require its execution. 

See PeopU v. Bradner, 107 N. Y. 12. 

Sentence void in part may be enforced as to the valid portion if properly 
separable and ignored as to the illegal and void part. People, ex rel, Trainor 
T. Baker, 89 N. Y. 480. 

§ 487. Commitment of the defendant. — If the judgment 
be imprisonment, or a fine and imprisonment until it be paid, the 
defendant must forthwith be committed to the custody of the 
proper oflicer, and by him detained until the judgment be com- 
plied with* 



196 



Thb Code of Chiminal Pboobdubb 



See People v. (yUeU, 47 Han, 156. 

Sentence must be definite. A sentence in the disjunctive, providing that 
the defendant paj a specified fine or be imprisoned for a specified period, can- 
not be imposed. Matter of Hoffman, 1 N. Y. Cr. Rep. 484. 

A prisoner is not detained by virtue of the mittimue, but by virtue of the 
judgment; hence a defect in the warrant of commitment is immaterial. People, 
ex rel. Trairun', v. Baker, 89 N. Y. 461, 

§ 4:88. Judgment of imprisonment ; by whom and how 
executed. — Wlien the judgment is imprisonment in a county 
jail, or a fine and that the defendant be imprisoned nntil it be 
paid, the judgment must be executed bj the sheriff of the county. 
In all other cases, when the sentence is imprisonment, the sheriff 
of the county must deliver the defendant to the proper oflScer^ in 
execution of the judgment. 

In case of misdemeanor, sentence begins to run from the day it is pronounced, 
and any time the prisoner may be detained in the county jail must be credited 
on his sentence. People v. Line4)ln, 25 Hun, 806; 62 How. Pr. 412. See People 
V. MeEwen, id. 226. 

§ 489. Duty of Bheriff. — If the judgment be imprisonment^ 
except in a county jail, the sheriff must deliver a copy of the 
entry of the judgment upon the minutes of the court, together 
with the body of the defendant, to the keeper of the prison, in 
which the defendant is to be imprisoned. 

See People v. O'NeU, 47 Hun, 156. 

§ 490. Duty of sheriflt — The sheriff or his deputy, while 
eonveying the defendant to the proper prison, in execution of a 
judgment of imprisonment, has the same authority to require the 
assistance of any citizen of this state, in securing the defendant, 
and in retaking him if he escape, as if the sheriff were in his 
own county ; and every person who refuses or neglects to assist 
the sheriff, when so required, is punishable, as if the sheriff were 
in his own county. 



TITLE X. 

OBNXKAL PBOTISIOBra IV BBLAITON TO THB FUHIBHICXVT OF OBQCEa. 

Chafteb L The deftth penaltj. 

IL Seoond oflonses, baUtoBl criminals, and special penal dladpline. 



OF THE State of New Youl 



197 



CHAPTER L 

THE DEATH PENALTT. 

Sbction 491. Warrant for execution of convict. 
402. Time of execution. 

498. Judge must transmit certain papers to governor. 

494. Governor may consult judges, etc. 

495. Governor only to reprieve, etc., except as provided In the follow 

ing sections. 

4Mr. If convict becomes insane, sheriff to impannel jury. 

497. Duty of district attorney. 

498. Inquisition; suspension of execution. 

499. Sheriff to transmit inquisition to govemer; governor's duty. 

500. If female convict is pregnant, sheriff to impannel Jury of 

physicians. 

501. Inquisition; suspension of execution. 

502. Sheriff to transmit inquisition to governor; governor's duty. 
508. When day of execution is passed, convict to be brought up by 

warrant. 

504. Court to inquire, etc. ; when to direct execution. 
506. Death penalty; mode of infliction. 

506. Death penalty; where inflicted. 

507. Death penalty; who to be present. 

508. Death penalty; certificate after execution. 

509. Death penalty; when inflicted by sheriff in an adjoining county. 

§ 491. Warrant for exeoution of oonvict. — When a de- 
fendant is sentenced to the pnnishnient of death, the judge or 
jodges holding the court at which the conviction takes place, or a 
majority of them, of whom the judge presiding must be one, 
must make out, sign and deliver to tlie sheriff of the county, a 
warrant, stating tlie conviction and sentence, and appointing the 
week within which sentence must be executed. Said warrant 
must be directed to the agent and warden of the state prison of 
this state designated by law as the place of confinement for con- 
victs sentenced to imprisonment in a state prison in the judicial 
district wherein such conviction has taken place, commanding 
such agent and warden to do execution of the sentence upon sc»me 
day within the week thus appointed. Within ten days after the 
issuing of such warrant, the said sheriff must deliver the defend- 
ant, together with the warrant, to the agent and warden of the 
state prifion therein named. From the time of said delivery to 



198 



The Code of ORnnirAL Pbocbdure 



the Baid agent and warden, antil the infliction of the punishment 
of death upon him, nnless he shall be lawfully discharged from 
such imprisonment, the defendant shall bj kept in solitary confine- 
ment at said state prison, and no person shall be allowed access to 
him without an order of the court, except the oflScers of the prison, 
his counsel, his physician, a priest or minister of religion, if he 
shall desire one, and the members of his family. 
See People, ex rel, KemnUer, v. Dunton, 119 N. Y. 575. 

§ 492. Time of execution.— The week so appomtea must 
begin not less than four weeks and not more than eight weeks after 
the sentence. 'The time of execution within the said week shall be 
left to the discretion of the agent and warden to whom the warrant 
is directed ; but no previous announcement of the day or hour of 
the execution shall be made, except to the persons who shall be 
invited or permitted to be present at said execution as hereinafter 
provided. 

See Thomas v. People, 67 N. Y. 218; Haggerty v. People, 58 id. 476; Matter 
of Ferris, 85 id. 262; 82 How. Pr. 411; Peoj^ v. Emch, 13 Wend. 159; PeopU, 
ex reL KemnUer, v. Duretan, 119 N. Y. 575. 

§ 493. Judge must transmit certain papers to gov- 
ernor. — Tlie judge, presiding at the term at which the convic- 
tion took place, must immediately thereupon transmit to the 
governor a statement of the conviction and sentence, with the 
notes of testimony taken upon the trial by him or tlie notes, 
written out, taken by a stenographer or assistant stenographer, 
attending the court or term pursuant to law. 

§ 494. Obvemor may consult Judges, etc. — The governor 

is authorized to require the opinion of the judges of the court of 
appeals, justices of the supreme court, and the attorney-general, 
or of any of them, upon a statement so furnished. 

§ 495. Governor only to reprieve, etc., except as pro- 
vided in the following sections. — No judge, court, or officer, 
other than the governor, can reprieve or suspend the execution of 
a defendant sentenced to the punishment of death, except where 
a sherifi is authorized so to do, in a case and in the manner pre- 
scribed in the following sections of this chapter. This section 



OF THB State of New York. 



199 



does not apply to a stay of proceedings upon an appeal or writ of 
error. 

§ 496. If convict becomes insane, sheriff to impanuol 
juij. — If, after a defendant has been sentenced to the punish- 
iiient of death, there is reasonable ground to beh'evo that he has 
become insane, the sheriff of the county in which the conviction 
took place, with the concurrence of a justice of the supreme 
eourt, or the county judge of the county, who may make an 
order to that effect, must impannel a jury of twelve persons of 
that county, qnalified to serve as jurors in a court of record, to 
examine the question of the sanity of the defendant. The sheriff 
must give at least seven days' notice of tlie time and place of the 
meeting of the jury to the district attorney of the county. Sec- 
tion one hundred and eight of the Code of Civil Procedure 
regulates the impanneling of such a jury and the proceedings 
upon the inquisition so far as it is applicable. 

§ 497. Duty of district attorney. — The district attorney 
must attend the inquiry. Ho may produce witnesses before the 
jury ; for which purpose he has the same power to issue subpoenas, 
as for witnesses to attend a grand jury, and disobedience thereto, 
may be punished by the court of oyer and terminer for that 
county, at any term thereof, in the same manner as disobedience 
to process issued by that court. 

§ 498. Inquisition ; suspension of execution. — The in- 
quisition of the jury must be signed by the jurors and the sheriff. 
If it be found by the inquisition that the defendant is insane, the 
sheriff must suspend execution of the warrant directing the 
defendant's death, until he receives a warrant from the governor, 
directing that the defendant be executed. 

§ 499. Sheriff to transmit inquisition to governor, 
governor's duty. — The sheriff must immediately transmit the 
iuquisition to the governor, who as soon as he is satisfied of the 
sanity of the defendant, or of his restoration to sanity, must issue 
his warrant, appointing a time and place for the execution of tlio 
latter, pursuant to his sentence, unless the sentence is commuted 
or the convict pardoned, and may in the meantime give directions 
for the disposition and custody of the defendant. 



300 



The Code of Criminal Pegged ube 



§ 501. If female oonviot is pregnanty iheriff to im- 
pannel jury of physicians. — If there is reasonable ground to 
believe that a female defendant, sentenced to the punishment of 
death, is pregnant, the sheriff of the county where the conviction 
took place must impanuel a jury of six physicians to inquire into 
her pregnancy. Sections four hundred and ninety-seven and four 
hundred and ninety-eight of this Code apply to the proceedings 
upon the inquisition, except that the sheriff may, in his discre- 
tion, require one or more of the physicians composing the jury, 
to attend from an adjoining county. A physician acting as a 
juror upon such an inquisition, need not be qualified to serve as a 
juror in a court of record. 

§501. Inquisition; suspension of execution. — The in- 
quisition of the jury must be signed by the jurors and the sheriff. 
If it is found by the inquisition that the defendant is quick with 
cliild, the slieriff must suspend the execution of the warrant 
directing her execution until he receives a warrant from the gov- 
ernor directing that the convict be executed. 

§ 502. Sheriff to transmit inquisition to governor; 
governor's duty. — The sheriff must immediately transmit the 
inquisition to the governor, who, as soon as he is satisfied that 
the defendant is no longer quick with child, may issue his war. 
rant, appointing a time and place for her execution, pursuant to 
her sentence, or may commute her punishment to imprisonment 
for life. 

§ 503. When day of execution has passed, convict to 
be brought up by warrant. — Wlienever, for any reason, 
other than insanity or pregnancy, a defendant, sentenced to the 
punishment of death, has not been executed pursuant to the sen- 
tence, at the tir.ze specified thereby, and the sentence or judgment 
inflicting the punishment stands in full force, the court of appeals, 
or a judge thereof, or the supreme court, or a justice thei-eof, 
upon application by the attorney-general, or of the district 
attorney of the county where the conviction was had, must make 
an order, directed to the agent and warden or the oflBcer in whose 
custody said defendant may be, commanding him to bring the 



OF THB StATB op NbW YoM. 



201 



convict before the conrt of appeals or a general term of the 
snpreme court in the department, or a term of the court of oyer 
and terminer in the county where the conrlction was bad. If 
the defendant be at large, a warrant may be issued by the co;irt 
of appeals, or a judge thereof, or by the supreme court, or a jus- 
tice thereof, directing any sheriff or oilier officer to bring the 
defendant before the court of appeals or the supreme court at a 
geueral term thereof, or before a term of the court of oyer and 
terminer in that county. 

See People Biley, 15 Week. Dig. 204; People, ex rel., Duretan, 119 
N. Y. 575. 

§ 504. Court to inquire, etc. ; when to direct execu- 
tion. — Upon the defendant being brought before the court, it 
must inquire into the circumstances, and if no legal reason exists 
against the execution of the sentence, it must issue its warrant 
to the agent and warden of the state prison mentioned in the 
original warrant and sentence, under the hands of the jndge or 
judges, or a majority of them, of whom the judge presiding must 
be one, commanding the agent and warden to do execution of the 
sentence during the week appointed therein. The warrant must 
be obeyed by the agent and warden accordingly. The time of 
execution within said week sliall be left to the discretion of the 
agent and warden to whom the warrant is directed; but no pre- 
vious announcement of the day or hour of the execution shall be 
made, except to the persons who shall be invited or pennitted to 
be present at said execution as hereinafter provided. 
See People, ex rel., v. Durston, 119 N. Y. 575. 

When judgment of death lias not been executed pursuant to the sentence, 
the sapreme coart having the convict brought before them may issue their 
warrant to the sheriff to do execution upon the sentence at a time therein 
fixed. Matter of Ferris, 85 N. Y. 262; 32 How. Pr. 411. 

A court of general sessions has jurisdiction in tlie case of a conviction in 
that court of murder in the first degree, after the cause has been remitted back 
to that court upon an affirmance by the court of appeals, to name the date for 
the infliction of the death penalty. People y. Lyons, 17 Stete Rep. 768. 

§ 505. Death penalty ; mode of infliction. — The pun- 
ishment of death must, in every case, bo inflicted by causing to 
pass through the body of the convict, a current of electricity of 
86 



202 Th£ Code of Criminal Pbooedubb 



sufficient intensity to cause death, and the application of such 
current must be continued until such convict is dead. 

This section is not unconstitutional. People, ex rel. Kemmler, v. DurtUm, 
119 N. Y. 569; People v. KemnUer, id. 586. 

§ 506. Death penalty; where inflioted.— The punish- 
ment of death must be iniiicted within the walls of the state 
prison designated in the warrant, or within the yard or inclosure 
adjoining thereto. 

§ 507. Death penalty; who to be preient. — It is the 

duty of the agent and warden to be present at the execution, and 
to invite the presence, by at least three days' previous notice, of 
a justice of the supreme court, the district attorney, and the 
sheriff of the county where the conviction was had, together with 
two physicians and twelve reputable citizens of full age, to be 
selected by said agent and warden. Such agent and warden 
must, at the request of the criminal, permit such ministers of the 
gospel, priests or clergymen of any religious denomination, not 
exceeding two, to be present at the execution ; and in addition 
to the persons designated above, he shall also appoint seven 
assistants or deputy sheriffs who shall attend the execution. He 
shall permit no other person to be present at such execution 
except those designated in this section. Immediately after the 
execution a post-mortem examination of the body of the con- 
vict shall be made by the physicians present at the execution, 
and their report in writing stating the nature of the examina- 
tion, so made by them, shall be annexed to the certificate herein- 
after mentioned and filed therewith. After such post-mortem 
examination, the body, unless claimed by some relative or rela- 
tives of the person so executed, shall be interred in the graveyard 
or cemeteiy attached to the prison, with a sufficient quantity of 
quick-lime to consume such body without delay ; and no religious 
or other services shall be held over the remains after such execu- 
tion, except within the walls of the prison where said execution 
took place, and only in the presence of the oflScers of said prison, 
the person conducting said services and the immediate family and 
relatives of said deceased prisoner. 



OF THK State of New York. 



203 



Any person who shall violate or omit to comply with an/ 
provision of this section shall be guilty of a misdemeanor. 

§508. Death penalty; certificate after execution.— 

The agent and warden attending the execution must prepare and 
sign a certificate, setting forth the time and place thereof, and 
that the convict was then and there executed, in conformity to 
the sentence of the court and the provisions of this Code, and 
must procure such certificate to be signed by all the persons pres- 
ent and witnessing the execution. He must cause the certificate, 
together with the certificate of the post-mortem examination men- 
tioned in the preceding section, and annexed thereto, to be filed 
within ten days after the execution in the ofiice of the clerk of 
the county in which the conviction was had. 

§ 509. Death penalty ; disability of agent and warden 
to execute warrant. — In case of the disability, from illness 
or other sufticient cause, of the agent and warden to whom the 
death warrant is directed, to be present and execute said warrant, 
it shall be the duty of the principal keeper of said prison, or such 
officer of said prison as may be designated by the superintendent 
of state prisons, to execute the said warrant, and to perform all 
the other duties by this act imposed uoon said agent and warden. 



CHAPTER II. 

UOOHD OFFSK8SB, HABrrUAL CKIMINAL8 AND SPEOIAL PSNAI* 
DISCIPLINE. 

Bmmas 610. When conyict may be adjudged an habitual cnminal. 

611. Judgment accordingly, how entered, etc. 

612. Persons so adjudged when liable tu arrest and punishment. 
618. Persons so adjudged when liable to arrest and punishment; 

evidence of character on subsequent trial. 
614. Persons so adjudged when liable to arrest and punishment; 
always liable to search, etc. 

§ 510. When convict may be adjudged an habitual 
criminaL — When a person is hereafter convicted of a felony, 
who has been, before that conviction, convicted in tliis state ot 



204 Thb Code of Okimikal Pbocedube 



any other crime, he maj be adjudged by the courti in addition 

to other pnnishment inflicted upou him, to be an habitaal criminal. 
A person convicted of a misdemeanor, who has been ab-eady five 
times convicted in this state of a misdemeanor may be adjudged 
by the court in addition to, or instead of, other punishment, to be 
an habitual criminal. 
See Penal Code, §§ 690-692. 

The act known as the " Hahitual Criminal Act" is constitutional. People "v* 
McCarthy, 46 How. Pr. 97 

§ 511. Judgment accordingly, how entered, etc. — The 

judgment specified in tlie last section must be entered in a sepa- 
rate book, kept for that purpose. A copy of the entry, duly cer- 
tified by the clerk of the court, is proof of the judgment, and a 
copy, so certified, must be forthwith transmitted to the police 
department of each city, and to the district attorney of each 
county in the state. 

§ 512. Fersons so adjudged when liable to arrest and 
punishment. — A person who has been adjudged an habitual 
criminal is liable to arrest summarily with or without warrant, 
and to punishment as a disorderly person, when he is found with- 
out being able to account therefor, to the satisfaction of the court 
or magistrate, either, 

1. In possession of any deadly or dangerous weapon, or of any 
tool, instrument or material, adapted to, or used by criminals for, 
the commission of crime ; or 

2. In any place or situation, under circumstances giving rea« 
Bonable ground to believe that he is intending or waiting the 
opportunity to commit some crime. 

See § 899, subdiv. 9, post. 

§ 513. Fersons so adjudged when liable to arrest and 
punishment ; evidence of character on subsequent trial 

A person who, having been adjudged an habitual criminal, is 
charged with a crime committed thereafter, may be described in 
the complaint, warrant or indictment therefor, as an habitual 
criminal ; and, upon proof that he has been adjudged to be such, 
the prosecution may introduce, upon the trial or examination, 
evidence as to his previous character, in the same manner and to 
the same extent as if he himself had first given evidence of his 
eharacter and put the same in issue. 



I 



or THB SiATB or Nbw York. 



§ 514. PearsoDB so adjudged whea liable to arrest and 
paniflhxnent; always liable to search, etc — The person 
and the premises of every one who has been convicted and 
adjudged an habitual criminal shall be liable at all times to search 
and examination bj any magistrate, sheriff, constable, or other 
officer, with or without warrant. 



TITLE XI. 

OP APPEALS. 

Ommstmsl L Appeals, when allowed, and how ttkeOi 

n. Dismissing an appeal for irregularity, 
in. Argument of the appeal 
lY. Judgment upon appeal 

CHAPTER I. 

APPEALS, WHEN ALLOWED, AND HOW TAXSV. 

SBcnnrnS. Writs of error and of ^tu?rart abolished; appeal BubstitafiedL 

618. Parties, how designated on appeal. 

617. Li what cases appeal may be taken by defendant 
518. In what cases by the people. 

619. In what cases generaUy. 
680. Appeal, a matter of right. 
621. Must be taken within one year. 
6S8-635. Appeal, how taken. 

696. Appeal by the people, not to stay or affect the Judgmout until 
reversed. 

687. Stay of proceedings, on appeal to supreme court from judgment 

of conviction. 

(I88L Stay, upon appeal to court of appeals from judgment of supreme 

court, affirming Judgment of conviction. 
OM. Ccrtifieate of slay not to be granted, but on notice to dlikriel 

attorney. 
680, 681. Sffect of the stay. 

688. Tnmsmitthig the papers to the appellate court 

9 515. WritM of error and of oertiorarl abolished ; ap- 
peal eubetituted. — Write of error taid of oertiararij in crimi- 
nal actions, and proceedings and special proceedings of a criminal 
nature, as they havt? heretofore existed, are abolished ; and here- 



206 Thb Code of Obdonal Pbooedube 



after the only mode of reviewing a judgment or order in a crimi- 

nal action, or special proceeding of a criminal nature, is by appeal. 

See People v. Dempeey, 66 How. Pr. 878; People v. VUan, 20 Abb. N. C. 2d8; 
EtUoran v. BcvrUm, 26 Hun, 648; People v. Carney, 29 id. 47; 1 N. Y. Cr. Rep. 
270; People v. Dempwy, 31 Hun, 526; 2 N. Y. Cr. Rep. 117; People v. Havene, 
8 id. 287; 21 Week. Dig. 364; PeopU v. Palmer, 109 N. Y. 419; PeopU, ex rel., 
V. Walih, 83 Hun, 346; 67 How. Pr. 484; 2 N. Y. Cr. Rep. 326; PeopU, ex rel„ 
V. KeUy, id. 430; 32 Hun, 538; 97 N. Y. 212; McKeon v. PeopU, 1 N. Y. Cr. 
Rep. 456; 16 Week. Dig. 347; PeopU, ex rel, v. Superintendent, 9 State Rep. 
e08; 45 Hun, 65; PeopU, ex rel., v. WaUh, 5 N. Y. Cr. Rep. 527; TUlotson v. 
Smithy 12 State Rep. 3HI. 

§ 516. Parties, how deiignated on appeal. — The party 
appealing is known as the appellant, and the adverse party as the 
respondent. But the title of the action is not changed in conse- 
qnence of the appeal. 

§ 517. In what oaiei appeal may be taken by de- 
fendant. — An appeal to the supreme court may be taken by 
the defendant from the judgment on a conviction after indict- 
ment, except that when the judgment is of death, the appeal 
must be taken direct to the court of appeals, and upon the appeal, 
any actual decision of the court in an intermediate order or pro- 
ceeding forming a part of the judgment-roll, as prescribed by 
section four hundred and eighty-five, may be reviewed. 

See PeopU v. Palmer, 109 N. Y. 419; PeopU v. Petrea, 80 Hun, 98, 102; 
PeopU V. Ifangano, 29 id. 268; Ostrander v. PeopU, id. 619; PeopU v. Beck- 
wi^, 42 id. 868; 6 X. Y. Cr. Rep. 284; PeopU y. OsterhotU, 84 Hun. 262; 8N. Y. 
Cr. Rep. 146; PeopU v. MeQiuide, 110 N. Y. 284; 21 Abb. N. C. 448; PeopU y. 
Lyons, 17 State Rep. 768 ; PeopU v. Bork, 1 N. Y. Cr. Rep. 898; PeopU v. 
Petmecky, 2 id. 468; Peoples, Havens, 8 id. 287; PeopU v. ffovey, 80 Hun, 
854, 857; Shufflin v. Pe<^, 4 id. 16; PeopU v. Sehad, 58 Hun, 573. 

§ 518. In what oaiei by the people.— An appeal to the 
supreme court may be taken by the people in the following cases, 
and no other : 

1. Upon a judgment for the defendant, on a demurrer to the 
indictment ; 

2. Upon an order of the court arresting the judgment 

An appeal may be taken by the people upon a judgment for the defendant 
on a demarrer to tbe indictment. PeopU OaUahan, 29 Hun, 581. 

No appeal can be taken by tbe people from an order in a criminal case set- 
ting aside and discharging tbe g^nd jury as to a defendant and as to bim 



OF THE State of New York. 



207 



qoashing the indictment. People Dempieff, 81 Hon, 596; 2 N. Y. Gr. Bep. 
117; 66 How. Pr. 871. 

In what cases an appeal may be taken by people in criminal case. Id. 

No appeal lies by the people from an order granting a new trial npon the 
ground of newly-disooyered evidence. People BeckwUh, 43 Hon, 867; 5 N. 
Cr. Bep. 283, 285. 

No appeal can be taken by the people from a judgment of a court of special 
sessions reversing on an appeal taken thereto a judgment of a court of special 
sessions convicting the defendant of an assault. People v. Snyder, 44 Hun^ 
193. 

§ 519. In what oaset generally. — An appeal may be taken 
from a judgment or order of the supreme court to the court of 
appeals in the following cases, and no other : 

1. From a judgment affirming or reversing a judgment of 
conviction ; 

2. From a judgment affirming or reversing a judgment for the 
defendant|On a demurrer to the indictment, or from an order affirm- 
iug, vacating or reversing an order of the court arresting judgment ; 

3. From a final determination affecting a substantial right of 
a defendant [Amended 1892, ch. 189 ; in effect Ma^ch 24, 1892. 

See Pe4^ v. Lawrence, 107 N. Y. 607; People v. Boob, 92 id. 560, 568; 
Modi V. People, 26 Hun, 394; 14 Week. Dig. 125. 

An appeal from an order of the general term granting a new trial wiU not 
lie to the court of appeals unless the order shows that the new trial was re- 
fused npon the facts and was granted only for errors of law. People v. 
Pmher, 99 N. Y. 610; 21 We^k. Dig. 410. 

An appeal from a judgment in a criminal case brings before the general 
tenn for review the decision of a motion for a new trial on the ground that 
the verdict was against evidence as weU as the proceedings upon the trial. 
PtopU V. Memgano, 29 Hun, 259. 

S 520. Appeal in matter of right.— All appeals provided 
for in this chapter may be taken as a matter of right. 
See People v. Palmer, 109 N. Y. 419. 

§ 521. Moft be taken within one year. — An appeal most 
be taken within one year after the judgment was rendered or the 
order entered. [Amended 1892, ch. 189 ; in effect March 24, 1892. 

§ 529. Appeal, how taken. — An appeal must be taken by 
fee service of a notice in writing on the clerk with whom the 
judgment roll is filed, stating that the appellant appeals from the 
judgment 



908 Thb Code of Criminal Pboobdubb 



§ 523. Appeal, how taken.— If the appeal be taken by the 
defendant a similar notice must be served on the district attorney 
of the county in which the original judgment was rendered. 

§ 524. Appeal, how taken* — If it be taken by the people, 
a similar notice must be served on the defendant, if he be a resi- 
dent of, or imprisoned in the city or county ; or if not, on the 
counsel, if any, who appeared for him on the trial, if he reside 
or transact his business in the county. If the service cannot, 
after due diligence, be made, the appellate court, upon proof 
thereof, may make an order for the publication of the notice, in 
such newspaper, and for such time as it deems proper. 
See People v. Snyder, 44 Hon, 198. 

§ 525. Appeal, how taken. — At the expiration of the time 
appointed for the publication, on filing an affidavit of the publi* 
cation, the appeal becomes perfected. 

§ 526. Appeal by the people, not to stay or affect the 
Judgment until reversecL — An appeal taken by the people, in 
no case stays or affects the operation of a judgment in favor of 
the defendant, until the judgment is reversed. 
See People v. Snyder, 44 Hun, 198w 

§527. Stay 'of prooeedingi, on appeal to supreme 
oourt from Judgment of conviotion. — An appeal to the 
supreme court from a judgment of conviction, or other deter- 
mination from which an appeal can be taken, stays the execution 
of the judgment or determination upon filing with the notice of 
appeal a certificate of the judsre who presided at the trial, or of a 
justice of the supreme court, that in his opinion there is reason- 
able doubt whether the judgment should stand, but not otherwise. 
And the appellate court may order a new trial, if it be satisfied 
that the verdict against the prisoner was against the weight of 
evidence or against law, or that justice requires a new trial, 
whether any exception shall have been taken or not, in the court 
below. 

See S 648. poH; People v. BeekwUh, 106 N. T. 76; PeopU v. WUlett, 1 How. 
Pr. (N. S.) 196; 8 N. Y. Cr. Rep. 56; People ▼. Wenttoorth, Id. 116; People t. 
Ifeteton, 85 Han. 666; 8 N. T. Cr. Rep. 409; PeopU r. (hterhout, id. 446; 84 
Han, 262; People y. Beavey, 88 id. 426; 4 N. T. Cr. Rep. 19; PeopU v. Af» 



OF THE State of New Yobk. 



209 



id. 108; PeopU Joyce, id. 845; People v. Druee, 5 id. 15; People Jfo 
Inemey, 6 N. Y. 48; People v. Meyers, 7 State Rep. 220; 5 N. Y. Or. Rep. 124; 
7 State Rep. 217; People v. Shepherd, 44 Hun. 566; 6 N. Y. Cr. Rep. 188; 
MotU T. People, 14 Week. Dig. 125; PeopU v. Steeeney, 41 Hun, 848; 4 N. Y. Cr. 
Rep. 275; Eoraee v. P<f<>pi^, 21 Week. Dig. Ill; PeopU v. WOeman, 44 Hun, 186; 
PeopU V. Thornton, 46 id. 645; P«>pte v. Emeraon, 20 State Rep. 16; Pfop/es v. 
E'lntinyUm, 17 id. 326: Shepherd v. P«<?pZe'. 19 N. Y. 545; SulUvan v. P^'o/)/^', 
1 Park. 347; PeopU v. Hendrickeon, id. 396; P^<>p/€ v. Lohman, 2 Barb. 450; 
Pr-opfe V. FolfMdee, 60 id. 480; P(W>pfe v. 0*ReiUy, 61 How. Pr. 16. 

The power conferred on supreme court by this section is discretionary, and 
where it does not appear that the discretion has been abused, its decision is 
not reviewable here. PeopU v. D*Argeneour, 95 N. Y. 624. 

The certificate mentioned in this section can, in a proper case, be given in 
anv case in which an appeal may be taken. PeopU v. Bork, 1 N. Y. Cr. Rep. 
888. See PeopU v. Sharp (Special T., Potter, J.), 9 Stote Rep. 157. 

The case requires the same examination on appeal as if all the objections 
and exceptions ordinarily used to present the effect of the evidence for review, 
were taken upon the trial. ' Peojie v. Hajone, 12 Abb. N. C. 187; 91 N. C.211; 
PeopU V. Waiiame, 29 Hun, 520. 

Prior to amendment of 1887, it was held that the operation of this section was 
confined to the supreme court. PeopU v. Boas, 92 N. Y. 568; PeopU v. Hovey^ 
id. 554; PeopU v. Donovan, 101 id. 632; 4 N. Y. Cr. Rep. 86; 3 How. Pr. (N. 
8.) 356; PeopU v. Ouidici. 100 N. Y. 508; 3 N. Y. Cr. Rep 551; PeopU v. Pet- 
meeky, id. 288. But see PeopU v. McOloin, 91 N. Y. 241; 12 Abb. N. C. 172; 
1 N. Y. Cr. Rep. 160. 

The powers granted to the court of appeals by this section should be exer- 
cised with great circumspection. PeopU v. Jones, 3 N. Y. Cr. Rep. 254. See 
PeopU V. OreenwaU, 115 N. Y. 520. 

In determining whether a new trial should be granted under this section, it 
is not the province of this court to review and determine controverted ques- 
tions of fact arising upon conflicting evidence. PeopU v. CignaraU, 110 N. Y. 
28. See, also, Peoj^ v. KeUy, 118 id. 647; PeopU v. Stone, 117 id. 488 

§ 528. Staji upon appeal to oourt of appeali from, 
Judgment of iupreme court affirming Judgment of 
oonviotion. — Ad appeal to the court of appeals, from a judg- 
meot of the supreme court, affirming a judgment of conviction^ 
stays the execution of the judgment appealed from, upon filing, 
with the notice of appeal, a certificate of a judge of the court of 
appeals or of the supreme court, that in his opinion there is 
reasonable doubt whether the judgment should stand, but not 
otherwise. When the judgment is of death an appeal to the 
conrt of appeals stays the execution of course until the determi* 
nation of the appeal. When the judgment is of death the court 
of appeals may order a new trial, if it be satisfied that the verdict 
27 



I 



210 Thb Code of Cbiminal PfioosDUBB 



was against the weight of evidence or against law, or that justice 
requires a new trial, whether any exception shall have been taken 
or not, in the court below. 

See Moett v. PeapU, 14 Week. Dig. 125; People v. Hof>ey, 02 N. Y. 654; People 
V. WiUett, 3 N. Y. Cr. Rep. 56; PeopU v. OreenwaU, 115 N. Y. 520; PeopU v. 
WiUeon, 109 id. 349; PeopU v. Van Brunt, 108 id. S57. 

In People v. DriscoU, 107 N. Y. 417, the court say: "This provision (the 
above section) has very much enlarged the jurisdiction and the labors of this 
court, and requires us to review the facts in every capital case, and to de- 
termine whether, upon all the evidence, there is, in our opinion, good and 
sufficient reason for setting aside the verdict of the jury and granting a new 
trial. The powers conferred by this section are similar to those formerly 
given to this court in certain cases by chapter 387 of the Laws of 1855, as 
amended by chapter 830 of the Laws of 1858, and to the supreme court by 
section 527 of the Code of Criminal Procedure. O'Brien v. People, 86 N. Y. 
376." 

In PeopU V. Lyons, 110 N. Y. 618, it was heid that a defendant cannot 
claim as matter of right the benefit of error occurring on the trial where no 
proper objection was made and no exception taken; he can only ask the court 
to determine on the whole case the question as to whether justice requires a 
new trial or not, or whether the verdict was against the weight of evidence or 
against law. 

In PeopU V. KeUy, 113 N. Y. 647, it was held that this section does not 
authorize a Review of findings of fact of a jury, founded on sufficient evi- 
dence, or a reversal simply because of a difference of opinion on the facts be- 
tween the court and the jury; it simply invests the court with power to order 
a new trial where, upon a consideration of the whole case, it is manifest in- 
justice has been done, although the question has not been properly raised by 
exceptions. See PeopU v. Beckwith, 103 N. Y. 369; PeopU v. Stone, 117 id. 
483; PeopU v. FUh. 125 id. 144. 

Od an application for stay on grouAd of reasonable doubt, etc., under this 
section, the main inquiry should be as to whether the individual judge has a 
reasonable doubt as to whether the judgment should stand. BrctgUy, PeopU, 
10 Abb. N. C. 300; 26 Hun, 878; affirmed, 88 N. Y. 585; 63 How. Pr. 148. 

§ 529. Certificate of stay not to be granted, but on 
notice to district attorney.— The certificate mentioned in 
the last two sections cannot, however, be granted upon an appeal 
on a conviction of felony, until such notice as the judge may pre- 
scribe has been given to the district attorney of the county where 
the conviction was had, of the application for the certificate. But 
the judge may stay the execution of the judgment in the mean- 
time. 

See PeopU v. Pameeky, 3 N. Y. Cr. Rep. 458; PeopU v. Wentworth, 8 id. 
116; PeopU Sineeney, 41 Han, 848; 4 N. Y. Cr. Bep. S86; PeopU Dimick, 
107 N. Y. 18. 



OF THB Stats of Nbw York. 



§ 630. ZSffeot of the stay.— If the certificate, provided in 
eections five hundred and twenty-seven and five hundred and 
twenty -eight, be given, the sheriff must, if the defendant be in 
his custody, upon being served with a copy of the order, keep the 
defendant in his custody, without executing the judgment, and 
detain him to abide the judgiuent upon the appeal. 

See People McTamcTiy, dO Uun, 506. 

§ 531. EfEtet of the stay. — If, before the granting of the 
certificate, the execution of the judgment have commenced, the 
farther execution thereof is suspended, and the defendant must 
be restored by the officer in whose custody he is, to his original 
custody. 

See People t. MeTameny, 80 Hun, 506. 

§ 532. Traosmittixig the pai)ers to the appellate court. — 
Upon the appeal being taken, the clerk, with whom the notice of 
appeal is filed, must, within ten days thereafter, without charge, 
transmit a copy of the notice of appeal and of the judgment 
roll, as follows : 

1. If the appeal be to the supreme court, to the clerk of that 
court, where the next general term in the district is to be held ; 

2. If it be to the court of appeals, to the clerk of that court 
Bee People v. McTcmeny, 80 Han, 506. 



CHAPTER II 

DIBiaSSINO AN APPEAL FOR IRBBOnLABnT. 

Bbotion 588. For what irregularity, and how dismisMd. 
584. DismiBsal for want of return. 

§ 533. For what irregrularity, and how dismissecL — If 
the appeal be irregular in a substantial particular, but not other- 
wise, the court may, on any day in term, on motion of the 
respondent, upon five days' notice, served with copies of the 
papers on which the motion is founded, order it to be dismissed. 

§ 534. Dimilflflal for want of return,— The court may also, 
Qpon like motion, dismiss the appeal, if the return be not made, 
18 provided in section five hundred and thirty-two, unless for 
good cause they enlarge the time for that purpose. 



U2 Thb Cqdb of Gbdohal Pboobdusb 



CHAPTER ni. 

' ABOUMENT OF THE APPEAL. 

SBcnoii 585. Appeal to supreme court, how and where brought to argomaDt 

586. Appeal to court of appeals, how brought to argument 

587. Notice of argument to counsel for defendant. 

588. Papers, by whom furnished, and effect of omission. 

589. Judgment of affirmance may be without argument, if appel- 

lant fail to appear ; reversal, only upon argument, though 
respondent fail to appear. 

540. Number of counsel to be heard ; defendant's counsel to close 

the argument. 

541. Defendant need not be present. 

§ 535. Appeal to iupreme court, how and where 
brought to argument. — An appeal to the supreme court may 
be brought to argument by either party, on ten clays' notice, on any 
day, at a general term held in the department in which the origi- 
nal judgment was given. 

See Code Ciy. Proc., § 790; Sup. Ct. Rule 43; Barron v. Peaj^, 1 Barb. 186. 

^ 536. Appeal to court of appeals, how brought to 
argument. — An appeal to the court of appeals may, in the 
same manner, be brought to argument by either party, on any 
day in term. 

§ 537. Notice of argument to counsel for deflandant. — 

If a counsel, within five days after the appeal, have given notice 
to the district attorney, that he appears for the defendant, notice 
of argument must be served on him, instead of the defendant ; 
otherwise, notice must be served as the court may direct 

§ 538. Papers, by whom furnished, and effect of 
omission. — When the appeal is called for argument, the appel- 
lant must furnish the court with copies of the notice of appeal 
and judgment-roll, except where the judgment is of death. If be 
fail to do so, the appeal must be dismissed, unless the court other* 
wise direct. 

§ 539. Judgment of affirmance may be without argu- 
ment, if appellant fedl to appear ; reversal, only upon 
argument, though respondent fSedl to axypear. — Judgment 



OF THB State of New Yoke. 



218 



of affirmance may be givea, without argamenti if the appelknt 

fail to appear. Bat judgment of reversal can onlj be given upon 

argument, thongh the respondent fail to appear. 

See People v. Bradner, 44 Hun, 285; 107 N. Y. 1; Barr<m v. People, 1 Barb. 
136. 

§540. Number of couxisel to be heard; defendant's 
counsel to dose the argrument. — Upon the argument of the 
appeal, if the crime be punishable with death, two comisel on 
each side must be heard if they require it. In any other case 
the court may, in its discretion, restrict the argument to one 
counsel on each side. The counsel for the defendant is entitled 
to the closing argument. 

§ 541. Defendant need not be present. — The defendant 

need not personally appear in the appellate court. 

See People v. Clark, 1 Park. 860; reversed, 7 N. Y. 385, without noticing 
this point. 

A prisoner in criminal proceedings can take no action before the court where 
he has escaped out of custody and still remains at large. People v. Oenet^ 59 
N. Y. 80; 17 Am. Rep. 815; Matter of O'Bynie, 55 Hun, 438; Warxnck v. State, 
73 Ala. 486; 49 Am. Rep. 59; Sargent v. StaU. 96 Ind. 93; 5 Criip. Law Mag. 
709; SfnUh v. United States, 94 U. 8. 97; WUson v. Cam., 10 Bush, 526; 19 
Am. Rep. 76; People t. Redinger, 56 Cal. 290; 36 Am. Rep. 32; M'Gowan v. 
People, 104 Ul. 100; 44 Am. Rep. 87. See, also, 41 Am. Dec. 272; 9 Crim. Law 
Mig. 439; 80 Eng. Rep. 518. 



CHAPTER IV. 
jUDOMBirr, nvoN appeal. 

tenon 542. Court to give judgment, without regard to technical errors* 
defects or exceptions, not affecting substantial rights. 

548. May reverse, aflirm or modify the Judgment, and order a new , 
trial. 

541 New trial. 

546. Defendant to be discharged on reversal of Judgment against 
him, where new trial is not ordered. 

546. Judgment to be executed, on affirmance against the defendant. 

547. Judgment of appellate court, how entered and remitted. 
64& Pttpers returned, not to be remitted. 

519. JuriBdiction of appellate court ceases, after Judgment remitted. 



814 Thb Code of Obdonal Pbooedubb 



§ 542. Court to give judgment without regard to teoh« 
nical errors, defects or exceptions, not a£Bdcting substan- 
tial rights. — After hearing the appeal, the court must give 
judgment, without regard to technical errors or defects or to 
exceptions which do not aflfect the substantial rights of the 
parties. 

See §§ 285, 684 ; Peo^ Hagan. 87 State Rep. 661. 

The error complaiDed of must have been actually prejadicial to the prisoner. 
PwpU V. Earisom, 7 Wend. 417; Kavtwood v. People, 3 Park. 25; People v. 
Mtmtgomery, 18 Abb. Pr. 207; Beebe v. People, 5 Hill, 82; People v. Hartung, 
4 Park. 256; 17 How. Pr. 85; Wilaaa v. People, 4 Park. 619; 8 Abb. Pr. 187; 
PeopU V. Oaffney, 14 id. 36; People v. Gray, 5 Wend. 289; Eggler v People, 
56 N. Y. 642; People v. Burns, 88 Hun, 800; 2 N. Y. Cr. Rep. 427; People v. 
Oeterhout, 3 id. 445; 84 Hun, 260; People v. Irving, 2 N. Y. Cr. Rep. 47; 31 
Hun, 614: 95 N. Y. 141; People v. Bork, 81 Hun. 860; People v. BuddenHeck, 
108 N. Y. 487. 500; People v. Myers, 5 N. Y. Cr. Rep. 125; People v. Sharp, 
45 Hun. 499, 518; Peojde v. WUlett, 27 id. 471; People v. Wenttoorth, 4 N. Y. 
Cr. Rep. 214; People v. Druse, 6 id. 88; People v. Johnson, 104 N. Y. 218; 6 
N. Y. Cr. Rep. 221; People v. RUhards, 44 Hun, 278; 5 N. Y. Cr. Rep. 871; 
People V. Connor, 53 Hun, 356; People v. MeQuade, 110 N. Y. 284; 21 Abb. 
N. C. 419, 483, 435, 486. 449; People v. Upton, 29 State Rep. 779; 4 N. Y. 
Cr. Rep. 149; People v. Menken, 36 Hun, 91; 3 N. Y. Cr. Rep. 233; People v. 
Chacon, 102 N. Y. 669; 4 N. Y. Cr. Rep. 173; People v. RUey, 3 id. 874; People 
V. Dtmiek, 107 N. Y. 13; People v. Urleman, 44 Hun, 187; Cox v. People, 80 
N. Y. 500; SchrumfY. PeopU, 14 Hun, 10. 

§ 548. May reverse, affirm or modify the Judgment, 
and order a new trial. — Upon hearing the appeal the appel- 
late court may, in cases where -an erroneous judgment has been 
entered upon a lawful verdict, correct the judgment to conform 
to the verdict ; in all other cases they must either reverse or 
affirm the judgment appealed from, and in cases of reversal may, 
if necessary or proper, order a new trial. 

See § 621,ante; People v. Bradner, 107 N. Y. 12; People v. Palmer, 109 id. 
419; 5 N. Y. Cr. Rep. 108; 43 Hun. 408; People, ex rel, v. Risley, 47 N. Y. Or. 
Rep. Ill; 88 Hun. 282; People, ex rcl , v. Kelly, 2 N. Y. Cr. Rep. 480: 82 
Hun, 538; 97 N. Y. 212. 

It iH the duty of the appellate court, under this section, to correct a judg- 
ment so that it will conform to the verdict where an erroneous judgment has 
been entered upon a lawful verdict. People v. Oriffin, 27 Hun, 595. 

Where the conviction is unassailed, and the judgment is reversed for error 
in the sentence, the appellate court should remit the record to the court in 
which the conviction was had, to pass such sentence as the appellate court 
directs. People v. Bauer, 3 N. Y. Cr. Rep. 434. See, also, People v. Bork, 8 
id. 177. 



OF THE StaTB of NsW YoKK. 



S16 



§ 544. Keiw triaL — When a new trial is ordered, it shall 
piooeed in all reapeots as if no trial had been had. 
See § 483, ante. 

In People t. Oiffrutrale, 110 N. T. 83, the coart say: We deem it anneces- 
sarj to consider whether the legislatare bj sections 464 and 544 of the Code of 
Ciiminal Procedure have changed the rule that a conviction for a lesser grade 
of an offense, or of one or two offenses charged in an indictment, imports an ac- 
(piittal of the higher grade of the offense or of the other distinct offense." Bat 
see Ptop<6 T. Palmer, 109 N. Y. 418; 5 N. Y. Or. Rep. 109. 

§ 545. Defendant to be diacharged on reversal of Jud£^ 
ment against him, where new trial is not ordered. — If a 

judgment against the defendant be reversed, without ordering a 
new trial, the appellate court must direct, if he be in custody, 
that he be discharged therefrom, or if he be admitted to bail, that 
his bail be exonerated, or if money be deposited instead, of bail, 
that it be refunded to the defendant. 
Bee People Johneon, 4 N. Y. Or. Rep. 591. 

§ 546. Judgment to be executed on aflSrmance against 
the defendant. — On a judgment of affirmance against the de- 
feudant, the original judgment must be carried into execution as 
the appellate court may direct, and if the defendant be at large, a 
bench warrant may be issned for his arrest. If a judgment be 
corrected, the corrected judgment must be carried into execution 
as the appellate court may direct. 

§ 547. Judgment of appellate court, how entered and 
remitted. — When the judgment of the appellate court is given, 
it must be entered in the judgment book, and a certified copy of 
the entry forthwith remitted to the clerk with whom the original 
judgment roll is filed, or, if a new trial be ordered in another 
county, to the clerk of that county, unless the judgment be ren- 
dered in the absence of the adverse party, in which case, the 
court may direct it to be retained, not exceeding ten days. 

§ 548. Papers returned to be remitted — The decision 
of the court and the return shall be remitted to the court below 
in the same form and manner as in civil actions. 



216 Thb Oodb of Obiminal Pbooxdtjbe 



>^ 54:9. Jurisdiction of appellate court ceases, after Judg- 
ment remitted. — After the certificate of the judgment has 
been remitted, as provided in section five hundred and forty-seven, 
the appellate court has no further jurisdiction of the appeal, or 
of the proceedings thereon ; and all orders, which may be necessary 
to carry the judgment into effect, must be made by the court to 
which the certificate is remitted, or by any court to which the 
cause may thereafter be removed. 



TITLE XII. 

OF MISOSLLAKEOUS PBOCEEDINGa 

QhaftsbL BaU. 

n. Oompelling the attendance of witnesses, 
ni. Examination of witnesses, conditionally. 
rV. Examination of witnesses, on commission, 
y. Inquiry into the insanity of the defendant, before or during the 

trial, or after conviction. 
VI. Compromising certain crimes, by leave of the court 
YII. Dismissal of the action, before or after the indictment for waul 

of prosecution or otherwise. 
Vlll. Remitting the punishment, in certain cases. 
IX Proceedings against corporations. 
X. Entitling affidavits. 

XL Errors and mistakes, in pleadings and other proceedini^B. 
YTI. Disposal of property, stolen or embezzled. 
xm Reprieves, commutations and pardons. 



CHAPTER L 

BAIL. 

AJmCLB I. In what cases the defendant may be admitted to bail 
n. Bail, upon being held to answer, before indictment 

m. Bail, upon an indictment, before conviction. 

lY. Bail, upon an appeal, 
y Deposit, instead of bail. 

VL Surrender of the defendant 

VIL Forfeiture of the undertaking of bail, or of the deposit of money. 
Vni. Re-commitment of the defendant, after haTing given bail, or 

<lnpositfHi money instead of bail 



ov THB Stats of Nsw Yoke. 



217 



AETICLE I. 

nr WHAT OAfiES THE DEFENDANT MAY BE ADMITTED TO BAIL. 

8moN 550. Admission to bail, defined. 

551. Taking bail, defined. 

552. OflFenses not bailable. 

558. In what cases defendant may be admitted to bail, before con 
viction. ^ 

554. In what cases he may be admitted to bail, after conyictioii and 

upon appeal 

555. Nature of bail before conviction. 

650. Nature of bail after conviction and upon appeaL 



§ 550. Admission to bail, defined. — When the defendant 
b held to appear for examination, bail for such appearance may 
be taken either, 

1. By the magistrate who issued the warrant or oefore whom 
the same is returnable ; or, 

2. By any judge of the supreme court. 

§ 551. Taking bail, defined.— The taking of bail consists in 
the acceptance, by a competent court or magistrate, of the under- 
taking of sufficient bail for the appearance of the defendant 
according to the terms of the undertaking, or that the bail will 
pay to the people of this state a specified sum. 

Article 1, sectioD 5 of the state constitution provides that excessive bail shall 
not be required, nor excessive fines imposed. 

The provision as to excessive bail applies only to criminal proceedings. 
PeopU V. Ttoeed, 13 Abb. Pr. (N. S.) 148. 

The right to bail existed at common law. People v. Hugging, 10 Wend. 465. 

The power to admit to bail is incident to the right to hear and determine the 
offense. Peopfe v. Van Home, 8 Barb. 158; People v. Ooodmn, 1 Wheel. C. 
C. 434; People v. Shattuck, 6 Abb. N. C. 83. 

§ 552. Offenses not bailable.— The defendant cannot be 
admitted to bail except by a judge of the supreme court or by a 
court of oyer and terminer where he is charged, 

1. With a crime punishable with death, or 

2. With the infliction of a probably fatal injury upon another, 
and under such circumstances as that, if death ensue, the crime 
would be murder. 

28 



318 Thb Godb of Cbdokal Pboobdubb 



If facts do not sustain the charge of murder contained in a warrant, bail 
may be allowed. People v. Sheriff of WegtehetUr, 1 Park. 159; 10 N. T. Leg. 
Obs. 298; PeopU v. Port&r, 8 Barb. 168, note. 

In a case of manslaaghter where there is no reasonable doubt of the pris- 
oner's guilt, bail will not be allowed. Ez parte Tayloe, 5 Cow. 39. 

Even in a capital case bail ought to be allowed, unless the proof be evident 
and the presumption great. People v. Perry, 8 Abb. 27; People v. HyleTy 2 
Park. 570; People v. Van Home, 8 Barb. 158; People v. Cole, 6 Park. 695; 4 
Abb. (N. S.) 280. 

That a case has been twice tried and the jury in both cases disagreed, pre- 
sents a proper case for admitting to bail. People v. Perry, 8 Abb. Pr. (N. S.)27. 

On a question of bail in a case of homicide the court will look into the 
examination taken before the coroner. People v. Beigler, 8 Park. 816. 

Should be admitted to bail even in a capital case after indictment, if the 
evidence be not such as to make out a prima facie case of guilt. People v. 
Baker, 10 How. Pr. 567. 

In a capital case a prisoner committed by a regular inquisition of a coroner's 
jury, if it appear that there is probable cause of guilt, will not be bailed. 
PeopU V. CoUins, 20 How. Pr. Ill; 11 Abb. 106. 

In a capital case, after a bill found, the prisoner will not be admitted to 
bail where it is believed the evidence would warrant a conviction. People v« 
Shattuck, 6 Abb. N. C. 88. 

§ 553. In what cases defendant may be admitted to bail, 
before conviction. — If the charge be for any other crime, he 
may be admitted to bail, before conviction, as follows : 

1. As a matter of right, in cases of misdemeanor : 

2. As a matter of discretion, in all other cases. 

See People v. Navagh, 4 N. Y. Cr. Rep. 299; Matter of Thomas, 2 N. Y. 
Supp. 39. 

A justice of the supreme court has no power to let a prisoner to bail while 
a court is in session having jurisdiction to try the indictment. People, ex reL 
Sherwin, v. Mead, 28 Uun, 227; 92 N. Y. 415. 

§ 554. In what cases he may be admitted to bail, 
after conviction and upon appeal. — Before conviction, a 
defendant may be admitted to bail : 

1. For his appearance before the magistrate on the examinap 
tion of the charge, before being held to answer ; 

2. To appear at the court to which the magistrate is required 
by section two hundred and twenty-one to return the depositions 
and statements upon the defendant being held to answer after 
examination ; 

3. After indictment either upon the bench warrant issued for 
his arrest or upon an order of the court committing him or enlaqp- 



OF THE Stats or New Tork. 



819 



ing the amount of bail, or upon his being snrrendeied by his bail, 
to answer the indictment in the court in which it is found, or to 
idiich it may be sent or removed for trial. And any captain or 
sergeant of police in any city or village of this state may take 
bail for appearance before a competent and accessible magistrate 
the next morning from any person arrested for a misdemeanor 
between two o'clock in the afternoon and eight o'clock the next 
morning, if a magistrate competent to take the bail be not found 
within an hour after the arrest. When such captain or sergeant 
of police takes bail he must take it by an undertaking in the form 
in ^is section mentioned, executed in his presence by the defend- 
ant and at least one surety who must justify under oath, and for 
that purpose the officer may administer the oath. The amount 
of bail taken by a captain or sergeant of police under this section 
must be as follows : Ji the offense be the violation of a corpora- 
tion ordinance, the amount of the bail must be one hundred 
dollars, except that if a conviction upon the charge would render 
the defendant liable only for a fine, the amount of the bail must 
be double the largest fine that could be imposed ; if the convic- 
tion would render him liable to imprisonment for thirty days or 
less, the amount of bail must be two hundred dollars. In all 
other cases the amount of baU must be five hundred dollars. 
The form of the undertaking must be as follows : 

We, A. B., defendant, and , residing at number , in , 
and C. D., defendant, residing at , hereby jointly and 
severally undertake that the above A. B., defendant, shall appear 
and answer the complaint [describing it briefly] before the magis- 
trate before whom he would be arraigned if not bailed on the 
day of , eighteen hundred and , at o'clock, to 
answer to the complaint, and there remain to answer, subject to 
any order of the magistrate, and render himself in execution 
thereof, or if he fail to perform either of these conditions, 
then we will pay to the people of tlie state of New Tork the 
6nm of 

See BabcotKs Case. 2 Abb. Pr. (N. S.) 204; PeopU v. Beigler, 8 Park. 816; 
MatUrof Tayloe, 5 Cow. 89; PeopU v. IHxon, 3 Abb. Pr. 395; 4 tPark. 651; 
Pwpfe V. CZwM, 14 Hun, 90; 20 Alb. L. J. 86; MaJtter of OotsU'm, 21 How. Pr. 
85; 10 Abb. Pr. 282; PeopU v. Dixon, 8 Abb. 896; PeopU v. McLeod, 25 
Wend. 488, 668; 1 Hill, 877. 



fiSO The Cods of Cbdonal Pboosdubb 



§ 555. Nature of bail after conviction. — After the con- 
viction of a crime not punishable with death^ a defendant who 
has appealed, and when t)iere is a stay of proceedings, but not 
otherwise, may be admitted to bail : 

1. As a matter of right, when the appeal is from a judgment 
imposing a line only ; 

2. As a matter of discretion in all other cases. 

^ 556. Nature of bail after conviction and upon appeal. 

After conviction and upon an appeal, the defendant may be 
admitted to bail as follows : 

1. If the appeal be from a judgment imposing a fine only, ou 
the undertaking of bail, that he will pay the same, or such part of 
it as the appellate court may direct, if the judgment be affirmed 
or modified or the appeal be dismissed ; 

2. If judgment of imprisonment have been given, that he will 
surrender himself in execution of the judgment, upon its being 
afiinned or modified, or upon the appeal being dismissed 

See People v. Bauman, 3 N. Y. Cr. Rep. 457. 



ARTICLE n. 

BAIL, UPON BEmO HELD TO ANSWER, BEFORE INDianOENT. 

fiaonoN 557, 558. By what courts or magistrates defendant may be artmlttrf 
to bail. 

559. At what time defendant may be admitted to bail by a magistrate. 

560. In cities, if crime be felony, application for admission to bafl 

must be on notice 

561. Form of order, if made by the court. 

562. Form of order, if made by a magistrate. 

563. If application be denied by a magistrate, no subsequent applioif 

tion can be made to another magistrate. 

564. Violation of last section a misdemeanor; admission to bail Sa 

such case, how revoked or vacated. 

565. Ck>nstruction of last two sections. 

566. Decision flnaL 

667. Bail, by whom taken. 

568. How put in; and form of undertaking. 

569. Qualifications of bail. 
570-572. Bail, how to justify. 

578. Bail may be examined as to sufflciencj. 



OF THB State of New York. 



221 



ftfiCTIOir 574. Other testimooj maj be received as to their sufficiency. 

675. Decifiion as to their safflciencj; and filing affidavits of jastifica. 

tion and undertakiu^. 
570. On allowance of bail and execution of undertaking, defendant 

to be discharged; form of discharge. 
577. If bail disallowed. 

§ 557. By what courts or magistrates defendant may 
be admitted to bail.— When the defendant has been held to 
answer, as provided in section two hundred and eight, the admis- 
rion to bail may be by the magistrate by whom he is so held, if 
he be one of the magistrates mentioned in section one hundred 
and forty-seven, and the crime charged is a misdemeanor, or a 
felony punishable with imprisonment, not exceeding five yeai*8 ; 
or if he be a judge of the supremo court, or any judge authorized 
to preside in a court having jurisdiction to try indictments, in all 
cases where bail may be taken before conviction, as provided in 
section five hundred and fifty-four. 

After indictment found in the general sessions any one justice of the peace, 
18 a member of that court, has power to admit to bail for any offense there 
triable. People v. Huggins, 10 Wend. 464. 

The power of taking a recognizance of bail may be conferred upon any local 
officer appointed to discharge the duties of county judge. People v. Main, 20 
N. Y. 434. 

Where a defendant is arrested on a warrant, indorsed by a justice of another 
ooonty, he cannot be let to bail in the county where he was arrested. Clark 
T. Cleveland, 6 Hm, 344. Contra, Doyle v. Russell, 80 Barb. 300. 

A person arrested on a bench warrant cannot be let to bail before being taken 
to the county where he was Indicted. Ex parte OorsUne, 21 How. Pr. 85; 10 
Abb. Pr. 282; People v. Chapman, 80 How. Pr. 202. 

After Indictment found, a justice of the supreme court has no power to let 
to bail during the session of the court having jurisdiction to try the indict- 
ment. El parte Babcoek, 2 Abb. Pr. (N. S.) 204. 

A defendant arrested on a bench warrant may be let to bail by any justice 
of the supreme court, if the court having cognizance of the indictment be not 
then in session. People v. Oetos, 14 Hun, 90; 20 Alb. L. J. 86; 77 N. Y. 39. 

Under act of 1876, chap. 21, a police magistrate has power to admit a prisoner 
to bail pending an examination before him. Ex parte Gessner, 53 How. Pr. 515. 

§ 558. By what courts or magistrates defendant may 
be admitted to baiL — When, by reason of the degree of the 
crime, the committing magistrate has not authority to admit to 
bail, the defendant may be admitted to bail by one of the officers 
having authority to admit to bail in the case, as provided in the 
^nd sabdivision of the last section, or by the court to which 

'\ 

! 



882 Thb Code of Criminal Pbookdubb 



the depofiitionB and statements are returned by the committing 
magistrate, as provided in section two hundred and twenty one, 
if the case be triable therein, or if not, by the court to which, 
after indictment, it may be sent or removed for triaL 

§ 559. At what time defendant may be admitted to bail 
by a magistrate. — The defendant may be admitted to bail by 
a magistrate, as provided in the last two sections, upon being 
held to answer, or at any time before the return of the depositions 
and statement to the court. After that time he can be admitted 
to bail only by a judge presiding in the court in which the crime 
is triable, if it be sitting, or if not, by one of the magistrates 
mentioned in the second subdivision of section five hundred and 
.fifty-seven. 

See Ex parte Babeoek, 2 Abb. Pr. (N. S.) 204; People v. Oletcs, 77 N. T. 89. 

§ 560. In cities, if crime be felony, application for 
adinission to bail must be on notice. — In the several cities 
of this state, if the crime charged be a felony, the application for 
admission to bail must be upon notice of at least two days, to the 
district attorney of the county, unless the magistrate, by order, 
fixes a shorter time ; and the committing magistrate, upon the 
like notice in writing, requiring him to do so, must transmit the 
depositions and statement, or a copy thereof, to the court or 
magistrate to whom the application for bail is to be made. 

§ 561. Form of order, if made by the court. — If the 

application be to the court, an order must be made granting or 
denying it, and if it be granted, stating the sum in which bail 
may be taken. 

§ 562. Form of order, if made by a magistrate.— If the 

application be to a magistrate, he must certify, in writing, his 
decision granting or denying the same; and if he grant the 
application, must state in the certificate the sum in which bail 
may be taken ; which certificate he must cause to be forthwith 
filed with the clerk of the court to which the depositions and 
statement are required to be sent. 

§ 563. If application be denied by a magistratei no sub- 
sequent application can be made to another magistrate. 

If an application for admission to bail, made to a magistrate, be 



ov THB Stats of Nkw York. 



228 



detiied, not more than two sabsequent applications therefor can 
be made to other magistrates, except that an application can be 
made to any magistrate mentioned in snbdiVision two of section 
five handred and fifty-seyen, if no application has been previously 
made to a magistrate mentioned therein. 

§ 564. Violation of last section a misdemeanor; admis- 
sion to bail in such case, how revoked or vacated. ~ 

A violation of the last section is punishable as a misdemeanor, 
and the admission of the defendant to bail contrary thereto may 
be revoked by the magistrate who made it, or vacated by the 
court to which the depositions and statement are or must be sent, 
as provided in section two hundred and twenty-one or to which, 
after indictment, the action must be sent for trial 

i 565. Construction of last two sections. — The provisions 
of the last two sections shall not be construed to limit the power 
of any judge presiding in the court in which the offense is triable 
to let the defendant to bail. 

§ 566. Decision final. — The decision of the judge presiding 
in the court in which the crime is triable, granting or denying 
bail, is final, except as provided in section five hundred and 
sixty-three. 

§ 567. T^"; by whom taken. — If the defendant be admitted 
to bail by a magistrate, the bail must be taken by tlie magistrate 
granting the order, unless the order shall specify that the same 
may be taken by some other designated magistrate. 

§ 568. How put In ; and form of undertaking.— Bail is 
pot in by written undertaking executed by suflicient surety [with 
or without the defendant, in the discretion of the magistrate], and 
acknowledged before the magistrate in substantially the follow- 
ing form : 

"An order having been made on the day o^ , eigh- 
teen hundred and , by A. B., a justice of the peace of the 
town of [or as the case may be], that C. D. be held to 

answer upon a charge of [stating briefly the nature of the crime], 
upon which he has been duly admitted to bail in the sum 
of dollars. 



Thb Code of Obdunal Pbooedubb 



" We, [C. D., defendant, if the defendant join in the under- 
taking], of [stating his place of residence and his occupation] and 
E. F., [and G. H. stating place of residence and occupation] surety 
or sureties [as the case may be], hereby undertake, jointly and 
severally, that the above-named C. D. shall appear and answer the 
charge above mentioned, in whatever court it may be prosecuted ; 
and shall at all times render himself amenable to the orders and 
process of the court ; and, if convicted, shall appear for judg- 
ment, and render himself in execution thereof ; or if he fail to 
perform either of these conditions, that we will pay to the people 
of the state of New York the sum of dollars " [inserting 

the sum in which the defendant is admitted to bail]. 

See People, ex reL Gilbert, v. Laidlato, 102 N. Y. 591; People v. Oillman, 135 
id. 872. 

§ 569. Qualificatioiis of baiL — Tlie qualifications of bail 
are as'f oUows : 

1. He must be a resident, and a householder or freeholder 
within the state, and, unless the magistrate otherwise direct, 
within the county ; 

2. He must be worth the amount specified in the undertaking, 
exclusive of property exempt from execution ; but the magistrate, 
on taking bail, may require two sureties, or may allow two or 
more to justify severally in amounts less than that expressed in 
the undertaking, if the whole justification be equivalent to that 
of one sufficient surety. 

'* In no case shall an attoraey or counselor be surety on any undertaking or 
bond required by law, or by these rules, or by any order of a court or judge, 
in any action or proceeding, or be bail in any civil or criminal case, or pro- 
ceeding." Sup. Ct. Rule 5 (Hun's ed., p. 72), and cases cited. 

§ 570. Bail, how to Justify. — Except as prescribed in the 
next section, the bail may, in the exercise of a just discretion, be 
taken, and may justify, without notice to the district attorney, or 
reasonable notice of the intention to give bail may be required 
by the court or magistrate, to be given to the district attorney. 
When given, the notice shall be as prescribed in the next section. 

§ 571. Bail, how to Justify. — In the several cities of this 
state, if the crime charged be a felony, a previous notice in 
writing of at least two days, of the time and place of giving the 
bail, must be served upon the district attorney of the county, 
stating: 



ov THS SrAn or Nbw Yobk« 



L Tke DAmeSy places of refiidenoe and oocnpations of the pro- 
po0ed surety or snreties ; 

8. A general description of the real or personal property of 
tbs surety or snroties, in respect to which they propose to justify 
u to their sn£Sciency, with the incumbrances thereon, by mort- 
gage, judgment or otherwise, if any. 

The district attorney may waive the giving of the notice herein 
l^yided for, or a shorter time than two days may be directed by 
the court or magistrate requiring the notice. 

§ 572. Bail, how to justify. — The surety or sureties must 
in all cases justify by affidavit, taken before the magistrate. The 
iffidavit must state that each of the sureties possesses the qualifica- 
tions provided in section five hundred and sixty-nine. 
Perjury may be predicated on a false affidavit made in justification of balL 
SbraUan v. PeopU, 20 Hun, 288; 81 N. Y. S29. 

§ 573. Bail may be exaxnined as to soffloiency, — The 

dirtrict attorney, or the magistrate, may thereupon further examine 
the sureties upon oath, concerning their sufiSciency, in such man- 
ner as the magistrate may deem proper. The questions put to 
the snretiee, and their answers, must be reduced to writing, and 
must be subscribed by them. 

i 574. Decdaioxi as to their sufflciency, and filing affi- 
davits of justification and undertaking. — The magistrate 
may also receive other testimony, either for or against the suffi- 
ciency of the bail, and may, from time to time, adjourn the 
tddng of bail, to afford an opportunity of proving or disproving 
its sufficiency. 

§ 575. When the examination is closed, the magistrate must 
mdce an order, either allowing or disallowing the bail, and must 
forthwith cause the same, with the affidavits of justification and 
the undertaking of bail, to be filed with the derk of the court 
to which the depositions and statement must be sent, as prescribed 
in section two hundred and twenty-one. 

$576. On allowaaoe of bail and exeoation of under- 
titUng, daftandant to be disoharged; fbrm of discharge.— 

Upon the allowance of the bail and the execution of the under- 
tikiDg, the court or magistrate must make an order, signed by 
.29 



326 Thb Codb of Gbdonal Pbooedube 



him, with his name of office, for the discharge of the def endanti 
to the following efiEect : 

" To the sheriff of the county of , [or, in the 

city and county of New York, * to the keeper of the city prison 
of the city of New York : '] A. B., who is detained by you on a 
^commitment to answer a chaige for the crime of [designating it 
generally], having given sufficient bail to answer the same, you 
are commanded forthwith to discharge him from your custody." 

§ 577. If ball disallowed — If the bail be disallowed, the 
defendant must be detained in custody until lawfully dischai^ed. 



ARTICLE m. 

BAIL, UPON AN INDIOTMRNT BBFOBB OONVICnOV. 

BwnoH S78. In misdemeanor, officer to take defendant before a maglstnla 

579. In felony, to deliver him into custody. 

580. Taking bail, when offense is baUable. 

581. Bail, how put in; form of undertaking. 

580. Sections applicable to qualifications of bail, to putting in tad 
Justifying bail, and to incidental proceedings. 

§ 578. In TnlfldftTnaanor, officer to take defendant befbre 
amagistrate. — When the crime charged in the indictment is a 
misdemeanor^ the officer serving the bench warrant must^ if 
required, take the defendant before a magistrate in the county in 
which it is issued, or in which he is arrested, for the purpose of 
giving bail as prescribed in sections three hundred and two and 
three hundred and five. 

A person arrested on a bench warrant cannot be let to bail before being taken 
to the county where he was indicted. Ex parte Oorilinej 21 How. Pr. 85; 10 
Abb. Pr. 282; People v. Chapman, 80 How. Pr. 202. See, also. People v. Folmi- 
bee, 60 Barb. 480. 

§ 579. In Calony, to deliver him into oostody. — If the 

crime charged in the indictment be a felony, the officer arresting 
the defendant must deliver him into custody, according to the 
command of the bench warrant, as prescribed in section three 
li! Hid red and one. 
See People v. Cfetw, 14 Hun. 90; 77 N. Y. 89. 



OF THK State ow Hew Yoke. 



827 



§ 580. Taking bail, when oflluiBe is bailable.— When the 
defendant is so deliyered into custody, if the felony charged be 
Uilable, and the amount of bail have been fixed, bail may be 
taken by the judge presiding in the court in which the indictment 
was found, or to which it is sent or removed, or by any magis- 
trate in the coxmty belonging to the class mentioned in the second 
sabdivision of section five hxmdred and fifty-seven. 

§ 581. Bail, how put in ; form of undertaking.— The 

bail must be put in by a written undertaking, executed by a sufS- 
cient surety, with or without the defendants, in the discretion of 
the magistrate, and acknowledged before the court or its clerk in 
open court or the magistrate in substantially the following form : 
*'An indictment having been found on the day of , 
eighteen hundred and , in the court of aemons of the county 
of Albany [or as the case may be] charging A. B. with the 
crime of [designating it generally], and he having been duly 
admitted to bail in the sum of dollars. 

We, A. B., defendant [if the defendant join in the under- 
taking], and C. D., surety or sureties, as the case may be, of [stat- 
ing his place of residence and occupation], and E. F., of [stating 
bis jdace of residence and occupation], hereby jointly and sever- 
alty undertake that the above-named A. B. shall appear and 
answer the indictment above mentioned, in whatever court it may 
be prosecuted, and shall at all times render himself amenable to 
the orders and process of the court ; and if convicted, shaU appear 
for judgment, and render himself in execution thereof ; or if he 
fiuls to perform either of these conditions, that we will pay to 
the people of the state of New York the sum of dollars" 
[inserting the sum in which the defendant is admitted to bail.] 
See § 593, pott; People v. ffammand, 26 State Rep. 486. 

§ 582. Sections applicable to qualifications of bail, to 
patting in and Justifying bail, and to incidentalproceed- 
inp. — The provisions contained in sections five hundred and 
aixtj nine to five hundred and seventy-seven, both inclusive, apply 
to the qualificationB of the sureties, and to all the proceedings 
respecting the putting in and justification of bail, and incidental 
thereta 



2S8 Thb Code of Obdomal Pbooedubb 



ARTICLE IV. 

BAIL UPON AN APPEAL. 

BBOnoHfiSS. Who may admit to bail. 

684. Notice of the application, when nqjaSnd* 

685. Qualifications of bail, and how put in. 

§ 583. Who may admit to bail.— In the cases in which the 
defendant may be admitted to bail upon an appeal, as provided 
in section five hundred and fiftjHsix, the order admitting him to 
bail may be made, either by the court from whicli the appeal \i» 
taken, or the presiding judge thereof, or bj the appellate court, 
or a judge thereof, or by a judge of the supreme court. 

§ 584. Notice of the application, when required. — The 

court or officer to whom the application for bail is made may 
require such notice thereof as he deems reasonable, to be given to 
the district attorney of the county in which the verdict or judg- 
ment was originally rendered. 

§ 585. QualiflcationB of bail, and how pat in. — The 

sureties must possess the qualifications, and the bail must be put 
in all respects, in the manner prescribed by sections five hxmdred 
and sixty-nine to five hundred and seventy-seven, both indn- 
sive ; except that the undertaking must be to the effect that the 
defendant will, in aU respects, abide the orders and judgment of 
the appellate court upon the appeal. 



ARTICLE V. 

DlFOfirr INSTEAD OF BAIL. 
Deposit, when and how made. 

May be made after bail given, and before fof feUur e; and in Mok 
case bail diieharged 

Bail may be given after deposit; and in such case monej depos- 
ited to be refunded. 

Depodt to be applied to payment of Jadfmeiit of lla^ and snr- 
plus to be refunded. 



BMiiinr 086. 
687. 

68a 

086. 



OF THE State of New Tork. 



229 



§ 5S6. Deposit, when and how made The defendant, at 

anj time after an order admitting liirn to bail, instead of giving 
bail, or a witness committed in default of an undertaking to ap- 
pear and testify, instead of entering into such an undertaking, 
way deposit with the county treasurer of the county in which 
he is held to answer or appear, the sum mentioned in the order 
or commitment; and upon delivering to the officer, in whose 
enstody he is, a certificate of the deposit, he must be discharged 
from custody. lAmended 1892, ch. 220 ; in effect Ajyril 6, 1892. 
See t. BUwm, 89 Han, 814; PeapU Laidlaw, 102 N. T. 58a 

§ 587. May be made after bail given, and before for- 
feitnre ; and in tuoh case bail discharged.— If the defend- 
lot have fiven bail, he may, at any time before the forfeiture of 
the midertaking, in like manner deposit the sum mentioned in 
the undertaking; and upon the deposit being made the bail is 
exonerated. 

See People v. Laidlauf, 102 N. Y. 691. 

§ 58S. Bail may be given after depoeit ; and in sudi 
ease money dei)Osited to be refunded. — If money be depos- 
ited, as provided in the last section, bail may be given in the 
flame manner as if it had been originally given upon the order 
for admission to bail, at any time before the forfeiture of the 
deposit. The court or magistrate before whom the bail is taken 
must thereupon direct, in the order of allowance, that the money 
deposited be refunded by the county treasurer to the defendant ; 
and it must be refunded aox»ordingly. 
See People v. Laidlaw, 102 N. Y. 588. 

§ 589. Deposit to be applied to payment of judgment of 
fine, and surplns to be refunded. — When money has been 
deposited, if it remain on deposit and unforfeited at the time of 
a judgment for the payment of a fine, the county treasurer must, 
under direction of the court, apply the money in satisfaction 
thereof; and after satisfying the fine, must refund the surplus, if 
any, to the defendant. 

Unpeople Laidiaw, 102 N. Y. m. 



280 The Cods of Cbimikal Prooedubb 



ARTICLE VL 

BUBBENDEB OF THB DEFENDAHT. 

Baonoir 690. Surrender, by whom, when and how made. 

691. By whom, when and where defendant may be arrested for tha 

purpose of a surrender. 

692. On surrender before forfeiture, money deposited to be refunded; 

order therefor, how obtained. 

§ 590. Surrender, by whom, when and how made. — At 

any time before the forfeiture of the nndertakiiig, any surety 
may Burrender the defendant in his exoneration, or the defendant 
may surrender himself, to the officer to whose custody he was 
oommitted, at the time of giving bail, in the following manner : 

1. A certified copy of the undertaking of the bail must be 
delivered to the officer, who must detain the defendant in his 
custody thereon, as upon a commitment, and by a certificate in 
writing acknowledge the surrender ; 

2. Upon the undertaking and the certificate of the officer, the 
court in which the indictment or the appeal, as the case may be, 
is pending, may, upon a notice of five days to the district attor- 
ney of the county, with a copy of the undertaking and certifi- 
cate, order that the bail be exonerated ; and on filing the order 
and the papers used on the application, the bail is exonerated 
accordingly. 

See PeopU v. LaidUatc, 102 N. Y. 591. 

§ 591. By whom, when and where, defendant may be 
arrested for the purpose cit a surrender. — For the purpose 
of surrendering the defendant, any surety, at any time before he 
is finally charged, and at any place within the state, may himself 
arrest him, or by a written authority indoi-sed on a certified copy 
of the undertaking, may empower any person of suitable age 
and discretion t^ do so. 

§ 592. On surrender before forfeiture, money deposited 
to be refunded. — If money have been deposited instead of 
bail, and the defendant at any time before the forfeiture thereof 
surrender himself to the officer to whom the commitment was 
'directed, in the manner provided in section five hundred an J 
ninety, the court must order a return of the depost to the defend- 



OF TiUB Stats of New Yosk. 



2S1 



mtf npon producing the certificate of the officer showing the 
Bnrrender, and upon a notice of five days to the district attomeji 
with a copy of the certificate. 
See PeopU Laidlaw, 102 N. T. 691. 



AETICLE TIL 
fumrMrruM of thb TnmsBTAKiNa of bail, ok of the deposit 

OF MONEY. 

Baanm 0B6. In what cases, and how ordered. 

594. When and how forfeiture may be discharged. 

596. Forfeiture of bail, to be enforced by action. 

096. Deposit of money, when forfeited; how disposed of. 

597. Remission of foi^eiture. 

598. Application therefor, how made and on what terms gnmted. 

§593. In what caseB, and how orderecL — If, without 
sufficient excuse, the defendant neglect to appear for arraignment; 
or for trial or judgment, or upon any other occasion where his 
presence in court may be lawfully required, or to surrender him- 
self in execution of the judgment, the court must direct the fact 
to be entered upon its minutes ; and the undertaking of his bail, 
or the money deposited, instead of bail, as the case may be, is 
thereupon forfeited. 

Bastardy proceedings instituted against the defendant were adjourned from 
Maj 28 to June 7. On that day defendant appeared, and the hearing pro- 
ceeded throughout the day, and were then adjourned by consent to June 26, 
00 which day defendant failed to appear. At the time of the first adjournment 
a bond with two sureties was given which recited the proceedings and the 
idjonmment to June 7. It was conditioned to be void if the said defendant 
ihoald personally be and appear before the justices at the time and place afore- 
nid. and not depart therefrom without the leave of the justices. On the 
seeond adjournment, defendant and one of the sureties were present. It was 
stated by counsel for the two parties, in their presence, that the bond was to 
be held good. Held, that the sureties were not discharged from liability by 
tbe second adjournment. People v. MtUhau, 100 N. Y. 273; 4 N. Y. Cr. Rep. 
127. But see People v. Swdlea, 88 Hun, 208. 

The eourt have no power (o respite a recognizance to a succeeding term, 
•gainst the ezprefls dissent of the bail. People v. Cla/ry, 17 Wend. 874; People 

Qnm. 5 mil. 647. 

If a partj, bound by a recognizance, be subsequently arrested on a bench 



288 Thb Oodb of Crtmisal Pbooedubb 



w&rrant, before a forfeiture, and escape, his bail are discharged. People 
Stitger, 10 Wend. 481; People v. Derby, 1 Park. 392; People v. Mack, id. 567. 

An arrest on a bench warrant after a forfeiture does not release the bail. 
People V. Annable, 7 Hill, 38. 

A recognizance is forfeited, though the defendant appear, if he depart before 
the conclusion f the wrial. People v. McCoy, 39 Barb. 73; People v. Jane, 27 
id. 58. 

It is no defense to an action on a recognizance for appearance that no indict- 
ment was found against the principal at such court. Champlain v. People, 2 
N. Y. 82. 

A party under recognizance to appear may be called upon on any day during 
the continuance of the court without notice. People v. Blankman, 17 Wend« 
252. 

If the defendant be called at any stage of the trial, and fail to appear and 
answer, his recognizance may be declared forfeited. People v. Petry, 2 Hilt. 
523. 

There is a breach of the recognizance if the defendant, though corporally 
present, do not answer when called. People v. Wilgua, 5 Den. 68. 

It is a good defense to an action on a recognizance for a person's appearance 
to answer a criminal charge that he has been arrested and committed to jail in 
another county. People v. Bartlett, \^ Hill, 570; People v. Haines, 1 Den. 454. 

It is a valid excuse for the non-appearance of the principal that he had en- 
listed as a soldier in the United States, etc. People v. Chusney, 44 Barb. 1 18; 
People V. Cook, 30 How. Pr. 110. 

When a recognizance is conditioned for the appearance of the defendant on 
a day certain, and from time to time as directed by the justice, and the pro. 
ceedings are adjourned at a time when the defendant is not present, there can- 
not be a forfeiture of the recognizance at a subsequent adjourned day. People 
V. Scott, 67 N. Y. 585. 

§ 594. When and how forfeiture may be discharged. — 

If, at any time before the final adjoomment of the court, the 
defendant appear and Batisfactorily excuse his neglect, the court 
may direct the forfeiture of the undertaking or deposit to be 
discharged, upon such terms as are just. 
See People v. Coman, 5 Daly, 637; 49 How. Pr. 91. 

§ 595^ Forfeiture of bail, to be enfbroed by action. — 

If the forfeiture be not discharged, as provided in the last section, 
the district attorney may, at any time after the adjournment of 
the court, proceed against any surety upon his undertaking. 
Such proceeding shall be by action only, except in the city and 
county of New York, where it shall be in the method now pre- 
scribed by special statute. 



Of THB Statx or New Yobk. 



988 



§ 596. Deposit of money when forfiaited, how disposed 
of.-If,by reason of the neglect of the defendant to appear, as 
provided in section five hundred and ninety-three, money 
deposited instead of bail is forfeited, and tlie forfeiture be not 
dischaijred or remitted, as provided in sections five hundred and 
ninety-four and five hundred and ninety-seven, the count} 
treasurer with whom it is deposited may, at any time after th 
final adjournment of the court, apply the money deposited to the 
use of the county. 

§ 597. Bemission of Ibrfiaiture. — After the forfeiture of 
the undertaking or deposit, as provided in this article, the court 
directing the forfeiture, the county court of the county, or in the 
city of New York, the court of common pleas of that city, may 
remit the forfeiture or any part thereof, upon such terms as are just 

See Code Qv. Proc.. § 850; PeopU v. 8pear, 1 N. Y. Cr. Rep. 588. 

A person having forfeited her l^iil by leaving the county, thoagh afterward 
muming and g^iving bail ander the indictment found against her since the 
forfeiture which is nolle pron'dy is not entitled to the return of the money paid 
on the forfeiture of the bail. PeopU v. Fisher, 8 State Rep. 882; 14 Daly, 278. 

A judgment on a forfeited recognizance will not be discharged because of 
the illness of the surety at the time the recognizance was forfeited. People v. 
Meehan, 14 Daly. 833. 

A judgment entered against surety and principal respectively, on a forfeited 
recognizance, will be canceled on motion, where it appears that subsequent to 
the forfeiture, the accused person appeared, was tried, and paid the fine im- 
posed. PeopU V. Boeumeeker (Gen. Term, N. Y. Com. Pleas), 27 Week. Dig. 
387. 

A judgment entered on a forfeited recognizance taken in the special sessions 
in a prosecution for assault and battery will be vacated where it is shown that 
complainant appeared and acknowledged satisfaction for the injury and re- 
quested the discharge of defendant. PeopU v. Oroesman (Gen. Term, N. Y. 
Com. Pleas), 5 N. Y. Supp. 446. 

To warrant the discharge of a judgment upon a forfeited recognizance, it 
must be shown to the court that the accused did not escape conviction through 
the absence of prosecutor and witness. PeopU v. FUgenheiner, 15 State Rep. 
876. 

§ 598. Application therefor, how made and on what 
terms granted. — The application must be upon at least five 
days' notice to the district attorney of the connty served with 
copies of the affidavits and papers on which it is founded, and 
can be granted only upon payment of the costs and expenses in- 
curred in the proceedings for the enforcement of the forfeiture. 
80 



284 The Oodb of Cbdonal Pbookdubb 



Bee People Spear, 1 N. Y. Cr. Rep. 688. 

A statute proyiding that a defendant, instead of giving bail, wmj deposit 
with the county treasurer the sum mentioned in the order admitting him to 
bail, contemplates that the deposit is to be made by the defendant himself and 
by no one else. When the deposit is made by any party other than the de- 
fendant, it will be deemed to have been made for the defendant, and if convic- 
tion follows and a fine is imposed, the court may, under section 598, order the 
fine to be paid out of the money so deposited, and the balance, if any, paid to 
the defendant. People, ex rel, Gilbert, v. Laidlaw, 102 N. Y. 688. 



ARTICLE Vm. 

B»<301OCmCENT OF THE DEFSNDAOT, AFTER HA^YIira aiYXV BAH^ 
OB DEPOSrrSD MONEY INSTEAD OF BAIL. 

SmiON699. In what cases. 

600. Contents of the order. 

fiOl. Defendant may be arrested in any county. 

002. If for failure to appear for Judgment, defendant muat be ooifti 

mitted. 

008. If for other cause, he may be admitted to bail 

604. Bail in such case, by whom taken. 

606. Form of the undertaking. 

606. Qualifications of bail, and how put in. 

§ 599. In What oaiei.— The coart to which the commit- 
ting magistrate returns the deposition and statement, or in which 
an indictment or appeal is pending, or to which a judgment on 
appeal is remitted to be carried into eflEect, may, by an order en- 
tered upon its minutes, or if the court be not in session, any judge 
thereof may direct the arrest of the defendant, and his commit- 
ment to the officer to whose custody he was committed at the 
time he was admitted to bail, and his detention until legally 
discharged, in the following cases. 

1. When, by reason of his failure to appear, he has incurred a 
forfeiture of his bail, or of money deposited instead thereof, as 
provided in section five hundred and ninety-three ; 

2. When it satisfactorily appears to the court that his bail, or 
either of them, are dead, or insufficient, or have removed from 
the state ; 

3. Upon an indictment being found, in the cases provided in 
section three hundred and six. 

See gg 299, 800, 806, 475, 688, a$U$. 



OF THB StATB of NkW YoBK. 



285 



§ 600. CkxatentB of the order.— The order for the recom- 
mitment of the defendant must recite, generally, the facts upon 
which it is founded, and direct that the defendant be arrested by 
any sheriff, constable, marshal or policeman in this state, and com- 
mited to the officer to whose custody he was committed, at the* 
time he was admitted to bail, to be detained until legally 
discharged. 

§ 601. Defendant may be arrested in any county.— The 

defendant may be arrested pursuant to the order, upon a certified 
copy thereof, in any county, in the same manner as upon a war- 
rant of arrest ; except, that when arrested in another county, the 
order need not be indorsed by a magistrate of that county. 

§ 602. If for fEdlnre to appear for judgment, defendant 
must be conunitted. — If the order recite, as the ground upon 
wiiich it is made, the failure of the defendant to appear for judg- 
ment upon conviction, the defendant must be committed accord^ 
ing to the requirement of the order. 

§ 603. If for other cause, he may be admitted to bail.— 

If the order be made for any other cause, and the crime be bail 
able, the court may fix the amount of bail, and may direct in the 
order that the defendant be admitted to bail in the sum fixed, 
wiiich must be specified in the order. 

§ 604. Bail in such case, by whom taken. — When the 
defendant is admitted to bail, the bail may be taken by any mag- 
istrate in the county, liaving authority, in a similar case, to admit 
to bail upon the holding of the defendant to answer before indict- 
ment, as prescribed in sections five hundred and fifty-seven and 
five hundred and fifty-eight, or by any other magistrate to be 
designated by the court. 

§ 605. Form of the undertaking. — When bail is taken 
upon the recommitment of the defendant, the undertaking of 
bail must be in substantially the following form : 

''An order having been made on the day of eigh- 

teen hundred and , by the court of [naming the court], 

that A. B. be admitted to bail in the sum of dollars, 
in an action pending in that court against him in behalf of the 



336 



The Code of Criminal Psooedubs 



people of the state of New York, upon an [infonnation, present- 
Dient, indictment or appeal, as the case may be]. 

" We, A. B., defendant, [if the defendant join in the unde^ 
uking], and 0. D., surety of [stating his place of residence and 
occupation], and E. F., surety of [stating his place of residence 
and occupation], hereby, jointly and severally, undertake that the 
above-named A. B. shall appear in that or any other court in 
which his appearance may be lawfully required, upon that 
[information, presentment, indictment or appeal, as the case may 
be], and shall at all times render himself amenable to its orders 
and process, and appear for judgment and surrender himself in 
execution thereof ; or if he fail to perform either of these condi- 
tions, that we will pay to the people of the state of New York 
the sum of dollars " [inserting the sum in which the 

defendant is admitted to bail]. 

§ 606. Qualifications of bail, and how put in. — The bail 
must possess the quahlications, and must be put in, in all respects, 
in the manner prescribed by sections five hundred and sixty-nine 
to five hundred and seventy-seven, inclusive. 



CHAPTER n. 

OOMPELLINO THE ATTENDANGE OF WITNE68BB. 

BborovSOT. Subpoena defined. 

608. Magistrate may issue Bubpoenas, on infonnation or presentmeiit 
009. District attorney may issue subpoenas for witnesses before grand 
Jury. 

610. He may also issue subpoenas for the people, on trial of an 
indictment. 

611. Clerk may issue blank subpoenas for witnesses for defendant on 

trial. 

618. Form of subpoena. 

618. Requirement in subpoena, to produce books, papers and docn- 

ments. 

614. Subpoena, by whom seryed. 

615. How served. 

016. Payment of expenses of witness, when he Is from without the 

county, or is poor. 
617. Payment of expenses of witneas, when he Is from without fho 

ooontj, or is poor. 



OP THS Statb of Nkw Yokk. 



887 



SiOTUUi 618. WitnesMB naidiii^g or aeiFed with subpcBoa oat of the ooontj, 
when and how compelled to attend. 
619. Disobedience to mbpoBna, or xefusal to be awom or to testii^ 
how punished. 

§ 607. Subpoana defined. — The process by which the attend- 
ance of a witDOBB before a ooart or magistrate is required is a 
rabpoena. 

§ 608. Magistrate may issue subpoenas tor witnesses 
before grand Jury. — A magistrate, before whom an informa- 
tion is laid, may issue subpcenas, subscribed by him, for witnesses 
irithin the state, either on behalf of the people or of the 
defendant 

§ 609. District attorney may issue subpoenas for wit- 
nesses before grand jury. — The district attorney of the 
connty may issue subpoenas, subscribed by him for witnesses 
within the state, in support of the prosecution or for such other 
witnesses as the grand jury may direct, to appear before the 
grand jury, upon an investigation pending before them. 

§ 610. Hie may also issue subpoenas for the people, on 
trial at an indictment. — The district attorney may, in like 
manner, issue subpoenas subscribed by him, for witnesses within 
the state in support of an indictment, to appear before the court 
at which it is to be tried. 

§ 611. Clerk may issue blank subpoenas for witnesses 
for defendant, on triaL — The clerk of the court at which an 
indictment is to be tried, must, at all times, upon the application 
of the defendant, and without charge, issue as many blank sub- 
podnas, under the seal of the court and subscribed by him as clerk, 
for witnesses within the state, as may be required by the defendant 

Sherwin People, 100 N. Y. 851. 

§ 612. Form of subpoena. — A subpoena, authorized by the 
last four sectiona, must be substantially in the following form: 

" In the name of the people of the state of New York : 
To A. B. 

^Toa are commanded to appear before O. !>., a Jwtioe qf tk$ 
peace qfths town of , [or "the grand jury of the county 
of or "the court of sessions of the county of oc 



888 The Oodb of Osiminal Pbooedubb 



as the case may be,] at [naming the place,] on [stating the day 
and honr J as a witness in a criminal action prosecnted by the 
people of the state of New York, against E. F. 

Dated at the town of , [as the case may be,] the day 
of ,18 . 

" G. H., justice of the peace," [or " L K., district attorney,** or 
" By order of the court, L. M., clerk," as the case may be]. 

§ 613. Requirement in subpoena, to produce books, 
papers and documents — If books, papers or documents be 
required, a direction to the following effect must be contained in 
the subpoena : "And you are required also to bring with you the 
following," [describing intelligibly the books, papers or documents 
required.] 

§ 614. Subpoena, by whom served. — A peace officer must 
serve, in his county, city, town or village, as the case may be, any 
subpoena delivered to him for service, either on the part of the 
people or of the defendant ; and must make a written return of 
the service, subscribed by him, stating the time and place of 
service, without delay. The subpoena may, however, be served 
by any other person. 

§ 616. How served. — A subpoena is served by delivering it, 
or by showing it, and delivering a copy thereof, to the witness 
personally. 

§ 616. Payment of expenses of witness, when he is 
firom without the county, or is poor. — When a person 
attends before a magistrate, grand jury or court, as a witness on 
behalf of the people, upon a subpoena, or pursuant to an under- 
taking, and it appears that he has come from a place out of the 
county, or that he is poor, the court, if the attendance of the 
witness be upon a trial, by an order entered upon its minutes, 
or in any other case, the county judge, or in the city of New 
York the recorder or city judge, or judge of the general sessions 
nl that city, by a written order, may direct the couniy treasuror 
to pay the witness a reasonable sum, to be specified in the ordeTi 
for his expenses. 

See 894. 781. 



OF THs State of Nkw Yobk. 



389 



§ 617. Payment of expenses of witaiess, when he is 
from without the county, or is poor. — Upon the prodaction 
of the order, or a certified copy thereof, the county treasurer 
most pay the witness the sum specified therein, out of the county 
treasury. 

§ 618. Witnesses residing or served with subpoena, out 
of the county, when and how compelled to attend. — No 

person is obliged to attend as a witness, before a court or magis- 
trate out of the county wliere the witness resides or is served 
with the subpoena, unless the judge of the court in which the 
crime is triable, or a judge of the supreme court, or a county 
judge, or in the city of New York the recorder or city judge, or 
judge of the general sessions of that city, upon an affidavit of 
the prosecutor or district attorney, or of the defendant or his 
counsel, stating that he believes that the evidence of the witness 
is material, and his attendance at the examination or trial neces- 
sary, shall indorse on the subpoena an order for the attendance of 
the witness. 

§ 619. Disobedience to subpoena, or refusal to be sworn 
or to testify, how punished. — Disobedience to a subpoena, or 
a refusal to be sworn or to testify, may be punished by the court 
or magistrate as for a criminal contempt, in the manner provided 
in the Code of Civil Procedure. 

See Code av. Proc., §§ 8-18, 853; Penal Code, § 143, subd. 4, note; People, 
exrd. Skerwin, v. Mead, 28 Hun, 227 ; 92 N. Y. 415; 3 N. Y. Cr. Rep. 524; 
PtopU,exTel,, V. Court of Oyer and Terminer, id. 216; 86 Hun, 280; 101 N. 
Y. 251; 8 How. Pr. (N. S.) 418; 4 N. Y. Cr. Rep. 75; PeopU v. ^larp, 46 Hun, 
4S3. 



CHAPTER III. 

BZAMINATION OF WTTNESSES, CONDmONALLT. 

Bmnor 690. Witnesses to be examined conditionaUj for the dcfimnaiiti M 
provided in this chapter. 
821. In what cases defendant may apply for order. 
622. Application, on what facts to be founded. 
628. If during term, to be made to the court. 
624. If not during term, to whom to be made. 
026. The order, when granted and what to contain. 



S40 



Ths Oods of Crocikal Pboosdubb 



Sbgtxok 626. If made bj the ooiirt, may direct examiDAtlon beloie a Judge 
or magistrate; if made by a judge, examination to be before 
him. 

627. On proof of seryice, if district attorney absent, examioation to 

proceed. 

628. If facts on which order was founded, be disproved, ATamiiy^ 

tion not to proceed. 
620. Testimony, how taken and authenticated. 

680. Deposition, how, by whom and when filed. 

681. When it may be read in evidence. 

682. When to be excluded. 

688. On reading the deposition, on trial, what objections may be 
taken. 

684. Attendance of witness for examination, how compelled. 
686. Disobedience of witness, how punished. 

§ 620. Witneiiei to be exaxnined conditionally for the 
defendanti as provided in this chapter. — \V nen a defendant 
has been held to answer a charge of a crime, he may, either 
before or after indictment, have witnesses examined conditionallj 
on his behalf, as prescribed in tliis chapter, and not otherwise. 

See People v. Sharp, 45 Hun, 498; People v. Outdid, 100 N. Y. 608; 8 N. T. 
Gr. Bep. 657; People 8q^e, 8 N. Y. State Rep. 194. 

§ 621. In what cases deisandant may apply for order. ~ 

When a material witness for the defendant is about to leave the 
state, or is so sick or infirm as to afiord reasonable grounds for 
apprehending that he will be unable to attend the trial, the 
defendant may apply for an order that the witness be examined 
conditionally. 
See People v. Quidici, 100 N. Y. 507. 

Where it is certain or probable that the personal attendance of the witnen 
cannot be had at the trial, his deposition should be taken. Chreen v. Kent, 7 
Cow. 59; Wait v. WhUiiey, id. 69; Ten Eyek v. Perkins, 2 Wend. 808. 

When a foreign witness is temporarilj present he may be examined. Wait 

Whitney, 7 Cow. 69. Such examination may be taken at any stage of the 
case. Packard v. HiU, 7 Cow. 489; Fort v. Ragusen, 2 Johns. Oh. 246; Eock- 
v>eU V. Foleom, 4 id. 165. 

Held, also, that the evidence of a woman in an advanced state of pregnancy 
may be so taken. Clark y. Dibble, 16 Wend. 601. 

Infirm witness may be so examined at any time after suit is brought. 
ConekUn v. Hart, Col. & Gaines, 74; 1 Johns. Cas. 108. 

To entitle a deposition to be read the continued abeenoe of the witness must 
be shown. Fry v. B&nnstt, 4 Duer, 247. 

Evidence of such a witness may be taken daring the trial. Ook CMe, 13 
Hun, 873. 



or TBM State or Nbw Tobk. 



S41 



What eridenoe necessary to show continued absence of witness from state. 
Bronner Frauenthal, 87 N. Y. 166; 9 Bosw. 850. 

A deposition may be read, though the witness returned after the examination, 
if he departed again before the trial. Markoe ▼. Aldrich, 1 Abb. Pr. 55. 

§ 622. Application, on what feust to be founded. — The 

application must be made upon affidavit showing : 

L The nature of the crime charged ; 

S. The Btate of the proceedings in the action ; 

8. The name and residence of the witness, and that his testl* 
mony is material to the defense of the action ; and, 

4. That the witness is about to leave the state, or is so sick or 
infirm as to afford reasonable grounds for apprehending that he 
will be unable to attend the trial. 

See People v. Guidiei, 100 N. Y. 507; 8 N. T. Cr. Rep. 567. 

The affidavit need not state the probable inability of the witn .'ss to attend 
the trial. Ten Byek ▼. Perkine, 2 Wend. 808. 

The application must show tliat it is made in good faith. Paion TTMCar 
Mtt. 5 How. 809. 

Where it is probable or certain that a witness cannot attend he trial an ap- 
plication wiU be granted. Green v. Kent, 7 Cow. 59; Wait v. Whitney, id. 69; 
Mumford y. Church, 1 Johns. Cas. 147; Coneklin v. Hart, C >1. & Gaines, 74. 

It is a matter of right in a proper case when application is made in good 
futh. MaHin y. Hieke, 6 Hun, 288; 1 Abb. N. C. 841; Oreen Herder, 7 
Bob. 456. 

An affidavit for such an order must show the subject on which the witness 
is to be examined, and the facts claimed to be within his knowledge. Hatiehp 
Mmer, 16 Abb. Pr. (N. S.) 100. 

Must show facts and circumstances showing materiality of evidence desired* 
Byrne v. MtiUigan, 41 N. Y. Super. 515. 

A defect of the affidavit cannot be cured by examining the witness, Hef^ 
ienon v. FuUerton, 54 How. Pr. 422. 

S 623. If durixig term, to be made to the court. — The 
application, if made during the term, must be made to the courL 
Bee People v. Gttidiei, 100 N. Y. 507. 

§ 624. If not durixig term, to whom to be made. — If not 
made during the term, it may be made as follows : 

1. When the indictment is pending in a comt of oyer and 
terminer, or in a court of sessions other than in the city of New 
Tork, to a judge of the supreme court, or to the county judge ; 

2. When the indictment is pending in the court of general 
ntdons of the city of New York, to the recorder or city judge 

81 



S42 



Thb Oodb of Cbdokal Pbooedubb 



or judge of general seefiions, or one of the judges of the court of 
common pleas of that city ; 

3. When the indictment is pending in a city court, to the 
recorder or city judge of the city in which it is pending. 
Bee People v. Oaidiei, 100 N. Y. 507; 8 N. Y. Cr. Rep. 567. 

§ 625. The order, wlien granted and what to contain. 

If the court or officer be satisfied, that the examination of the 
witness is necessary to the attainment of jostijce, an order must 
be made, that the witness be examined conditionally, at a speci- 
fied time and place, and that a copy of the order, and of the afii- 
davit on which it was granted, be served on the district attorney, 
within a specified time before that fixed for the examination. 
See People v. Guidid, 100 N. Y. 507; 8 N. Y. Cr. Rep. 5r>^ 

§ 626. If made by the court, may direct examination 
before a judge or magistrate. — If the order be made by the 
court, it may direct that the examination be taken before a judge 
thereof, or before a magistrate in the county, to be named in the 
order. If made by any of the officers mentioned in section six 
hundred and twenty-four, it must direct the examination to be 
taken before him. 

§ 627. On proof of service, if district attorney absent, 
examination to proceed. — On proof being furnished to the 
officer before whom the examination is appointed, of the service 
upon the district attorney, of a copy of the order, and of the 
affidavit on which it was granted, if no counsel appear on the 
part of the people, the examination must proceed. 

See People v. Outdid, 100 N. Y. 507. 

Service of notice maj be proved by affidavit. 2 en Eyek v. Perkin9, 3 
Wend. 308. 

§ 628. If facts on which order was founded be dis- 
proved, examination not to proceed. — If the district attor- 
ney or other counsel appear on the part of the people, and it be 
shown to the satisfaction of the court or officer, by affidavit or 
other proof, or on the examination of the witness, that he is not 
about to leave the state, or is not sick or infirm, or that the appli- 
cation was made to avoid the examination of the witness on the 
trial, the examination cannot take place ; otherwise it must proceed 

See PeopU v. Quidici, 100 N. Y. 607. 



OF THE State of New Yobk. 



248 



§ 629. Testimony, how taken and auihenticatecL — The 

teetiinonj given bj the witness mnst be reduced to writing, and 
authenticated in the same manner as the testimony of a witness 
taken in support of an information, as prescribed in section two 
hundred. 

See § 200, ante, and cases cited; People v. Ouidici, 100 N. Y. 607. 

It is sufficient that the coart certify that the deposition was read to the wit- 
ness, Sheidon v. Wood, 2 Bosw. 267; 24 N. Y. 607. 

The judge need not write down the examination himself. McDonald v. 
Garri$on, 18 How. Pr. 249; 9 Abb. Pr. 34. 

The certificate must state that the deposition was read to the witness and 
sabscribed hj him. Foster Bullock, 12 Hun, 200. 

Defective depositions. People v. Restell, 8 Hill, 289; People v. Ward, 4 Park. 
516; PeopU v. Chrystal, 8 Barb. 545. 

§ 630. Deposition, how, by whom and when filed. — 

The deposition must be retained by the officer taking it, and 
filed bj him in the office of the clerk of the court without 
unnecessary delay. 
See People v. Ouidiei, 100 N. Y. 507. 

A deposition may be ordered filed nunc pro tune. BurdeU v. Burdell, X 
Daer. 625; 11 N. Y. Leg. Obs. 189; Bank of Stiver Greek v. Browning, 16 Abb. 
Pr. 272. 

§ 631. When it may be read in evidence. — The deposition, 
or a certified copy thereof, may be read in evidence by either 
party on trial, upon its appearing that the witness is unable to 
attend, by reason of his death, insanity, sickness or infirmity, or 
of his continued absence from the state. 

See People ChUdid, 100 N. Y. 507; MuL Ltfe Ins, Co. v. Anthony, 50 
Han, 104. 

The inability of witness most exist at the time of trial. Pry v. Bennett, 4 
Daer, 247. See Donnell v. Walsh, 6 Bosw. 621. 

It makes no difference that he returned to the state for a brief time after 
the examination was had. Markoe v. Aldrieh, 1 Abb. Pr. 55. 

Wliat is safficient proof of continued absence. Bronner v. Frauenthal, 87 
N. Y. 166; Markoe v. Aldrieh, 1 Abb. Pr. 55. 

A defect in the form of the officer's certificate must be taken advantage of 
br a motion to suppress, if there be ample time before the trial. Sheldon v. 
Wood 2 Boew. 267; 24 N. Y. 607. 

§ 632. When to be excluded. — The deposition cannot, 
however, be read if it appear that the copy of the order and 
of the affidavit on which it was founded was not served on the 



244 Thb Code of Cbdukal Pbooedubs 



district attorney, as directed, or that the examination was in any 
respect unfair or not conducted as prescribed in this chapter. 
See PeopU v. Ouidiei, 100 N. Y. 507. 

There must be an opportunity to cross-examine. Heteiett Wood, 67 N. Y. 
894; 7 Hun, 297. 

If consent be given to read deposition, it cannot be withdrawn. Bef^be v. 
PeopU, 5 Hill, 82. 

If the opposite partj attend and cross-examine, he cannot object to the suffi. 
ciency of the notice on the trial. Eherson v. Vanderpoel, 41 N. Y. Super. 257. 

If the opportunity to cross-examine be lost through the fault or omission of 
the party in whose behalf the witness is examined, the deposition must be 
suppressed. Hetdett v. Wood, 67 N. Y. 894; 7 Hun, 227. 

That the witness refused to answer a material question is no ground for re- 
jecting the deposition at the trial in the absence of a previous motion to sup- 
press. SCarin v. Atlantic Mut. Ins, Co., 68 N. Y. 77; 88 N. Y. Super. 281. 

§ 633. On reading the deposition, on trial, what objec- 
tions may be taken. — Upon the reading of the deposition in 
evidence, the same objectione maj be taken to a qaestion or 
answer contained therein, as if the witness had been examined 
orally in court. 
See People v. Onidiei, 100 N. Y. 507. 

§ 634. Attendance of witness for examination, how 
compelled. — The attendance of the witness may be enforced, 
bj a subpoena subscribed by the officer, or issued under the seal 
of the court 

$685. Disobedience of witness, how punished.— Die-, 
obedience to the subpoena, or a refusal to be sworn or to testify, 
may be punished by the court or officer, as prescribed in section 
six hundred and nineteen. 

See People v. Ouidid, 100 N. Y. 607; 8 N. Y. Cr. Rep. 567; People v. Shairp, 
46 Hun. 498; PeopHe v. Court of Oyer and Terminer, 101 N. Y. 251; 8 How. 
Pr. (N. 8.) 418; 4 N. Y. Cr. Rep. 76. 



OF THE State of New York. 



245 



CHAPTER 17. 

EXAMINATION OF WrrN£86£8 ON OOMMI86I6N. 

fl^onoN 636. Witness residing out of the state, to be examined for defend- 
ant, as provided in this chapter. 

637. In what cases defendant may apply for order to examine wit- 

nesses on commi^ion. 

638. Commission, defined. 

639. Application for commission, on what facts to be founded. 

640. If during term, to be made to the court. 

641. If not during term, to whom to be made. 

642. Notice of application, when required and how given. 

643. Order for commission, when granted. 

644. Trial to be stayed until execution and return of commission. 

645. Interrogatories, and notice of settlement. 

646. Cross-interrogatories, and notice of settlement 

647. 648. What may be inserted in interrogatories. 

649. Direction as to return of commission. 

650. Commission, how executed. 

651. Copy of last section to be annexed to conmiisslon. 

652. 65ii. Commission, how returned, when delivered to agent for 

that purpose. 

654. When and how filed. 

655. Commission returned by mail, how disposed of. 

656. Commission and return to be open for inspection, and copies to 

be furnished. 

657. Deposition to be read in evidence ; what objections may be 

taken thereto. 

§ 636. Witness residing out of the state, to be examined 
to defendant, as provided in this chapter. — When aii 
iflBue of fact is joined npon an indictment, the defendant may 
have any miaterial witness residing out of the state, examined in 
his behalf, as prescribed in this chapter, and not otherwise. 

The testimony of a witness residing out of the state cannot be taken on com- 
mission to be read before commissioners appointed to examine and report on 
the sanity of a defendant. Pe-ople v. Ilaight, 18 Abb. N. C. 197; 8 N. Y. Cr. 
Rep. 61. 

The statute (Code Crim. Pro. , 630-657) only authorize a commission to take 
testimony to be read on the trial of an indictment. People v. Haight, 18 Abb. 
N. C. 197; 3 N. Y. Cr. Rep. 61. 

§ 637. In what cases defendant may apply for order to 
examine witnesses on commission. — When a material wit- 
ness for the defendant resides out of the state, the defendant may 
apply for an order that the witness be examined on a commission. 



246 The Code of Criminal Procedubb 



The power to issue a commission is an innovation of the common law, 
and must be strictly pursued. DwineUe v. Howland, 1 Abb. Pr. 87; Creamer 
Jackson, 4 id. 418. 

The right to a commission depends solelj upon the statute. McCaU v. Sun 
Mut. Ins, Co., 60 N. Y. 882; 44 How. Pr. 452. 

New commissions for examination of same witness may issue. Msher v. 
Dale, 17 Johns. 843; Ranney v. Weed, 1 Barb. 220. Or may be ordered exe- 
cuted. Baker v. Spencer, 47 N. Y. 662. 

A commission will not be granted after the commencement of a trial before 
a referee where the party has been guilty of laches. Rathbun v. IngersoU, 84 
N. Y. Super. 211. 

A commission will not be granted for the examination of the plaintiff in his 
own behalf whilst he is a fugitive from justice residing in a foreign country. 
McMonagle v. Conkey, 14 Hun, 826. 

§ 638. Coininifision defined. — A commiBsion Ib a process 
ifisned under the seal of the court and the signature of the clerk, 
directed to one or more persons, designated as commissioners^ 
authorizing them to examine the witness upon oath, on interroga- 
tories annexed thereto, and to take and return the deposition 
of the witness, according to the directions given with the 
commission. 

§ 639. Application for commission, on wliat fttcts to 
be foimded. — The application must be made upon affidavit, 
showing : 

1. The nature of the crime charged ; 

2. The state of the proceedings in the action, and that issue of 
fact has been joined therein ; 

3. The name of the witness, and that his testimony is material 
to the defense of the action ; 

4. That the witness resides out of the state. 

Need not state what proof is expected. Eaton v. North, 7 Barb. 631. 
A£Bdavit may be made by agent or attorney. Id. 

The witnesses must be named in tlie commission, if by reasonable diligence 
their names can be ascertained. Wright v. Jessup, 8 Duer, 642. 

The court in a special case may grant a commission where the names of the 
witnesses are not stated. McMahon v. Allen, 18 Abb. Pr. 292. 

The application must state particular circumstances. Hockley v. Patrick, 3 
Johns. 478; Allen v. Ilmdre, 6 Cow. 400. 

An affidavit for a commission is sufficient if It show the witness to be ma- 
terial, as he is advised, and is out of the jurisdiction. Brackett Dudley, 
1 Cow. 209. 

The affidavit may be made by the attorney. Murray v. Kirkpatriek, 1 Cow. 
210; Corbett v. DeComeau, 54 How. Pr. 506. 



OF THE State of New roBX. 



247 



Or a third party. Demar Van Zant, 2 Johns. Cas. 69. 

Mast be on notice. Watson v. DelaflM, Col . & Caines. 407; 2 Gaines, 960. 

AfSdavit must state positively the nature of the crime cliarged. See TilUm 
r.U, S. L. Ins. Co., 52 How. Pr. 179; 1 Abb. N. C. 848; Borman r. Pierrf. 56 
Bow. Pr. 251; Elmore y. EytU, 8 Abb. N. C. 129; Beach y. Heto York, 14 Hun, 
Y9; Webster y. StoekweU, 8 Abb. N. C. 115. 

§ 640. If during term, to be made to the court. — The 
application, if made during the term, must be made to the court. 

§ 641. If not during term, to whom to be made. — If 

not made during the term, the application may be made as 
follows : 

1. When the indictment is pending in a court of oyer and 
terminer, or in a court of sessions, except in the city and county 
of New York, to a judge of the supreme court or to the county 
judge; 

2. When the indictment is pending in the court of general 
lessions in the city and county of New York, to the recorder or 
dty judge or judge of general sessions, or one of the judges of 
the court of common pleas of that city ; 

3. When the indictment is pending in a city court, to the 
recorder or judge of the court in which it is pending. 

§ 642. Notice of application, when required and how 

given. — If the application be made to the court, it may be with- 
out notice to the district attorney, unless the court direct notice 
to be given, in which case it must prescribe the manner of giving 
the same. If made to one of the officers mentioned in the last 
section, the application must be upon five days' notice to the dis- 
trict attorney served, with a copy of the affidavit upon which it 
is founded. 

Ordinarily it must be on notice. Watson y. Delafield, Col. & Caines, 407; 9 
Gaines, 260. 

§643. Order for commission, when granted.— If the 

court or officer to whom the application is made be satisfied that 
the witness resides out of the state, and that his examination is 
necessary to the attainment of justice, an order must be made 
tliat a commission be issued to take his testimony, and that the 
people be permitted to join in the commission, and to examine 
witnesses in support of the indictment. 



248 The Code of Cbhonal Pbooedurb 



The order for the commission mast name the commissioners. JBarrii y* 
WU9(m, 2 Wend. 627; Tawnsend v. N. T. Ina, Co., 1 Caines, 4. 

Who may act as such. Lewis y. Van Loon, 8 Caines, 105. 

The counsel for the respective parties maj waive the requirement that a 
commission must be under seal of the court. ChurehiU v. Carter, 15 Hun, 385. 

The clerk's signature not essential. Goodyear v. Voeburgh, 41 How. Pr. 421. 

Nor seal. Traep v. Suydam, 80 Barb. 110; Whitney v. Wyncoop, 4 Abb. 
Pr. 870. 

§ 644. Trial to be stayed until ezeoution and return of 
commission. — If the application for a commission be granted, 
the court or judge must insert in the order therefor, a direction 
that the trial of the indictment be stayed for a specified time, 
reasonably sufficient for the execution and return of the commissicMU 
When stay will be vacated. Voee v. Fielden, 2 Sandf. 690. 

§ 645. Interrogatories, and notice of settlement. — When 

the commission is ordered, the defendant must serve upon the 
district attorney, and the district attorney, if he intend to join in 
the commission and examine witnesses in support of the indict- 
ment, must serve upon the defendant or his counsel, a copy of 
the interrogatories to be annexed thereto, with a notice of two 
days of their settlement, before an officer who might have granted 
the order out of term, as provided in section six hundred and 
forty-one. 

The direction of the manner of retnrning the interrogatories must be signed 
by the o£Bcer settling the interrogatories. Crawford v. Loper, 25 Barb. 449. 

On settling the interrogatories the judge should allow only such as are 
pertinent to the issue. McDonald v. Oarrieon, 2 Hilt. 510; 9 Abb. Pr. 178; 
BlaeedeU v. Raymond, id. 178, n. 

An indorsement on the commission of the allowance of the interrogatories is 
snfflcient. if it refer to them as annexed. ffaUeran v. Field, 28 Wend . 88. 

It is enough that the interrogatories be signed by counsel. Homer 
Martin, 6 Cow, 156. 

§ 646. Cross-interrogatories, and notice of settlement.— 

The district attorney, and the defendant, may, in the same man- 
ner, serve croBs-interrogatories, to be annexed to the commission, 
with the hke notice of the settlement thereof. 

§ 647. What may be inserted in interrogatories. — In 
the interrogatories, either party may insert any quebtion pertinent 
to the issne. 



OF THB State of New Yobk. 



249 



the interrogatories it is tlie duty of the judge to allow onlj such 
ts are pertinent. McDonald Qarmon, 2 Hilt. 510; 9 Abb. Pr. 178; Blae^- 
M T. Hammond, id. 178, n. 

§ t>48. What may be inserted in interrogatories. — Upoi) 
the settlement of the interrogatories, the judge must expunge 
every question not pertinent to the issue, and modify the ques- 
tions, so as to conform them to the rules of evidence, and when 
settled, must indorse upon them his allowance, and annex them to 
the commission. 

§ 649. Direction as to return of commission. — Unless 
the parties otherwise consent, by an indorsement upon the com- 
mission, the officer must indorse thereon a direction, as to the 
manner in which it must be returned ; and may, in his discretion, 
direcx that it be returned by mail or otherwise, addressed to the 
derk of the court in which the indictment is pending, designating 
his name and the place where his office is kept. 

Unless returned as directed, it cannot be read. Richardson y. Qere, 21 
Wend. 156. 

It is sufficient if the return be directed in the mode stipulated by the par- 
ties. WUUatns v. Eldridge, 1 Hilt. 249. 

A oammission not vitiated by being returned to the clerk of the original 
county after the place of trial has been changed. Whitney y. Wyncoop, 4 
Abb. 870. 

No objection that it was delivered to an attorney at the post-office and by 
him conveyed to the county clerk's office. Uorncr v. Martin y 6 Cow. 156. 
See HaUeran v. FUld, 23 Wend. 88. 

The commissioners need not indorse on the envelope that they deposited the 
aune in the post-office. BrunikiU v. James, 11 N. Y. 294; UaU v. Barton^ 25 
Barb. 274. 

§ 650. Commission, how executed* — The commissioners, 
or any one of them, unless otherwise specially directed, may exe- 
cute the commission as follows : 

1. They must publicly administer an oath to tlie witness, that 
Ilia answers given to the interrogatories shall be the truth, the 
^vhole truth, and nothing but the truth ; 

2. They must cause the examination of the witness to be 
reduced to writing ; 

8. They must write the answers of the witness, as nearly as 
poflrible in the language in which he gives them, and read to him 
each answer as it is taken down, and correct or add to it, until it 
iB made conformable to what he declares the truth ; 
82 



250 



The Code of Criminal Prooedubb 



4. If the witness decline answering a question, that f^ct, with 
the reason for which he declines answering it, as he gives it, most 
be stated ; 

5. If papers or documents are produced before them, and 
proved by the witness, they must be annexed to his deposition, and 
be subscribed by the witness and certified by the commissioners ; 

6. Tlie commissioners must subscribe their names to each sheet 
of the deposition, and annex the deposition, with the papers or 
documents proved by the witness, to the commission, and must 
dose it up under seal and address it, as directed thereon ; 

7. If there be a direction on the commission, to return it by 
mail, the commissioners must immediately deposit it in the nearest 
post-office. If any other direction be made, by the written con- 
sent of the parties, or by the officer, on the commission, as to its 
return, they must comply with the direction. 

One commissioner may, in certain cases, execute. Leech v. M. Ins. Co,, 
4 Daly, 518. 

Commissioners must certify that witnesses were examined under oath* 
Bailee v. Cochran, 2 Johns. 417; Whitney v. Wyncoap, 4 Abb. Pr. 870. 

Witnesses may be sworn by the local authorities if the law of the place for- 
bid the commissioners from administering oath. Lincoln v. Battelle, 6 Wend, 
476. 

Oath should be publicly administered. HaUeran v. Field, 28 Wend. 886. 

The jurat must be signed by the commissioners, with their names of office. 
Boot V. Stilee, CoL & Gaines, 468; 8 Caines, 128. 

An interpreter may be employed when necessary. Leech v. A, M, Ins, Co,, 
4 Daly, 518. 

Witness must answer each question specifically. Union Bank v. Torrey, 5 
Duer, 626; 2 Abb. Pr. 269; Percival v. Hickey, 18 Johns. 257. 

Witness may state any fact material, though detrimental to the party inter- 
rogating. Van Nese v. Bueh, 14 Abb. Pr. 83. 

Where a cross-interrogatory is not properly answered, the deposition cannot 
be read unless the defect is waived. KimbaU v. Davie, 19 Wend. 487. 

Parties have a right to appear by counsel. Union Bank v. Torrey, 5 Duer, 
626: 2 Abb. Pr. 269. 

Witness not allowed to read his answer from a paper before prepared. 
Creamer v. Jackson, 4 Abb. Pr. 413; Commercial Bank v. Union Bank, 11 N. Y. 
203; 19 Barb. 891. 

As to paper introduced as an exhibit. Hotoard v. 0. M, Ins, Co,^ 9 Bosw. 645; 
Brunskill v. James, 11 N. Y. 294. 

The court may send baclc for correction a defective commission. KeeUr v. 
Vanderpael, 1 Code R. (N. S.) 289. 

A motion to suppress or send back for correction cannot be made at the triaL 
Oales V. BeecJicr, 8 Th. & C. 404. 



OF THB State of New York. 



25] 



An answer, though not fall, is sufficient if not clearly evaaiTe. Baker 

Bpeneer, 47 N. T. 508; Terry v. McNeil, 58 Barb. 241. 

Where there are two persons of the same name of the commissioner selected, 
ID objection that it was not executed by the proper person cannot be raised fox 
the first time at the trial. Newton v. Porter, 69 N. Y. 183. 

If the commissioner return that the witness was sworn, it will be presumed 
that he was legally sworn. Bishop v. Ferguson, 46 N. Y. 688. 

§ 651. Copy of last section to be annexed to commission* 

A copy of the last section must be annexed to the commission. 

§ 652. Commission, how retomecL when delivered to 
agent for that purpose. — If the commission and return be 
delivered by the commissioners to an agent, he must deliver it to 
the derk to whom it is directed, or to a judge of the court in 
vhich the indictment is pending, by whom it may be received 
and opened, upon the affidavit of the agent that he received it 
from the hands of one of the commissioners, and that it has not 
been opened or altered since he received it. 

In sQch a case the agent's affidavit is indispensable. Dwinelle v. Hotoland, 
lAbb. Pr. 87. 

No objection to the return of a commission that it was delivered at the post- 
office to the attorney of one of the parties, who conveyed it to the clerk's 
office, there being no suspicion of abuse. Horner v. Martin, 6 Cow. 156. 

§ 653. Commission, how returned, when delivered to 
agent for that purpose. — If the agent be dead, or from sick- 
ness or other casualty, unable personally to deliver the commis- 
sion and return, as prescribed in the last section, it may be 
received by the clerk or judge from any other person, upon his 
making an affidavit that he received it from the agent, that the 
agent is dead, or from sickness or other casualty, unable to deliver 
it, that it has not been opened or altered since the person making 
the affidavit received it, and that he believes it has not been 
opened or altered since it came from the hands of the commis- 
doners. 

§ 654. When and how filed. — The clerk or judge receiving 
and openmg the commission and return must immediately iile lb, 
^vith the affidavit mentioned in the last two sections, in the office 
"f the clerk of the court in which the indictment is pendinf?. 

A deposition cannot be read in evidence until actually filed in the cleric's 
oiaSce. Parker BMg, 20 Jolms. 857; Oneida Mfg. Society v. Lawrence, 4 
Cow. 440. 



252 



The Codk of Criminal P&ookduke 



§ 655. Commission returned by mail, how disposed ofl 

If the commission and return be transmitted by mail, the clerk to 
whom it is addressed must open and file it in his office, where it 
must remain, unless the court otherwise direct. 
A commission returned by mail addressed to the clerk cannot be read, unless 

an order were made for its retarn in that manner. Richardson v. Oere, 21 

Wend. 166. 

It is no objection that they were not deposited in the post-office Immediately 
after they were taken. HdUcran v. Field, 23 Wend. 88. 

The commissioners need not indorse on the envelope a certificate that they 
deposited the return in the post-office. Brunskill v. James. 11 N. Y. 294; HcUl 
V. Barton, 25 Barb. 274. 

A deposition cannot be read until actually filed. Parker v. Holby, 20 Johns. 
867; Oneida J etc. v. Lawrence, 4 Q-ovr. 440. 

§ 656. Commission and return to be opened for inspec- 
tion, and copies to be famished. — The commission and 
return must at jiU times be open to the inspection of the parties, 
who must be furnished by the clerk with copies of the same, or 
of any part thereof, on payment of his fees, at the rate of five 
cents for every hundred words. 

See Code Civ. Proc. , § 961. 

§ 657. Deposition to be read in evidence ; what objec- 
tions may be taken thereto. — The deposition, taken under 
the commission, may be read in evidence by either party on the 
trial, and the same objections may be taken to a question in the 
interrogatories, or to an answer in the deposition, as if the witness 
bad been examined orally in court. 

Mere formal defects which are wholly immaterial may he disregarded. 
Rust V. EckUr. 41 N. Y. 488. 

Where the statute has been substantially complied with, and the prisoner 
is not prejudiced, it is suflScient. Goodyear v. Vo^mrgh, 41 How. Pr. 421; HaU 
V. Barton, 25 Barb. 274; McCleary v. Edwards, 27 id. 289. 

The absence of the return which the statute requires to be indorsed on the 
commission is not a ground for suppressing the deposition on motion. 
Creamer v. Jackson, 4 Abb. Pr. 413. 

A commission issued without a seal is a nullity, and the depositions taken 
under it cannot be read in evidence. Ford v. Williams, 24 N. Y. 359. 

Nor until filed in the clerk's office. Parker v. Holby, 20 Johns. 857; Oneida 
Mfg. Society Lawrence, 4 Cow. 440. 

The deposition may be read by either party. Weber v. Kingdand. 8 Bosw. 415. 

The informal party may be excluded. Commercial Bunk v. Union Bank 
11 N. Y. 208. 

Objections taken mnst point out the error complained of. Dalton v. Na» 
tionfU Society, etc., 20 N. Y. 82. 



OF THB State of New Yobk. 



258 



When ftDSwera will be excluded. Larmng v. Cooly, 18 Abb. Pr. 272; Rail- 
way, V. Wam^, ITh. & C. 21; Fa9tin v. Hubbard, 56 N. Y. 466; Heine* 
mm Hurd, 2 Hun, 824; Meyer v. Levy, 64 How. Pr. 274. 

An objection to tbe interrogatories cannot be made on the trial. Frances v. 
Ocean Ins. Co,, 6 Cow. 404; 2 Wend. 64; Hall y. Barton, 26 Barb. 274. 

If the witness refuse to answer a cross-interrogatory the whole deposition 
may be rejected. Smithy. Orifflth, 3 Hill, 333. 

An objection that some of the interrogatories are not fully answered must 
be made as soon as discovered, on a motion to suppress. Vilmar y. SchaU, 86 
N. T. Super. 67; 61 N. Y. 688. 

The inadmissibility of evidence is the proper ground for such a motion . 
Eneard v. Orient M. Ins. Co., 9 Bosw. 645. 

A deposition will not be suppressed because an answer to a cross-lnterroga- 
toiy is not full. Baker v. Spencer, 47 N. Y. 562. 

An answer not responsive may be excluded on objection. Lansing v. Cooley, 
18 Abb. Pr. 272. 

An answer not responsive will be excluded. Railway Pass. Ass. Co, v. 
Warner, 1 Th. & C. 21, add. 

Testimony otherwise competent not to be rejected. Fassin v. Hubbard, 66 
N. Y. 466. 

If the answer of a witness to a direct interrogatory be properly excluded, 
lU eross-interrogatories must also be, if dependent thereon. Fleming v. Hot- 
Unbaek, 7 Barb. 271. 

The deposition will be stricken out on the trial if evasive or untruthful, or 
if the witness has not fully and fairly answered the cross-interrogatories. 
Terry v. MeNeU, 68 Barb. 241. 

An objection to a question as leading must be made on settlement of the in- 
terrogatories, or it is waived. Hazlewood v. Heminuay. 8 Th. & C. 787. 

A party who has taken the testimony of a witness residing abroad, under a 
eonmiiflsion, may read the deposition, though the witness be in court; he is 
not bound to call the witness, but he may be called and examined by the other 
side. Phcenix v. Baldwin, 14 Wend. 62. 

The original commission must be used when the cause is tried in the county 
to which it is returned. In another county an authenticated copy may be 
naed. Bishop v. Ferguson, 46 N. Y. 688. 

The party who took the commission may read the answers to the cross- 
interrogatories, though the other party object. Marshal v. Watertown S. E. 
Co., 10 Hun, 468. 

Where the question is leading, and the answer is the expression of the judg- 
ment of the witness upon the fact, it is not legal evidence and cannot be disre- 
garded as harmless on motion for new trial. Meyer v. Levy, 54 How. Pr. 274. 

The mere fact that the witness was permitted to peruse both sets of inter- 
rogatories, prior to his examination, not sufficient ground for the rejection of 
the evidence. Butler v. Flanders, 56 How. Pr. 312. 

The court has discretionary power upon objections. Cope v. SSbUy, 12 
Barb. 621; HasUwood v. Hemintoay, 8 Th. & C. 787. 

Where there were two persons by the name of the commissioner selected, 
an objection that it was not executed by the proper person cannot be raised for 
the first time at the trial. Newton v. Porter, 60 N. Y. 188. 



£54 



Thb Code of Obiminal Pboojedubb 



CHAPTER V. 

mQUisr Drro thr iNSANirr of the defendant before ob bubino 

THE TBIAL, OK AFTER CONVICTION. 

Bbotion 658. Appointment of commission; their proceedings. 

659. If found insane, trial or judgment suspended, and defendant to 

be committed to state lunatic asylum, if his discharge be dan- 
gerous to the public peace or safety. 

660. If defendant committed, bail exonerated or deposit of mone; 

refunded. 

661. Detention of defendant in asylum, and proceedings on hia 

becoming sane. 

662. Expenses incident to sending: defendant to asylum, how paid. 

§ 658. Appointment of commission ; their proceedings. 

When a defendant pleads insanity, as prescribed in section three 
hundred and thirty-six, the court in which the indictment is 
pending, instead of proceeding Mrith the trial of the indictment, 
may appoint a commission of not more than three disinterested 
persons to examine liim and report to the court as to his sanity at 
the time of the commission of the crime. 

If a defendant in confinement, under indictment, appears to 
be, at any time before or after conviction, insane, the court in 
which the indictment is pending, unless the defendant is under 
sentence of death, may appoint a like commission to examine 
him and report to the court as to his sanity at the time of the 
examination. 

The commission must summarily proceed to make their exam 
ination. Before commencing they must take the oath prescribed 
in the Code of Civil Procedure to be taken by referees. They 
must be attended by the district attorney of the county, and may 
call and examine witnesses and compel their attendance. The 
counsel of the defendant may take part in the proceedings. 
Wlien the commissioners have concluded their examination they 
must forthwith report the facts to the court with their opinion 
thereon. 

Commissioner's oath. Code Civ. Ppoc., § 1016. 

See Penal Code. § 20; 2 Crim. Law Mag. 605, 612; People v. Haight, 18 
Abh. N. C. 198; 8 N. Y. Cr. Rep. 61; Peoj^e y. Ehinelander, 2 id. 888; Pecpl§, 
»rel., V. Walsh, 21 Abb. N. C. 299 ; PeopU v. MeElvaine. 125 N. Y. 696. 



OF THB State of New York 



S66 



§ 659. If ftnmd insane, trial or judgment suspended, 
and defendant to be committed to state limatic asylum, 
if his discharge be dangerous to the public peace or 
safety. — If the commission find the defendant insane, the trial 
of judgment must he suspended nntil he becomes sane ; and the 
ooDrt, if it deem his discharge dangerous to the public peace or 
safety, must order that he be, in the meantime, committed by 
the sheriff to a state lunatic asylum ; and that upon his becoming 
fiane, he be re-delivered by the superintendent of the asylum to 
the sheriff. 

§660. If defendant committed, bail exonerated or 
deposit of money refunded. — The commitment of the 
defendant, as mentioned in the last section, exonerates his bail, 
or entitles a person authorized to receive the property of the 
defendant, to a return of any money he may have deposited 
mstead of bail. 

§ 661. Detention of defendant in asylum, and proceed- 
ings on his becoming sane. — If the defendant be received 
into the asylum, he must be detained there until he becomes sane. 
When he becomes sane, the superintendent must give a written 
notice of that fact to a judge of the supreme court of the district 
in which the asylum is situated. The judge must require the 
sheriff without delay to bring the defendant from the asylum and 
place him in the proper custody until he be brought to trial, judg 
ment, or execution as the case may be, or be legally discharged. 

§ 662. Expenses incident to sending defendant to asy« 
hmi, how paid* — The expenses of sending the defendant to 
the asylmn. of keeping him there, and of bringing him back, are, 
in the first instance, chargeable to the county from which he was 
sent; but the county may recover them from the estate of the 
defendant, if he have any, or from a relative, town, city, or 
county, bound to provide for and maintain him elsewhere. 



266 



Thb Codb of Criminal Pboobdubb 



CHAPTER VI. 

OOMPROMISING OBBTAIN CRIMES, BT LEAVE OF THE COURT. 

Section 663. Certain crimes, for which the partj injured has a dTil action, 
may be compromised. 

664. Compromise to be by permission of the court; order thereon. 

665. Order, a bar to another prosecution. 

666. No public offense to be compromised, except as provided in this 

chapter. 

§ 663. Certain crimes for whioh the party ii^Joredhai 
a civil action, may be compromised. — When a defendant 
is brought before a magistrate or is held to answer, on a charge 
of a misdemeanor, for which the person injured by the act consti- 
tuting the crime has a remedy by a civil action, the crime may be 
compromised, as provided in the next section, except when it was 
committed, 

1. By or upon an officer of justice, while in the execution of 
the duties of his office ; 

2. Riotously ; or 

8. With an intent to commit a felony. 

§ 664. Compromise to be by permission of the court; 
order thereon. — If a party injured appear before the magis- 
trate, or before the court to which the deposition and statements 
are required, by section two hundred and twenty-one, to be re- 
turned at any time before trial or commitment by the magistrate, 
or trial on indictment for the crime, and acknowledge in writing 
that he has received satisfaction for the injury, the magistrate or 
court may, in his or its discretion, on payment uf the costs and 
expenses incurred, if such magistrate or court shall see fit so to 
direct, order all proceedings to be stayed upon the prosecution 
and the defendant be discharged therefrom. But in that case, 
the reason for the order must be set forth therein and entered 
upon the minutes. 

§ 665. Order a bar to another proeeoution. — The order 
authorized by the last section is a bar to another prosecution for 
the same offense* 



or THs Statb of New Yobk. 



§ 666. No public oflense to be compromised, except as 
provided in this chapter. — No crime can be compromiBed, 
nor can any proceeding for the proeecntion or punishment thereof 
upon a oompromiBe be stayed, except as provided in sections six 
hundred and sixty-three and six hmidred and sixty-four, 
lee Penal Code, § 126» noted. 



CHAPTER VII. 

WnfTHRiTi OF THE ACTtONy BEFOBB OB AFTEB INDICnCENT, FOB 
WANT OF PBOSBCUnON OB OTHEBWISB. 

flHUOH 657. DismLseal, when a person held to answer is not indicted at the 
next term thereafter. 
668). When a person indicted is not brought to trial at the next term 
thereafter. 

669. Ck)urt may order action to be continued, and in the meantime 

discharge defendant from custody, on his own imdertaking, 
or on bail 

670. If action dismissed, defendant to be discharged from custody, 

or his bail exonerated, or deposit of money refunded. 

671. Court may order indictment to be dismissed. 

672. NoOe prosequi abolished; no indictment to be dismissed or aban- 

doned, except according to this chapter. 
678. Dismissal, a bar, in misdemeanor, but not in felony. 

1 667. Dismiasal, when a person held to answer is not 
indicted at the next term thereafter. — ^When a person has 
been held to answer for a crimes if an indictment be not found 
•gainst him, at the next term of the court at which he is held to 
answer, the court may, on application of the defendant, order the 
profieeation to be dismissed, unless good cause to the contrary be 
Bhown. 

§ 668. When a person indicted is not brought to trial 
at the next term thereafter. — If a defendant, indicted for a 
erime whose trial has not been postponed upon his application, 
be not brought to trial at the next term of the court in which the 
indictment is triable, after it is found the court may, on applica- 
tion of the defendant, order the indictment to be dismissed, unless 
good cause to the contrary be shown. 

Bw FwpU T. BeekwUh, 2 N. Y. Cr. Bep. 81. See 11 Eng. Rep. 888. 



268 Thb Code Csoonal Fjkkssddbb 



§ 669. Court may order action to be continued^ and lit 
the meantime diflchaxge defendant from custody, on lua 
own undertaking, or on bail. — If the defendant be not 
indicted or tried, as provided in the last two sections, and sufficient 
reason therefor be shown, the court may order the action to be 
continued from term to term, and in the meantime may dis- 
charge the defendant from custody, on his own undertaking, or 
on the undertaking of bail for his appearance to answer the 
charge at the time to which the action is continued. 
See PeopU v. BeckwUh, 2 N. Y. Cr. Rep. 31. 

§ 670. If action dismieeed, defendant to be discharged 
from custody, or his bail exonerated, or deposit of money 
refunded. — If the court direct the action to be dismissed, the 
defendant must, if in custody, be discharged therefrom, or if 
admitted to bail, his bail is exonerated, or money deposited 
instead of bail must be refunded to him. 

See PeopU BeckwUh, 2 N. T. Cr. Rep. 81. 

§ 671. Court may order indictment to be dismissed.— 

The court may, either of its own motion, or upon the application 
of the district attorney, and in furtherance of justice, order an 
action, after indictment, to be dismissed. 
See People v. Beckmth, 2 N. Y. Cr. Rep. 29. 

§ 672. Nolle prosequi abolisned ; no indictment to be 
dismissed or abandoned except according to this chap- 
ter. — The entry of a noUe pjmequi is abolished ; and neither 
the attorney-general, nor the district attorney, can discontinue or 
abandon a prosecution for a crime, except as provided in the last 
section. 

• 

§ 673. Dismissal, a bar in misdemeanor, but not in 
felony. — An order for the dismissal of the action, as provided 
in this chapter, is a bar to another prosecutbn for the same 
offense, if it be a misdemeanor; but it is not a bar, if the offense 
charged be a felony. 

fSea { 0. ante, and cases eHed; Rapalje's Crim. Proc., % 120. 



4m TEB Statb of Nxw Torx. 



CHAPTER Vm. 
BKMrrriNQ the pitnishmbnt in obbtain oasis. 

SwEKur 1174. Punithment, upon coiiTictioii of a nuMter of a yeesel from s 
foreign oonntrj. 

§ 674. Fonifihrnenty upon conviction of a master of a 
TOMol from a foreign coimtry. — When the master of a vessel 
irriving from a foreign country is convicted of having knowingly 
brought a person convicted therein of a crime, which, if commit- 
ted in this state, would be a felony, to a place within the state, 
the court before which the conviction is had may, if satisfied 
that the defendant has reconveyed the convict to the place from 
which he took liim, and on payment of the costs of proeecatioiiy 
«der the punishment upon the conviction to be remitted. 



CHAPTER IX. 

FBOOBIDINOS AC^AINST OORPORATIOITS. 

Shxiov 675. Summons upon an information or presentment against a corpo* 
ration, by whom issued, and when returnable. 
S76 Form of the summons. 

677. When and tiow served. 

678. Examination of the charge. 

679. Certificate of the magistrate, and return thereof with the dep^ 

sitions. 

680. Grand jury may proceed as in the case of a natural perso**. 

681. Appearance, and plea to indictment, and proceedings thereon. 

682. Fine, on conviction, how collected. 

§ 675. Suminoiis upon an infbrmation or presentment 
against a corporation, by wliom issued, and wlien return^ 
aUe. — Upon an information against a corporation, the magis- 
trate must issue a summons, signed by him, with his name of 
office, requiring the corporation to appear before him, at a speci- 
fied time and place, to answer the charge ; the time to be not 
lees than ten days after the issuing of the summons. 



260 The Code of Criminal Pbooedubb 



§ 676. Form of the summons.^ The sammonB moBt be in 
substantially the following form : 
County of Albany, [or as the case may be.] 
" In the name of the people of the state of New York : 
** To the [naming the corporation.] 
* * Tou are hereby summoned to appear before me, at [naming the place,] ott 
^specifying the day and hour,] to answer a charge made against you, upon the 
tnfarmation of A, B,, for [designating the offense, generally.] 

"Dated at the city, [or * town,'] of , the day of , 18 . 

*• G. H., Justice of the peace,** 
[Or as the case may be.] 

§ 677. When and how served.— The summons must be 
served at least five days before the day of appearance fixed therein, by de* 
livering a copy thereof and showing the original to the president, or other 
head of the corporation, or to tlie secretary, cashier, or managing agent 
thereof. 

§ 678. Examination of the charge.— At the time appointed 
in the summons, the magistrate must proceed to investigate the charge, in 
the same manner as in the case of a natural person brought before hinif 
so far AS those proceedings arc applicable. 

§ 079. Certificate of the magistrate, and return thereof 
with the depositions.— After hearing tl)c proofs, the magis- 
trate must certify upon the depositions, either that there is or is not suffi- 
cient cause to believe the corporation guilty of the offense charged, and 
must return the depositions and certificate, in the manner prescribed in 
section two hundred and twenty-one. 

§ 680. Grand Jury may proceed as in the case of a 
natural person. — If the magistrate return a certificate that 
there is sufficient cause to believe the corporation guilty of the offense 
charged, the grand jury may proceed thereon, as in the case of a natural 
person held to answer. 

See Peoj^ v. Equitable Gas-light Co., 6 N. Y. Cr Rep. 193. 

§ 681. Appearance^and plea to indictment, and pro- 
ceedings thereon. — When an indictment is filed against any 
corporation, such corporation must be arraigned thereon, and the 
court acquires jurisdiction over the corporation, in the manner 
following : 

1. The clerk of the court wherein such indictment is found, or to which 
it is sent or removed, or the district attorney of the county, must issue a 
summons signed by him with his name of office, requiring such corpora- 
tion to appear and answer the indictment by a demurrer or written plea to 
be verified in like manner as a pleading* in a civil action, at a time and 
place to be specified in such summons, such time to be not less than five 
days after the issue thereof. The summons may be substantially in the 
following form : 

Court of oyer and terminer of the county of , (state the proper 

county or court as the case may be) 
The People of the State of New York 
vs. 

The A. B. Company. 
/ You are hereby summoned to appear in this court and, by demurrer or plea 
in writing duly verified, answer an indictment filed against you by the 
grand jury of this county, on the day of , charging you with the 



OF THE State of New Yobk. 



261 



crime of (designating the offense generally), at a term of the court of oyer and 
terminer (or as the cause may he) of this county, at (naming the place) on 
(stating the day and hour) and in case of your failure to so appear and 
answer, judgment will be pronounced against you. 
Dated at the city (or town) of , the day of , 18 . 

C. D., 

District Attorney. 
(or by order of the court, E. F., Clerk, as the case may be). 

2. The summons must be served at least four days before the appearance 
fixed therein, in the same manner as is provided for the service of a sum- 
mons upon a corporation in a civil actiou ; and if the corporation does not 
appear in the manner and at the time and place specified in the summons, 
judgment must be pronounced against it. 

3. Nothing contained in this section shall be construed as preventing the 
appearance of a corporation by counsel to answer an indictment, without 
the issuance or service of the summons as above provided. And when an 
indictment shall have been filed against a corporation it may voluntarily 
appear and answer the same by counsel duly authorized to so appear for it; 
in which case the court acquires full jurisdiction over the corporation in 
the same manner as if the summons had been issued and served. [Amended 
1892, eh, 219 ; in effect Sept. 1. 1892. 

See People v. Equitable Qae light Co., 8 N. Y. Cr. Rep. 198. 

§ 682. Fine, on conviction, how collected.— When a fine 

is imposed upon a corporation upon conviction, it may be collected in the 
same manner as a judgment in a civil action, and if an execution issued 
Qpon such judgment be returned unsatisfied, the district attorney of the 
county may thereupon bring an action in the name of the people of the 
state of New York, to procure a judgment sequestrating the property of 
the corporation, as provided by the Code of Civil Procedure. [Amended 
1892, eh. 219 ; in effect Sept. 1, 1892. 



CHAPTER X. 

ENTITLINa AFFIDAVITS. 
Section 683. Affidavits defectively entitled, valid. 
§ 683. Affidavits defectively entitled, valid.— It is not 

necessary to entitle an affidavit or deposition, in the action, whether taken 
before or after indictment, or upon an appeal ; but if made without a title, 
or with an erroneous title, it is as valid and effectual for every purpose, 
IS if it were duly entitled, if it intelligibly refer to the proceeding, indict- 
ment or appeal in which it is made. 



CHAPTER XL 

ERR0B8 AND MISTAKES IN PLEADINGS AND OTHER FROOEEDINOS. 
Section 884. Errors, etc., when not material. 

^ fi84. Errors, etc., when not material. — Neither a de- 
parture from the form or mode prescribed by this Code in respect to any 
pleading or proceeding^, nor an error or mistake therein, renders it invalid, 
ynless it have actually prejudiced the defendant, or tend to his prejudice 

respect to a sabstantial right. 



263 



Tem Code of Criminal Pbookdubb 



See § 285, anU; PeopU t. WiUett, 27 Han, 409, 471; Piople Mmkm, 8 N. 
Y. Cr« Rep. 288; 88 Han, 05; Schrumpfv. People, 14 id. 18; PeopU v. Bclme9, 
41 id. 55; 5 N. Y. Cr. Rep. 181; Peojie v. Courtney, 1 id. 557; TUloUan v. Mar^ 
tin, 40 Han, 322; People WiUiamt, 18 N. Y. Sute Rep. 405; People, ex reL^ 
V. Smith, 11 Civ, Proc. Rep. 186; People v. Dimiek, 107 N. Y. 18, 84; P<?c>pi« 
^. QUknan, 125 id. 872; v. fZo^an, 87 State Rep. 661. 



CHAPTER Xn. 

DISPOSAL OF PBOPESTY STOLEN OB XMBSZZLXZ). 

Bbotion 685. When property, alleged to be stolen or eoibealed« oomes into 
cuBtody of peace oflScer. 

686. Order for its delivery to owner. 

687. When it comes into custody of magistrate, he must deliver It 

to owner, on proof of title and payment of expenses. 

688. Court in which trial is had for stealing or embezzling It, may 

order it to be deliTered to owner. 
688. If not claimed in six months, to be delivered to county supei^ 

intendent of the poor, or in New York, to commissioners d 

charities and corrections. 
600. Receipt for money or property taken from a person arrestad 

for a public offense. 
691. Duties of police clerks in the city of New York, etc 

§ 685. When property, alleged to be stolen or embez- 
zled, comes into custody of peace officer. — When property, 
alleged to have been stolen or embezzled, comes into the custody 
of a peace officer, he must hold it, subject to the order of the 
magistrate authorized by the next section to direct the disposal 
thereof. 

See Simpmm, y. St, John, 93 N. Y. 363. 

§ 686. Order for itsdeliTery to owner. — On sstisfactory 

proof of the title of the owner of the property, the magistrate 
before whom the information is laid, or who examines the charge 
against the person accused of stealing or embezzling the property, 
may order it to be delivered to the owner, unless its temporary 
retention be deemed necessary in furtherance of justice, on his 
pa}dng the reasonable and necessary expenses incurred in its 
preservation, to be certified by the magistrate. The order enti- 
tles the owner to demand and receive the property. 
See Simpson v. St. John, 93 N. Y. 363; Uoughlon r. Backman, 47 Bub. 8861 



OF THB Staib <nr Nkw Yokx. 



903 



§ 887. When it ccm&B into eostody of magistrate,, he 
muat deliver it to owner on proof of title and payment 
of ezpenaee, — If property stolen or embezzled come into the 
enstody of a magistrate, it most, unless its temporary retentaoo 
be deemed neeessaiy in furtherance of justice, be deliverod to 
the owner, on satisfactory proof of his title, and on his paying 
the necessary expenses incurred in its preserration, to be certiiied 
by the magistrate. 

*Bee SfmpwiiT. SLJohn, 98 N. Y. SeS;'ffought<m v. Backman, 47 Barb. 398. 

§ 688. C!ourt in which trial is had for utealing or 
embezzling it, may order it to be delivered to owner.— 

If property stolen or embezzled have not been delivered to the 
owner, the court before which a trial is had for stealing or 
embezzling it may, on proof of his title, order it to be restored 
to the owner. 

§ 689. If not claimed in six months, to be delivered to 
comity superintendent of the poor, or, in New Tork, to 
commissionerB of charities and corrections. — If property 
stolen or embezzled be not claimed by the owner before the 
expiration of six months from the conviction of a person for 
stoding or embezzling it, the magistrate or other o£Scer having 
it in his custody must, on payment of the necessary expenses 
incurred in its preservation, deliver it to the county superintend- 
ents of the poor, or, in the city of New York, to the commis- 
wnerB of charities and corrections, to be applied for the benefit 
of the poor of the county or city, as the case may be. 

§ 690. Beceipt for money or property taken from a 
person arrested for a public offense. — Except in the city of 
New York, when money or other property is taken from a defwid- 
•Qt, arrested upon a charge of a crime, the officer taking it must, 
at the time, give duplicate receipts therefor, specifying particu- 
buiy the amount of money or the kind of property taken ; one 
of which receipts he must deliver to the defendant, and the other 
of which be must forthwith file with the clerk of the court to 
which the depositions and statement must be sent, as provided in 
flBction two hundred and twenty-one. 



264 Thb Code of Criminal Psocedube 



§ 691. Duties of police clerks in the city of New York, 
etc. — The commifisionere of police of the city of New York may 
designate some person to take charge of all property alleged to 
be stolen or embezzled, and which may be brought into the police 
office, and all property taken from the person of a prisoner, and 
may prescribe regulations in regard to the duties of the clerk or 
clerks so designated, and to require and take security for the 
faithful performance of the duties imposed by this section ; and 
it shall be the duty of every officer into whose possession such 
property may come to deliver the same forthwith to the person 
so designated. 



CHAPTER Xm. 

BEPBIEVES, COMMUTATIONS AND PABDON8. 

Sbotioit693. Power of governor to grant reprieves, commutations and 
pardons. 

S98. His power, in respect to convictions for treason ; duty of the 

legislature in such cases. 
694. Governor to commimicate annually to legislature reprierei^ 

cpmmutations and pardons. 
605. Report of case; how and from whom required. 

696. ) 

697. y Repealed in 1883. 

698. ) 

§ 692. Power of governor to grant reprieves, commuta- 
tions and pardons. — The governor has power to grant 
reprieves, commutations and pardons, after conviction, for all 
offenses, except treason and cases of impeachment, upon sach 
conditions, and with such restrictions and limitations, as he may 
think proper, subject to the regulations provided in this chapter. 

See State Const., art. 4, § 5; 6 Alb. L. J. 17; 7 id. 210; 6 Crim. L. Hag. 407; 
69 Am. Dec. 575 ; 10 Cr. L. Mag. 292; 18 id. 71. 76. note. 

A provision in a pardon that it shall not remove disabilities is void. People 
V. Pease, 3 Johns. Cas. 333. 

Pardon of one imprisoned for life does not restore the rights of previoos 
marriage or guardianship. 4 R. 8. (8th ed.) 2596, § 7. 

The court cannot go behind a pardon, though fraudulentlj obtained. In re 
Bndymoin, 8 How. Pr. 478. 

In case of a breach of a conditional pardon, tbe recipient maj be remanded, 
and tbe original sentence executed. People v. Potter , 1 Park. 47. 



OF THE State of New Yobk. 



266 



The gOTernor of a state baa power to pardon for contempt. 8t€U4f ex rel. 
Van Orden, v. Sauvinet, 24 La. Ann. 110; 18 Am. Rep. 115. 

The power to pardon after conviction was vested in the governor hj the con- 
stitQtion of Arkansas. ffM, that the exercise of the power to pardon before 
eonviction, bj the legislature, was not unconstitutional. 8t€U4 v. NiehoU, 26 
Ark. 74; 7 Am. Rep. 600. 

The constitution of Massachusetts placed in the governor the power of par- 
doning offenses, but provided that no pardon before conviction should avail 
the party pleading the same. Heldt that a pardon granted after verdict of 
guilty and before sentence was valid. Com. v. Lockwood, 109 Mass. 828; 12 
Am. Rep. 699. 

The governor was authorized to grant pardons after conviction." HM, 
that a pardon after verdict and judgment, but pending an appeal taken bj the 
prisoner, was valid. 8tate v. Alexander, 76 N. C. 281; 22 Am. Rep. 675. 

The governor of Virginia conmiuted defendant's sentence for a felony (three 
years in the penitentiary) to one year in jail, with the consent of the prisoner. 
EM, (1) that the governor had the constitutional authority to do such an act; 
(2) that the act was a conditional pardon and not a commutation, as it substi- 
tuted a different punishment; (8) that the prisoner could be lawfully held to 
the performance of the condition. Lee v. Murphy, 22 Qratt. 789; 12 Am. Rep. 
563. 

The governor may annex to a pardon the condition that the recipient shall 
refrain from the use of intoxicating liquors as a beverage during the remainder 
of the term of sentence; that he shall use proper exertions for the support of 
his mother and sister; and that he shall not during the same time be convicted 
of any criminal offense in the state; and may provide that for a violation of 
either condition the recipient shall be liable to summary arrest upon the goV" 
emor's warrant; and upon the breach of the first condition, may revoke the 
pardon and reconunit the recipient. Arthur v. Craig, 48 Iowa, 264; 80 Am* 
Bep. 895. See 27 Alb. L. J. 241. 

A pardon by the president of the United States of one convicted of embez- 
tlement, in a federal court, restores the offender to his right as a voter in the 
itate. JaniM v. Board of Regietrars, 56 Miss. 766 ; 81 Am. Rep. 885. See, 
•lao, 2 Am. St. Rep. 862, note. 

A pardon may be granted after the offense is fully expiated. State v. 
Foley, 15 Nev. 64; 87 Am. Rep. 458; citing People v. Botoen, 43 Cal. 489; 13 
Am. Rep. 148; U. 8. v. Jones, 2 Wheeler C. C. 451. 

§ 693. His power, in respect to convictions for treason ; 
duty of the legislature in such cases. — He may also sus- 
pend the execution of the sentence, upon a conviction for treason, 
until the case can be reported to the legislature, at its next meet- 
ing, when the legislature must either pardon or commute the 
sentence, direct the execution thereof, or grant a further reprieve. 

§694. Gtovemor to communicate ariTmally to legislature^ 
reprieves, commutations and pardons.— He must annually 
34 



966 



Thk Code of CBUfUTAL Pboosdube 



commnmcate to the legislatarey each case of reprieve, oommuta* 
tion or pardon ; stating the name of the couYict| the crime of 
which he was convicted, the sentence and its datoi mi the date 
of the oommutation, pardon or reprieye. 

§ 695. Report of case; how and from whom re- 
qidred — When application is made to the governor for a par- 
don, commutation or reprieve, it shall be the duty of the presid- 
ing judge of the court before which the conviction was had, and 
the district attorney by whom the criminal action was prosecuted, 
or the district attorney of the county where the conviction was 
had, holding oiGce at the time of such application, to supply the 
governor, upon his request therefor, and without delay, with a 
statement of the facts proved on the trial ; or, if a trial was 
not had, the facts appearing before the grand jury which found 
the indictment, and of any other facts having reference to the 
propriety of granting or refusing such pardon, commutation or 
reprieve. 

gg 096-698 repealed in 1882. 



«» ram Snjira of Nkw Yobk. 



997 



PART V. 

or PB0CXXDIN08 IN OOT7BT8 OF SPECIAL SESSIONS AND 
POLICE COUBTS. 

Tnu L Of the fboobedinos in ooubts of special asasioNB or 

THE COUNTIES OTHBB THAN NEW YOBK. 

IL Of the fbooeedinos m the couets of special ses- 

siONB nf THE onr and oountt of new yobk. 
nL Of appeals fbom the couets of special sessions. 



TITLE L 

€V PBOCEEDINGS IN COUBTS OF SPECIAL SESSIONS IN THE 
COUNTIES OTHEB THAN NEW TOBK. 

fcOBOH 899. Charge to be read to defendant, and he required to pleid. 

700. The plea, and how put in. 

701. IflBue, how tried. 

703. Defendant may demand a trial by Jury. 

708. Jury» how summoned. 

701 Summoning the Jury, and returning the list 

705. Depositing ballots in box. 

706. Drawing the juiy. 

707. Challenges. 

706. Talesmen, when and how ordered and summoned 
700. Punishing oflScer for not returning list, and issuing new ordtf 
for jury. 

710. Jury, how constituted. 

711. Their oath. 

712. Trial, how conducted. 

718. Jury may decide in court, or retire; oath of officer on their 

retirement 

714. Delivering verdict, and entry thereof. 

715. Discharge of jury without verdict 
Tld In such case, cause to be retried. 
717. Judgment on conviction. 

71& Judgment of imprisonment, until fine be paid; extent of 
imprisonment 

719. Defendant, on acquittal, to be discharged; order that p rosiO B i 

tor pay the costs. 
7M. Judgment agahist prosecutor for costs. 
791, 722. Cwtificate of conviction; ito fomi. . 



4 



268 



Thb Code of Cbdokal Pbooedubb 



Sbction 728. Certificftte, when filed. 

724. Certificate, concluaiTe eTidence. 

725. Judgment, by whom executed. 

726. Fine, by whom received before commitment, and how applied. 

727. Fine, to whom paid after commitment, and how applied. 

728. Proceedings against magistrate or sheriff, on neglect to pay fine 

into county treasury. 
720. Subpoenas for witnesses, and punishing them for disobedience. 

780. Punishing jurors for non-attendance. 

781. No fees to jurors or witnesses. 

782. When defendant requests a trial by police court, preliminary 

examination dispensed with. 
788. During time allowed for bail, and until judgment, defendant to 
be continued in custody of officer, or committed to jaiL 

784. Form of commitment. 

785. By whom executed. 

786. Defendant may be admitted to baiL 

787. Bail, how and by whom taken. 

788. Form of the undertaking. 

780. Undertaking, when forfeited, and action thereon. 
740. Forfeiture, how and by whom remitted. 

§ 699. Charge to be read to defendant, and he re- 
quired to plead. — In the cases in which the courts of special 
sessions or police courts have jurisdiction, when the defendant is 
brought befoi ; the magistrate, the charge against him must be 
distinctly reau to him, and he must be required to plead thereto. 

PeopU, ex rel.. v. Beatty, 89 Hun, 477; 4 N. Y. Cr. Rep. 288. 

§700. The idea, and how put in — The defendant may 
plead the same pleas as upon an indictment, as provided in section 
three hundred and thirty-two. His plea must be oral, and entered 
upon the minptes of the court. 

§ 701. Issue, how tried. — Upon a plea other than a plea of 
guilty, if the defendant do not demand a trial by jury, the court 
must proceed to try the issue. 

See People v. Justices, 74 N. T. 406; 18 Alb. L. J. 254; PeapU v. Green, 4 
N. Y. Cr. Rep. 448; People v. Cook, 45 Hun, 87. 

It is not essential to a valid conviction that the court inform the prisoner of 
his right to be tried hy a jur^r, or that he should expresslj waive such right. 
People Y. Goodwin, 5 Wend. 251. 

A court of special sessions can only acquire jurisdiction over the person of 
the accused upon his request to be tried before it, or his omission for the 
space of twenty-four hours to give bail for his appearance. Peoples, Berber^ 
rich, 20 Barb. 224; 11 How. Pr. 287. ^ PeopU y. Fisher, 20 Btah, ^52; 2 
Park. 402; overruled in Wynehamer v. People, 13 N. Y. 878. 



OF THB State of New York. 269 

It should afflrmativelj appear on the record that the prisoner expressly 
^Ted his right to trial bj jury. People v. Malhn, 89 How. Pr. 454. 

Bj an election to be tried bj the special sessions the defendant waives all 
' objections to the jurisdiction of the court. Oill v. People, 8 Hun, 187; 5 Th. 
I AC. 806. 

Special sessions has no jurisdiction of the fraudulent removal of a debtor's 
property, unless the value be less than $50. Thomas v. People, 19 Wend. 
480; Powers v. People, 4 Johns. 292. 

A conviction for petit larceny is erroneous if neither the complaint nor the 
wr&nt show the value of the property nor the place where the offense was 
committed. ffotoeUy. People, 2 Hill, 281. 

Special seaslons have jurisdiction of petit larceny. People v. Raweon, 61 
Btrb. 619. 

Also of the offense of cheating. People v. MiUer, 14 Johns. 871. 

Bat not of malicious mischief. Wait v. Oreen, 5 Park. 185. 

Cannot try and punish as a disorderly person. People v. Carroll, 8 Park. 73. 

§ 702. Defendant may demand a trial by jury. — Before 
the court hears any testimony upon the trial, the defendant may 
demand a trial by jury. 

See People v. Green, 4 N. Y. Cr. Rep. 448; People v. Cook, 45 Hun, 87. 

The jurisdiction of the special sessions cannot be sustained unless it affirma- 
tively appear on the, face of the record that the prisoner expressly waived his 
right to a trial bj jury. People v. MaUon, 39 How. Pr. 454. ' 

Can onlj gain jurisdiction over the person of the accused .jpon his request 
to be tried before it, or his omission for the space of twenty-fo^r hours to give 
\m\. for his appearance. People v. Berberrich, 20 Barb. 224; 11 How. Pr. 289. 

One accused before a court of special sessions of selling intoxicating liquors 
in violation of law is entitled to a jury trial. People v. Baird 11 Hun, 289. 

Most distinctly elect to be tried by special sessions. People v. Leid, 19 
Alb. L. J. 400. 

§ 703. Jury, how summoned.— If a tria' by jury be 
demanded, the court must forthwith draw from the box or other 
receptacle kept and used in accordance with the requirements of 
the Code of Civil Procedure, relative to the drawing of jurors iu 
justice courts in civil cases, twelve of the ballots provided for in 
section twenty-nine hundred and ninety and twenty-nine 
hundred and ninety-one of the Code of Civil Procedure 
to be kept and used by justices of the peace in civil 
cases. If a person whose name thus drawn, shall, in the opinion 
of the court, reside more than three miles from the place where 
the said issue is to be tried, the court may set aside such juror, and 
in that case draw another ballot, and so can fcontinue until twelve 



Thb Cods of Criminal Pbogsdubb 



269a 



be drawn to serve as jarors. The court must thereupon insert the 
names of the persons' so drawn in an order directed to any con- 
stable of the county, or marshal or police officer of the city or 
village where the offense is to be tried and having authority to 
execute process of the court, commanding him to summon the 
persons therein named to appear before the said court at a time 
not more than three days from the time of the making of said 
order, unless the trial of said issue be longer adjourned by con- 
sent and at a place named therein, to constitute a jury for the 
trial of the alleged offense. It shall be the duty of every town or 
city clerk in this state, within ten days after the taking effect of 
this act, to make and deliver to every recorder, police justice, or 
other judicial officer having authority to hold courts of special 
sessions in their respective towns or cities in accordance with the 
provisions of this title, a certified copy of the jury list as is now 
required by section twenty-nine hundred and ninety of the Code 
of Civil Procedure to be furnished by them to the justices of the 
peace of their various towns and cities for the drawing of jurors 
in civil actions, and any such clerk neglecting or refusing so to do 
shall be deemed guilty of a misdemeanor. The boxes or other 
receptacles now used by justices of the peace for the purpose of 
drawing jurors in civil cases shall be used by them for drawing 
jurors to serve in courts of special sessions as herein provided^ 
and recorders, police justices and other judicial officers empowered 
to hold such courts of special sessions, as provided by this title, 
are hereby required to procure and use the same in the manner 
provided by this section. 
In effect, as amended, Sept. 1, 1S98; Laws 1803, ch. 127. 

§ 704. Summoning the jury, and returning the list.— 

The court must deliver, or cause to be delivered, the said 
order to any officer to whom the same is directed and empow- 
ered to execute the same. The officer to whom said order is so 
delivered must thereupon summon personally each of the persons 
drawn and named therein to serve as such jurors by exhibiting to 
them the said order and at the same time reading to or stating to 
them the substance thereof. He shall then make his return to 
said order certifying that he personally served it upon each of the 
persons named therein and in each case of his being unable to do 
so the reason thereof. Any person so summoned not attending at 



270 Thx Codb of CimaNix Pbocxdubx 



the time and place and not having sufficient legal excuse for doing 
80, specified in said order, is hereby declared guilty of contempt 
of court and is punishable by a fine not exceeding fifty dollars or 
imprisonment not more than thirty days, or by both such fine and 
imprisonment 
In effect, as amended, Sept. 1, 1893; Laws 1893, ch. 127. 

§ 705. Depositing ballots in box. — The names of the per- 
ions returned as jurors must be written on separate ballots, folded 
IS nearly alike as possible, so that the name canhot be seen, and 
most, nnder the direction of the court, be deposited in a box or 
other convenient thing. 

§ 706. Drawing the jury. — The court must then draw out 
fix of the ballots, successively ; and if any of the persons whose 
names are drawn do not appear, or are challenged and set aside, 
inch further nnmber must be drawn as will make a jury of six, 
after all legal challenges have been allowed. 

The special sessions have no authority to try a person by a jury of less than 
BX, though both parties consent thereto. Germond v. People, 1 Hill, 348. 

If one jury cannot agree, the court may discharge them and summon 
toother. Vandertoerker v. People, 5 Wend. 580. 

When a jury may consist of six persons. People , ex rel. Eckler, v. Clark, 
28 Han, 874. 

A statute increasing the jurisdiction of certain courts is not unconstitu- 
tional merely because it transfers a class of cases from courts of record where 
juries are composed of twelve men, to justices' courts, where they consist of 
six men. Dawson y. Horan, 51 Barb. 459; People, ex rel., v. Met, Board oj 
HeaUh, 6 Abb. Pr. (N. S.),105. 

The right to a common-law jury trial extends only to cases in which it had 
been exercised before the adoption of the original constitution. Duffy v. 
iV^, 6 Hill, 75. See, also. People v. Justices, 74 N. Y. 406. 

§ 707. Cluallengee. — The same challenges may be taken by 
either party, to the panel of jurors or to an individual juror, as 
on the trial of an indictment for a misdemeanor, so far as appli- 
cable ; and the challenge must, in all cases, be tried by the court. 

§708. Talesmen, wheen and how ordered and sum- 
moned. — If six of the jurors summoned do not attend, or be 
Hot obtained, the court may direct the officer to summon any of 
the bystanders, or others who may be competent, and against 
^hom there is no sufficient cause of challenge, to act as jurors. 



OF THE State of New Yobk. 



271 



§ 709. Fnnishing officer for not returning list, and 
issuing new order for Jury.— If tlie officer to whom the 
order is delivered do not return it, as required by section seven 
hundred and four, he may be punished by the court, as for 
contempt ; and the court must issue a new order for the summon- 
ing of jurors, in substantially the same form ; upon which the 
same proceedings must be had as upon the one lirst issued. 

§ 710. Jury, how constituted.— When six jurors appear 
and are accepted, they constitute the jury. 
See cases cited under § 706, ante, 

§ 711. Their oath. — The court must thereupon administer to 
the jury the following oath or affirmation : " You do swear " [or 
you do solemnly affirm, as the case may be], " that you will well 
and truly try this issue, between the people of the state of New 
York and A. B., the defendant, and a true verdict give, accordiag 
to the evidence." 

§ 712. Trial, how conducted. — After the jury are swoniy 
they must sit together and hear the proofs and allegations of the 
parties, which must be delivered in public, and in the presence of 
the defendant. 

§713. Jury may decide in court, or retire; oath of 
officer on their retirement. — After hearing the proofs and 
legations, the jury may either decide in court or may retire for 
<^nfiideration. If they do not immediately agree, an officer must 
he Bwom to the following effect : " You do swear that you will 
keep this jury together in some private and convenient place, 
^thout food or drink, except bread and water, unless otherwise 
ordered by the court ; that you will not permit any person to 
*peak to or conmiunicate with them, nor do so yourself, unless it 
^ to ask them whether they have agreed upon a veniict ; and 
that you will return them into court when they have so agreed, 
or when ordered by the court." 

§ 7U. Delivering verdict and entry thereof.^ When 
the jury have agreed on their verdict, they must deliver it publicly 
^ the court, which must enter it in its minutes. 

Sfle P&wer$ People, 4 Johns. 292: Thomas v. P«^, 19 Wend. 480. 



872 Thb Codb or Obiminal Pbocsdube 



§ 716. Discharge of Jury without verdiot.— The jnry 

caiiuot be discharged, after the cause is sabmitted to them, until 
they have agreed upon and rendered their verdict, unless for some 
cause within the meaning of sections four hundred and twenty- 
eight and four hundred and twenty-nine, the court sooner dis- 
charge them. 

If the jnry cannot hgne the coart maT discharge them and sammon another. 
See VarMertoerk&r v. People, 5 Wend. 580; Lattimore v. People, 10 How. Pr. 
886. 

§ 716. In such cause, case to be retried. — If the jury be 
discharged, as provided in the last section, the court may pro- 
ceed again to the trial, in the same manner as upon the first trial ; 
and so on until a verdict is rendered. 

§ 717. Judgment on conviction. — When the defendant 
pleads guilty, or is convicted either by the court or by a jury, 
the court must render judgment thereon of fine or imprisonment 
or both, as the case may require; but the fine cannot exceed fifty 
dollars, nor the imprisonment six months. 

See 28 Alb. L. J. 480, 020; § 719, post ; People v. Palmer, 48 Hnn, 408; 6 N. T. 
State Rep. 841; 109 N. Y. 418; People v, RatMon, 61 Barb. 619; People, €» rel., 

Sadler, 2 N. Y. Cr. Rep. 488; People, ex rel., v. Smith, 28 N. Y. State Rep. 807. 

On a conviction in a court of special sessions, the sentence mast be pio- 
nonnced by the oourt as such; and the record mast show that the court was 
then in session. Lattimore v. People, 10 How. Pr. 836. 

After a plea of guiltj there is nothing further for a court to do than to pro- 
nounce sentence. The plea of gulltj is like the verdict of gailty. There Is no 
duty in the court "to convict," but onlj to sentence. When the defendant 
pleads gnilty it is not necessary that there should be any conviction. People, 
ex rel. Ek^ane, v. MeEwen, 67 How. Pr. 105; 2 N. Y. Cr. Rep. 818. 

The Albany special sessions has jurisdiction to impose a fine of $500 upon 
a person convicted of petit larceny. Matter of HaUenbeck, 65 How. Pr. 401. 

The relator, having been convicted by the court of sessions of Otsego 
eounty of the offense of assault in the third degree, was sentenced to imprlsoii- 
ment in a state prison for one year. Upon an appeal from an order made bj a 
eounty judge, denying an application for a discharge of the relator upon the 
return to a writ of habeae c/npus, held, that although under the provisions of 
the Penal Code the court had no power to sentence the relator to an imprison- 
ment in a state prison upon a conviction of an assault in the third degree, but 
could only sentence him to be imprisoned in a penitentiary or county jail, yet 
the order denying the application should be affirmed for the reason that the 
error of the court was not one which could be reviewed upon habeae eorpue. 
For the farther reason that although the sentence was absolutely void, yet the 



OF THE StATX of NeW YoRK. 



278 



nlator was properly in the custody of the sheriff as a convicted but unsentenced 
prisoner. People v. Kelly, 82 Hun, 536; affirmed. 97 N Y. 212. 

The relator was convicted before a court of special sessions of having dis- 
posed of personal property, upon which he had previously executed a chattel 
mortgage, and was sentenced to pay a fine of $250, and to stand committed to 
the county jail until the fine should be satisfied, not exceeding one year. 
Held, that as the power of a court to infiict punishment is restricted by this 
section to a fine not exceeding $50, or an imprisonment not exceeding six 
months, the sentence impoeed upon the relator was void. People RitUy^ 8ft 
Hun, 285; 4 N. Y. Cr. Rep. 109; People v. CarUr, 48 Hun, 167; 14 Qv. Proc 
245; PeopU v. Nash, 12 Week. Dig. 546; PeopU v. Bork, 96 N. Y. 188-200; 
People, ex rel., v. Liscomb, 60 id. 559. 

§ 718. Judgment of imprisoimient imtdl fine be paid ; 
eortent of ixnprisoninent. — A judgment that the defendant paj 
a fine may also direct that he be imprisoned until the fine be 
flatiefied ; specifying the extent of the imprisonment, which can« 
not exceed one day for every one dollar of the fine. 

See § 484, ante; Matter of Hoffman, 1 N. Y. Cr. Rep. 484; People, ex reL, 
BUey, 88 Hun. 281; 4 N. Y. Cr. Rep. 110; PeopU v. JSiUton, 6 N. Y. Supp. 96; 
84 State Rep. 726 ; Matter of Bray, 84 id. 642. 

g 719. Defendant, on aoqolttal, to be ditoharged ; order 
tliat proaeontor pay the costs. — When the defendant is 
acquitted, either by the court or by a jury, he must be immedi- 
ately discharged ; and if the court certify, upon its minutes, or 
the jury find that the prosecution was malicious or without proba- 
ble cause, the court must order the prosecutor to pay the costs of 
the proceedings, or to give satisfactory security, by a written 
nodertaking, with one or more sureties, to pay the same to the 
county within thirty days after the triaL 

See People v. Iforton, 83 Hun, 277; 2 N. Y. Cr. Rep. 824; People v. Oarr 28 
State Rep. 287 ; 54 Hun, 445. 

§ 7S0. Judgment against prosecutor for oosts. — If the 

prosecutor do not pay the costs or give security therefor, the 
conrt may enter judgment against him for the amount thereof, 
which may be enforced and appealed from, in all respects, in the 
same manner as a judgment rendered by a justice court held by a 
justice of the peace. 

See People Norton, 88 Hun. 277; 2 N. Y. Cr. Rep. 824; People v. Carr, 28 
State Rep. 287; 54 Hun, 445; People v. Qermond, 1 Hill, 848. 
35 



274 The Oodb of Obiminal Pboosdubb 



§ 721. Oertifioate of oonviotion ; its form. — When a 
convictioQ is had upon a plea of gailtj, or upon a trial, the conrt 
must make and sign a certificate in subBtantiallj the following 
form : 

Court of special sesBions or jpoHoe oawt 
" County of Albanyy town of Berne [or as the case may be]. 

**Thb Pbople of the State of New York' 

against 

A. B. 

JamM/ry 1, 18 • 

"The above-named A. B., having been brought before C D., 
justice of special sessions, justice of the peace [or other magis- 
trate, as the case may be], or police justice of the town [or city 
or village] of [as the case may be], charged with [briefly desig- 
nating the offense]. 

"And having thereupon pleaded guilty or not guilty [or as the 
case may be], and demand^ [or ' faUed to demand,' as the case 
may be] a jury, and having been thereupon duly tried, and upon 
such trial duly convicted: It is adjudged that he be imprisoned in 
the jail of this county days [or ' pay a fine of dollars, 
and be imprisoned until it be paid, not exceeding days,' or 

both, as the case may be]. 

" Dated at the town [or* city '] of , the day 

of , eighteen hundred and 

"0. D. 

" Justice of the peace or police justice or other magistrate [as 
the case may be] of the town [or * city '] of [as the case may be].** 

See People v. Holmee, 41 Hun, 56; People v. Finn, 87 N. Y. 588. 

The certificate of conviction of a court of special sessions must be made dur- 
ing the session of the court, and cannot be made by the justice after the court 
organized to try the cause, has ceased to exist. People, ex ret. Cook, v. Smith, 
28 State Rep. 806; citing People t. Starky, 17 id. 234; Lattimore y. People, 10 
How. Pr. 836. 

A court of special sessions is a court of limited jurisdiction; it has no juris- 
diction but what is given hj statute, and no presumption will be indulged in 
favor or support of such jurisdiction. People v. MaUon, 89 How. Pr. 454. See, 
also, Cooley Const. Lim. (4th ed.) 508-9; Matter of Travis, 55 How. Pr. 847; 
9 Abb. N. C. 70; Bloom v. Burdiek, 1 Hill, 180; Matter of Lunch, 9 Abb. N. C. 
70; People, ex rel.,Y. Board, etc. , 28 State Rep. 941 ; Da^rideburgh v. Knickerbocker 
lAfe Ini. Co., 90 N. Y. 526. 



or THB Stati of Nsw York. 



275 



The record of the oonyiction in a court of special seasioiis most show the 
jorisdiction of the jasticee. Pawer$ v. People, 4 Johns. 202; Thomoi v. People, 
19 Wend. 480. 

A mittimue issued upon conviction need not set forth anj fact not required 
by law to be stated in the record. People v. Moore, 8 Park. 465. 

Where a return to a writ of fuibe<u corpus shows that the relator is held 
under a commitment issued by a court of special sessions after a trial and con- 
riction hj it, the onlj question presented is, whether or not such court has 
jorisdiction to try the relator and issue the commitment. People v. Neileon, 
16 Hun. 214. 

It is not necessary that the commitment should contain the names of the wit- 
nesses, or the testimony given by them, it is sufficient if it contain a brief 
statement of the offense charged and the conviction and judgment thereon. 
People V. NeiUon, 16 Hun, 214. See, also. Matter of Hogan, 55 How. Pr. 458; 
MaUer of Sweetman, 1 Cow. 144. 

The court cannot acquire jurisdiction to try a prisoner for an offense unless 
it appear affirmatively in the proceedings had before trial, that the prisoner 
expressly waived his right to a trial by jury. It will not do to ask the prisoner 
if he elects to be tried by the court of special sessions, but the question must 
be clearly put to him if he waives a trial by jury; and after answering ** yes " 
or "no," that fact must appear clearly and affirmatively. Even if the return 
of the special sessions shows that the question had been put to the prisoner 
whether he had waived a trial by jury or not, he has a right to traverse such a 
retam and show its falsity — the court not being a court of record. People v. 
MaHon, 30 How. Pr. 454. Contra, People v. Ooodtein, 5 Wend. 251. 

§722. Oertificate of oonviotion; its form. — If the 

defendaut have pleaded gailtj, instead of the second paragraph, 
the oertificate mast state substantially as follows : And the 
above-named A. B. having been thereupon dulj convicted, upon 
A plea of guilty." 

This fonn need only to be followed substantially. People, ex rel. Evane, v. 
MtBwn, 67 How. Pr. 118; 2 N. Y. Or. Rep. 818. 

§ 723. Oertifioate, when filed. — Within twenty days after 
the conviction, the court must cause the certificate to be filed in 
the office of the clerk of the county. 

See PeopU v. ffolmei, 41 Hun, 56; 5 N. Y. Cr. Rep. 180. 

This section is merely directory, and it is sufficient if the record is made in 
doe form though not filed at the time required by the statute. People, ex rel., 
^. Baker, 19 SUte Rep. 487. 



276 Thk Codb of Criminal Fboobdube 



§ 724. Certiflcate, conduflive evidenoe* — Tlie certificate, 
made and filed as prescribed in the last two sections, or a certified 
oopy thereof, is conclusive evidence of the facts stated therein. 

See People, ex rel., v. Baker, 19 State Rep. 487; Ptojtle, ex rel. Etans, v, 
MeEwen, 67 How. Pr. 113; 2 X. Y. Cr. Rep. 312; Matter of NichoU, 19 Abb. N. 
C 188. 

§ 725. Judgxnenty by whom executed. — The judgment 
must be executed by the sheriff of the county, or by a constable, 
marshal or policeman of the city, village or town in which the 
conviction is had, upon receiving a copy of the certificate pre- 
scribed in section seven hundred and twenty-one, certified by the 
court or the county clerk. 

See Peo^ple v. Holine»i Hun, 66; 6 N. Y. Gr. Rep. 130; People, ex rel., v. 
MoEioen, 67 How. Pp. 113; 2 N. Y. Cp. Rep. 312; People, ex rel, McOrath, v. 
Board, ete„ 119 N. Y. 126. 

§ 726. Finoi by whom received before oommitment, 
and how applied. — If a fine imposed be paid before commit- 
ment, it must be received by the court, and within thirty days 
after its receipt, paid by such court into the county treasury. 

See People, ex rel, v. Board, 17 State Rep. 875. 

§ 727. Fine, to whom paid after oommitment, and 
how applied. — If the defendant be committed for not paying 
a fine, he may pay it to the sheriflE of the county, but to no other 
person ; who must in like manner, within thirty days after the 
receipt thereof, pay it into the county treasury. 

See People, ex rel., v. Board, 17 State Rep. 875. 

§ 728. Proceedings against magistrate or sheriff, on 
neglect to pay fine Into county treasury.— If the court or 
sheriff receiving the fine, fail to pay it int<i the county treasury, 
the county treasurer must immediately commence an action there- 
for against the sheriff or the magistrates comprising the court in 
the name of the county. 

§ 729. Subpoonas for wilnesses, and punishing them for 
disobedience. — The court may issue subpoenas for witnoRSPB, as 
provided in section six hundred and eight, and punish disobedi- 
ence thereof, as provided in section six hundred and nineteen. 



OF THB State of Nkw York. 



277 



§ 730. Pnniflhing JnrorB for noxMittendance. — If a persou 

flQmmoned as a juror fail to appear, he may be punished by a fine 
not exceeding five dollars imposed by the court, by an order 
entered in his minutes. The order is deemed a judgment, in all 
respects, in favor of the poor of the town or city. 

§ 731. No fees to jurors or witnesses. — ^No fees are payable 
to a juror or witness, for his service or attendance in a court of 
special sessions. 

See § 616, ante. 

§ 732. When defendant requests a trial by police court, 
preliminary examination dispensed with. — When the 
defendant, upon being brought before the magistrate, requests a 
trial by a court of special sessions, the preliminary examination of 
the case is dispensed with. 

§ 733. During time allowed for bail, and untU judg- 
ment, deflandant to be continued in custody of office! 
or committed to jaiL — During the time allowed to the defend- 
ant to give bail, and until judgment is given, he may be continued 
in the custody of the officer, or committed to the jail of the 
county to answer the charge, as the magistrate may direct. 

§734. Form of commitment. — The commitment must be 
signed by the magistrate, by his name of office, and must be in 
substantially the following form : 

"The sheriflE of the county of , is required to receive and 
detain A. B., who stands charged before me for [designating the 
vSense, generally], to answer the charge before a court of - special 
sessions in the town [or city] of [as the case may be]. 

" Dated at the town [or city] of , the day o£ 

,18 . 

" 0. D., justice of the peace of the town 
[or city] of , [as the case may l>e].'' 
See authorities cited under § 721, ante. 

It ifi not necessary to set forth in a warrant of commitment issued upon a 
judgment of a court of special sessions that the prisoner was convicted of petit 
Itrcenj charged as a first offense; it is sufficient if it appears that the convic- 
tion was for an offense of which said court had jurisdiction. People, ex rel., t. 
Finn, 87 N. T. 688. 



978 



Thk Codb of ORDfUTAL Pboosdubb 



§ 735. By whom execated. — When oomioitted, the defend 
ant must be delivered to the custody of the proper officer, by an^ 
peace officer in the county to whom the magistrate may delivei 
the commitment. 

§ 736. Defendant may be admitted to balL— Eithei 
before or after his committal, or upon being committed, th< 
defendant must, if he require it, be admitted to baiL 

§ 737. Bail, how and by whom taken. — The bail must 
be taken by the magistrate, by a written undertaking, executec 
by the defendant, with one or more sufficient sureties approved 
by the magistrate, in a sum not exceeding two hundred dollars. 

§ 738. Form of the undertaking — The undertaking mus 
be in substantially the following form : 

" A. B., having been duly charged before C. D., a justice o 
the peace in the town [or city] of , [as the case may be] witl 
the offense of [designating the offense generally]. We under 
take jointly and severally that he shall appear thereon from timt 
to time, until judgment, at a court of special sessions in the town 
or village [or city] of , [as the case may be], competent to tr 
the case, or that he will pay to the county of [naming th 
county in which the court is held] the sura of dollars [insert 
ing the sum fixed by the magistrate]. 

" Dated at the town [or city] of [as the case may be]." 

§ 739. Undertaking, when forfeited^ and action there 

on. — If the defendant fail to appear according to the under 
taking, the court, unless a sufficient excuse be shown, must declan 
the undertaking of bail forfeited, and the county treasurer mu6 
immediately commence an action for the recovery of the sun 
mentioned therein, in the name of the county. 

§ 740. Forfeiture, how and by whom remitted. — Th< 

county court of the county, or in the city of New York, tht 
i^urt of common ploas of that city, mav remit tho forfeiture or 
any part thereof, in the cases and in the Ttianner provided in th 
Code of Civil Procednre. 



OF TH« State of Nkw York. 



279 



TITLE II. 

OF THE PBOOEEDnrOS IN THE COUBT OF SPECIAL SBSSIOlfB 
IN THE CITY AND COUNTY OF NEW YOBK. 

teonoN 741. Police courts in New York, to proceed as prescribed in last tittob 

except as provided in next seven sections. 
' 743. In what cases to proceed to trial. 

748. If Jury demanded, magistrate to proceed to examination of 

charge. 

741 Trial to be before the court, without a Jury. 

74S. Clerk to issue subpcena, sign certificate of Judgment, and enter 

proceedings of court and sentences upon convictions. 
74tf. Fines before committal, to be paid to clerk; his accountB» 

when and to whom rendered. 

747. All other fines to be paid to sheriif ; his account thereof, when 

and to whom rendered. 

748. No transcript of conviction to be filed ; certified copy of min* 

utes, conclusive evidence. 

§ 741. Police courts in New York, to proceed as pre- 
scribed in last title, except as provided in next seven 
flections. — The court of special sessions, in the city and county 
of New York, must proceed upon a criminal charge in the man- 
ner prescribed in the last title, except as provided in the next 
seven sections, and by special statutes. 

flee People, exrel,,T, Board, 17 State Rep. 875; People, ex rel. Murray, v. 
Mees, 74 N. Y. 406; 18 Alb. L. J. 254. 

§ 742. In what cases to proceed to trial. — When the 
eonrt of special sessions in the city and county of New York has 
jurisdiction, it must proceed to the trial in the following cases : 

1. When the defendant has requested to be tried in such court ; 

2. When (having omitted for twenty-four hours to give bail, as 
required by the magistrate before whom he was brought, for his 
appearance at tiie next court of general sessions of tlio city and 
county of New York) a jury is not demanded by him, on being 
brought before the court of special sessions for triaL 

§ 743. If jury demanded, magistrate to proceed to 
examination of charge. — If, in the case mentioned in the 
second subdivision of the last section, a jury be demanded, the 
court of special sessions must proceed to the examination of the 
charge, and hold the deforulaTit to answer or discharge him, in 



S80 The Codb of Cbdonal P&oosdubb 



same manner as the magistrate before whom he was originallj 
brought might have done. 

§ 744. Trial to be before ooort^ without a Jury. — The 
trial must, in all cases, be before the court without a jury. 

§ T45. Clerk to ifisue subpoenas, sign oertiflcate of Judg^ 
ment, and enter proceedings of court and sentences upon 
oonvictions. — Subpoenas for witnesses, and the certificate of 
the judgment, must be signed by the clerk of the court, who 
must also enter all the proceedings of the court, and the sentences 
upon convictions, in a book of minutes, and when necessary, 
certify the proceedings of the court. 

§ 746. Fines before committal, to be paid to clerk ; his 
accounts, when and to whom rendered* — Fines, imposed 
by the court, must be received by the clerk, if paid before com- 
mittal in execution of the judgment. He must, every thirty 
days, render to the comptroller of the city, accounts of the finea 
imposed and received by him, and of the expenses attending the 
court 

§ 747. All other fines to be paid to sheriff; his account 
thereof^ when and to whom rendered. — All fines, not paid 
to the clerk, as provided in the last section, must be received by 
the sheriff of the city and county of New York; who must, 
within thirty days thereafter, pay them to the comptroller of the 
city, in the sanie manner as he is required to pay fines imposed 
by the court of general sessions of the city and county of New 
York, and received by him. 

§ 748. No transcript of conviction to be filed ; certified 
copy of minutes, conclusive evidence. — No transcript of a 
conviction, had in a court of special sessions in the city and 
county of New York, need be certified or filed ; but a copy of 
the minutes of the conviction, certified by the clerk, is conclusive 
evidence of the facts contained therein. 



OF THE 6tA1K of ^EW YoKK. 



281 



TITLE m. 

OF APPEALS FBOIC OOUBTS OF SPECIAL SESSIONS. 

flMnmr 748. Judgment of special seasions, reviewable only upon appetL 
75U. Appeal, for what causes allowed. 
751. Appeal, how taken. 
758. How allowed. 

758. Discharge of defendant from custody, upon undertaking. 
754 Undertaking, when and with whom filed. 

755. Delivery ot affidavit, and allowance of appeal, to magistrate or 

clerk of police court, within five days after allowance 
755. Return, when and how made. 
757. Compelling return. 

758L Ordering and compelling further or amended return. 

759. Appeal, by whom and how brought to argument. 

700. If not brought to argument, as provided in last section, to be 
dismissed, unless continued for cause shown. 

761. Service of return on district attorney, and consequences of 
failure. 

783. If brought to hearing by defendant, appeal must be aigaedt 
though no one oppose, etc 

768. Appeal to be heard on original return. 

764. What judgment may be rendered. 

765. Judgment to be entered on the minutes. 

766. Order upon Judgment for affirmcmce. 

767. Order upon Judgment of reversal. 

76S. If new trial ordered, to be had in court of sessions; proceedings 
thereon. 

769. Proceedings to carry Judgment upon appeal into effect, to be 

had in court of sessions. 

770. On Judgment of court of sessions, defendant may appeal to 

supreme court; his admission to bail. 

771. Judgment of supreme court upon appeal, final. 

773. Proceedings to carry into effect judgment of supreme court 

§ 749. Judgment of special sessions reviewable only 
ttpon appeal. — A judgment upon conviction, rendered by a 
court of special sessions, police court, police magistrate, or justice 
of the peace, in any criminal action or proceedings or special pro- 
ceeding of a criminal nature, including a judgment of commit- 
loent made under section two hundred and ninety-one of the 
Penal Code, may be reviewed by the court of sessions of the 
county, upon an appeal as prescribed by this title, and not other- 
wiae; and any appeals heretofore taken and allowed from a 
judgment of any police court or police magistrate in the man« 
36 



282 



Thb Code of Cbiminal Procedubs 



ner that appeals are directed to be taken and allowed bj this 
title, and now pending undetermined in anj court of this 
state, are hereby declared to be legal and valid and of the same 
force and effect as if taken after the passage of this act. An 
appeal from a judgment of commitment made under section two 
hundred and ninety-one of the Penal Code may be allowed to 
any person having, previous to such conmiitment, a right to the 
custody of the child ; but upon such appeal, in addition to the 
notice and papers required by this title to be served on appeals in 
criminal actions, notice of all proceedings and copies of the affi* 
davit and allowance of appeal therein nmst be served upon the 
institution named in the commitment, and upon the society men- 
tioned in section two hundred and ninety-three of the Penal Code, 
if thei*e be one within the county. Such institution and society, 
or either, shall have the right to move to argue or dismiss, and to 
be heard upon the argument of such appeal ; and shall have the 
like right to appeal from the judgment of the court of sessions of 
the county to the supreme court as is conferred by section seven 
hundred and seventy of this Code upon a defendant, and to the 
court of appeals by section five hundred and nineteen of this 
Code ; and pending any appeal and until the final determination 
thereof the child named in the commitment must remain in the 
custody of the institution therein specified. 

See Peoj^ v. Trumble, 1 N. Y. Cr. Rep. 443; 29 Hun, 305; People v. NorUm^ 
2 N. Y. Cr. Rep. 822; 88 Hun. 277; People, ex rd. Scherw, v. WaUh, 67 How. 
Pr. 482 ; 88 Hun, 845; 2 N. Y. Cr. Rep. 325; PeopU v. Carr, 54 Hun, AA/k^ 
PeopU V. Vitan, 20 Abb. N. C. 298; EiUoran v. Barton, 26 Hun, 648; People, 
tx rel, V. Court of SesHons, 45 id. 55; 9 State Rep. 608. 

§ 750. Appeal, for what causes allowed An appeal 

may be allowed for an erroneous decision or determination of law 
or fac^t upon the trial. 

§ 751. Appeal, how taken.— For the purpose of appealing, 
the defendant, or some one on his behalf, must within ten days 
after the judgment, or within twenty days after the commitment 
where the appeal is from the latter, make an affidavit stating the 
fact showing the alleged errors in the proceedings or conviction or 
commitment complained of, and must within that time present it 
to the county judge or a justice of the supremo court, or in the 



OF THE State of New Yobk. 



283 



dtj and oonnty of New York, to the recorder or a judge author- 
ized to hold a court of general Bessions in that city, and maj apply 
thereon for the allowance of the appeal. 

See People ▼. 2£eOannt 48 Hun, 67; People, ex rel,, v. BeaUy, 4 N. Y. Cr. 
Bep. 287; 89 Han, 477. 

§ 752. How allowed.— If, in the opinion of the judge, it is 
proper that the questioQ arising on the appeal should be decided 
bj the court of sessions, he must indorse on the affidavit an allow- 
ance of the appeal to that court. 

See PeopU, ex rel. Baker, v. Beatty, 4 N. Y. Cr. Rep. 287; 89 Hun, 477. 

§ 753. ISiflcharge of defendant from custody, upon un* 
dertaking. — Upon allowing the appeal, if satisfied that there is 
a reasonable doubt whether the conviction should stand, but not 
otherwise, the judge may take from the defendant a written un- 
dirtHkincj, with such sureties as he may approve, that the defendant 
will abide the judgment of the court of sessions upon the appeal ; 
and may tiiereiipun order that he be discharged from imprison- 
iiK'iit, on service of the order uj^on the officer having him in cus- 
tody, or if he be not in custody, that all proceedings on the judg- 
ment be stayed. [Amended 18U2» cA. 279 ; iri effect Sept. 1, 1891. 

§ 754. Undertaking, when and with whom filed. — The 

undertaking upon the appeal must be immediately filed with ' 
the derk of the court of sessions. 

§ 755. Delivery of affidavit, and allowance of appeal, 
to magistrate or derk of i)olice court, within five days 
after allowance. — The affidavit and allowance of the appeal 
must be delivered to the magistrate, or clerk of the court render- 
ing the judgment, within five days after the allowance of the 
appeal, and when so delivered the appeal is deemed taken. 

§ 756. Return, when and how made. — The magistrate or 
court rendering the judgment, must make a return to all the 
matters stated in the affidavit, and must cause the affidavit and 
return to be filed in the office of the clerk of the court of sessions, 
within ten days after the service of the affidavit and allowar.ce 
of the appeal. 

In PeopU v. MeGann, 43 Han, 57, the court say: " When tlie appeal is taken 
t most be presumed the appellant knows what allepred errors he wants to re. 
▼lew. The return is made with reference to such errors only. If this bo not 
true, til sorts of technical objections may be urged upon appeal when but one 



284 



Thb Code of Criminal Procedure 



worthless objection is alleged in the affidavit. It should be presumed that the 
proceedings were legal and valid unless it is aitirmativelj shown that thejaie 
otherwise." 

§757. Compelling return. — If the return be not made 
within the time prescribed in the last section, the court of Bessions, 
or the presiding judge thereof, may order that a return be made 
within a specified time which may be deemed reasonable ; and 
the court may, by attachment, compel a compliance with the order. 

§ 758. Ordering and compelling farther or amended 
return. — If the return be defective, a further or amended 
return may be ordered, and the order may be enforced in the 
manner provided in the last section. 

§ 759. Appeal, by whom and how brought to argument. 

When the return is made, the appeal may be brought to argu- 
ment by the defendant, on any day in term, upon a notice of not 
less than five days before the term, to the district attorney of the 
county. 

§ 760. If not brought to argument, as provided in last 
section, to be disniissed, unless continued for cause shown. 

If the defendant omit to bring the appeal to argument, as pro- 
vided in the last section, the court must dismiss it, nnless it con- 
tinue the same, by special order, for cause shown. 

§ 761. Service of return on district attorney, and oan^ 
sequences of failure. — The defendant must serve upon the 
district attorney, a copy of the return, with or before the notice 
of argument. If he fail to do so, the appeal must be dismissed, 
upon proof of the failure, unless the court otherwise direct. 

§ 762. If brought to hearing by defendant, appeal must 
be argued, though no one oppose, etc. — If the appeal be 
brought to hearing by the defendant, it must be argued, though 
no one appear to oppose ; but if brought on by the district attor- 
ney, he may take judgment of affirmance, unless the defendant 
appear to argue the appeal. 

§ 768. Appeal to be heard on original return. — The 
appeal must be heard upon the original return; and no copy 
thereof need be furnished for the use of the court 



OP THK State op New Yoek. 



285 



§ 764. What Judgment may be rendered.— After bearing 
the appeal the court muse give jadginent without regard to tech- 
nical errors or defects which have not prejudiced the substantial 
rights of the defendants, and may render the judgment which the 
oonrt below should have rendered, or may, according to the jus- 
tice of the case, affirm or reverse the judgment, in whole or in 
part, as to all or any of the defendants, if there be more than one, 
or may order a new trial, or may modify the sentence. 

See PeopU, en rel. SUOcea, v. Risley, 88 Hun, 282; 4 N. Y. Cr. Rep. Ill; Peo- 
pU T. OuUer, 28 Han, 465; 1 N. Y. Cr. Rep. 178; PeopU v. Melntoih, 5 id. 80; 
People V. 5iirnf, 28 N. Y. State Rep. 801; People v. Upton, 29 id. 779; Peo- 
pU T. Moore, 50 Hun, 859; People v. Starke, 17 N. Y. State Rep. 287, 288. 

§ 765. Judgment to be entered on the minutes.— When 
judgment is given upon the appeal, it most be entered upon the 
minutea. 

§766. Order upon Judgment for aflOrmance.— If the 

judgment be afibmed, the court must direct its execution, and if 
the defendant be discharged on bail, after the commencement of 
the execution of a judgment of imprisonment, must commit him 
to the proper custody for the remainder of his term of imprison- 
ment. 

§ 767. Order upon Judgment of reversaL — If the judg- 
ment be reversed, and the defendant be imprisoned in pursuance 
of the judgment of the police court, the court of sessions must 
order him to be discharged. 
SeePMSpftfV. IrumbU. 1 N. Y. Cr. Bep.446. 

§ 768. If new trial ordered, to be had in court of see* 
Bions; proceedingB thereon. — If a new trial be ordered, it 
must be had in the court of sessions, in the same manner as upon 
an issue of fact on an indictment ; and that court may proceed to 
judgment and execution, as in an action prosecuted by indictment. 
Bat where the appeal was from a judgment of commitment made 
under section two hundred and ninety-one of the Penal Code, the 
new trial shall be bad before the court of sessions without a jury. 

§769. Proceedings to carry Judgment upon appeal 
into efB9Ct^ to be had in court of sessions. — If any pro- 
ceedings be necessary to carry the judgment upon the appeal into 
effect, they must be had in the court of sessions. 



S86 



Thb Codb of Criminal Pboobdubb 



§ 770. On judgment of oourt of aefliiiang, defendant may 
iqppeal to anpreme court ; his admlfwion to balL — If the 

judgment on the appeal be against cue acxeuaanti He may appuai 
therefrom to the sapreme oomrt, in ^he same manner as from a 
judgment in an action prosecuted by mdictment, and may be admit- 
ted to bail upon the appeal, in like manner. 

See People y. Trumble, 1 N. Y. Cr. Rep. 447; People, ex rel„ v. Court of Ses- 
sions, 45 Hun, 54. 

No appeal can be taken by the people from a judgment of a court of sessions 
reversing, on an appeal taken thereto, a judgment of a court of special sessiona, 
conyicting the defendant of an assault. People v. Snyder, 44 Hun, 198. 

§ 771. Judgment of supreme court upon appeal, final.— 

The jadgment of the supreme court upon the appeal is final, ex- 
cept that where the original appeal was from a judgment of com- 
mitment of a child, either party maj appeal to the court of appeals 
in like manner as a defendant under section five hundred and 
nineteen of this Code. 

See People, ex rel., y. Court of Sessions, 45 Hun, 54; People t. Snyder, 44 
id. 198. 

§ 772. Proceedings to carry into eflBBCt Judgment of 
supreme court. — The same proceedings must be had, to carry 
into effect the jndgfnent of the snpreme court upon the appeal, 
as if it had been taken upon a judgment in an action proaecnted 
bj indictment. 



OP THB State of Nsw Yosk. 287 



PART YI. 

or BPIOIAL PBO0BEDINO8 OF A OBIHINAL NATIJBB. 

Tnu I. Of oobonebs' mQUEsrs, and the dutibs of ooBOHEBSi 

IL Of 8EAB0H WABBANT8. 
m. Of THB OUTLAWRY OF PBB80N8 OONVICTED OF TBBA80H. 
lY. Of PB00BBDINO6 AGAINST FUGITIVES FROM JUSTIOB. 

y. Of pbooeedings respboting bastards. 
YI. Of prooeedings rbspegting vagrants. 
Yll. Of prooeedings respecting disorderly persons. 
Yin. Of prooeedings respecting the support of poob 

PERSONS. 

IX. Of proceedings respboting HAflTBBS, APPBBNTI0B8 

AND SERVANTS. 
X. Of CRIMINAL STATISTICS. 
XL MiSCBLLANEOUS PROVISIONB RBaPBOriHO FBOOEEDDrOa 

OF A CRDONAL NATURE. 



TITLE 1. 

or coBoifncBs' inquests, and the duties of oobonbbs. 

778. In what caaes coroner to summon a Jury; number of Jurors to 

be summoned. 
774. Jury to be sworn. 
776. Witnesses to be subpoenaed. 

776. Compelling attendance of witnesses, and punishing their dla* 

obedience. 

777. Verdict of the Jury. 

778. Testimony, how taken and filed. 

779. If defendant arrested before inquisition filed, depositionB to be 
delivered to magistrate, and by him returned. 

780. Warrant for arrest of party charged by verdict 

781. Form of warrant 
78S. Warrant, how executed. 

788. Proceedings of magistrate, on defendants being brought before 
him. 

784. Clerk with whom inquisition is filed, to furnish magistrate with 

copy of the same and of testimony returned therewith. 
IBflL Coroner to deliver money or property found, on deceaied, to 
oonnty treasurer. 



288 



The Code of Obiminal Proosdubb 



Section 786. County treasurer to place money to credit of county; and to sdl 
other property and place proceeds to credit of county. 

787. Money, when and how paid to representatives of deceased. 

788. Supervisors to require statement under oath, from coroner, 

before auditing his accounts. 

789. In New York, police justice may perform duties of coroner, 

during his inability. 

790. Compensation of coroners. 

§ 773. In what oases coroner to summon a Jury ; num- 
ber of Jurors to be summoned. — Whenever a coroner is in- 
formed that a person has been killed or dangerously wounded by an- 
other, or has suddenly died under such circumstances as to afford a 
reasonable ground to suspect that his death has been occasioned by 
the act of another by criminal means, or has committed suicide, 
he must go to the place where the person is and forthwith inquire 
into the cause of the death or wounding, and summon not lesB 
than nine nor more than fifteen persons, qualified by law to serve 
as jurors, if such death or wounding be of a criminal nature, to 
appear before him forthwith at a specified place, to inquire into 
the cause of the death or wound, and if it shall appear from the 
sworn examination of the informant or complainant, or if it shall 
appear by the evidence taken on or during the inquisition, that 
any person or persons are chargeable with the killing or wound- 
ing, or that there is probable cause to believe that any person or 
persons are chargeable therewith, and if such person or persons 
bo not in custody, he must forthwith issue a warrant for the arrest 
of the person nr persons charged with such killing or wounding; 
and upon the arrest of any jjersi^n or persons chargeable there- 
with, he must be arraigned before the coroner for examination, and 
the said coroner shall liave power to commit the person or persons 
so arrested to await the result of the inquisition. Any coroner 
shall be disqualified from acting as such in any case where the per- 
son kiiled or dangerously wounded or dying suddenly, as aforesaid, 
is a co-employe with said coroner, of any person or persons, associa- 
tion or corporation, or where it appears that the killing or wounding 
has been occasioned, directly or indirectly, by the employer of said 
coroner. [Amended 1892, ch. 502 ; in effect May 13, 1892. 

See Penal Code, ^ 30d; 78 Law Times. 333; 14 Alb. L. J. 87; Pt<ypL^ y. 
Mondon, 103 N. Y. 211; People v. WiUet, 92 id. 29; People v. FiUgeraUL, 105 
id. 14C; 43 Hun, 35; CrUfield v. Perine, 15 id. 202; County of Lanea%ler v. 
MUhle.r, 27 Alb. L. J. 342. 

In People v. Decine, 44 Cal. 458, tlie court say: "At common law, as well as 
under the Btatute of Edward I, and our statute concerning coroners, which are 
but declaratory of the coniniou law, the coroner holding an inquest tuper vUum 
rorporie is in the performance of functions judicial in their character {B. v. 
White, 8 E. & E. 144; Rep. Const. Ct. So. Car. 231; 82 Miss. 875); so dis- 
tinctly judicial that he is protected under the principles which protect judicial 



OF THE State of New York. 



289 



offieere from responflobility in a civil action bronght bj a private person. 
GarnOt v. F&rrand, 6 Bam. h Cress. 611." 

A statute made railroad companies liable '* for all expenses of the coroner 
and his inquest, and the burial of all persons who may die on the cars, or who 
may be killed by collision or other accident occurring to such cars, or other- 
wise." Hdd, unconstitutional so far as it attempts to make railroad companies 
liable in cases where they have violated no law or been guilty of no negli- 
gence. Ohio Railway Co. v. Lackey, 78 111. 55, 259. 

§ 774. Jury to be sworn. — When six or more of the jurors 
appear, they must be sworn by the coroner to inquire who the 
person was, and when, where and by what means he came to his 
death or was wounded, as the case may be, and into the circnm- 
Btances attending the death or wounding, and to render a true 
Terdict thereon, according to the evidence offered to them, or 
arising from the inspection of the body. 

§775. Witnesses to be subpoenaed.— The coroner may 
iflsae subpoenas for witnesses, returnable forthwith, or at such time 
and place as he may appoint. He must summon and examine 
as witnesses, every person who, in his opinion, or that of any of 
the jury, has any knowledge of the facts-; and he must summon 
as a witness a surgeon or physician, who must, in the presence of 
the jury, inspect the body, and give a professional opinion as to 
the cause of the death or wounding. 

See People v. Beighr, 8 Park. 816. 

The prisoner has no right to cross-examine witnesses before the coroner, or 
toprodnce witnesses in his own behalf. People v. CoUine, 20 How. Pr. Ill; 
11 Abb. Pr. 400. 

When a coroner directs a post-mortem examination to be made, he may, in 
bis discretion, determine whether any and what persons shall be present 
besidee the surgeons. Crisfield v. Perine, 15 Hun, 200. 

And it seems that one suspected of the murder of the person to be examined 
has no right to be present; he loses no legal right by being excluded. Id. 

The coroner of New York had no power under the acts of 1868 and 1871, to 
hind the city to the expense of a chemical analysis of the remains of a deceased 
person to ascertain the cause of death. Boremus v. New York, 6 Daly, 121. 

This power has been since conferred by the act of 1875, chapter 620. 

The coroner is personally liable to a physician employed by him to examine 
t body at an inquest, and most charge the same in his account against the 
county. Van Soevenburgh v. Hasbrouek, 45 Barb. 197. See, also, People, ex 
rti Surman, v. Supervisors^ 30 How. Pr. 173; Stevens v. Corners, 46 Ind. 541. 

§ 776. Cknnpelliiig attendance of witnesses, and pun. 
iihfaig their disobedience.— A witness served with a sab- 
87 



290 The Code of Criminal Pbogedube 



poena may be compellod to attend and testify, or panished by the 
coroner for disobedience, as upon a subpoena issued by a magis- 
trate, as provided in this Code. 
See Ck>de dr. Proc.. g§ 8-18. 86S-868; People Mondon, 108 N. Y. 211. 

§ 777. Verdict oi the jury.— After inspecting the body and 
hearing the testimony, the jury must render their verdict, and 
certify it by an inquisition in writing, signed by them, and setting 
forth who the person killed or wounded is, and when, where and 
by what means he came to his death or was wounded; and if he 
were killed or wounded, or his death were occasioned by the act 
of another, by criminal means, who is guilty thereof, in so far as 
by such inquisition they have been able to ascertain. 

See 11 Crim. Law Mag. 119; People v. Afondoii, 108 N. Y. 216; 4 N. Y. Cr. 
Rep. 556. 

A coroner has no power to hold a second inquest super visum corporis,*' 
unless the first has been vacated or set aside or is absolutely void. People v. 
Budge, 4 Park. 519. 

§ 778. Testimony, how taken and filed. — The testimony 
of the witnesses examined before the coroner's jury must be 
reduced to writing by the coroner, or under liis direction, and 
must be forthwith filed by him, with the inquisition, in the office 
of the clerk of the court of sessions of the county, or of a dty 
court having power to inquire into the offense by the intervention 
of a grand jury. 

See § 395, arUe; MatUr of Ramscar, 1 N. Y. Cr. Rep. 83; 68 How. Pr. 255; 
10 Abb. N. C. 442; Pe4>pU v. Mojidon, 103 N. Y. 211; 4 X. Y. Cr. Rep. 126; 
PeopU V. Taylor, 43 Hun, 419; People v. McOloin, 91 N. Y. 241. 

Evidence on a trial for murder tbat a witness who testified before the coro- 
ner's inquest is a resident of another state is sufficient to render admissible his 
testimony before the coroner. Johnson v. State, 10 S. W. Rep. 285. 

§779. If defendant arrested before inquisition filed, 
depositions to be delivered to magistrate, and by him 
returned. — If, however, the defendant be arrested before the 
inquisition can be filed, the coroner must deliver it with the tes- 
timony to the magistrate before whom the defendant is brought, 
as provided in section seven hundred and eighty-one, who must 
return it with the depositions and statement taken before him, in 
the manner prescribed in section two hundred and twentj-oneb 



OF THE State of New Toek. 



391 



§ 780. Warrant for arrest of party charged by verdict. 

If the jury find that the person was killed or wounded by 
another, under circumstances not excusable or justifiable by law, 
or that his death was occasioned by the act of another, by crim- 
inal means, and the party committing the act be ascertained by 
the inquisition, and be not in custody, the coroner must issue a 
warrant, signed by him with his name of office, into one or more 
counties, as may be necessary, for the arrest of the person 
charged. 

See Matter of Ramscar, 68 How. Pr. 255; 1 N. Y. Cr. Rep. 88. 

§ 781. Form of warrant.— The coroner's warrant must be 
in substantially the following form : County of Albany (or as the 
case may be). In the name of the people of the state of New 
York, to any sheriff, constable, marshal or policeman in this 
county : An inquisition liaving been this day found by a coro- 
ner's jury before me, stating that A. B. has come to his death by 
the act of C. D. by criminal means (or as the case may be), as 
found by the inquisition ; or, information having been this day 
laid before me that A. B. has been killed or dangerously wounded 
by C. D., by criminal means (or as the case may be), you arc 
hereby commanded forthwith to arrest the above-named C. D. 
, and bring him before me, or in the case of my absence or inabil- 
ity to act, before the nearest or most accessible coroner in this 
county. 

Dated at the city of Albany (or as the case may be), this 
day of , 18 . 

E. R, 

Coroner of the County of Albany. 
[Or as the case may be.] 
See MaUer of BafMCCur, 68 How. Pr. 255; 1 N. Y. Cr. Rep. 83. 

§ 782. Warrant, how executed.— The coroner's warrant 
may be served in any county; and the officer serving it must pro- 
ceed thereon, in all respects, as upon a warrant of arrest on an 
information, except that when served in another county it need 
not be indorsed by a magistrate of that connty. 

See UaUer of Ramsectr, 63 How. Pr. 255; 1 N. Y. Cr. Rep. 88; Slater v. 
Wood, 9 Bosw. 15. 



292 The Codb of Cbiminal Pbooedubb 



§ 7S3. Frooeedings of magistrate on defendant's being 
brought before him. — The majjistrate or coroner, when the 
defendant is brought before him, mnst proceed to examine the 
charge contained in the inquisition or information, and hold the 
defendant to answer, or discharge him therefrom in the same 
manner, in all respects, as upon a warrant of arrest on an infor- 
mation. 

See M-tUer ofEanucar, 68 How. Pr. 256; 1 N. Y. Cr. Rep. 88. 

§ 784. Olerk with whom inquisition is filed to furnish 
magistrate with copy of the same and of testimony 
returned therewith.— Upon the arrest of the defendant, the 
clerk with whom the inquisition is fi)ed, must, without delay, 
furnish to the magistrate or coroner before whom the defendant is 
brought, a certified copj of the inquisition and of the testimony 
returned therewith. 

See Matter ofBatMcar, 1 N. Y. Cr. Bep. 88; 68 How. Pr. 2S5. 

§ 785. Coroner to deliver money or property found on 
deceased to county treasurer. — The coroner must, withm 
thirty days after an inquest upon a dead body, deliver to the 
county treasurer any money or other property which may be found 
upon the body, unless claimed in the mean time by the legal rep- 
resentatives of the deceased. If he fail to do so, the treasurer * 
may proceed against him for its recovery, by a civil action in the 
name of the county. 

See Sutton v. Public Adm*r, 4 Dem. 85. 

§ 786. Coxmty treasurer to place money to credit of 
coxmty, and to sell other property and place proceeds to 
credit of county. — Upon the delivery of money to the treasurer 
he must place it to the credit of the county. If it be other 
property, he must, within thirty days, sell it at public auction, 
upon reasonable public notice ; and must, in like manner, place 
the proceeds to the credit of the county. 
See 8uUan PtOUe Adm'r, 4 Dem. 85. 

§ 787. Money, when and how paid to representatives 
of deceased. — If the money in the treasury be demanded 
within six years, by the legal representatives of the deceased, 
the treasurer mnst pay it to them, after deducting the fees and 



OF THE State of New Yobk. 



expeofieB of the coroner and of the county, in relation to the 
matter, or it may be so paid at any time thereafter, upon the 
order of the board of supervisors. 
Sea Sutton v. Publie Adm*r, 4 Dem. 35. 

§788. Supervisors to reqiiire statement imder oath from 
coroner, before auditing his accounts. — Before auditing and 
allowing the account of the coroner, the board of supervisors 
must reqnire from him a statement in writing, of any money or 
other property found upon persons on whom inquests have been 
held by him, verified by his oath, to the effect that tlie statement 
is true, and that the money or property mentioned in it has been 
delivered to the legal representatives of the deceased, or to the 
county treasurer. 
See Morehouse's Supervisors Manual, pp. 280, 281, 486. 

§ 789. In New York, police justices may perform duties 
of coroner, diiring his inability. — In the city of New York, 
if the coroner be absent, or be nnable for any cause to attend, 
the duties imposed by this title may bo performed by a police 
justice, but by no other officer, with the same authority, and sub- 
ject to the same obligations and penalties as apply to the coroner. 
See Matter of Ramscar, 63 How. 255; 1 X. Y. Cr. Rep. 83. 

§ 790. Ckimpensation of coroners. — The coroner is enti- 
tled, for his services in holding inquests and performing any 
other duty incidental thereto, to such compensation as defined by 
special statutes. 



TITLE n. 

OF SEARCH WARRANTS, 

6lonoM791. Search warrant defined. 

792. Upon what grounds it may be issued. 

793. It cannot be issued but upon probable cause, supported \ifj 

affidavit. 

794. Before issuing warrant, magistrate must examine, on oath, the 

complainant and his witnesses. 

795. Depositions, what to contain. 
79^ ll^igistrate, when to issue warrant. 
797. Form of the warrant. 



294 The Code of Cbiminal Pbooedubb 

Section 798. By whom served. 

790. Officer may break open door or window to execute warrant 

800. May break open door or window to liberate person acting in 

his aid, or for his own liberation. 

801. When warrant may be served in the night-time, and direction 

therefor. 

802. Within what time warrant must be executed and returned 

803. Officer to give receipt for property taken. 

804. Property, when delivered to magistrate; how disposed ol 

806. Return of warrant, and delivery to magistrate of inventory of 
property taken. 

806. Magistrate to deliver copy of inventory to the person from whose 

possession property is taken and to applicant for warrant. 

807. If grounds for warrant controverted, magistrate to take tes- 

timony. 

808. Testimony, how taken and authenticated. 

809. Property, when to be restored to person from whom it was taken. 

810. Depositions, search warrant, return and inventory, to be returned 

to court of sessions or city court having jurisdiction of offense. 

811. Maliciously and without probable cause procuring search war- 

rant, a misdemeanor. 

812. Peace officer, exceeding his authority. 

818. Person charged with felony supposed to have a dangerous 
weapon. 



§ 791. Search warrant defined. — A search warrant is an 
order in writing, in the name of the people, signed by a magis- 
trate, directed to a peace officer, commanding him to search for 
personal property, and bring it before the magistrate. 

See People v. Noelke, 29 Hun, 461; 1 N. Y. Cr. Rep. 252; affirmed, id. 495; 
98 N. Y. 187. 

§ 792. Upon what grounds it may be issued. — It may 

be issued upon either of the following grounds : 

1. When the property was stolen or embezzled ; in which case 
it may be taken, on the warrant, from any house or other place 
in which it is concealed, or from the possession of the person by 
whom it was stolen or embezzled, or of any other person in 
whose possession it may be ; 

2. When it was used as the means of committing a felony ; in 
which case it may be taken, on the warrant, from any house or 
other place in which it is concealed, or from the possession of 
the person by whom it was used in the commission of the crime, 
or of any other person in whose possession it may be ; 



OF THE State of 14 ew York. 



295 



3. When it is in the poBflession of any person, with the intent 
to nse it as the means of committing a public offense, or in the 
possession of another, to whom he may have delivered it for the 
pnrpose of concealing it, or preventing its being discovered ; in 
which case it may be taken, on the warrant, from snch person, or 
from a house or other place occupied by him, or under his con- 
tTo\ or from the possession of the person to whom he may have 
0€ delivered it. 
See PeopU v. NoMs, 93 N. Y. 187. 

A search warrant issued upon information upon oath that certain goods had 
been stolen by A. and were concealed in the house of B. , commanding the con- 
stable to enter the said house in the daj-time and search for the goods stolen 
•Dd bring them with B. or the person in whose custody the goods should be 
foandf before the justice, is a valid process. Bell v. Glapp, 10 Johns. 263. 

Of the necessity of search warrants in cases of felony. City Bank v. Bangs, 
2Edw. 95. 

§ 793. It cannot be issued but upon probable cause, sui>- 
ported by affidavit. — A search warrant cannot be issued but 
npon probable cause, supported by affidavit, naming or describ- 
ing the person, and particularly describing the property, and the 
place to be searched. 

0. S. Const. Amendment, 4. 

§ 794:. Before issuing warrant, magistrate must exam- 
ine, on oath, the complainant and his witnesses. — The 

magistrate must, before issuing the warrant, examine, on oath, 
the complainant and any witnesses be may produce, and take 
their depositions in writing, and cause them to be subscribed by 
the parties making them. 
See BeU Clapp, 10 Johns. 263. 

§ 795. Depositions, what to contain. — The depositions 
must set forth the facts tending to establish the grounds of the 
application, or probable cause for believing that they exist. 

§ 79f>. Magistrate, when to issue warrant. — If the mag- 
istrate be thereupon satisfied of the existence of the grounds of 
the application, or that there is probable cause to believe their 
existence, he must issue a search warrant, signed by him with his 
name of office, to a peace officer in his county, commanding him 
forthwith to search the person or place named, for the property 
specified, and to bring it before the magistrate. 



Ji 



296 The Code of Criminal Pbookdubb 



§797. Form of the warrant.— The warrant most be in 

sabstantially the following form : 

County of AUxmy [or as the case may be]. 

In the name of the people of the state of New York : 

" To any peace officer in the comity of Albany [or as the case 
may be] : Proof by affidavit having been this day made before 
me, by [naming every person whose affidavit has been taken], 
that [stating the particular grounds of the application, according 
to section seven hundred and ninety-two, or if the affidavit be not 
* positive that there is probable cause for believing that,' stating 
the ground of the application in the same manner]. 

" Ton are therefore commanded in the day-time [or ' at any 
time of the day or night,' as the case may be, according to seotioQ 
eight hundred and one], to make immediate search on the person 
of C. D. [or ' in the building situated,' describing it, or an;|^ other 
place to be searched, with reasonable particularity as the case may 
be], for the following property [describing it with reasonable 
particularity] : and if you find the same, or any part thereof, to 
bring it forthwith before me at [stating the place]. 

Dated at the city of Albany [or as the case may be], the 
day of , eighteen hundred 

"E. F., 

" Justice of the peace of the city [or town], 
of [or as the case may be]." 
Requisites of a valid search warrant. Johnson v. Comstock, 14 Han, 288. 
A search warrant legally and regularlj issued and duly executed in the day 
time is a protection as well to the party on whose oath it was issued, aa to the 
officer who executed it. Bectty v. Perkins, 6 Wend. 382. 

§ 798. By whom served. — A search warrant may, in all 
cases, be served by any of the officers mentioned in its direction, 
but by no other person, except in aid of the officer, on his requiring 
it, he being present and acting in its execution. 

See BeU y. Clapp, 10 Johns. 263. 

§799. Officer may break open door or window, to 
execute warrant. — The officer may break open an outer or 
inner door or window of a building, or any part of the building, 
or any thing therein, to execute the warrant, if, after notice of 
his authority and purpose, he be refused admittance. 



► 



OF THE State of New York. 



297 



The officer, in the execution of a search warrant, after a demand and refusal 
to open the outer or other door of the house, may break it open. BeU Clapp, 
10 Johns, m 

§ 800. May break open door or window to liberate per- 
son acting in his aid, or for his own liberation. — He may 
break open any outer or inner door or window of a building for 
the purpose of liberating a person who, having entered to aid 
him in the execution of the warrant, is detained therein, or when 
Decegaary for his own liberation. 

See BeU y. Clapp, 10 Johns. 263. 

§ 801. When warrant may be served in the night-time, 
and direction therefor. — The magistrate must insert a direction 
in the warrant that it be served in the day-time, unless the affida- 
vits be positive that the property is on the person or in the place 
to be searched ; in which case he may insert a direction that it be 
served at any time of the day or night. 

§ 802. Within what time warrant must be executed and 
returned. — A search warrant must be executed, and returned to 
the magistrate by whom it was issued, if issued in the city and 
county of New York, within five days after its date, and if in 
any other county, within ten days. After the expiration of those 
times respectively, the warrant, unless executed, is void. 

§ 803. Officer to give receipt for property taken. — When 
the officer takes property under the warrant, he must give a 
receipt for the property taken [specifying it in detail], to the 
person from whom it was taken by him, or in whose possession 
it was found, or, in the absence of any person, he must leave it 
in the place where he found the property. 

§ 804. Property y when delivered to magistrate how dis- 
posed oL — When the property is delivered to the magistrate, he 
must, if it was stolen or embezzled, dispose of it as provided in 
sections six hundred and eighty-seven to six hundred and eighty- 
nine, both inclusive. If it were taken on a warrant issued on 
the grounds stated in the second and third subdivisions of section 
seven hundred and ninety-two, he must retain it in his possession, 
subject to the order of the court to which lie is required to return 
the proceedings before him, or of any other court in which the 
offense, in respect to which the property was taken, is triable. 
88 



298 



The Code of Criminal Pbocbdubb 



§ 805. Betum of warrant, and delivery to magistrate 
of inventory of property taken.— The oflBcer must forthwith 
return the warrant to the magistrate, and deliver to him a written 
inventory of the property taken, made publiclj, or in the pres- 
ence of the person from whose possession it was taken, and of 
the applicant for the warrant, if thej be present, verified by the 
affidavit of the officer, and taken before the magistrate, to the 
following effect : " I, A. B., the officer by whom this warrant 
was executed, do swear that the above inventory contains a true 
and detailed account of all the property taken by me on the 
warrant." 

§ 806. Magistrate to deliver copy of inventory to the 
person from whose possession property is taken, and 
to applicant for warrant. — The magistrate must thereupon 
if required, deliver a copy of the inventory to the person from 
whose possession the property was taken, and to the applicant for 
the warrant. 

§ 807. If grounds fbr warrant controverted, magistrate 
to take testimony. — If the grounds on which the warrant was 
issued be controverted, the magistrate must proceed to take testi- 
mony in relation thereto. 

§ 808. Testimony, how taken and authenticated. — The 

testimony given by each witness must be reduced to writing and 
authenticated in the manner prescribed in section two hundred. 

§ 809. Property, when to be restored to person from 
whom it was taken. — If it appear that the property taken is 
not the same as that prescribed in the warrant, or that there is no 
probable cause for believing the existence of the grounds on 
which tlie warrant was issued, the magistrate must cause it to be 
restored to the person from whom it was taken, 

§ 810. Depositions, search warrant, return and inven- 
tory, to be returned to court of sessions or city court 
having jurisdiction of offense. — The magistrate must annex 
together the depositions, the search warrant and return, and the 
inventory, and retnm them to the next court of sessions of the 
county or city court, having power to inquire into the offense in 
respect to wliich the search warrant was issued, by the interveHi 
tion of a grand jury, at or before its opening on the first day. 



OP THE State of New York. 



S9» 



§ 811. MallcfoTiBly and without probable cause procur- 
ing Boarch warrant, a misdemeanor. — A person who mali- 
douslj and without probable cause, procures a search warrant to 
be issued and executed, is guilty of a misdemeanor. 

§ 812. Peace officer, exceeding his authority. — A peace 
officer who, in executing a search warrant, willfully exceeds his 
authority, or exercises it with unnecessary severity, is guilty of a 
misdemeanor. 
See Penal Code, § 120. 

§ 813. Person charged with felony supposed to have 
a dangerous weapon, etc. — When a person charged with 
felony is supposed by the magistrate before whom he is brought, 
to have upon his person a dangerous weapon, or any thing which 
may be used as evidence of the commission of the offense^ the 
magistrate may direct him to be searched in his presence, and the 
weapon or other thing to be retained, subject to his order or the 
order of the court in which the defendant may be tried* 



TITLE III. 

OF THE OUTLAWRY OF PERS0N8 CONVICTED OF TREASON. 

Sktxon 814. When application for outlawry may be made. 

815. On what proof to be made. 

816. Order that the defendant appear to receive Judgment, or be 

outlawed. 

817. Publication of order. 

818. Judgment on appearance of defendant, or on his not appearing. 

819. Effect of the judgment. 

820. Filing judgment roll, and transcripts thereof. 

821. Judgment roll, of what to consist. 

822. Appeal may be at any time taken, by defendant, from judgment 
828. Appeal, how taken, and proceedings thereon. 

824. Effect of reversal. 

825 Defendant may be arrested to receive judgment, notwithstand- 
ing outlawry. 

826. No other proceeding for outlawry in criminal cases allowed. 

1 814. When application for outlawry may be made.-- 
VHien, upon a bench warrant issued for the appreliension of a 



300 The Code of Cbiminal Pbogedube 



person who has pleaded guilty, or against whom a verdict has 
been rendered upon an indictment for treason, it is duly returned 
that the defendant cannot be found, the district attorney of the 
county may apply to the court in which the conviction was had, 
for judgment of outlawry. 

§ 816. On what proof to be made. — The application must 
be founded upon the return of the bench warrant, and upon 
proof, by affidavit, that the defendant has escaped, and on dili- 
gent search cannot be found within the county. 

§ 816. Order that the defendant appear to receive judg- 
ment, or be outlawed. — The court, upon being satisfied that 
the defendant has escaped, and cannot, upon diligent search, be 
found in the county, must make an order that he appear on the 
first day of the next term, to receive judgment upon the convic- 
tion or be outlawed. 

§ 817. Publication of order. — The order must be imme- 
diately published, once a week for six successive weeks, in a 
newspaper published in the county, and in the state paper. The 
expense of the publication is a county charge. 

§ 818. Judgment on appearance of defendants, or on his 
not appearing. — If the defendant appear, judgment must be 
rendered against him upon the conviction. If he do not appear, 
the court, upon proof of the due publication of the order, must 
render judgment that the defendant be outlawed, and that all his 
civil rights be forfeited. 

§ 819. Efiect of the judgment. — The defendant is there- 
upon deemed civilly dead, and forfeits to the people of this state, 
during his life-time, and no longer, all freehold estate in real 
property, of which he was seized in his own right, at the time ol 
committing the treason, or at any time thereafter, and all his 
personal property. 

See Penal Code. § 710. 

§ 820. Filing judgment roll, and transcripts thereol — 

Dpon a judgment of outlawry, the judgment roll must be made 
up, and filed with the clerk of the county in which the convic- 
tion was had, and docketed with the same effect as in a civil 



» 

OF THE State of Nkw York. 



801 



tctioD. A transcript thereof ma}* also be filed and docketed, 
with the like effect, in any other county. 

§821. Judgment roll, of wliat to confiiBt. — The jndg^ 
meut roll consists of the several matters prescribed in section 
four hundred and eighty-five, except the fifth subdivision; to 
which must be annexed a certified copy of the order to appear 
for judgment, the affidavits proving its publication, and a certi- 
fied copy of the judgment of outlawry. 

§ 822. Appeal may be at any time taken by defendant 
from judgment. — An appeal may be taken by the defendant, 
at any time, from a judgment of outlawry. 

§ 823. Appeal, how taken, and proceedings thereon. — 

The appeal may be taken in person or by counsel, in the same 
manner, and the proceedings thereon are the same as upon an 
appeal from a judgment of conviction on an indictment 

§ 824. Effect of reversaL — If the judgment be reversed on 
appeal, the defendant is restored to his civil rights. 

§ 825. Defendant may be arrested to receive Judgment^ 
notwithstanding outlawry. — Notwithstanding judgment of 
outlawry against the defendant, he may be arrested at any time 
thereafter to receive judgment upon the conviction. 

§826. No other proceeding for outlawry in criminal 
cases allowed. — No other proceeding for the outlawry of the 
defendant in a criminal action can be had than that provided in 
this title. 



TITLE nr. 

t 

OF PROCEEDINGS AGAINST FUGITIVES FROM JUSTIOE. 

Cbapteb I. Fugitives from another state or territory, into this state, 
n. Fugitives from this state, into another state or territory. 



302 



The Oode of Criminal Pboosdubb 



CHAPTER I. 

FuamyEs from another state or territory into this state. 

fisenON 827. To be delivered up by the governor, on demand of the executive 
authority of the state or territory from which they have fled. 

828. Magistrate to issue warrant. 

829. Proceedings for arrest and commitment of the person charged. 

830. When, and for what time to be committed. 
881. His admission to bail. 

832. Magistrate to give notice to the district attorney, of the name of 

the person and the cause of his arrest. 

833. District attorney to give notice to executive authorty of the state 

or territory, etc. 

834. Person arrested to be discharged, unless surrendered within the 

time limited. 

885. Magistrate to return his proceedings to the next court of sessions; 
proceedings thereon. 

§ 827. To be delivered up by the governor, on de- 
mand of the executive authority of the state or terri- 
tory from which they have fled.— It shall be the duty of 
the governor, in all cases where, by virtue of a requisition made 
upon him by the governor of another state or territory, any citi- 
zen, inhabitant or temporary resident of this state is to be arrested, 
as a fugitive from justice (provided that said requisition be 
accompanied by a duly certified copy of the indictment or infor- 
mation from the authorities of such other state or territory, charging 
such person with treason, felony or crime in such state or terri- 
tory), to issue and transmit a warrant for such purpose to the 
sheriff of the proper county or his under sheriff", or in the cities of 
this state (except in the city and county of New York, where such 
warrant shall only be issued to the superintendent or any inspector of 
police) to the chiefs, inspectors or superintendents of police, and 
only such officers as are above mentioned, and such assistants as 
they may designate to act under their direction shall be compe- 
tent to make service of or execute the same. The governor n)ay 
direct that any such fugitive be brought before him, and may for 
cause, by him deemed proper, revoke any warrant issued by him, 
as herein provided. The officer to whom is directed and in- 
trusted the execution of the governor's warrant must, within 
thirty days from its date, unless sooner requested, return the same 



OF THS State of New Yobk. 



808 



and make return to the governor of all his proceedings had 
thereander, and of all facts and circumstances relating thereto. 
Any officer of this state, or of any city, county, town or village 
thereof, must, upon request of the governor, furnish him with 
8nch information as he may desire in regard to any person or 
matter mentioned in this chapter. 

2. Before any officer to whom such warrant shall be directed 
or intrusted shall deliver the person arrested into the custody of 
the agent or agents named in the warrant of tlie governor of this 
fitate, such officer must, unless the same be waived, as hereinafter 
stated, take the prisoner or prisoners before a judge of the 
supreme court, of any superior city court, or the presiding judge of 
a court of sessions, who shall, in open court if in session, other- 
wise at chambers, inform the prisoner or prisoners of the cause of 
bis or their arrest, the nature of the process, and instruct him or 
them that if he or they claim not to be the particular person or 
persons mentioned in said requisition, indictment, affidavit or 
warrant annexed thereto, or in the warrant issued by the governor 
thereon, he or they may have a writ of habeas corpvs upon filing 
an affidavit to that effect. Said person or persons so arrested 
may, in writing, consent to waive the right to be taken before 
said court or a judge thereof at chambers. Such consent or 
waiver shall be witnessed by the officer intrusted with the execu- 
tion of the warrant of the governor, and one of the judges afore- 
said or a counselor at law of this state, and such waiver shall be 
immediately forwarded to the governor by the officer wlio 
executed said warrant. If, after a summary hearing as speedily 
as may be consistent with justice, the prisoner or prisoners shall 
be found to be the person or persons indicted or informed against, 
and mentioned in the requisition, the accompanying papers and 
the warrant issued by the governor thereon, then the court or 
jadge shall order and direct the officer intrusted with the execu- 
tion of the said warrant of the governor to deliver the prisoner or 
prisoners into the custody of the agent or agents designated in 
the requisition and the warrant issued thereon, as the agent or 
agents upon the part of such state to receive him or them ; otlier- 
wise to be discharged from custody by the court or judge. If 
upon such hearing the warrant of the governor shall appear to 
be defective or improperly executed, it shall be by the court or 



804 The Code of Criminal Pbocedubs 



judge returned to the governor, together with a statement of the 
defect or defects, for the purpose of being corrected and returned 
to the court or judge, and such hearing shall be adjourned a suffi- 
cient time for the purpose, and in such interval the prisoner or 
prisoners shall be held in custody until such hearing be finally 
disposed of. 

3. It shall not be lawful for any person, agent or officer to take 
any person or persons out of this state, upon the claim, ground or 
pretext that the prisoner or prisoners consent to go, or by reason 
of his or their willingness to waive the proceedings afore describedy 
and any officer, agent, person or persons who shall procure, incite 
or aid in the arrest of any citizen, inhabitant or temporary resi- 
dent of this state, for the purpose of taking him or sending him 
to another state, without a requisition first duly had and obtained, 
and without a warrant duly issued by the governor of this state, 
served by some officer as in this section provided, and without, 
except in case of waiver in writing as aforesaid, taking him before 
a court or judge as aforesaid, unless in pursuance to the provisions 
of the following sections of this chapter, and any officer, a^nt, 
person or persons who shall, by threats of undue influence, per- 
suade any citizen, inhabitant or temporary resident of this state to 
sign the waiver of his right to go before a court or judge as here- 
inbefore provided, or who shall do any of the acts declared by 
this chapter to be unlawful, shall be guilty of a felony, and upon 
conviction be sentenced to imprisonment in a state prison or 
penitentiary for the term of one year. 

4. Any willful violation of this act by any of the above-named 
officers shall be deemed a misdemeanor in office. 

See generallj, 2 N. T. L. J. 1980; 6 Eng. Rep. 188; 28 id. 88; 87 id. 181; 20 
Alb. L. J. 425; 18 id. 166; 7 Am. Law Rec. 7ia-734; 1 Rob. Prac. 8-48; 1 Bish. 
Crim. Law, § 135 et seq,; 1 Bish. Grim. Proc. § 219 et 8eq,; 7 Abb. Pr. (N. S.) 
95-106; 7 Abb. N. C. 43 ; 57 Am. Dec. 389-400. 

As to the distinction between the execative and judicial functions in inter- 
state extradition cases, see 2 Crim. L. Mag. 84. 

As to powers of governors of states in inter-state extradition, see KnoicUon*$ 
Case, 5 Crim. L. Mag. 250, 257, note. 

As to revocation of a governor's warrant, see Work v. Carringtan, 84 Ohio 
St. 64; 82 Am. Rep. 845. 

The Federal Constitution, art. 4, g 2, subdiv. 2, provides: A person charged 
in any state with treason, felonj, or other crime, who shall flee from justice 
and be found in another state, shall, on demand of the executive authority of 



OF THB State of New York. 



305 



the state from which he fled, be delivered ap to be removed to the state having 
juisdiction of the crime/' See, also, United States Revised Statutes, §g 5270- 
5280; Gould & Tucker's Notes, 979; PeapU, ex rd., v. Byrnes, 88 Hun, 98; 2 
N. Y. Cr. Rep. 398; People, ex rel, v. Donahue, 84 N. T. 438. 

A state statute providing for the surrender of fugitives from the Justice of 
foreign countries is unconstitutional. People, ex rel. Barlow, v. Curtis, 60 
N. Y. 821; 10 Am. Rep. 483; affirming 44 How. Pr. 171. 

To authorize the surrender of a fugitive from justice, there must be a de» 
mand by the executive of the state from which he fled, a copy of the affidavit 
or indictment charging the offense must be produced, certified by such execu- 
tive as authentic. Matter ofSolamans, 1 Abb. Pr. (N. S.) 347. 

A requisition from the governor of another state upon the executive of this 
state is no warrant for the arrest of an alleged fugitive from justice. In the 
absence of other authority a prisoner so held will be discharged on habeas ear- 
jnu. Matter of Butter, 7 Abb. Pr. (N. S.) 67. 

An alleged fugitive from justice, if not demanded in a reasonable time by 
the executive of the state from which he fled, will be discharged from arrest. 
People V. Goodhue, 2 Johns. Ch. 198; 1 Wheel. Crim. Cas. 427; Matter of Wash. 
Imm, 4 Johns. Ch. 106; 3 Wheeler Cr. Cas. 472. 

The fact of fleeing " lies at the foundation of the right to issue a warrant 
of extradition. Matter of Jackson, 2 Flippen, 183; State v. Jackson, 1 L. R. 
A 870, note. 

Where a crime has been committed in another state, and the party is found 
in this state, this establishes conclusively that he is a fugitive from justice; 
the governor has no right to inquire into the truth of the charge, nor to look 
oQtade the papers to determine whether or not the person is a fugitive; and 
on habeas corpus the court cannot go behind the warrant. People v. Pinker- 
Um, 17 Hun, 199. 

A party in arrest on a civil process cannot be surrendered on a governor's 
warrant as a fugitive from justice until he has satisfied the justice of the state 
in which he is held. MaUer of Briscoe, 51 How. Pr. 422. Contra, Matter of 
Bmnblatt, 51 Gal. 285. 

A person who has been convicted in a state court, within the jurisdiction of 
which he had been brought only by extradition proceedings based upon an 
affidavit which falsely alleged that he had fled from that state, in which state 
he had in fact never been, will be released on habeas corpus. State v. Jackson, 
1 U R. A. 870. 

So long as a fugitive from the justice of a sister state comes voluntarily into 
this state from his asylum in Canada, no force or ''kidnapping " being resorted 
to to get him here, the fact that he was induced to cross the Canadian line by 
falsehood, artifice and fraud will afford no suflicient ground for his discharge 
from custody under the governor's warrant, issued pursuant to a requisition 
from the state of which he is a fugitive. Matter of Brown, 34 Alb. L. J. 182; 
4N. Y. Cr. Rep. 576; 8 Crim. Law Mag. 313: affirmed, id. 676. 

Where one charged with crime in Illinois was brought thither from Cali- 
fornia on a requisition, Tield, immaterial that he had been forcibly and illegally 
tffought to California from a foreign country. Ker v. People, 110 HI. 627; 51 
Am. Bep. 706; afltened, 119 U. S. 436; Matter of Barker, 13 Am. St. Rep. 17. 

89 



806 Thk Codk of Criminal Pboobdubb 



The extradition will not be ordered of a person who was not actually present 
in the state where he is alleged to have committed the crime at the time of the 
commission thereof, and who has not actiiallj fled from the justice of that 
state, and who is -not found as a fugitive in this state. Matter of MUehell, 
4 N. Y. Cr. Rep. 596. 

Such presence of the accused in the demanding state at the time of the 
commission of the alleged offense is a jurisdictional fact which must be 
proved when his extradition is demanded. Matter of MiteheU, 4 N. Y. Cr. 
Rep. 596. 

One who goes into a state and commits a crime and returns home is as 
much a fugitive from justice us though he had committed a crime in the state 
in which he resided and then fled to some other state. Matter of Roberts, 24 
Fed. Rep. 182. 

When a convict in another state escapes from prison before he has served 
the full term of his sentence, and flees into this state, he msj be returned to 
the authorities of the state from which he fled, although the term of the sen- 
tence has fully expired before his recapture. Matter of Carter, 

Defendant being extradited from France, held, that he was subject to arrest 
on civil process before he could return. Adriance v. La^race, 59 N. Y. 110; 
17 Am. Rep. 311; reversing 47 How. Pr. 885. See, also, 28 Eng. Rep. 84; 
Blade v. Joseph, 5 Daly, 187; Uackaey v. Welch, 107 Ind. 258; 57 Am. Rep. 
101; Broitning v. Adairis, 51 How. Pr. 172. 

In 8tate v. Stewart, 60 Wis. 687; 50 Am. Rep. 388; 5 Crim. L. Mag. 714, it 
was held that in the absence of compact between the states a fugitive extra- 
dited for one crime may, after discharge and before he is allowed to return, be 
arrested and tried for another crime. 

In State v. Hall, 40 Kans. 338; 10 Am. St. Rep. 200, the court say: "A 
fugitive from justice can be obtained from another state or country only with 
the consent of the executive authorities of such other stat« or country; and 
for a state to procure a fugitive from justice from some other state or country 
to be tried for some particular offense, by the consent of such other state or 
country, and then to try him for another and a different offense before he has 
had an opportunity to return, would be such an unwarranted abuse of judicial 
process, such a fraud upon justice, such an act of perfldy, that no court in 
any country should for a moment tolerate the same. The foregoing rule of 
law applies in criminal cases where the fugitive from justice has been extra- 
dited from a foreign country. U. S. v. Rauscher, 119 U. S. 407; U, S. v. 
Watts, 8 Sawyer. 370; Ez parU ffibbs, 26 Fed. Rep. 421, 431; Ex parte Cay, 82 
id. 911 and note; Com, v. Uawes, 13 Bush, 697; State v. Vaiuhrpool, 89 Ohio 
St. 273; 48 Am. Rep. 431; Blandford v. State, 10 Tex. Ct. App. 627. In the 
cases above cited the fugitives from justice were extradited unaer treaties, 
but in these treaties there was no provision that the fugitive from justice 
should be tried only for the offense for which he was extradited; hence the 
foregoing decisions are perfectly applicable to this case. The foregoing rule 
of law also applies in criminal cases between states. State v. Simmons, 39 
Kans. 262; In re Cannon, 47 Mich. 481. And it applies as strongly between 
states as it does between foreign countries." See Compton Wilder, 40 Ohio 
8t 180. 



OF THE State of New York. 



307 



In Matter of Hope, 7 N. T. Cr. Rep. 406, it was held that where a person 
has been extradited from another state to this state to answer a charge of crime 
igiinst him, and has then served oat a term of imprisonment here, npon his 
release he cannot be extradited to a third state to serve oat an unexpired term 
of imprisonment in that state. He has, in such case, the right to a reasouable 
time to return, if he chooses, to the state from which he was extradited. 

In Matter of ReinUz, 39 Fed. Rep. 204; 7 N. Y. Cr. Rep. 74, the prisoner 
hid been brought from Ireland to this country, tried and acquitted. He 
was arrested immediately, in an action of debt, but was released, at once, by 
the U. S. circuit court of this district, and given a reasonable time to return 
to Ireland, from whence he came. 

A person brought to this state from the state of New Jersey, under proper 
aathoritj. for the purpose of procuring his extradition from this country to a 
foreign country under a treaty between the two governments, upon a charge 
of embezzlement, and it appearing on the preliminary hearing that such 
charges cannot be sustained, most, upon being discharged, be allowed a rea- 
sonable time to return to the place whence he was brought; and an arrest in 
a civil suit before the lapse of such reasonable time wiy be ineffective to hold 
the prisoner, who must, under such circumstances, be discharged and allowed 
a reasonable time to depart from the state. Matter of Baruch, 24 Abb. N. C. 
109. 

The recitals in a warrant of the governor of this state for the arrest of a 
fagitive from the justice of another state are to be taken at least prima facie 
as true. People, ex rel., v. Pinkerton, 77 N. Y. 245. 

As to whether the warrant is conclusive or may be met by evidence on the 
part of the prisoner showing that the papers presented to the governor were 
in fact defective, guofre. People, ex rel. , v. Pinkerton, 77 N . Y. 245. 

Where the papers upon which a warrant of extradition is issued are with- 
held by the executive, the warrant itself can only be looked to for the evidence 
that the essential conditions of its issue have been complied with, and it is 
soiBcient if it recites what the law requires. People, ex rel., v. Donohue, 84 
N. Y. 488. 

§ 828. Magistrate to issue warrant.— A magistrate may 
iiBQe a warrant as a preliminary proceeding to the issiiino: of a 
reqaifiition by the governor of another state or territory npon the 
governor of this state for the apprehension of a person charged 
with treason, felony or other crime, who shall flee from justice 
and be found within this state. 

§ 829. Proceedings for arrest and commitment to the 
person chained. — The proceedings for the arrest and commit- 
ment of the person charged are in all respects similar to those 
provided in this Code, for the arrest and commitment of a person 
charged with a public offense committed in this state; except, that 
an exemplified copy of au indictment found, or other judicial 



SOS 



The Code of Obiminal Pbockdubb 



proceedings had against him, in the state or territory in which he 
is charged to have committed the offense, may be received as evi- 
dence before the magistrate. 

The affidavit for the arrest of a fngitive from justice must state jxwitivelj 
that the crime was committed within the state from which he fled; and that he 
is actually a fugitive from that state. Bxpttrte Hayward, 1 S&ndf. 701; 1 Code 
Rep. 45; Ex parte Leland, 7 Abb. Pr. (N. 8.) 64; PeopU v. Brady, 56 N. Y. 182. 

Where a fugitive from justice is brought up on habeas carpus, the court will 
not inquire into his probable guilt, but only as to the legality of the process 
and the regularity of the commitment. Ex parte Clark, 9 Wend. 212; People 
y. Brady, 50 N. Y. 182; People v. Pinkerton, 17 Hun, 199. 

When the demand for the surrender of a fugitive from justice is supported 
by affidavit, no less degree of certainty is admissible than is required to an in- 
dictment for the same offense. People v. Brady, 56 N. Y. 182. 

An affidavit stating that the prisoner is charged with the crime of forgery in 
another state is not sufficient for his detention. Ex parte Leland, 7 Abb. Pr. 
(N. 8.) 64. 8ee iZSr parte Solomans, 1 id. 847. 

§ 830. When and for what time to be committed.— 

If from the examination under such warrant, it appears probable 
that the person charged has committed the crime alleged, the 
magistrate, by warrant reciting the accusation, must commit hitn 
to the proper custody in his county, for a time specified in the 
warrant, to enable an arrest of the fugitive to be made under the 
warrant of the governor of this state, which commitment shall not 
exceed thirty days exclusive of the day of arrest, on the requisi- 
tion of the executive authority of the state or territory in which 
he is charged to have committed the offense, unless he give bail, 
as provided in the next section, or until he be legally discharged. 

An alleged fugitive froth justice, if not demanded in a reasonable time hj the 
executive of the state from which he fled, will be discharged from arrest. 
People V. Goodhue, 2 Johns. Ch. 198; 1 Wheel. C. C. 427; Ex parte Waehbum, 
4 Johns. Ch. 106. 

The evidence to detain a fugitive for the purpose of surrender must be such 
as would be sufficient to commit him for trial had the crime been perpetrated 
in the state to which he fled. Ex parte Waehburn, 4 Johns. Ch. 106; 8 Wheel. 
Or. Cas. 478. See, also, 17 Am. L. Rev. 840. 

§831. His admission to bail. — Any judge of any court 
named in section eight hundred and twenty-seven may, in his dis- 
cretion, admit the person arrested to bail, by an undertaking, with 
snfiicient sureties and in such sum as he deems proper, for his ap- 
pearance before him at a time specified in the undertaldng, which 



OP THE State, of New York. 



809 



maet not be later than the expiration of thirty days from the date 
of arrest exclusive of such date, and for his surrender to be arrested 
Dpon the warrant of the governor of this state. 

§ 832. Magistrate to give notice to the district attor- 
ney of the name of the person and the cause of his 
arrest. — Immediately upon the arrest of the person charged, the 
magistrate must give notice to the district attorney of the county 
of the name of the person and the cause of his arrest. 

§ 833. District attorney to give notice to executive 
authority of the state or territory, etc — 'i'lie district, 
attorney must immediately thereafter give notice to the executive 
authority of the state or territory, or to the prosecuting attorney or 
presiding judge .of the criminal court of the city or county therein, 
having jurisdiction of the offense, to the end that a demand may 
be made for the arrest and surrender of tlie person charged. 

§ 834. Persons arrested to be discharged, unless sur- 
rendered within the time limited.— The person arrested 
must be discharged from custody or bail, unless before the expi- 
ration of the time designated in the warrant or undertaking, he be 
arrested under the warrant of the governor of this state. 

§ 836. Bepealed, Laws 1886, cbap. G38. 



CHAPTER II. 
nrornvES from this state, into another state or tbrrttort. 

Sg 836, 837. Repealed, Laws 1882, chap. 860. 



TITLE V. 

OP proceedings respecting bastardy. 

CkiFiEB L Proceedings before magistrates, respecting bastards. 

n. Appeals from the orders of magistrates, respecting bastards, 
in. Enforcement of the undertaking for the support of the bastard 
or its mother, or for appearance on appeal. 



SIO Thb Cods of Criminal Pbooedubb 



CHAPTEE L 

PB00BEDING8 BEFORE MAGISTRATE RB8PE0TIKO BASTABOB. 

Section %88. Definition of a bastard. 

889. Who are liable for its support. 

840. When bastard, chargeable to the public, is bom or is likely to 

be bom, application to be made to a justice of the peace or 
police Justice. 

841. Examination by the magistrate, and warrant against the father. 
84d. Justice designated as a magistrate, and person proceeded against 

as defendant. 
848. Warrant, when to be served in another county. 

844. Magistrate in another county may take undertaking for support 

of bastard and mother, or for appearance of defendant at the 
sessions. 

845. On giving undertaking, defendant to be discharged. 

840. If undertaking not given, defendant to be taken before magis- 
trate who issued the warrant 

847. Before what magistrate in the same county defendant is to be 

taken, when the magistrate issuing the warrant is unable 
to act 

848. The magistrate to associate with himself another magistrate, 

and they to examine the matter. 

849. Adjournment of examination ; security from defendant 

850. Determination of the case, and order of the magistrates. 

851. Defendant to pay the costs, and give undertaking for support of 

bastard and mother, or for appearance at sessions. 

852. On giving undertaking, defendant to be discharged, otherwise, 

to be committed. 
868. Commitment of defendant during examination. 

854. Proceedings by magistrate, when security is given by defendant 

on arrest out of the county. 

855. Examination in such case, and order thereon. 

856. Magistrates may compel mother to disclose the father of tiM 

bastard ; proceedings, if she refuse. 

867. If mother possess property, two magistrates may make an order 

that she pay for the support of the child. 

868. If she do not comply, she must be committed, or discharged on 

undeitaking 

859. Magistrates may reduce amount directed to be paid by the 

father or mother; court of sessions may reduce or increase it. 

860. Proceedings against the father or mother absconding from thei? 

olace of residence. 

§ 838. Definition of a bastarcL — A bastard is a child ^ho 
is begotten and born, 
1. Out of lawful matrimony ; 



OF THE Statb of New York. 311 



9. While the hnsband of its mother was separate from her tor 
a whole year previous to its birth ; or, 

2. During the separation of its mother from her husband pur- 
Boant to a judgment of a competent court. 
See People v. Court of Seaiom, AS Hqd, 58. 

As to the unrepealed provisions of the Revised Statutes on this subject, see 
1 Birdseje*s Stot. 246. 

The presumption in favor of legitimacy is exceedingly strong. Fox 
Burke, 31 Minn. 319. See, also, 2 Whart. Ev. (3d ed.), § 1298; 1 Broom & Had. 
Com. (Wait's ed.) 884. 

As to proof of iUeg^timacy of a child bom of a married woman while her 
hosband is within such a distance as afforded an opportunity for intercourse, 
see 1 Greenl. Ev., 28, 844; Best Ev. (5th Eng. ed.) 464; 1 Taylor Ev. 
{7th ed.), 16, 106. 

Proof of non-access of the husband destroys the presumption of legitimacy 
of A child of a married woman. State v. McDowell, 101 N. C. 734. 

To bastardize and disinherit a child bom in lawful wedlock the most clear 
and conclusive evidence of non-access of the husliand is required. Declara- 
tioDs of the husband are insufficient. Watte v. Owene, 62 Wis. 512. 

The illegitimacy of a married woman's child may be established by proof of 
the continued absence of her husband. Pitteford v. Chittenden, 58 Tt. 49. 

The mother of an alleged bastard, who is a married woman, and whose 
bnshand was living at the time of the alleged intercourse and the birth of the 
thild, is from necessity a competent witness to prove the illicit intercourse and 
who is in fact the father of the child. People v. Overeeere, 15 Barb. 286; 
Chamberlain v. People, 28 N. Y. 90; Raicliff v. Wales, 1 Hill, 63; Babcoek v. 
Booth, 2 id. 186. 

fiat she is not competent as a witness to establish the non-access of her hus- 
litnd; nor his absence from the state; nor any fact which may be proved by 
other testimony. People v. (hereeere, 15 Barb. 286; People v. Court of Seseione, 
46 Hud, 54; Chamberlain v. People, 23 N. Y. 90; Egbert v. OreentMlt, 44 Mich. 
345; 38 Am. Rep. 260. 

In People, ex rel. Fuller, v. Carney, 29 Hun, 47. upon the trial of proceedings 
to have the defendant adjudged the father of a bastard child, the district 
ittomey was allowed, against the defendant's objection and exception, to ask 
the mother, who was being examined as a witness, to look at the child and tell 
what the color of its eyes was. Held, error. Tlie court said: "We do not 
regard this kind of evidence as safe or proper. In the case of Petrie v. ffotoe, 
4 Th. & C. 85, the question was as to the color of the child's hair. It was held 
in that case that such evidence was calculat ed to, and probably did, prejudire 
the defendant; that it was improper, and a new trial was granted. The argu- 
ment used in that case in reference to the color of the hair applies with equal 
force in this case as to the color of the eyes. Common observation reminds us 
that in families of children, different colors of hair and eyes are common and 
that it would be dangerous doctrine to permit a child's paternity to be ques- 
tioned or proved by the comparings of the color of its hair or eyes with that 
of the alleged parent." See, also, 22 Eng. Kep. 286; Ilanawalt v. StaU, 64 

40 



312 The Code of Obimtnal Fbocedubb 



Wis. 84; 64 Am. Rep. 588; Bobnett v. People, 10 Bradw. 299; State Smith, 
54 Iowa. 104; 37 Am. Rep. 192; State v. Danforth, 48 Iowa, 48; 80 Am. Rep. 
887; Clark v. Bradetreet, 80 Me. 454; 6 Am. St, Rep. 221, note. 

§ 839. Who are liable for its support. — The father and 
mother of a bastard are liable for its support. In case of their 
neglect or inability, it must be supported by the county, city or 
town in which it is bom, as provided by special statutes. 

See § 857. post. 

The mother of a bastard has the right to its control and custody as against 
the putative father, and is bound to maintain it as its natural guardian. Mat- 
ter of Doyle, Clarke's Cb. (Moak's Notes) 154: Rdbalina v. Armstrong, 15 Barb. 
247; People v. Kling, 6 id. 366; The Queen v. Nash, 10 Q. B. Div. 454; 87 Eng. 
Rep. 448; Bustamento v. Analla, 1 New Mox. 255. 

An undertaking upon the part of the putative father of an illegitimate child, 
to pay to the mother a sum of money for the support of the child, is not 
Ulegal; and the obligation may bo taken by the mother, payable to herself in 
her own right, or for the benefit of the child. Hook v. Pratt, 78 N. Y. 871; 
84 Am. Rep. 539; Moncrief v. Ely, 19 Wend. 405; BirdsaU v. Edgerton, 25 
id. 619; Uicks v. Gregory, 8 C. B. 378; Smith v. Boche, 6 C. B. (N. S.)223; 
NiclwU v. Alien, 3 C. & P. 36; Jennings v. Brown, 9 M. & W. 496; Knowlmnn 
V. Bluett, L. R., 9 Exch. 1, 307; Bunn v. Wiiithrop, 1 Johns. Ch. 387, 838; 
Davis V. Herrington (Ark ), 13 S. W. Rep. 215. Contra, Nine v. Star, 8 Or. 49; 
Mercer v. Mercer, 37 Alb. L. J. 367. 

Infancy of the father is no defense. People v. Moores, 4 Den. 518. 

An illegitimate child was supported by the relatives of the mother, at the 
request of the father, and upon his promise that they should be paid, and that 
if the child survived him he would provide for her by will sufficiently to en- 
able her to pay therefor. He died before the child, but made no such provis' 
ion. After coming of age the child promised to repay the expenditures. Held, 
that an action lay against the father's estate to recover therefor, and that such 
action could be maintained by the child. Todd v. Weber, 95 N. Y. 181; 49 Am. 
Rep. 20. 

The natural father of an illegitimate child cannot be held for its support if 
the mother, during the pregnancy, marries another man who has full knowl- 
edge of her pregnancy. MiUer v. Anderson, 43 Ohio St. 473; 54 Am. Rep. 823. 

In Bfieel v. Hicks, 25 N. Y. 289, the plaintiff, having been arrested upon a 
charge of being the putative father of a bastard, compromised under the act of 
1832, chapter 26, upon the payment of |;50. It turned out that the woman was 
not pregnant. Held, that plaintiff was entitled to recover the $50. Had de- 
fendant paid over the money to the county, it would have been no defense . 

§ 840. When bastard, chargeable to the public, is bom, 
or is likely to be bom, application to be made to a justice 
of the peace or police justice. — If a woman be delivered of a 
bastard, or be pregnant of a child likely to be born such, and 



OF THB State of New York. 



318 



whioh is chargeable to a coanty, city or town, a superintendent 
of the poor of the county, or an overseer of the poor or other 
officer of the alms-house of the town or city where the woman 
is, must apply to a justice of the peace or police justice in the 
county to inquire into the facts of the case. 

A justice can onlj act in his county, and on proper official application. 
S^rague v. Eceleston, 1 Lans. 74; WcUlsworth v. JfcGuUough, 10 Johns. 93; Bird- 
wU V. Edgerton, 26 Wend. 619. 

An overseer of the poor in bastardy proceedings is a " party " in sacn sense 
that the proceedings are void if there is affinity between him and the justice. 
Ritefiburgh v. Henness, 4 Lans. 208. 

The justice has no authority to make the preliminary examination or issue a 
warrant to arrest the putative father on his own motion; a regular application, 
as required by statute, is necessary. Sprague v. Ec^Ueslon, 1 I^ans. 74. 

§ 841. Exainination by the magistrate and warrant 
against the jbther. — The magistrate must, by the examination 
of the woman on oath, and any other testimony which may be 
offered, ascertain the father of the bastard, and must issue his 
warrant, directed to a peace officer of the county, commanding 
him, without delay, to apprehend the father and bring him before 
the justice, for the purpose of having an adjudication as to the 
filiation of the bastard. 
See cases dted under g 838, ante. 

§ 842. Justice designated as a magistrate, and person 
proceeded against as defendant. — An officer issuing a war- 
rant or making an examination, as provided in this chapter, is 
designated as a magistrate, and the person against whom the 
warrant is issued as the defendant. 
See Matter ofMeOrary, 48 Hun, 441. 

§ 843. Warrant, when to be served in another county. 

If the defendant reside in another county fhan that in which the 
warrant issued, the magistrate must, by an indorsement thereon, 
direct the sum in which the defendant shall give security, and 
the officer must deliver the warrant to a justice of the j)eace or 
poUce justice in the city or town in which the defendant resides 
or is found. The magistrate to whom it is ])resented, on proof, 
under oath, of the signature of the magistrate who issued the 
warrant, must then indorse a direction therein, that it be served 
in the connty in which he resides, and the defendant may be 
arrested in that county accordingly. Upon this proof, the magis- 



814 



Thk Codb of Criminal Psoobdu&b 



trate indorsing the warrant is exempted from Lalility to a dyil 
or criminal action, though it afterward appear that the warrant 
was illegally or improperly issued. 
See 28 Alb. L. J. 160. 

§ 844. Magistrate in another county may take under* 
taking for support of bastard and mother, or for api)ear- 
ance of defendant at the sessions. — When the defendant is 
arrested in another county, he must be taken before the magi» 
trate who indorsed the warrant, or before another magistrate of 
the same city or county, who may take from the defendant an 
undertaking, with sufficient sureties, to the effect : 

1. That he will indemnify the county, and town or city, where 
the bastard was or is likely to be boni, and every other county, 
town or city, against any expense for tlie support of the bastard, 
or of its mother during her confinement and recovery, and to 
pay the costs of arresting the defeiidant, and of any order of 
filiation that may be made, or that the sureties will pay the sum 
indorsed on the warrant ; or 

2. That the defendant will appear and answer the charge at the 
next court of sessions of the county where the warrant was issued, 
and obey its order thereon. 

The bond mast be for either the one or the other of the two conditions, but 
not for both ; if it contain both conditions, that the obligor should appear and 
that he should indemnifj, it is a nullity. Iloogland v. Eudson, 8 How. Pr. 843. 

If the bond literally follow the statute, it is valid, however superfluous the 
provisions may be. People v. Mitchell, 4 Sandf . 466. 

An attorney cannot be surety. Rule 5, Supreme Court. See People v. THIton, 
18 Wend. 597. 

§ 845. On giving undertaking, defendlant to be dis- 
oharged. — When either of the undertakings mentioned in the 
last section is given, the magistrate must discharge the defendant^ 
and must indorse a certificate of the discharge upon the warrant. 
He must also deliver the warrant, with the undertaking, to the 
officer, who must return it to the magistrate granting the warrant, 
by whom the same proceedings must be had, as if he had taken 
the undertaking. 

§ 8^6. If undertaking not given, defendant to be taken 
before magistrate who issued the warrant.— If the defends 
ant do not give security, as provided in section eight hundred and 



ow THB Statb or 14 EW YOKK. 



315 



forty-fonr the officer mtut take him before the magistrate who 
ifsned the warraDt. 

§ 847. Before what magistrate in the same ooonty, 
defendant is to be taken, when thcT magistrate ^tuminQ 
the warrant is nnable to act. — If, however, the magistrate 
who issned the warrant be absent or unable to act, the defendant 
must be taken before the nearest or most accessible magistrate in 
the same coimty. The officer must, at the same time, deliver to 
the magistrate the warrant, with his return indorsed and sub- 
Bcribed by him. 

§ 848. Themagistrate to associate with himself another 
magistrate, and they to examine the matter. — The 

magistrate before whom the defendant is brought, as provided in 
the last two sections, must immediately associate with himself 
another justice of the peace or police justice in the same county 
or city; and the two magistrates thus associated, must inquire 
into the charge, and must examine on oath, the woman who is the 
mother of or pregnant with the bastard in the presence of the 
defendant, in respect to the charge, and hear any testimony which 
may be oiffered in relation thereto. 

If the justice first called in does not appear, on an adjourned daj, another 
nuj be substituted hj the written stipulation of the parties entered in the 
minates. People, ex rel„ v. Barnett, 3 Abb. N. C. 510. 

Ad order of filiation made bj one magistrate acting alone, although also 
signed bj another, is void. People, ex reL, v. Dando. 20 Abb. N. C. 245. 

In an action on such an undertaking, it is error to exclude evidence that the 
order in pursuance of which it was given was void, for want of jurisdiction by 
ntBon of the absence of one of the magistrates who should have taken part in 
the proceedings. People, exrel., v. Dando, 20 Abb. X. C. 245 The court say: 
"It was perfectly proper for the defendant to contradict the record for the pur- 
pose of proving that the court was without jurisdiction. Pt'ople v. Casaels, 5 
Hill. 1S4; Ferguson v. Crawford, 70 N. Y. 253; Craig v. Town of Andes. 93 id. 
405; Hard v. Shipman, 6 Barb. 621-624; llariinyton v. People, 6 id. GOT." 

§ 849. Adjournment of examination ; security from 
defendant. — The magistrates may, on tlie application of the 
defendant, for good cause, adjonm the examination, not exceed- 
ing thirty days, upon the defendant giving an undertaking, with 
two sufficient sureties, to tlie effect that lie will appear helore the 
magistrates at the time apjiointed, or that the sureties will pay the 
8nin mentioned therein, which must be fixed by the magistrates^ 



316 The Code of Cbiminal Pboosdube 



and which must be a full indemnity for the expense of support 
ing the bastard and its mother, as provided in section eight 
hundred and fifty-one. 

See People, ex rel., v. DaMo, 20 Abb. N. C. 248; People v. Boardman, 24 
How. Pr. 512; PeopU v. Jayne, 27 Barb. 58. 

The sureties on a bond given for tlie appearance of a defendant in a bastardy 
proceeding, that he would personally appear before the justices at the time and 
place to which the proceeding was adjourned, and not depart from thence with- 
out the leave of the justices, are not discharged from liability by adjournments 
of the proceeding after the same is commenced on the adjourned day. People 

MUham, 4 N. Y. Or. Rep. 127; 100 N. Y. 273. 

§ 850. Determination of the case, and order of the mag- 
istrates. — Upon the hearing the magtetrates must determine 
who is the father of the bastard, and must proceed as follows : 

1. If they determine that the defendant is not the fatlier of 
the bastard, he must be forthwith discharged ; 

2. If they dptermine that he is the father, they must make an 
order of fih'ation, specifying therein the sum to be paid weekly 
or otherwise hy the defendant, for tlie support of the bastard ; 
and if the mother be indigent, the sum to be paid by the defend- 
ant for her support, during her confinement and recovery ; 

3. They must certify the reasonable costs of arresting the 
defendant, and of the order of filiation ; 

4. They must reduce their proceedings to writing, and sub- 
scribe them. 

Adjadication in favor of the defendant is a bar to any new proceeding against 
him for the same offense. Thayer v. Overseers, 5 Hill, 443; 5 Den. 98; PeopU 
V. Tompkins, Gen. Sess., 19 Wend. 154; Dunhnm v. Monell, H. & D. Supp. 877. 

An order of acquittal is not appealable. People v. Tompkins^ 19 Wend. 154: 
Thayer v. Overseers of JJamilton, 5 Hill, 448. 

No order of filiation is necessary where the putative father elects to give the 
bond; he thereby admits his liability. People v. Heine, 5 N. Y. Leg. Obs. 881. 

An order of filiation adjudging the bastard chargeable, and fixing the allow- 
ance to be paid by the putative father is conclusive on him till reversed, and 
the oniis is on him to show a legal discharge from the obligation. Overseers 
of Hebron v. Ely, Hill & Den. Supp. 879. 

After an order of filiation an infant is bound by law to support his illegiti- 
mate child, and his bond is binding upon him notwithstanding his infancy. 
People V. Moores, 4 Den. 518. 

Where a defendant has been held on a trial before two justices of the peace 
by an order of filiation, and on appeal to the court of sessions such order has 
been vacated, and the defendant held for a trial on the merits on which he is 
held not to be the father of the child, the costs are to be governed by section 
8073 of the Code of Civil Procedure. Mayham v. AUen, 50 Hun, 843. 



or THB Stats of Nkw York. 



817 



§ 851. Defendant to pay the ooetSy and give nndertak 
ing fbr support of bastard and mother, or for appearance 

at — If the defendant be adjudged to be the father, 

be must immediately pay the amount certified for the costs of 
the arrest and of the order of filiation, and enter into an under- 
taking, with sufiScient sureties approved by the magistrates, to 
the effect, 

1. That he will pay weekly or otherwise, as may have becL 
ordered, the sum directed for the support of the child, and ol 
the mother during her confinement and recovery, or which may 
be ordered by the court of sessions of the county ; and that he 
will indemnify the county, and town or city where the bastard 
was or may be bom [as the case may be], and every other county, 
town or city, which may have been or may be put to expense for 
the support of the bastard, or of its mother during her confine- 
ment and recovery, against those expenses, or that the sureties 
will do so, not exceeding the sum mentioned in the undertaking, 
and which must be fixed by the magistrates ; or, 

2. That he will appear at the next court of sessions of the 
county, to answer the charge and obey its order thereon, or that 
the sureties will pay a sum equal to a full indemnity for support- 
ing the bastard and its mother, as provided in the first subdivision 
of section eight hundred and forty-four. 

See TBlotUan ▼. Martin, 40 Run, 320; People, ex rel,, y. Dando, 20 Abb. 
K. C. 248. 

Where the bond on appeal does not conform to the provisions of the section 
his inoperative, and the court of sessions should dismiss the appeal. People, 
nrd. Daumi, v. Lindsay, 58 Han, 234; 25 State Roji. 520. 

A court of sessions has no power to allow an amendment on a bond given on 
appeal by a defendant from an order of filiation. Raimey v. Childs, 34 Hun . 329. 

A bond conditioned that the father will indemnify the county or appear at 
the sessions is valid; though it ought to have embraced but one of the alter- 
natives. People v. Taton, 13 Wend. 597. 

If a bond require more than is required by statute it will be void. People v. 
Meighan, 1 Hill, 298; People v. MitcMl, 4 Sandf. 466. 

A bond for both conditions held void, e. g,, for appearance and indemnity. 
Hoogland v. Hudson, 8 How. Pr. 343. See, also, People v. Mitchell, 4 Sandf. 
466; People v. Moores, 4 Den. 518; People v. StowcU, 2 id. 127. 

§ 852. On giving undertaking defendant to be dis- 
charged, otherwise to be committed. — Upon a compliance 
with the proviBions of the last section, the magistrates must 



318 



The Code of Okimihal Peoosdubb 



diflcfaar(2^ the defendant; but other wise^ thej or either of tljum 
must, by warrant, commit him to the county jail, or in the city 
of New York, to the dty prison of that city, until he be dis 
charged by the court of sessions of the county, or deliver an 
TmdertaJdng, as prescribed by the last section. 

§ 853. Oommitmezit of defiandant during examinatioii. 

During the examination, and until the defendant is discharged 
by the magistrate, he must remain in the custody of the officer 
who arrested him, unless an undertaking have been given for his 
appearance, as provided in sections eight hundred and forty-four 
and eight hundred and forty-nine ; and when committed to prison 
he must be actually confined therein. 

§ 854. Proceedings by magistrate when security is 
given by defendant on arrest out of the county. — When 
security taken out of the county, for the appearance of the 
defendant at the court of sessions, as provided in section eight 
hundred and forty-four, is returned to the magistrate who issued 
the warrant, he must associate with himself another magistrate 
of the same county, and the magistrates thus associated must 
proceed as provided in sections eight hundred and forty-eight to 
eight hundred and fifty, both inclusive. 

§ 855. Examination in such case, and order thereon.— 
The examination may be had and the order of afiiliation made in 
the absence of the defendant, unless, before the order is made, 
he require of the magistrate issuing the warrant that the exam- 
ination be had in his presence, in which case the examination 
must be had as if the defendant had originally appeared. 

§ 856. Magistrates may compel mother to disclose the 
father of the bastard ; proceedings if she refuse. — In 

making an examination authorized by this chapter, the magistrate 
issuing the warrant, or the magistrates making the examination, 
may compel the mother of a bastard, chargeable to a county, city 
or town, or a woman pregnant of a child likely to be bom such, 
to disclose the name of the father of the bastard; or if she 
refuse to do so, may, by a warrant setting forth the cause thereof, 
at the expiration of one month from her delivery, if sufficiently 
recovered, conmiit her to the county jail, or, in the city of New 
York, to the city prison of that city, until she disclose the name 
of the father. 



OF THB StAU of NeW YoBK. 



819 



BMg 886, and caaes died. 

In People y. McCoy, 45 How. Pr. 216, it was held that the forcible examination 
nnder an order of the coroner of a female prisoner by physicians for the pur- 
pose of obtaining evidence that she had been pregnant and had been delivered 
of a bastard within two or three weeks previous was in violation of the Con- 
stitation which declares that *' no person shall be compelled in any criminal 
case to be a witness against himself." 

If the mother refuse to affiliate the child she may be committed. 8coit 
min, 4 Wend. 555. 

§ 857. If mother possess property, two magistrates may 
make an order that she i)ay for the support of the child. — 

If the mother of a bastard, chargeable, or likely to become 
chargeable, as provided ia section eight hundred and forty, be 
possessed of property in her own right, any two magistrates of 
the county or city where she is, on the application of any of the 
officers mentioned in that section, must examine into the mat- 
ter, and may make an order charging the mother with the pay- 
ment of money weekly, or otherwise, for the support of the 
bastard. 
8ee § 889, arUe, 

The mother's ability to support the child does not relieve the father of his 
liability. PeopU v. Corbett, 8 Wend. 520; PeopU v. Haddock, 13 id. 475. 

§ 858. If she do not comply, she must be committed, or 
discharged on undertaking. — If, after service of the order 
upon the mother, she do not comply therewith, she must be com- 
mitted to the county jail, or in the city of New York, to the city 
prison of that city, until she comply, or enter into an under- 
taking, with sufficient sureties approved by the magistrates, to 
the effect that she will appear at the next court of sessions of the 
county, to answer the matters stated in the order, and obey its 
order thereon, or that the sureties will pay the sum mentioned in 
the undertaking, and which must be fixed by the magistrates. 

§ 859. Magistrates may reduce amount directed to be 
paid by the fisither or mother; court of sessions may 
reduce or increase it. — The magistrates, who have made an 
order against the father or mother of a bastard, as provided in 
sections eight hundred and fifty and eight hundred and fifty- 
seven, may, from time to time, for good cause, reduce the amount 
therein directed to be paid, and upon the application of any of 
the officers mentioned in section eight hundred and forty, the 
eourt of AesflionB of the county, upon ten days' notice to these 



380 The Codk of Cbuonal Pboobdubs 



officers or to the father and mother of the bastard, may redace or 
increase the amount so directed to be paid. 
See People, ex ret., v. Dando, 20 Abb. N. C. 248. 

§ 860. Froceedixigs against the fetther or mother abfloond- 
ing from their place of reeidenoe. — If the father or mother 
of a bastard or of a child likely to be bom such, abscond from 
their place of residence, leaving the bastard chargeable, or likely 
to become chargeable to the pnblic, a snperintendent of the 
poor of the county, or an overseer of the poor or other offi- 
cer of the alms-house of the town or city where the bastard was 
bom, or is likely to be bom, may apply to any two magistrates 
of the city or county where any property, real or personal, of 
the father or mother may be, for authority to take the same. 
Upon due proof of the facts on oath, to the satisfaction of the 
magistrates, they must issue their warrant, and proceed thereon 
in the manner provided in title eight of this part, in relation to 
persons absconding and leaving their children chargeable to the 
public* 



CHAPTER n. 

AFFBALB FROM THE ORDERS OF MAOISTRATBS, RESPBOTlirO BASTABDt. 

Bmmon 861. Who may appeal, and in what cases. 

862. Appeal, how taken. 

863. Papers to be transmitted by magistrate, to court of seasionB. 

864. Court to hear the case ; evidence on hearing. 

865. Court may affirm, vacate or modify the order, or adjourn tlie 

hearing till the bastard be bom. 

866. If woman be not pregnant, or be married before her deliveiy, or 

the child be not bom alive, defendant to be discharged. 

867. Order of the court, on affirmance. 

868. Commitment of defendant, if he fail to give undertaking. 

869. Undertaking for appearance on appeal, when forfeited. 

870. When mother bound to appear at the sessions, court to proceed 

as upon an appeal. 
871 When the court may make an order against the mother, for the 

support of the bastard. 
878. Proceedings against the mother, on affirmance or mfMUflffatfuB 

of the order of the magistrates. 
878, 874. Costs on appeal, when awarded and how paid. 



OF THE Stats of New Yobk. 8S1 



flmm 875. When order of filiation vacated, except on the merits, court 
may make a new order of filiation, or bind the defendant to 
appear. 

870. If order of filiation be vacated, except on the merits, magistrates 
may proceed anew. 

877. Court to inquire into circumstances of father or mother, con: 

mitted for not giving undertaking to support bastard. 

878. Father or mother unable to support the bastard, may be dia- 

charged. 

870. Notice, before discharge, and examination of the matter. 
880. Party cannot be discharged, but by the court 

§ 861. Who may appeal, and in what cases. — A perBon 
deeming himself aggrieved hy the order of two magistratee, made 
pursuant to the last chapter, may appeal therefrom to the next 
court of sessions of the county ; except that a person who has 
executed an undertaking to obey an order of filiation, and indem- 
nify the public, as provided in section eight hundred and fifty- 
one, cannot appeal from any other part of the order mentioned 
in section eight hundred and fifty, than that which fixes the 
weekly or other allowance to be paid. 

See Pe&ple, ex tel., y. Dando, 20 Abb. N. C. 348; PeapU, ex rel„ Court cf 
Semitme, 45 Han, 55. 

§ 862. Appeal, how taken. — When the father or mother 
of the bastard has entered into an undertaking for appearance at 
the next court of sessions of the county, as provided in sections 
eight hundred and fifty-one and. eight hundred and fifty-eight, it 
IB an appeal from the order of filiation or maintenance ; and no 
other notice thereof is necessary. In any other case, the appeal 
is taken, by a written notice of at least ten days before the court, 
to the magistrates who made the order, and to the party affected 
thereby, or to the officer at whose instance it was obtained. 

Bee People, exrel.,y, Dando, 20 Abb. N. C. 248; People, ex rel., y. Lindeay, 
53 Hon. 235. 

hi bastardy cases an appeal will not lie on an adjadication of general ses- 
lions. A review can only be had on certiorari. People ^ ex rel. Fuller ^ v. Car- 
ntff, 29 Hon, 47. 

Writs of error and eertiora/ri^ in special proceedings of a criminal nature, are 
not abolished by the Code of Criminal Procedure. It applies only to criminal 
actions. People, ex rel. Fuller, v. Cam^, 29 Hun, 47. 

§ 863. Papers to be transmitted by xnagistratea, to 
ooart of sessioxiB. — The magistrates receiving an undertidking 
for appearance at the court of sessions, must transmit it to the 
41 



328 The Cods or Criminal PitocsDUBB 



court, before its opening, with a certified copy of the ordei 
appealed from. 
See People, ex rel,, v. Dando, 20 Abb. N. C. 348. 

§ 864. Court to hear the case ; evidence on hearing.— 

The court must immediately, or at any other time it may appoint, 
proceed to hear the allegations and proofs of the parties ; and the 
party in whose favor the order was made, must support it by evi- 
dence. If the mother of the bastard is dead or insane, her tes- 
timony on the examination before the magistrate is receivable in 
evidence. 

An order appealed from as above is virtually a suit commenced before two 
justices and continued before tbe sessions, but v/hich never reacbed final deter, 
mination. StoweU v. Overeeers of Volney, 6 Den. 08; Ray v. Torgee, 7 Wend. 
858. 

§ 865. Court may affirm, vacate or modify the order, 
or adjourn the hearing till the bastard be bom. — The 

court may affirm or vacate an order of filiation or maintenance, 
or may reduce or increase the sum ordered to be paid for the sup- 
port of the bastard or its mother ; and, disregarding defects in 
form in the order, must amend it according to the fact. If, when 
the appeal is heard, the bastard be not bom, the court may adjourn 
the hearing until it be bom, and in that case, must take an under- 
taking from the party appealing, for his appearance, in such suui 
and with such sureties as the court may deem sufficient 

§ 866. If woman be not pregnant, or be married befbre 
her delivery, or the child be not bom alive, defendant to 
be discharged. — If the woman alleged to be pregnant, be not 
BO, or be married before her delivery, or the child be not bom 
alive, the defendant must be discharged from custody or from the 
obligation of his undertaking, either by the court or magistrates, 
upon that fact being made to appear. 

§ 867. Order of the court, on affirmance. — If, upon the 
hearing of the appeal, the court of sessions affirm an order of 
filiation or maintenance, it must require the defendant to enter 
into an undertaking, with sufficient sureties approved by the 
court, to the effect that he will pay, weekly or oUierwise, accord- 
ing to the order as made by the magistrate or modified by the 
court, the sum directed for the support of the bastardi and of the 



OF THE Stats of New York. 



323 



mother during her coniineinent and recovery ; and that he will 
mdemnify the county, and town or city where the bastard was or 
may be bom [as the case may be], and every other county, town 
or city, which may have been put to expense for the support of 
the child or of its mother during her confinement and recovery, 
against those expenses, or that the sureties will do so, not exceed 
ing the sum mentioned in the undertaking, and which must be 
fixed by the court. 

§868. Commitment of defendant, if he fisdl to give 
undertaking. — If, on judgment of affirmance, the defendant 
do not enter into an undertaking, as provided in the last section, 
he must be committed to the county jail, or in the city of New 
York, to the city prison of that city, until he do so, or be dis- 
charged by the court. 

§869. Undertaking for appearance on appeal, when 
Ihrfeited. — The undertaking for the appearance of the defend- 
ant at the court of sessions, upon an appeal, is forfeited by his 
n^lect to appear, or to give the undertaking mentioned in the 
last two sections, unless he be discharged by the court. 

A Yolantary departure without leave after appearance ^forfeits the bond. 
People Y. Jatfnes, 27 Barb. 58. 

§ 870. When mother bound to appear at the sessions ; 
court to proceed as upon an appeal* — When the mother of 
a bastard is bound to appear at the court of sessions, or is com- 
mitted as provided in section eight hundred and fifty-eight, the 
oonrt must proceed in respect to the matter in the same manner 
as upon an appeal. 

§ 871. When the court may make an order against the 
mother, for the support of the bastard. — If the court be 
satisfied that the mother has property in her own right, suflicient 
to enable her to support the bastard or contribute to its support, 
it must confirm the order mentioned in section eight hundred 
and fiftv-spven, or may vary the sum ordered to be paid weekly 
or otherwise ; or if not, it must discharge her from custody oi 
from the obligation of her undertaking. 



824 The Gods of Obdonal Pbookdusb 



§ 872. Proceedings agalxurt the mother, on afBrxnanco 
or modification of the order of the magistrates. — If the 

court aflSrm or modify the order, as provided in the last section, 
it must require the defendant to enter into an undertaking, witli 
BuflScient sureties approved by the court, to the eflEect that she 
will pay, weekly or otherwise, according to the order, as made by 
the magistrates or modified by the court, the sum directed for the 
support of the bastard, or that the sureties will do so, not exceed- 
ing the sum mentioned in the undertaking, and which must be 
fixed by the court. If the undertaking be not given she must be 
committed in the manner provided in section eight hundred and 
sixty-eight. 

§ 873. Oosts on appeal, when awarded and how paid.-^ 

The court must award costs to the party in whose favor an appeal 
is determined. When awarded against county superintendents or 
overseers of the poor of a town, not liable for the support of its 
own poor, they must be paid by the county treasurer, on deli▼e^ 
ing to him a certified copy of the order and of the taxed costs, 
and must be charged by him to the town in the same county, 
liable to support the bastard, or if there be none, to the county. 
In the city of New York, when costs are awarded upon an 
appeal, to the person charged as the father or mother of the 
bastard, they must, upon the production of similar vouchers, be 
paid by the comptroller of that city, and charged to the appro- 
priation made to the commissioners of charities and corrections 
thereof. 

Where a defendaDt has been held on a trial before two jnstices of the peace 
by an order of filiation, and, on appeal to the court of sessions, snch order has 
been vacated, and the defendant held for a trial on the merits on which he Is 
held not to be the father of the child, the costs are to be governed by section 
8073 of the Code of Civil Procedare, the proceedings being analogous to that 
on an appeal from a justice's court where a new trial is had in the county court. 
Mayham v. AUm, 50 Hun, 848; 19 State Rep. 812; Faiou>$ v. Lane, 67 How. 
Pr. 485. 

§ 874. Costs on appeal, when awarded and how paid.— 

In other cases, the payment of the costs may be enforced by the 
court, as in a civil action. If the party against whom they are 
awarded, reside out of the jurisdiction of the court, an action 
may be brought on the order, by the party entitled to the ooets, 
in which the production of a certified copy of the order and of 
the taxed costs is conclusive evidence. 



OF THB State of ^ew York. 



826 



§ 875. When order of fliiation vacated, except on the 
merits, court may make a new order of filiation, or bind 
the defendant to appear. — If the court vacate an order of 
filiation for any other cause than upon the merits, it must pro 
ceed, and may make an original order of filiation, in the manner 
prescribed in the second subdivision of section eight hundred 
and fifty, or bind the person charged in an undertaking, in a sum 
and with sureties approved by the court, to appear at the next 
court of sessions. 

§ 876. If order of filiation be vacated, except on the 
merits, magistrates may proceed anew« — If the order be 
vacated for any other cause tlian on the merits, and the person 
charged be bound as provided in the last section, the same pro- 
ceedings may be had by the magistrate for the apprehension of 
the defendant, and for making an order of filiation, and for the 
commitment of the defendant for not giving an undertaking, as 
are authorized in the first instance. And the same proceedings 
must be subsequently had in all respects. 

§ 877. Court to inquire into circumstances of father or 
mother committed for not giving undertaking to support 

the bastard. — When a person is couiniitted to prison, charged 
as the father of a bastard, or of a child likely to be born a bastard, 
and when the mother of a bastard is so committed for not giving 
an undertaking to support the bastard, or to indemnify the pub- 
lie, the court must inquire, from time to time, into the circum- 
Btancee and ability of the father or mother to support the bastard 
and to procure security therefor. 

§ 878. Father or mother unable to support the bastard 
may be discharged. — If the court be at any time satisfied that 
the father or mother is wholly unable to support the bastard, or 
to contribute to its support, or to procure security therefor, it 
may, in its discretion, order the father or mother to be discharged 
from imprisonment. 

§ 879. Notice before disohaige, and exanunation of the 

matter. — Before granting the order the court must be satis- 
fied that reasonable notice has been given to the overseers of 
the poor, or to the county snperintendents or chief officers of the 



326 



Ths Code of Criminal Pbocedubs 



almfi-hoiiBei at whose inBtaooe the party was committed, of the 

inteiition to apply for a discharge, and must hear the aliegatiouti 
and proofs of the supermtendents, overseers or offioers, and may 
ezamme the party applying on oath respecting the subject of the 
application. 

§ 880. Party cannot be discharged, but by the court.— 

A person committed, as provided in section eight hundred and 
seventy-seven, cannot be discharged from imprisonment, except 
by the court of sessions of the county. 



CHAPTER III. 

XNFOBOEiaBNT OF THE inn)EBTAKINQ FOB THB STTPPOBT OF THB 
BASTABD OB ITS MOTHEB, OB FOB APFEABANOB ON APPBAL. 

Bbction 881. Court to order prosecution of undertaking, when forfeited; by 
whom prosecuted. 

882. In whose name undertaking to be prosecuted. 

883. Evidence in the action, and measure of damages 

884. For a subsequent breach of the undertaking, new action may 

be brought. 

885. Costs, how recovered, when awarded against the plaintiil. 

886. Action may be maintained on the order of the magistrates or 

court. 

§ 881. Court to order prosecutioix of imdertakiiig, when 

forfeited; by whom prosecuted. — If an undertaking for 

the appearance at the court of sessions, of a person charged as 

the father or mother of a bastard, be forfeited, the court may 

order it to be prosecuted ; and the sum mentioned therein may 

be recovered, and when collected, must, except in the city of 

New York, be paid to the county treasurer, and by him credited 

to the town in the same county, liable to the support of the 

bastard, or if there be none, to the county. In the city of New 

York, the court must order the undertaking to bo prosecuted bv 

the commissioners of charities and corrections, and when collected, 

it must be paid into the city treasury. In every other county, it 

must be prosecuted by the district attorney. 

See People, ex rel„ v. Dando, 90 Abb. N. G. 248; TUloUan y. Martin, 40 
Hon» m 



OF THE State of Yoke. 



327 



§ 882. In whose name undertaking to be prosecuted. — 

When an undertaking to obey an order, in relation to the support 
of a bastard, or of a child likely to be born a bastard, or of its 
mother, is forfeited, it may be prosecuted in the name of the 
county superintendents of the county or the overseers of the 
poor of the town, which was liable for the support of the 
bastard, or which may have incurred any expense in the support 
of the bastard, or of its mother, during her coniinement and 
recovery ; or in the city of New York, in the name of the cor- 
poration of that city. 
See TiUotson v. Martin, 40 Han. H21. 

The order of affiliation is conclusive unless appealed from. WaUtworlh t. 
Mead, 9 Johns. 867; People Rdyea, id. 195; RockfeOoit v. Donnelly, 8 Cow. 
e23; People v. Cor&ett, 8 Wend. 520; Overseers v. Cox, 7 id. 235. 

§ 883. Evidence in the action, and measure of dam- 
ages. — In the action mentioned in the last section, it is not 
necessary to prove the actual payment of money by a county 
superintendent, overseer of the poor, officer of an alms-house, or 
other person ; but the neglect to pay a sum ordered to be paid by 
competent authority, for the support of the bastard, or of its 
mother, is a breach of the undertaking, and the measure of the 
damages is the sum ordered to be paid, and which was withheld 
at the time of the commencement of the action, with interest 
thereon. 

See TUhtson Martin, 40 Hnn, 821. 

In such an action the burden is on the defendant to show himself exonerated 
from the pajment. WalUvDorth v. Mead, 9 Johns. 367; RockfiWno v. Don- 
8 Cow. 023; PeopU v. Garbett, 8 Wend. 520; Ptople v. Haddock, 12 id. 

475. 

Money may be recovered back if mother not pregnant. RTieel v. Hicks, 25 
N. Y. 289. 

§ 884. For a subsequent breach of the undertaking 
new action may be brought. — For a breach of the under- 
taking, after the recovery of damages or the commencement of 
an action, another action may, in the same manner, be brought 
The money collected upon the undertaking must be paid, and 
credited, in the manner provided in section eight hundred and 
eighty-one. 

See Tmotstm t. MarHn, 40 Hun. f?1rt 



328 Thb Code of Criminal Fbooedijsb 



§ 885. CoBtB, how recovered, when awarded against 
the plaintiff. — If, in the action, costs be awarded against the 
plaintiffs, they may be recovered, as follows : 

1. If against the corporation of the city of New York, in the 
same manner as in any other action ; 

2. If against county superintendents or overseers of the poor, 
they must, upon the deliver}' of a transcript of the judgment, be 
paid by the county treasurer, and by him charged to the town in 
the same county, liable for the support of the bastard, or if there 
be none, to the county. 

Taxable costs to be allowed. Ontario Co, v. Moore, 12 Wend. 273; WatK- 
burn V. Oversee ra, 9 Johns. 119. 

§ 886. Action may be maintained on the order of the 
magietrates or court. — An action may be maintained by the 
parties authorized by section eight hundred and eighty-two, upon 
an order made by two magistrates, or by a court of sessions, for the 
payment of a sum weekly or otherwise, for the support of the 
bastard or its mother, notwithstanding an undertaking may have 
been given to comply with the order ; and in case of the death 
of the person against whom the order was made, an action may 
be maintained thereon against his executors or administrators. 
But when an undertaking is given to appear at the next court of 
sessions, no action can be brought on the order until it is affirmed 
by the court. 



TITLE VI. 

OP PROCEEDINGS RE8PE0TINO YAQBAlfTB. 

BBCftlOH 887. Who are vagrants. 

888. Proceedings before magistrate. 

889. Child, how kept. 

890. Peace officers, when required by any person, to cany vagiailt 

before a magistrate for examination. 

891. Vagrant, when to be convicted; form of certificate of oonyio- 

tion. 

892. Certificate to constitute record of conviction, and to be filed; 

commitment of vagrant 
898. Children begging, how disposed of. 

894. Pearo ofHrors to arrest and pursue a person disguised, and take 
him before a magistrate. 



or THE Statk of Nrw York. 



889 



SicnoH 896. Pri^mte citiien maj do so, without warrant. 

dMi. Peace officer may require aid; duty of persons required to aid 

him 

807. Neglect or refusal to aid peace officer, without lawful cause, a 

misdemeanor; punishment. 
808l Magistrate may depute an elector of the county to moke arrest 

of person disguised; if his name be not known, fictitious 

name may be used. 

§887. Who are vag^rants. — The following persons are 
ragrants: 

1. A person who, not having visible means to maintain him- 
self, lives without employment ; 

2. A person who, being an habitual drunkard, abandons, 
neglects or rof uses to aid in the support of his family ; 

3. A person who has contracted an infectious or other disease, 
in the practice of drunkenness or debauchery, requiring charita- 
ble aid to restore him to health ; 

4. A common prostitute who has no lawful employment, 
whereby to maintain herself ; 

5. A person wandering abroad and begging, or who goes about 
from door to door, or places himself in the streets, highways, 
passages, or other public places, to beg or receive alms ; 

6. A person wandering abroad and lodging in taverns, groceries, 
ale-houses, watch or station-houses, out-houses, market places, sheds, 
stables, bams or uninhabited buildings, or in the open air, and 
not giving a good account of himself ; 

7. A person, who, having his face painted, discolored, covered 
or concealed, or being otherwise disguised, in a manner calculated 
to prevent his being identified, appears in a road or public high- 
way, or in a field, lot, wood or inclosure ; 

8. Any child between the age of five and fourteen, having 
sufficient bodily health and mental capacity to attend the public 
school, found wandering in the streets or lanes of any city or 
incorporated village, a truant, without any lawful oconpation. 

BeeMatterqfMcMah(m, 64 How. Pr. 385; 1 N. Y.Cr. Rep. 58: Matter of Moses, 
13 Abb. N. C. 190; 1 N. Y. Or. Rep. 508; People, ex rel., v. Catholie Protectory, 
101 N. Y. 202: 4 N. Y. Cr. Rep. 85; 3 How. Pr. (N. S.) 850: State v. (ihnn, 
54 Md. 572: Portland v. Bangor, Me. 120; 20 Am. Rep. 681; Matter oj 
FMtes, 11 Abb. Pr. 62; 19 How Pr. 457. 

42 



380 The Oqde of O&iminal Pbooedubb 



§ 888. Proceedings before magistrate. — When complaint 
is made to any magistrate by any citizen or peace officer against 
any vagrant under subdivision eight of the last section, such 
magistrate must cause a peace officer to bring such child before 
him for examination, and shall also cause the parent, guardian or 
master of such child, if the child has any, to be summoned to 
attend such examination. 

If, thereon, the complaint shall be satisfactorily established, the 
magistrate must require the parent, guardian or master to enter 
into an engagement in writing to the corporate authorities of the 
dty or village, that he will restrain such child from so wandering 
about, will keep him in his own premises or in some lawful occu- 
pation, and will cause him to be sent to some school, at least four 
months in each year, until he become fourteen years old. 

The magistrate may, in his discretion, require security for the 
faithful performance of such engagement. 

If the child has no parent, guardian or master, or none can be 
found, or if the parent, guardian or master refuse or neglect, 
within a reasonable time, to enter into such engagement, and to 
give each security if required, the magistrate shall make the like 
disposition of such child as is authorized to be made by section 
two hundred and ninetv-one of the Penal Code, of children com- 
ing within the descriptions therein mentioned. (Amended 1888.) 

§ 889. Repealed, 1888, chap. 220, § 6. 

§ 890. Peace officers, when required by any person, to 
carry vagrant before a magistrate for examination. — 

A peace officer must, when required by any person, take a va- 
grant before a justice of the peace or police justice of the same dty, 
village or town, or before the mayor, recorder, or city judge, or 
judge of the general sessions of the same city, for the purpose of 
examination. 
See People, ex rel Kingdey, v. Pratt, 22 Hun, 300. 

§ 891. Vagrant, when to be convicted; form of certifi- 
cate of conviction. — If the magistrate be satisfied, from the 
confession of the person so brought before him, or by competent 
testimony, that he is a vagrant, he must convict him, and must 
make and sicrn, with his name of office, a certificate substantially 
in the following form : 



OF THE State of New York. 



331 



"I oertifj that A. B., having been brought before me, charged 
with bemg a vagrant, I have duly examined the charge, and that 
upon his own confession in my presence [or ' upon the testimony 
of C. D.,' etc., naming the witnesses], by which it appears that 
he is a person [pursuing the description contained in the subdivi- 
/Bion of section eight lumdred and eighty-seven, wliich is appro- 
priate to tlie case], I have adjudged that he is a vagrant. 

" Dated at the toion [or city] of , the day of 

,18 . 

«E. F., 

" Justice of the peace of the town 
of [or as tlie case may be.] 
The "confession " means a plea of guiltj or some acknowledgment tanta- 
moant thereto not an admission deduced by the magistrate argumentativoly. 
h^nac V. People, 4 Barb. 164. 

§ 892. Certificate to constitute record of conviction, 
and to be filed ; commitment of vagrants The magis- 
trate must immediately cause the certificate which constitutes the 
record of conviction to be filed in the office of the clerk of tlie 
county, and must, by a warrant signed by him with his name of 
ofiSce, commit the vagrant, if not a notorious offender, and a 
proper object for such relief, to the county jK>or-liou8e, if there be 
one, or to the alms-lionse or poor-house of the city, village or town, 
for not exceeding six months at hard labor, or if the vagrant be 
an improper person to be so conitnitted, he must be committed 
for a like term to the county jail, or in the city of New York, to 
the city prison or penitentiary of said city, or in the county of 
Kings, to the penitentiary of that county. In those counties of 
the state where the distinction between county poor and town 
poor is maintained, the expense of the conviction and mainten- 
ance during the confinement of any vagrant committed to any 
one of the places of confinement above specified, who shall at tlie 
time of such commitment have obtained a legal settlement in one 
of the towns of the county in which said persons shall be convicted, 
shall bo a charge upon the town where they may reside at the time 
of such commitment. 

See Matter of Dorfmann, 21 Abb. N. C. 297. 

The fiUng of the record of conviction of a prisoner on a charge of being a 
vagrant by a police justice in the office of the general sessions of the peace is 
wgnlar. McUier of Waters, 06 How. Pr. 173. 



832 The Code of Cbihinal Pbooedube 



The confinement of disorderly persons and vagrants in the Albany coanty 
penitentiary is proper and lawful, notwithstanding sections Sd2 and 908. 
Laws of 1847, chapter 183, is not repealed by the provisions of these sections. 
People V. Coffee, 62 How. 445. See, also, People v. Baker, 10 Abb. N. C. 210. 

g 893. Repealed, 1888, chap 220 g 5. 

See People, ex rel., v. Catholic Protectory, 101 N. Y. 202; 4 N. Y. Cr. Rep. 85; 
8 How. Pr. (N. S.)850. 

§ 894. Peace officers to arrest and pursue a person 
disguised, and take him before a magistrate. — It is the 

dut}^ of every peace officer of the county, city, village, or town, 
where a person described in the seventh subdivision of section 
eight hundred and eighty-seven is found, to arrest and take him 
before a magistrate mentioned in section eight hundred and 
eighty-eight, to be proceeded against as a vagrant. 

§ 895. Private citizens may do so without warrant. — 

A private citizen of the county may also, without warrant, exer- 
cise the powers conferred upon a peace officer by the last section. 

§ 896. Peace officers may require aid; duty of persons 
required to aid him. — In the execution of the duties imposed 
by section eight hundred and ninety-four the peace officer may 
command the aid of as many male inhabitants of liis county, city, 
village or town as he may think proper; and a citizen so com- 
manded may provide himself, or be provided with, such means 
and weapons as the officer giving the command may designate. 

§ 897. N^lect or reftisal to aid peace officer, without 
cause, a misdemeanor; punishment. — A person com- 
manded to aid the officer, as prescribed in the last section, and 
who without lawful cause refuses or neglects to do so, is guilty 
of a misdemeanor, and is punishable by a fine not exceeding two 
hundred and fifty dollars, or by imprisonment not exceeding one 
year, or both. 

§ 898. Magistrate may depute an elector of the county 
to make arrest of person disguised ; if his name be not 
known, fictitious name may be used. — A magistrate to 
whom complaint is made against a person charged as a vagrant, 
as described in the seventh subdivision of section eight hundred 



OF THX Stats of New York. 



888 



and ei^^ty-fieyen, may, bj a warrant signed bj bim, with bis 
name of office, depute an elector of tbe county to arrest and 
bring tbe vagrant before bim to answer tbe complaint ; and if 
the name of tbe person complained of be not known, be may be 
described in tbe warrant and in all subsequent proceedings 
thereon, by a fictitious name. 



TITLE Vn. 

OF PBOOESDIKOS BRSPEOTING DI80BDERLT PBBS0K8. 

Bhtioh 899. Who are disorderly persons. 

900. On complaint, warrant to be issued. 

901. On confession or proof that he is a disorderly person, secoriQr 

to be required. 

902. If security given, defendant to be discharged; if not, to be 

convicted; form of certificate. 
908. Certificate, to constitute record of conviction, and to be filed; 

commitment thereon. 
901 Undertaking, when forfeited. 

905. How prosecuted, and proceeds how applied. 

906. When new security may be required, or defendant committed 

after recovery on undertaking. 

907. Defendant committed for not giving security, how discharged. 

908. Keeper of prison, to return list of disorderly persons committed 

to court of sessions. 
900. Examination of the case by the court 

910. Court may discharge, or authorize the binding out of disorderly 

person. 

911. Court may also conunit him to prison; nature and duration of 

imprisonment. 

913. Order to procure materials and implements, and to compel him 
to work. 

91S. Expense of materials or implements, how paid for, and proceeds 
of labor, how disposed of. 

§ 899. Who are disorderly persona— The following are 
diflorderlj persons : 

1. Persons who actually abandon their wives or children, with- 
out adequate support, or leave them in danger of becoming a 
burden upon the public, or who neglect to provide for them 
ftocording to their means ; 

2. Persons who threaten to mn away and leave their wives or 
children a burden upon the public ; 



884 



Thb Oodb of Criminal Pbooedubs 



3. Persons pretending to tell fortunes, or where lost, or stolen 
goods may be found ; 

4. Keepers of bawdy houses or houses for the resort of prosti- 
tutes, drunkards, tipplers, gamesters, habitual criminals, or other 
disorderly persons ; 

6. Persons who have no visible profession or calling, by which to 
maiiitain themselves, but who do so, for the most part, by gaming ; 

6. Jugglers, common showmen and mountebanks, who exhibit 
or perform for profit, puppet shows, wire or rope dancers or other 
idle shows, acts or featB ; 

7. Persons who keep, in a public highway or place, an appur 
ratus or device for the purpose of gaining, or who go about exhib- 
iting tricks or gaming, therewith ; 

8. Persons who play, in a public highway or place, with cards, 
dice or any other apparatus or device for gaming ; 

9. Habitual criminals within the provisions of this Code. 

See Lutes v. SheUy, 40 Hun, 199; People v. Orimahatp, 2 N. T. Cr. Rep. 396; 
People V. Miller, 88 Hun, 84; People v. Klock, 48 id. 277; Bulkley v. Boyce, 
id. 261-2; People, ex reL, v. Fbrbes, 52 id. 32; People v. CcmtoU, 3 Park. 73; 
Bennae v. People, 4 Barb. 164. 

Who are gamesters and disorderly persons. People v. CuUer, 28 Hun, 465. 
^ The power of a police justice to require bail in a case of conviction of dis- 
orderly conduct, and to commit in default thereof, has not been affected by 
the Code of Criminal Procedure. Matter of McMahon, 64 How. Pr. 285; 1 
N. Y. Cr. Rep. 58. 

A decision of a police justice dismissing a complaint made by a wife 
against her husband for abandonment under this section is reviewable at 
general term upon a writ of certiorari. People v. WaMi, 33 Hun, 345. 

The common-law remedy by indictment against a person keeping a 
bawdy-house was not abolished or superseded by the provision of the Code 
of Criminal Procedure as to disorderly persons. It is not essential to the 
validity of a sentence to imprisonment in a county penitentiary under the 
statute authorizing such imprisonment (Laws of 1874, chap. 209, as amended 
by Laws of 1876. chap. 158). that it shall state that the prisoner is " to be 
received, kept and employed in the manner prescribed by law and the rules 
of the penitentiary." That provision of the statute is no part of the sentence, 
but is simply directory to the keeper of the penitentiary. People, ex reL Van 
HotUon, v. SaddUr, 97 N. Y. 146; 3 N. Y. Cr. Rep. 471. 

A decision of a police justice dismissing a complaint made by a wife 
against her husband for abandonment, under this section, is reviewable at 
general term upon certiorari. The justice acts as an officer and not as a court 
of special sessions, and his decision cannot be reviewed under section 749 of 



OF THB State of New York, 



335 



the Code of Crhninal Procedure. People v. Walsh, 88 Hun, 845; 67 How. Pr. 
483. 

A society organized under chapter 130, Laws of 1875, may prosecute cases 
AiisiDg under this section. The president thereof may prosecute ihe case, 
although no formal action has been taken by the society, as such an act is 
inddental to the execution of the trust reposed in him as the head of the cor- 
porate body. 

The fact that the child has voluntarily left its home does not absolve tbe 
father from his obligation to support and maintain it, nor relieve him from 
liability under this section for a failure to do so. People v. Strickland, 13 
Abb. N. C. 478. 

§ 900. On complaint, warrant to be issued*— Upon com* 
plaint on oath, to a justice of the peace or police justice of a city, 
Tillage or town, or to the mayor, recorder, city judge or judge of 
the general sessions of the city, against a person, as being disor- 
derly, the magistrate must issue a warrant, signed by him, with 
his name of office, requiring a peace officer to arrest the defend- 
ant, and bring him before the magistrate for examination. 

See Potter v. Mr Alpine, 3 Dom. 124; Com'rM of C/tfiritus v. Tfamruill, 33 
Han, 348; Tivlkley v. Boyce, 48 id. 201; Pcojile, ex ret. Seherer, v. Walsh, 2 
X. Y. Cr. Rep. 827; People, ex rel, LirlUenntein, v. Hodgson, 85 N. Y. State 
Rep. 982. 

§ 901. On confiBSsion or proof that he is a disorderly 
person, security to be required. — If the magistrate be sat- 
isfied, from the confession of the defendant, or by competent 
testimony, that he is a disorderly person, he may require that the 
person charged give security, by a written undertaking, with one 
or more sureties approved by the magistrate, to the following 
e£Eect : 

1. If he be a person described in the first or second subdivision 
of section eight hundred and ninety-nine, that he will support 
his wife and children, and will indemnify the county, city, village 
or town against their becoming, within one year, chargeable upon 
the public ; 

2. In all other cases, that he will be of good behavior for the 
space of one year ; 

Or that the sureties will pay the sum mentioned in the under 
taking, and which must be fixed by the magistrate. 

See BuOdey v. Boyce, 48 Hun, 261: Lvtes v. SheUey, 40 id. 197; CfmWs v 
Sdmmm, 88 id. 848; Patt&r v. Mc Alpine, 3 Dem. 124; MatUr of AfeMahon, 64 
How. Pr. 285; 1 N. Y. Cr. Rep. 58: People v. Carroll, 8 Park. 78. 



336 



The Code of Criminal Pbooedusb 



§ 902 If security given, defendant to be discharged ; 
if not, to be convicted ; form of certificate. — ^If the nndeiN 
taking be given, the defendant must be discharged. But if not, 
the nia^strate must convict him as a disorderly person, and must 
make, and sign with his name of ofBice, a certificate in substan- 
tially the following form : 

" I certify that A. B., having been brought before me charged 
with being a disorderly person, I have duly examined the charge, 
and that upon his own confession in my presence [or ^ upon the 
testimony of C. D.,' etc., naming the witnesses], by which it 
appears that he is a [pursuing the description contained in the 
subdivision of section eight hundred and ninety-nine, which is 
appropriate to the case], I have adjudged that he is a disorderly 
person. 

" Dated at the town [or * city '] of , the day of , 18 

"E. F., 

• Justice of the peace of the Umn, of 

" [Or as the case may be.] " 

See PotUr McAVgine, 8 Denu 184; Ptfopfe, exrel,,Y, Saddler, VJ N. Y. 147; 
8 N. Y. Cr. Rep. 473. 

§ 903. Certificate to constitute record of oonviotioni 
and to be filed; commitment thereon. — The magistrate must 
immediately cause the certificate, which constitutes the record of 
conviction, to be filed in the oflSce of the clerk of the county, and 
must, by a warrant signed by him with his name of office, com- 
mit the defendant to the county jail, or in the city of New York, 
to the city prison or penitentiary of that city, or in the county of 
Kings, to the penitentiary of that county, for not exceeding six 
months at hard labor, or until he gives the security prescribed in 
section nine hundred and one. 

See Potter v. McAlpine, 3 Dam. 124; People, ex rel., Sadler, 97 N. Y. 147; 
8 N. Y. Cr. Rep. 473; Matter of Nichols, 31 Daily Reg. ISS; Matter of TnmbU, 
62 How. Pr. 61; Matter of Wacher, id. 362; People v. Coffee, id. 445. 

§ 904. XJndertakiiig, when forfeited. — The undertaking 
mentioned in section nine hundred and one is forfeited by the 
commission of any of the acts which constitute the person by 
whom it was ejiven a disorderly person, and in the case of a per- 
son described in the seventh and eighth subdivisions of section 



OF THB State of New Yobk. 



887 



eight hundred and ninetj-nine, bj his playing or betting, at one 
time or sitting, for money or property exceeding the value of 
two dollars and fifty cents. 
See PoU&r y. MeAlpine, 8 Dem. 124; Buckley Boyce, 48 Han, 262. 

§ 905. How profisecuted, and prooeedB how applied. — 
When an undertaking is forfeited, it may be prosecuted in the 
name of the county superintendents of the poor, or the overseers 
of the poor of the town, or in the city of New York, in the 
name of the corporation of that city, and the sum collected in 
the action must be paid into the county or city treasury, as the 
ease may be, for the benefit of the poor. 

Bee Lutea v. SheOey, 40 Hon, 199; People PettU, 8 id. 416. 

§ 906. When new secarity may be required, or defend- 
ant conunitted after recovery on undertaking. — Upon a 
recovery on the undertaking, the court in which it is had, may 
require from the defendant new security in the manner provided 
in section nine hundred and one, or if he fail to give it, may 
commit him in the manner provided in section nine hundred and 
three. 

See Lutes SheOey, 40 Han, 199. 

§ 907. Defendant committed for not giving security ; 

how discharged. — A person committed as a disorderly person, 
on failure to give security, may be discharged by any two justices 
of the peace or police justices or the county judge of the county, 
npon giving security as originally required, pursuant to section 
nine hundred and one. 
See PeopU, ex rd., v. Sadler, 97 N. Y. 147; 3 N. Y. Cr. Rep. 473. 

§ 908. Keeper of prison, to return list of disorderly 
persons committed to court of sessions. — The keeper of 
every prison to which disorderly persons may be committed, 
must return to the court of sessions of the county, on the first 
day of each term, a list of the persons so committed and then in 
his custody, with the nature of the offense of each, the name of 
the magistrate by whom he was committed, and the term of his 
imprisonment. 

48 



338 The Code of Cbiminal Psocbdubb 



§ 909. Examination of the case by the court. — The 

court of sessions must thereupon mquire into the circumstancei 
of each case, and hear any proof that may be offered, and must 
examine the record of conviction, which is evidence of the facts 
contained in it, until disproved. 

§ 910. Court may diacharge, or authorize the binding 
out of disorderly person. — The court may discharge a per* 
son so committed from imprisonment, either absolutely or upon 
his giving security as provided in section nine hundred and one, 
or if he be a minor, may authorize' the county superintendents of 
the poor, or the overseers of the poor of the town, or in the city 
of New York, commissioners of charities and corrections, to bind 
him out in some lawful calling as a servant, apprentice, mariner 
or otherwise, until he be of age ; or if he be of age, to contract 
for his service with any person, as a laborer, servant, apprentice, 
mariner or otherwise, for not exceeding one year. The binding 
out or contract, pursuant to this section, has the same effect as 
the indenture of an apprentice, with his own consent and that of 
his parents, and subjects the person bound out or contracted, to 
the same control of his master and of the court of sessions of 
the county, as if he were bound as an apprentice. 

See PeopU, ex rel., v. SadUr, 97 N. Y. 147; 3 N. Y. Cp. Rap. 478. 

§ 911. Court may also commit him to prison ; nature 
and duration of imprisonment. — The court may also, in its 
discretion, order a person convicted as a disorderly person, to be 
kept in the county jail, or in the city of New York, in tlie city 
prison or penitentiary of that city, for a term not exceeding six 
months at hard labor. 

§ 912. Order to procure materials and imj^lements, and 
to compel him to work. — If there be no means provided in 
the prison for employing the offender at hard labor, the court 
may direct the keeper to furnish him such employment as it may 
specify, and for that purpose to purchase materials and imple- 
ments, not exceeding a prescribed value, and to compel the 
offender to perform the work allotted to him. The expensea 
incurred in carrying the order into effect must be paid to the 
keeper by the county treasurer, upon the delivery to him of the 
order of the court, and an account under the oath of the keepe>*| 
of the materials and implements furnished. 



OF THB State of New York. 



389 



S 91S. Ezpense of materials or implemeiits, how paid 
te; and prooeeda of labor, how diapoaed of. — The keeper 
must sell the produce of the labor of the offender, and must 
■coount for the cost of the materials or implements purchased, 
and for one-half of the surplus, to the board of superWsors, and 
pty it into the connty treasury, and pay the other half of the 
orplus to the person by whom it was earned, on his discharge 
from imprisonment. He must also account to the court, when 
required, for the materials or implements purchased, and for the 
diqKMition of the prvteeds of the labor of the offender. 



TITLE Vm. 

OF FBOOXXDnrOS BSSPEOTIlfrG THB BUPPOBT OF FOOB 

PERSONS. 

tam 914. Who may be compelled to tapport poor relatlTea 

91S. Order to compel a person to support a poor relative, by whooi 

and how applied for to court of sessions. 
918. Court to hear the case and make order of support 

917. Support, when to be apportioned among different relatives. 

918. Order, to prescribe time during which support is to continue, or 

may be indefinite; when and how order may be varied. 

919. Costs, by whom to be paid and how enforced. 
99Qr Action on the order, on failure to comply therewith. 

991. Parents leaving their children chargeable to the public, how 

proceeded against 
928. Seizure of their property; transfer thereof, when void. 
988. Warrant and seizure, when confirmed or discharged; directioa 

of the court thereon. 
984. Warrant, in what cases to be discharged. 
986. Sale of the property seized and application of its prooeeda. 
986. Powm of superintendents of poor. 

(914. Who may be compelled to support poor relatival. 

Tbe &ther, mother and children, of sufficient ability, of a poor 
pmon who is inaane, blind, old, lame, impotent or deorepid, bo a* 
to be unable hj work to maintain himaelf, must at their own 
eharge, relieve and maintain him in a manner to be approved b; 
the overseers of the town where he is, or in the city of New York, 
by the commissioners of charities and corrections. 



840 Thb Code of Cbqiinal Paoobdurb 



See 64 Am. Dec. 270; Schoaler's Dom. Rel., g 287; Edtoardt v. Davis, 16 
Johns. 281; Stone v. Burgess, 2 Lans. 489; 47 N. Y. 521; Menden v. Oox, 7 Cow. 
285; Afatter of Hunt, 5 id. 284; Stevens v. Cheney, 86 Hun, 2; TUlotsan 
Bmith, 40 id. 822; Herendeen y. De Witt, 49 id. 58. 

§ 915. Order to compel a person to support a poor rela^ 
tive, by whom and how applied for, to court of sessions. 

If a relative of a poor person fail to relieve and maintain him, as 
provided in the last section, the overseers of the poor of the town 
where he is, or in the city of New York, the commissioners of 
charities and corrections may apply to the court of sessions of the 
county where the relative dwells, for an order to compel such 
relief, upon at least ten days' written notice, served personally, or 
by leaving it at the last place of residence of the person to whom 
it is directed, in case of his absence, with a person of suitable age 
and discretion. 

See Stwens y. Cheney, 86 Hun, 8; Anon., 8 N. T. Leg. Obs. 854. 

§ 916. Court to hear the case, and make order of sup- 
port. — At the time appointed in the notice, the court must pro- 
ceed summarily to hear the allegations and proofs of the parties, 
and must order such of the relatives of the poor person, men- 
tioned in section nine hundred and fourteen, as were served with 
the notice and are of sufficient ability, to relieve and maintain 
Lim, specifying in the order the sum to be paid weekly for his 
support, and requiring it to be paid by the father, or if there be 
none, or if he be not of sufficient ability, then by the children, or 
if there be none, or if they be not of sufficient ability, then by 
the mother. 

§ 917. Support, when to be apportioned among dijQEto- 
ent relatives. — If it appear that any such relative is unable 
wholly to maintain the poor person, but is able to contribute 
toward his support, the court may direct two or more relatives, 
of different degrees, to maintain him, prescribing the proportion 
which each must contribute for that purpose ; and if it appear 
that the relatives are not of sufficient ability wholly to maintain 
him, but are able to contribute something, the court must direct 
the sum, in proportion to their ability, which they shall pay 
weekly for that purpose. 
See Stone v. Burgess, 2 Lans. 489; 47 N. T. 521.' 



OF THE State of New York. 



341 



§ 918. Order to prescribe time during which rapport 
ii to continue, or may be indefinite ; when and how 
order may be varied. — The order may specify the time during 
which the relatives most maintain the poor person, or duiing 
which any of the sums directed by the court are to be paid, or it 
may be indefinite, or until the further order of tlie court. The 
court may from time to time vary the order, as circumstances may 
require, on the application either of any relative affected by it, or 
of an officer on whose apphcation the order was made, upon ten 
days' written notice. 

§ 919. CoBte, by whom to be paid, and how enforced. — 

The costs and expenses of the application must be ascertained by 
the court, and paid by the relatives against whom the order in 
made ; and the payment thereof, and obedience to the order of 
maintenance, and to any order for the payment of money, may 
be enforced by attachment. 

§ 920. Action on the order on failure to comply there- 
with. — If a relative, required by an order of the court, to re- 
lieve or maintain a poor person, neglect to do so in the manner 
approved by the officers mentioned in section nine hundred and 
fourteen, and neglect to pay to them weekly the sum prescriljed 
by the court, the officers may maintain an action against the rela- 
tive, and recover therein the sum prescribed by the court, for 
every week the order has been disobeyed, to the time of the 
recovery, with costs, for the use of the poor. In the city of 
New York, the action must be in the name of the corporation of 
that city. 

See CaneensY, McArthur, 17 Barb. 410; Duel v. Larnb, 1 Th. & C. 66. 

§921. Parents leaving their children chargeable to 
the public, how proceeded against — When the father, or 
the mother being a widow or living separate from her husband, 
absconds from the children, or a husband from his wife, leaving 
any of them chargeable or likely to become chargeable upon the 
public, the officers mentioned in section nine hundred and fourteen 
may apply to any two justices of the peace or police justices in 
the county in which any real or personal property of the father, 
mother or husband is situated, for a warrant to seize the same. 



342 Thb Code of Obiminal Prookdurb 



Upon dae proof of the facts, the magistrate mast issue his war* 
rant, authorizing the officers so applying to take and seize the 
property of the person so absconding. Whenever any child 
shall be committed to an institution pursuant to any provision (»f 
the Penal Code, any magistrate may issue a warrant for the ar- 
rest of the father of the child, and examine into his ability to 
maintain such child in whole or in part; and if satisfied that finch 
father is able to contribute toward the support of the child, then 
the magistrate shall, by order, require the weekly payment by such 
father of such sum, and in such manner as such magistrate shall 
in said order direct, toward the maintenance of such child in such 
institution, which amount when paid shall be credited by the in- 
stitution to the city, town, or county against any sums due to it 
therefrom on account of the maintenance of the child. 

See People v. Overaeers, 23 Barb. 236; Downing v. Eugcn; 21 Wend. 188. 

§ 922. Seizure of their property; transfer thereof 
when void. — The officers so applying may seize and take the 
property, wherever it may be found in the same county ; and are 
vested with all the right and title thereto, which ^e person 
absconding then had. The sale or transfer of any personal 
property, left in the county from which he absconded, made 
after the issuing of the warrant, whether in payment of an 
antecedent debt or for a new consideration, is absolutely void- 
The officers must immediately make an inventory of the property 
seized by them, and return it, together with their proceedings, to 
the next court of sessions of the county where they reside, there 
to be filed. 

§ 923. Warrant and seizure, when confirmed or die- 
charged ; direction of the court thereon. — The court, 
upon inquiring into the circumstances of the case, may confirm 
or discharge the warrant and seizure ; and if it be confirmed, 
must, from time to time, direct what part of the personal prop- 
erty must be sold, and how much of the proceeds of the sale, 
and of the rents and profits of the real property, if any, are to 
be applied towards the maintenance of the children or wife of 
the person absconding. 
See People v. Oveneen, 28 Barb. 288. 



OF THB StATX of NeW YoRK. 



848 



§ 924. Warrant, in what cases to be discharged. — If 

the party against whom the warrant issued, return and support 
the wife or children so abandoned, or give security satisfactory to 
any two justices of the peace, or police justices in the city, villa^fw 
or town, to the overseers of the poor of the town, or in the city 
of New York, to the commissioners of charities and corrections, 
that the wife or children so abandoned shall not be chargeable to 
the town or county, then the warrant must be discharged by an 
order of the magistrates, and the property taken by virtue thereof 
restored to the party. 

§ 9S5. Sale of the prop er ty seized and application of 
its proceeds. — The officers must sell at public auction the 
property ordered to be sold, and receive the rents and profits of 
the real property of the person absconding, and in those cities, 
villages or towns which are required to support their own poor, 
the officers charged therewith must apply the same to the sup- 
port of the wife or children so abandoned ; and for that purpose 
must draw on the county treasurer, or in the city of New York, 
upon the comptroller, for the proceeds as directed by special 
statutes. They must also account to the court of sessions of the 
county, for all money so received by them, and for the application 
thereof, from time to time, and may be compelled by that court 
to render that account at any time. 

§ 926. Powers of superintendents of poor. — In those 
counties where all the poor are a charge upon the county, 
the superintendents of the poor are vested with the same powers, 
as are given by this title to the overseers of the poor of a town, 
in respect to compelling relatives to maintain poor persons, and 
in respect to the seizure of the property of a parent absconding 
and abandoning his family ; and are entitled to the same remedies 
in their names, and must perform the duties required by this 
title, of overseers, and are subject to the same obligations and 
controL 

See TShtstm v. Smith, 12 N. Y. State Bep. 882; Norton v. Bkodes, 18 Barb. 
100. 



341 Thb Codb of Csimutal Pbooedusx 



TITLE IX. 

OF PBOOEEDn^GS BESPEOTING MA8TEBS, APPBENTIOES AND 

BKEVANT8. 

SaonoN 927. C!omplaint against apprentice or senrant for absenting himself 
or refusing to serve, or for a misdemeanor or ill behayior. 
92S, Warrant, when complaint is made in the absence of the 
defendant 

029. Warrant, by whom and how executed. 

980. Hearing the complaint, and committing or discharging the 

defendant 

981. Complaint against the master for cruelty, misusage or yiolation 

of duty. 

982. Hearing the complaint, and dismissing it or discharging the 

apprentice or servant 
988. Preceding sections not applicable to apprentice with whom 

money is received or agreed for. 
984. Complaint against master in such case, and direction thereon. 
966. If complaint not compromised, the master to be held to appear 

at sessions. 

986u Proceedings thereon and order of the court 

937. Complaint by master against clerk or apprentice, where money 

is paid or agreed for; clerk or apprentice, when held to appear 

at sessions. 

988. Proceedings thereon and order of the court 

989, 940. Indenture or contract of service, how assigned on death of 

master. 

§ 927. Complaint against apprentice or servant, for 
absenting himself, or refusing to serve, or for a misde- 
meanor or ill behavior. — If an apprentice or servant, law- 
fully bound to service as prescribed by special statutes, willfully 
absent himself therefrom, without the leave of his master, or refuse 
to serve according to his duty, or be guilty of any misdemeanor 
or ill behavior, his master may make complaint of the facts under 
oath before a justice of the peace or police justice in the county 
or before the mayor, recorder or city judge of the city where he 
resides. 

§ 928. Warrant, when complaint is made in the 
absence of the defendant. — If the complaint be made in 
the absence of the defendant, and the facts be proved to the 
satisfaction of the magistrate, he must issue a warrant signed by 
him, with his name of office, to a peace officer of the county or 



OF THB State of Nkw York. 



845 



atv. oommanding him to arrest the defendant and bring him 
before the magistrate forthwith, or at a specified time and place, 
to answer the comphdnt 

§ 929. Warrant, by whom and how executed. — The 

peace officer most accordingly execute the warrant by arresting 
the defendant and taking him before the magistrate. 

§ 930. Hearing the complaint, and committing or dis« 
charging the defendant. — The magistrate most immediately, 
or at a time to which he may, for good cause, adjourn the matter, 
proceed to hear the allegations and proofs of the parties, and if 
the complaint appear to be well founded, must commit the 
defendant to the county jail, or in the city of New York to the 
city prison of that city, for not exceeding one month, at hard 
labor, where he must be confined in a room with no other person ; 
or may, by a certificate signed by him with his name of office^ 
discharge the defendant from the service of his master, and the 
master from all obligations to the defendant. 

§ 931. Complaint against the master for cruelty, mis- 
usage or violation of duty. — If a master be guilty of cruelty, 
misusage, refusal of necessary provisions or clothing, or any 
other violation of duty toward his apprentice or servant, as pre- 
Bcribed by special statutes, or by the indenture or contract of 
aervice, the apprentice or servant may make complaint, on oath, 
to any of the magistrates mentioned in section nine hundred and 
twenty-seven, who must sunmion the defendant before him at a 
specified time and place. 

See EtOoran v. Barton, 26 Hun, 648. 

§ 932. Hearing the oomplaint, and dismisBing it or dis- 
charging the apprentice or servant. — The magistrate must 
immediately, or at a time to which he may, for good cause, 
adjourn the matter, proceed to hear the allegations and proofs of 
the parties, and if the complaint be well founded, must, by a 
certificate under his hands, with his name of office, discharge the 
apprentice or servant from the service of his master ; or if not, 
he must, by a similar certificate, dismiss the complaint. 
See SStortM BofrUm, 36 Hun, 648. 
44 



846 Thb Oodb of Obiminal Pboosdusb 



§ 933. Preceding sections not applicable to apprentice 
with whom money is received or agreed for. —The pre- 
cediDg sections of this title do not extend to an apprentice whose 
master has received, or is entitled to receive, a sum of money 
with him, as a compensation for his instruction. 

See mUoran y. Barton, 26 Han, 648. 

§ 934. Complaint against master in such case, and 
direction thereon. — Where money is paid or agreed to be 
paid, on binding out a derk or apprentice, he may make the 
complaint mentioned in section nine hundred and thirty-one, and 
the magistrate to whom it is made must examine it, as provided 
in section nine hundred and thirty-two, and on such examination 
may make such order and direction between the parties as the 
justice of the case may require. 

See KiUoran y. Barton, 36 Han, 648. 

§ 935. If complaint not compromised, the master to he 
held to appear at sessions* — If , in the case mentioned in the 
last section, the complaint cannot be compromised, the magistrate 
must take a written undertaking from the master, for his appear- 
ance at the next court of sessions of the county, in a sum, and 
with sureties approved by him. 
See KaUoran v. Barton, 26 Hun, 648. 

§ 936. Proceedings thereon and order of the court. — 

Upon hearing the parties, the court may, by an order entered 
upon the minutes, direct that the derk or apprentice be discharged 
from service, and that the money paid or agreed for in binding 
him out, be refunded, if paid, to the person who advanced it, or 
his personal representatives, or if not paid, that it be discharged, 
and that any security given therefor be delivered up or canceled. 

§ 937. Complaint by master against derk or apprentice, 
where money is paid or agreed for ; derk or apprentice 
when held to appear at sessions. — The master of a clerk or 
apprentice, where money is paid or agreed for on binding him out, 
may make the complaint mentioned in section nine hundred and 
twenty-seven, and the magistrate to whom it is made must pro- 
ceed Uiereupon, as provided in sections nine hundred and twenty* 
eight to nine hundred and thirty, both inclusive, and may di8Qhaiig;e 



OF THX State of Nxw York. 



847 



the oomj^aint, or if in hig opinion it be well founded, maj take a 
written undertaking, in a sum and with snretiea to be approved 
hj him, for the appearance of the clerk or apprentice at the next 
eonrt of Beeaions of the county. 

§ 938. Frooeedings thereon, and order of the court.— 

Upon hearing the parties, the court may proceed as provided in 
section nine hundred and thirty-six, and may punish the clerk of 
apprentice, by fine or imprisonment, or both, as for a misdemeanor. 

§ 939. Indenture or contract of service, how assigned 
aa death of master. — Upon the death of a master to whom a 
person has been bound to service, as clerk, apprentice or servant, 
by the county superintendents of the poor, or by the overseers of 
the poor, or in the city of Hew York, by the commissioners of 
charities and corrections, the personal representatives of the mas- 
ter may, with the written consent of the clerk, apprentice or serv- 
ant, acknowledged before a justice of the peace or police justice, 
assign the indenture or contract of service to another, who thereby 
becomes vested with all the rights of the master. 

§ 940. Indenture or contract of service, how assigned 
on death of master. — K, in the case mentioned in the last sec- 
tion, the written consent of the clerk, apprentice or servant be 
refused, the assignment may be made with the same effect, under 
an order of the court of sessions of the county, upon fourteen 
days' notice of the application therefor, to the apprentice, or to 
his parent or guardian, if there be any in the county. 



TITLE X. 

OF OBIMINAL STATISTICS. 

ftKlllim 941. Difitrict attorney to fumiah statenMOt 
942. Duty of clerk. 
948. Duty of clerk. 

944. Duty of clerk. 

945. Sheriff's report. 
94d. Sheriff's report 

947. Form of report. 

948. Consequence of neglect 

949. Duty of secretary of state. 



848 



Thb Code of Cbhonal Pbooedubb 



§ 941. District attorney to fttmiah statement.— Within 
ten days after the adjournment of any criminal court of record 
in this state, the district attorney of the county in which the 
court shall be held, must furnish to the clerk of the court such e 
description of the offense committed by every person convicted of 
crime, abridged from the indictment, as would be sufficient to 
maintain the averments relating to such offense, or necessary to 
be made in an indictment for a second offense. 

§ 942. Duty of clerk.— Within twenty days after the adjourn 
ment of any criminal court of record, the clerk thereof must 
transmit to the office of the secretary of state such statement 
furnished by the district attorney, of all convictions had at such 
court 

§943. Duty of clerk. —Within twenty days after the 
adjournment of any criminal court of record, the clerk thereof must 
also transmit to the office of the secretary of state a duly certified 
statement of the number of indictments tried at such court, speci- 
fying the number for each separate offense, the number on which 
convictions were had, and on which defendants were acquitted, 
and of indictments against persons who were convicted on con- 
fession, and against persons who were discharged without triaL 

§ 944. Duty of clerk. — On or before the fifth day of every 
month, the clerk of each county must transmit to the secretary of 
state copies of all certificates of convictions made by any court of 
special sessions, and required by law to be filed with such clerk, 
and which have been filed in the office of the county clerk dur 
ing the previous month. 

§945. Sheriff's rei)ort. — A report must be made by the 
dieriff of every county in which there is a city, on the first day 
of every month to the secretary of state, of the number of per- 
sons convicted in city courts, courts of special sessions, and police 
oourto during the preceding month. Such reports must specify 
the crimes, the whole number convicted, the sex, age, nativity, 
and whether married or single ; the degree of education, religions 
instruction, whether parents living or dead, temperate or intem- 
perate^ and whether before convicted or not of any crime. 



OT THE State of New York. 



349 



§M6. Sheriff's report. —Within twenty days after the 
idjonmment of any criminal court of record, the ^eriff of the 
oonnty in which snch court shall be held, must report to the secre- 
tary of state, the name, occupation, age, sex and native country of 
erery person convicted at such court of any offense, and the degree 
of instruction which each person so convicted has received, and 
alBo snch other items of information in relation to such convicts, 
and their offenses, as the secretary of state shall require. 

§ 947. Form of report. — The report required by this title 
must be made in the form prescribed by the secretary of state. 

§948. Consequence of neglect. — For every neglect of 
magistrate, clerk or sheriff to comply with the requirements of 
this title, he forfeits the sum of iif ty dollars, to be recovered in 
a dvil action, in the name of the people of this state. 

§ 949. Duty of seoretary of state. — The secretary of state 
must cause this title to be published, with forms and instructions 
for the execution of the duties therein prescribed, and to be dis- 
tributed among the officers therein mentioned ; the expense of 
which must be paid by the treasurer, on the warrant of the 
comptroller. He must also annually report to the legislature the 
iQsultB of the information obtained in pursuance of this title. 



TTTLE XL 

USOXLLAKBOtTS PB0VISI0N8, BS8PE0TINO SPXOIAL PRO* 
OSHDINGB OF A CRIMINAL NATURE. 

Bmmsm INWl Parties to a special proceeding, how designated. 

961. Prorisions respecting entitling affidavits, applicable. 
MS. Courts and magistrates to issue subpoenas, and punish disob» 
dienoe of witnessess. 

§950. Parties to a specislproceediiig, how desigiiatecL— 
The parties profiecuting a special proceeding of a criminal nature, 
is designated in this Code as the complainant, and the adverse 
party as the defendant 
See PeopU t. WaUh, 67 How. Pr. 484; 88 Han, 846; 2 N. T. Cr. Bep. 887. 



850 The Code of GxDiiNiLL Pbogsdubs 



§ 961. ProviBioziB respecting entitiing affldavltBy appli- 
oable. — The proviaions of this Code, in respect to entitling 
affidavits in a criminal action, are applicable to special proceed- 
ing of a criminal nature. 

Bee Comm'rs <^ OharUw ffammiU, 88 Hon, 848; People v. WaUh, id. 845; 
67 How. Pr. 484. 

§ 952. Ctourts and xnaglst»teB to issue subpoenas, and 
punish disobedience of witnesses. — All courts and magis- 
trates having before them special proceedings of a criminal 
nature, may issue subpoBuas for witnesses, and punish their dis- 
obedience in the same manner as in criminal actions. 

See People v. WaUh, 2 N. T. Cr. Rep. 827; 67 How. Pr. 484; 88 Hon, 846; 
Oanm're of OharitUe y. HammiU, id. 848. 



GENERAL PROVISIONS AND DEFINITIONS 
APPLICABLE TO THIS CODE. 

Sionov 9S8. Abatement of nuisance. 

954 No part of this Code retroactiTe, onleai ezpradj so dadaraL 

Wi, Present tense includes future, etc 

966. Definition of "writing." 

967. Definition of "oath." 

968. Definition of " signature." 

969. Definition of "magistrate." 

960. Definition of "peace ofELcer." 

961. Definition of " court of sessions." 

962. To what actions and proceedings this Oode applies 
968. When Code to take effect. 

% 953. Abatement of nulBanoe. — Where a person iseon^ 

yioted of keeping or maintaining a public nuiBanoe, and sentenced 
to punishment, the court may in its judgment, in addition to or 
in place of other punishment, direct that the nuisance be abated, 
and issue an order to the sherifE of the proper county to execute 
the jud^ent as therein directed. 

See 1 DUl. Man. Corp. (4th ed.), g 874; And^»on v. Doty, 88 Hon, 168; 
Syracuse, etc., B. Co. y. People, 66 Barb. 26. 

§ 954. Nopartof this Ck>de retroactive, imleBsezps^eflaly 
80 dedarod. — No part of this Oode is retroaotiTe, nnlesi 
expressly so declared. 



OF THB State of New York. 



351 



§§ 955-957. nepealod 1893, chap. 677. 

§ 958. Deftoitlon of signature."— The term signatnre ^ 
indndee a mark, when the person cannot write ; his name bemg 
written near it, and the mark being witneeeed by a person who 
writes his own name as a witness, except to an affidavit or deposi- 
tion, or a paper executed before a judicial officer ; in which case 
the attestation of the officer is sufficient. 

See Qieeol. Ev. (14th ed.), § 674; 58 Am. Rep. 493, note. 

§ 959. Beflxilticxnof *^ xnagiBtrate." — Unless when otherwise 
provided, the term magistrate " signifies any one of the magis- 
trates mentioned in section one hundred and forty-seven. 

§ 960. Defliiition of peace officer.'' — Unless when other- 
wise provided, the term peace officer " signifies any one of the 
officers mentioned in section one hundred and fifty-four. 

§ 961. Beflxiitioii of court of seasionB." — The term 
^ court of sessions" includes the court of general sessions in the 
dty and county of New York," wherever such inclusion does not 
oonffict with other provisions of this Code. 

§ 962. To what actions and proceedings this Ooda 
applies. — This Code applies to criminal actions, and to all 
other proceedings in criminal cases which are herein provided for, 
from Uie time when it takes effect ; but all such actions and pro- 
ceedings, theretofore commenced, must be conducted in the same 
manner as if this Code had not been passed ; except that if in any 
local statute confined, by its terms, to a town or village or to a 
county or city other than the city and county of New York, any 
proceeding is prescribed, in addition to those prescribed by this 
Cod^ and not inconsistent with it, the same shall remain unaf- 
fected by it. 

tiee ?enal Code, § 719: People, ex rel, Sherwin, v. Mead, 64 How. Pr. 41; 02 
N. Y. 415; Matter of McMahon, 64 How. Pr. 285; 1 N.Y. Cr. Rep. 58; McKeon 
T. PeopU, Id. 456; 94 N. Y. 648; Oetrander v. People, 28 Hun, 48; 29 Id. 518; 
1 N. Y. Cr. Rep. 274; People ▼. BeckwUh, 2 id. 29; People v. Bork, id. 66; 96 



352 



The Code of Criminal Pbocedube. 



N.T. 188; 2N.Y. Cr. Rep. 177; FeopU v.Augtbury, id. 561; People y. 8euions,62 
How. Pr.415; 10 Abb. N.C. 192: Kring v. IfiMotin. 107 U. 8. 221 ; ffopiy. Terri- 
tory, 29 Alb. L. J . 837; Marion State, 16 Neb . 849; 81 Alb. L. J. 71 : People v. 
EcHmee, 41 Hun, 55; 5 N. T. Cr. Rep. 130; CommWe of Charitiea v. ffammU, 83 
Hun, 848; WiUett y. PeopU, 27 id. 469, 471; People v. Hovey, 92 N. T. 558. 

§ 963. When Code to take effect.— This Code shall take 
effect on the first day of September, eighteen hundred and eighty- 
one. When construed in conuection with other statutes, it must 
be deemed to have been enacted on tlie fourth day of January, 
eighteen hundred and eighty-one, so that any statute enacted after 
that day is to have the same effect as if it had been enacted after 
this Code. 

See Matter of McMaJym, 64 How. Pr. 284; 1 N. T. Cr. Rep. 58; People v. 
Jeffvrmm, 101 N. Y. 20; 8 N. Y. Cr. Rep. 575; Peoples , Sessions, 62 How. Pr. 415; 
10 Abb. N. C. 192; WiUeU v. PeopU, 27 Hun. 470; People v Petrea, 92 N. Y- 
128; People, ex rel„ Sadler, 2 N. Y. Cr. Rep. 439, 440; Matter of Waters, 66 
How. Pr. 174; Matter qfEamsoar, 1 N, Y. Cr. Sep. 88^ People y. Wileh,id. 488. 



SUPPLEMENT TO THE CODE OF 
CRIMINAL PROCEDURE. 



§ 9. An acquittal upon a charge of 
maolt and battery is a bar to an in- 
dictmeot for rape, where both charges 
are based on the same transaction. 
Peo. V. Purcell (N. Y. Gen. Sessions. 
1891). 16 N. Y., Supp. 199. Fitz- 
gerald, J., in charging the jury, 
said: **I have given this case very 
careful consideration, and have exam- 
ined such authorities as my attention 
has been called to by the learned 
counsel representing the defendant 
and the learned Assistant District 
Attorney, and I have made such in- 
Testigdtion as it was possible for me 
to make during the time this matter 
has been under my consideration. 

It is conceded that this indictment 
is based, in part, upon a statement of 
facts which formed the ground for 
a complaint against the defendant, 
charging him with the commission of 
a misdemeanor— assault in the third 
degree— and, furthermore, that he 
was tried and acquitted of the said 
assault in the Court of Special Ses- 
sions. This complaint, subscribed and 
sworn to by the prosecutrix, is part 
of the record and charges only an 
assault in the third degree. An in- 
dictment for rape necessarily includes 
an allegation of assault. The conces- 
sion of the prosecution that the two 
accusations grew out of the same 
crirainal act, leaves no facts in con- 
troversy to be determined by the jury, 
but devolves a question of law upon 
the Court. The District Attorney 



admits that there was but one assault 
committed, and that some of the cir- 
cumstances upon which he must rely 
to establish the truth of the allega- 
tions in this indictment formed the 
subject matter of the inquiry upon 
the former trial. Assault is an essen- 
tial element in rape, and a learned 
commentator, discussing the question 
whether the conviction or acquittal 
upon an indictment covering one of 
the smaller crimes included within a 
larger will bar fresh proceedings for 
the larger, proceeds to say: 'If it 
will not, then the prosecutor may 
begin with the smallest, and obtain 
successive convictions, ending with 
the largest; while if he began wMth 
the largest, he must there stop — con- 
clusion repugnant to good sense. Be- 
sides, as a larger includes a smaller, 
it is impossible one should be con- 
victed of the larger without being also 
convicted of the smaller; and thus, 
if he had been found guilty or not 
guilty of the smaller, he is, when on 
trial for the larger, in jeopardy a 
second time for the same, namely, the 
smaller offense' (1 Bish. Crim. Law, 
7th ed., § 1057). 

That is the reasoning of Bishop 
reviewing these cases that have been 
referred to on both sides of this argu- 
ment, and laying down such general 
rules as it was possible to lay down 
for the guidance of Courts governing 
these matters. 

Chief Justice Pierson says: * There 



2 



is considerable conflict in the authori- 
ties upon this subject, but wc think 
the rule is now well established that 
when one offense is a necessary cle- 
ment in, and constitutes an essential 
part of, another offense, and both are 
in fact but one transaction, a convic- 
tion or acquittal of one is a bar to the 
prosecution for the other' (State v. 
Smith, 43 Vermont, 824; Reg. v. 
Erlington, 9 Cox C. C, 86). 

Nor can the contention of tlie pros- 
ecution, that the Court in which the 
former trial was had had not jurisdic- 
tion to try a felony, be of any avail. 
It was a Court of competent jurisdic- 
tion to determine the guilt or inno- 
cence of the defendant upon the accu- 
sation made then against him by the 
prosecutrix. The complaint in one 
case and the indictment in the other 
set out offenses which relate to one 
transaction. It is true that one con- 
tains more of criminal charge than 
the other, but upon it there could be 
a conviction of what is embraced in 
the other. This brings the offenses, 
though of differing names, within the 
constitutional protection from a second 
jeopardy. There are some exceptions 
to this general rule, as where death 
would result after conviction of an 
assault, ' but the new element of the 
injured person's death is not merely a 
supervening aggravation; it creates a 
new crime.' (Stewart's case, 5 Irvine, 
810). 

I therefore instruct you, gentlemen 
of the jury, to find, upon the special 
plea interposed here, a verdict for the 
defendant." (See also, 14 Eng. Rep. 
657; People v. Saunders. 4 Park., 196. 

In Simmons v. United States, 142 
U. S., 148, a trial upon an indictment 
for embezzlement, after evidence had 
been given for the prosecution, an 
affidavit was produced alleging that 
a juror, on his voir dire, falsely swore 



that he had no acquaintance with the 
accused. Thereafter a letter com- 
menting upon this affidavit was pub- 
lished in a newspaper, and was read 
by members of the jury. JIddt that 
the court was warranted in dismissing- 
the jury, and that a new trial was not 
barred on the ground of former jeop- 
ardy. Gray, J., said: "The general 
rule of law upon the power of the 
court to discharge the jury in a crim- 
inal case before verdict, was laid down 
by this court more than sixty year» 
ago, in a case presenting the question 
whether a man charged with a capital 
crime was entitled to be discharged 
because the jury, being unable to 
agree, had been discharged, without 
his consent, from giving any verdict 
upon the indictment. The court* 
speaking by Mr. Justice Story, said r 
* We are of opinion that the facts con- 
stitute no legal bar to a future trial 
The prisoner has not been convicted 
or acquitted, and may again be put 
upon his defense. We think that, in 
all cases of this nature, the law baa 
invested courts of justice with the 
authority to discharge a jury from, 
giving any verdict whenever. In their 
opinion, taking all the circum- 
stances into consideration, there is a 
manifest necessity for the act or the 
ends of public justice would other- 
wise be defeated. They are to exer- 
cise a sound discretion on the subject; 
and it is impossible to define all the 
circumstances which would render it 
proper to interfere. To be sure, the 
power ought to be used with the 
greatest caution, under urgent cir- 
ciunstances, and for very plain and 
obvious causes; and in capital cases 
especially courts should be extremely 
careful how they interfere with any 
of the chances of life in favor of the 
prisoner. But after all they have the 
right to order the discbarge; anr the 



8 



tecoritj which the pablic have for 
(be faithful, sound and conscientiouB 
exerdse of this discretion rests, in 
this as in other cases, upon the respon- 
fibility of the judges, under their 
oalhs of office.' United States v. 
Perez, 9 Wheat. 579. A recent decis- 
ion of the Court of Queen's Bench, 
made upon a full review of the Eng- 
lish authorities, and affirmed in the 
Exchequer Chamber, is to the same 
effect. Winsor Queen, L. R., 1 Q. 
B. 289. 390. 6 Best & S. 143, and 7 
id. 490. There can be no condition 
of things in which the necessity for 
the exercise of this power is more 
manifest, in order to prevent the defeat 
of the ends of public justice, than 
when it is made to appear to the court 
that either by reason of facts existing 
when the jurors were sworn, but not 
then disclosed or known to the court, 
or by reason of outside influences 
brought to bear on the jury pending 
the trial, the Jurors or any of them 
are subject to such bias or prejudice 
as not to stand impartial between the 
^vemment and the accused. As was 
well said by Mr. Justice Curtis in a 
case very like that now before us: 
'It is an entire mistake to confound 
this discretionary authority of the 
court to protect one part of the tri- 
bunal from corruption or prejudice 
with the right of challenge allowed 
to a party; and it is at least equally 
a mistake to suppose that in a court 
of justice, either party can have a 
vested right to a corrupt or prejudiced 
juror, who is not fit to sit in judgment 
in the case. United States v. Morris, 
1 Curt. 23, 37.* ♦ ♦ • It needs no 
argument to prove that the judge, 
upon receiving such information, was 
fully Justified in concluding thnt such 
a publication, under the peculiar cir- 
comstancea attending it, made it im- 
poosfble for that Jury, in considering 



the case, to act with the independence 
and freedom on the part of each juror 
requisite to a fair trial of the issue 
between the parties. Tlie judge hav- 
ing come to that conclusion, it was 
clearly within his authority to order 
the jury to be dischargeci, and to put 
the defendant on trial by another jury; 
and the defendant was not thereby 
twice put in jeopardy, within the 
meaning of the fifth amendment to the. 
Constitution of the United States." 

§ 9S. People, ex rel. Comrs., etc. v. 
Glaze, 65 Hun, 560. 

§ 66. See Matter of Bray, 34 State 
Rcp'r. 641 ; People v. Dewey, 33 id. 
427; People, ex rel. Coon v. Wood, 
35 id. 841; People v. Upton, 9 N. Y. 
Supp. 684; People v. Christy, 65 
Hun, 351. 

§68. Laws 1872, ch. 284; Laws 
1891, ch. 191; Laws 1882, ch. 360, p. 
493. 

§ 74. Kolzcm v. Broadway, etc., 
R. Co., 48 State Rep'r 657; 1 Misc. 
Rep. 148. 

g§ 94, 95, 96. In the New York 
Star of Dec. 17, 1800, appeared the 
following: John Cavanagh was taken 
before Judge Andrews of the Supreme 
Court yesterday on a writ of habeas 
carpus and during the- examination a 
most peculiar phase of the criminal 
law was brought to the attention of 
the court. Cavanagh was arrested in 
October for threatening to injure his 
sister. He was brought before Police 
Justice Smith and bound over in $500 
to keep the peace. As he was unable 
to furnish bonds, he was committed 
to the Tombs in default and has 
remained in the city prison ever since. 
When his counsel called the attention 
of Judge Andrews to sections 94, 95 
and 96 of the Code of Criminal Pro- 
cedure, the court decided that whilo 
there was a method under these sec- 
tions to put a man into prison, there 



4 



-was no means of getting him out. 
In order to release him, habeas corpus 
proceedings must be begun, as was 
done in this case. Assistant District 
Attorney Grosse, who represented the 
people, was willing to admit the law 
was a harsh one. He knew of no 
method by which a prisoner held for 
this cause could be released from jail 
or brought to trial in the ordinary 
fashion. Judge Andrews spoke at 
some length in giving his decision. 
It was clear that the present state of 
the law permitted a man who was 
imprisoned for this cause to remain 
in Jail possibly for the whole period 
of his life. It was impossible that 
the spirit of our laws should con- 
template a life imprisonment when 
there was no crime and no trial. In 
this case all that was alleged against 
this man was that he had threatened 
to injure his sister. This was not a 
cause for life imprisonment even were 
it brought into court. Under these 
circumstances the court held the law 
to be invalid. Cavanagh was then 
discharged. 

§ 145. Hewitt v. Newburger, 66 
Hun, 232. 

§ 177. See Tuppin v. Morin, 25 
Abb. N. C. 402. 

Where a certain intent Is essential 
to constitute a crime, and it should be 
shown that no such intent existed, it 
may be doubted whether any outward 
acts will be an unquestionable justi- 
fication for making the arrest. Smith 
V. Botens, 13 N. Y. Supp. 222. 

§ 203. Meaning of phrase "prose- 
cutor and his counsel." People ex 
rcl. Howes v. Grady, 66 Hun, 466; 50 
State Rep'r, 128. 

§ 211. Austin V. Vroman, 128 N. 
Y. 235. 

§ 223. Legislature may abolish 
grand jury, 116 U. S. 265; id. 516. 
§ 268. In State v. Barker (No. Car.), 



12 So. E. Rep'r, 116, it was held that 
a statute making the concurrence of 
nine grand jurors sufficient to the 
finding of an indictment was uncon- 
stitutional. 

§ 273. People v. Laurence, 137 N. 
Y. 521. 

§ 275. See People v. Harris, 123 N. 
Y. 71; People v. Laurence, 137 id. 
521; People v Stark, 136 id. 538; 
56 Hun. 58; People v. Ostrander, 64 
id., 336; People v. Rice, 35 State 
Rep'r, 186; People v. Gregg, id. 758. 

§276. People v. Maxon, 82 State 
Rep'r, 133; 57 Hun, 370; People v. 
Rice, 35 State Rep'r, 176; People r. 
Gregg, id. 758 ; 59 Hun, 109; People 
V. Ostrander. 64 id. 336. 

§ 278. People v. Rice, 35 State 
Rep'r, 186; People v. Harman, 49 Hun, 
558. 

§ 279. See 16 Am. St. Rep. 80; 12 
Cr. L. Mag. 222. 

§283. See 16 Am. St. Rep. 30; 
People V. Gregg. 59 Hun, 109; People 
V. McKenna, 81 Cal. 153; State v. 
Watkins, 101 N. C. 703; Loehr v. 
People, 132 111. 510. 

§ 284. People v. Laurence, 137 N. 
Y. 522; People v. Ostrander, 64 Hun, 
836; People v. Peck, 67 Hun, 576. 
In People v. Horton, 63 Hun. 610, the 
indictment did not specify any place 
where the alleged crime was com- 
mitted. Ileldf that the indictment was 
defective and a demurrer was properly 
allowed. ' 

§ 28o. People V. Ostrander, 64 Hun, 
840. 

§ 289. People v. Stark, 59 Hun, 59; 
136 N. Y. 538. 

§ 291. People ex rel. v. House of 
Mercy, 128 N. Y. 185; People 
Ostrander, 64 Hun, 840. 

§ 292. People v. Cotto, 81 N. Y. 
577. 

§ 293. An indictment for libel may 
be amended upon notice by inserting 



5 



words accidentally omitted, which 
constituted a part of the published 
L'bel. The defendant cannot be sur- 
prised or misled by such amendment. 
People V. Clegg, 32 Slate Rep'r, 701. 
See People v. Formosa, 131 N. Y. 479. 

§ 313. People v. Clark (N. Y. Oyer 
& T.). 5 N. Y. L. J. 495; 8 N. Y. Cr. 
liep. 169; People v. Brickner, 8 N. 
Y. Cr. Rep 217. 

§323. People v. Gregg, 59 Hun, 
112; People V. Tower, 136 N. Y. 429. 

§ 431. People v. Tower, 17 N. Y. 
Supp. 895; 135 N. Y. 457; People v. 
Meakim. 133 N. Y. 214; People v. 
Connor. 65 Hun, 394. 

§ 332. People v. Trimble, 131 N. 
Y. 118; 60 Hun, 365; People Con- 
nor, 65 Hun, 396. 

§ 336. A defendant who has been 
arraigned and has pleaded not guilty 
is not entitled to be rearraigned that 
be may plead again on a second trial 
ordered upon a reversal of the first 
conviction. People v. McElvaine, 125 
N. Y. 600. 

^ 340. People v. Meakim, 61 Hun, 
328; affirmed, 188 N. Y. 214. 

§ 344. See People v. Clark, 5 N. 
Y. L. J. 243; Price v. People, 12 Cr. 
L >Iag. 469; People v. Powell (Cal.), 
43 Alb. L. J. 225; Leighton v. People, 
88 N. Y. 117. 

§ 354. People y. Connor, 65 Hun, 
396. 

§355. See 14 Cr. L. Mag. 746; 
People V. Rouse, 15 N. Y. Supp. 414. 

Section 1033 of the Penal Code of 
California, which provides that the 
state may have a change of venue in 
a criminal action, "on the application 
of the district attorney, on the ground 
that from any cause no jury can be 
obtained for the trial of defendant in 
the county where the action is pend- 
ing," is void, being in conflict with 
the Bill of Rights of California, § 7, 
providing that "the right of trial by 



Jury shall be secured to all and remain 

inviolate," the right secured being the 
right to trial by a jury of the vicin- 
age as it existed at common law. 
People V. Powell (Cal.), 48 Alb. L. J. 
225. The court says: "Now that in 
a jury trial it is implied that the trial 
shall be by a jury of the vicinage is 
familiar law. Blackstone says tliat 
the jurors must be ' of the risne or 
neighborhood, which is interpreted to 
be of the country where the act is 
committed.* 4 Cora. 350. This is an 
old rule of the common law (2 Hawk. 
P. C, chap. 40; 2 Hale P. C. 264); 
and the rule was so strict and imper- 
ative that if an offense was committed 
partly in one county and pnrlly in 
another, the offender was not punish- 
able at all. 2 Hawk. P. C, chap. 25^ 
1 Chit. Crim. Law, 177. This over 
nicety was long since dispensed wi.h,, 
but the old rule has in the main been 
preserved in its integrity to this day. 
It is tnie that Parliament, as the su- 
preme power of the realign, made some 
exceptions which are enumerated by 
Mr. Chitty in his treatise on Criminal 
Law (vt 1. 1, p. 179), the chief of these 
being cases of supposed treason or 
misprision of treason examined before 
the Frivy Council, and which under 
the statute of Henry VHI might be 
tried in any county, and offenses of the 
like character committed out of the 
realm, and which by a statute of the 
same arbitrary reign were authorized 
to be tried in any county in England. 
But it is well known that the existence 
of such statutes with the threat to 
enforce them was one of the irticvMn- 
ces which led to the separation of the 
American colonies from the Brit'sh 
Empire. If they were forbidden by 
the unwritten Constitution of Enir- 
land, they are certainly unauthorized 
by the written Constitutions of the 
American States, in which the utmost 



6 



pains have been taken to preserve all 
the securities of individual liberty. It 
bas been doubted in some States 
whether it was competent even to 
I)ermit a change of venue on the appli- 
cation of the State, to escape local 
passion, prejudice and interest, (Kirk 
V. State, 1 Cold. 344; Osbom v. State, 
24 Ark. 629; Wheeler v. State, 24 
Wis. 52); but this may be pressing the 
principle too far (State v. Robinson, 
14 Minn. 447 [Gil. 333]; Gut v. State, 
9 Wall. 35); but no one doubts that 
the right to a trial by a jury of the 
vicinage is as complete and certain as 
it ever was, and that in America it is 
indefeasible. 1 Bish. Crim. Law (2d 
ed.), § 552; Whart. Crim. Law, § 277; 
Paul V. Detroit, 82 Mich. 108; Ward 
V. People, 30 id. 116. This was de- 
cided under a constitutionul provison 
tlio Prime in clTect as our own, and is 
directly in point." 

§ 871. People v. Hughes, 137 N. 
T. 29, 80; 50 State Rep'r, 05. 

§ 872. 2 Chicago L. J. 718; People 
V. Hughes, 187 N. Y. 29. 

§ 878. A prisoner indicted for man- 
slaughter is entitled to twenty peremp- 
tory challenges. People v. Keating, 
61 Hun, 260. 

§ 375. A juror not understanding 
and speaking English cannot be forced 
upon a prisoner, although his peremp- 
tory chalU?nges may have been ex- 
hausted. McCampbell v. State, 9 Tex. 
Ct. App. 124; 85 Am. Rep. 726. See, 
also, Matter of Allison, 13 Colo. 625; 
16 Am. St. Rep. 224. 

§ 870. Sec People v. Fanshawe, 
137 N. Y. 68. 77. 

lu People V. Martoll. 138 N. Y. 595, 
on a trial for murder, two jurors, 
being cliallcngcd, testified that, from 
what they had read of the transaction 
and the facts in the case, they had 
formed an opinion, which would re- 
quire evidence to remove, but that. 



notwithstanding the opinion thus 
formed, they "thought" they could 
render an impartial verdict according 
to the evidence. The court ruled they 
were competent, no exception was 
taken, and said jurors were not chal- 
lenged peremptorily. It was claimed 
on appeal that they were incompetent 
as jurors, as to render a juror compe- 
tent who has thus formed an opinion, 
he is required by the statute to testify 
that he " believes," not that he tliinks, 
his opinion will not influence his ver- 
dict. Held, untenable; that it was 
not necessary that the juror should 
testify in the precise words of the 
statute, and the two expressions were 
substantially equivalent. 

On the examination of a juror 
as to his qualification to ser\'e on 
a trial for murder where the homi- 
cide was committed by the defendant 
with a pistol which he had been in 
the habit of carrying, the juror stated 
that he had a great prejudice against 
the defendant by reason of the fact 
that he carried a pistol, and that he 
did not believe a man had any right 
to carry a deadly weapon; the juror 
was not asked to, and did not, declare 
that he believed such prejudice would 
not influence his verdict. Held, that 
the juror was incompetent, and that 
it was error to overrule a challenge for 
cause. People v. Larubia, 69 Hun, 
197. 

§ 877. A person is not competent 
to sit as a juror in a criminal case 
where his third cousin is the com- 
plainant. People V. Clark, 62 Hun. 84. 

— Subd. 8. People v. Wood, 131 
N. Y. 618. 

§ 380. When it is understood by 
the court and by both parties that a 
challenge to a juror for actual bias is 
being tried, an exception to the over- 
ruling of a challenge for cause may 
be available, although the require- 



7 



meots of this section may not haye 
been strictly complied with. People 
?. Larubia, 69 Hun, 197. 

g 885. People v. McGonegal, 186 N. 
T.62. 

g S86. People McGonegal, 136 N. 
T. 62. 

§S87. A statute pxx>viding that after 
the impaneling of a Jury, if from any 
cause any of the Jurors shall be unable 
to attend, the court may enter that 
fact on their journal or docket, setting 
forth the cause of such inability, and 
the preceding shall then continue in 
the same manner and with the same 
effect as if the whole panel were pres- 
ent, provided that the number of 
jarors so absent shall not be greater 
than three in a jury of twelve, is un- 
constitutional. McRae v. Grand Rap- 
ids, etc., R. Co. — Mich. — ; 46 Alb. 
L J. 529. 

g S88. People y. Connor, 65 Hun, 
396. 

§ S89. See 20 N. Y. Supp. 187; 28 
Am. St. Rep. 170.- People v. Benedict, 
49 State Rep. 286; 25 Weekly L. Bull. 
JftJ; 16 Am. St. Rep. 410. 

Upon the trial of an indictment for 
murder, the prosecution proved the 
death, and by circumstantial evidence 
established that it was caused by a 
pistol shot fired by defendant. The 
latter testified that the killing was 
accidentaL The court charged the 
jury in substance that a homicide 
proved implied cnme on the part of 
the slayer; that a conviction must 
follow unless defendant justified or 
excused the act; that the burden of 
that defense was upon him, and to 
secure acquittal he must be able to 
show a legal justification or excuse. 
Eeld, error, as it deprived defendant, 
80 far as his defense was concerned, 
of the benefit of a reasonable doubt; 
that whether the crime proved was 
murder or manslaughter in one of the 



degrees specified in the statute, or 
justifiable or excusable homicide, de- 
pended upon the intention and cir- 
cumstances of its perpetration, and 
mere proof of the killing, raised no 
legal implicatiun that the crime of 
murder had been committed. People 
V. Downs, 128 N. Y. 558. 

In People v. Hughes, 137 N. Y. 80, 
the court ch trged, in substance, that 
a "reasonable doubt" could not be 
said to exist when the jury are so 
firmly convinced of the facts neces- 
sary to establish the prisoner's guilt, 
that if it was a very grave and serious 
matter, affecting their own affairs^ 
they would not hesitate to act upon 
such a conviction. UeM, no error. 

In People v. Pallister, 188 N. Y. 
601, it was held tliat where the trial 
court charges fully, clearly and prop- 
perly as to the presumption of inno- 
cence and the right of the accused to 
the benefit of every reasonable doubt 
upon the evidence, a denial of are- 
quest to charge the same propositions 
in different language is not error. 

In People v. Sweeney, 183 N. Y. 
009, distinguishing Rcmsen v. People, 
43 N. Y. 6, the court having instructed 
tlie jury that proof of defendant's good 
character raised the question whether 
he was a man who would likely 
commit the crime charged, and that 
it would actually outweigh evidence 
that might otherwise appear conclu- 
sive, and in a doubtful case turn the 
scale in defendant's favor, there was 
no error in a further charge that good 
character would not avail defendant, 
if the crime had l)een satisfactorily 
proven beyond a reasonable doubt. 

§ 891. It is immaterial upon the 
trial of a party charged with a felony, 
whether one jointly indicted with him 
for the offense has been acquitted or 
not. People v. Kief, 37 State RepV, 
478. 



8 



When a paity jointly indicted with 
another for an offenfie charged to have 
been the result of their joint act, is 
tried separately either upon his own 
election or otherwise, the indictment 
is well supported by proof sufficient 
to warrant a conviction, if the party 
on trial had been alone indicted. 
People V. Cotto, 131 N. Y. 577. 

§ 892. People v. Lewis. 16 N. Y. 
Supp. 884; People v. Hill, 65 Hun, 
423. 

§ 898. People v. Tice, 131 N. Y. 
661; 14 Cr. L. Mag. 570. 

Any reference by counsel for pros- 
ecution to the accused's failure to take 
the stand is improper, under the act 
of March 15, 1878 (20 Stat., p. 30, 
<chap. 87), which provides that such 
failure "shall raise no presumption 
against the defendant." Wilson v. 
United States, — U. S. — ; 47 Alb. 
L. J. 474. 

In that case the district attorney, in 
summing up the case to the jury, said: 
* * If I am ever charged with a crime, 
I will not stop by putting witnesses 
on the stand to testify to my good 
character, but I will go upon the 
«tand, and hold up my hand before 
high heaven, and testify to my inno- 
cence of the crime." The court, its 
attention being called to this language 
by defendant's counsel, said: " I sup- 
pose the counsel should not comment 
upon the defendant not taking the 
«tand." The district attorney replied: 

I did not mean to refer to it in that 
light, and I do not intend to refer in 
a single word to the fact that he did 
not testify in his own behalf." Coun- 
sel for defendant thereupon excepted. 
A verdict of guilty was rendered. 
Held, that the refusal or neglect of 
the court to prohibit any reference to 
the accused's failure to take the stand, 
4ind to emphatically instruct the jury 
not to attach any importance to such 



failure, was error, tending to preju- 
dice defendant, and was sufficient 
ground for awarding a new trial. 

Where a defendant in a criminal 
action offers himself as a witness, he 
is subject to the same rules of exam- 
ination as apply to other witnesses. 
People V. McCormick, 185 N. Y. 668. 

On a trial for murder, the defendant 
on cross-examination was asked if he 
did not at a time and place specified 
draw a pistol on two persons and 
threaten to kill them. Held, no error 
to overrule an objection to the ques- 
tion; the evidence was competent on 
the question of the credibility of the 
witness. 

§ 895. See 31 Am. L. Reg. (N. S.) 
776; People v. Cassidy, 133 N. Y. 612. 

When the defendant in a criminal . 
action testifies that a confession, ad- 
mitted in evidence against him, was 
made by him by reason of threats, 
and all the persons to whom the con- 
fession was made testify that no threats 
were employed, and the jury find the 
defendant guilty, and the case on 
appeal does not contain the judge's 
charge, the (General Term must assume 
that the charge correctly stated the 
rules of law relating to confessions, 
and that the jury found the confession 
to have been voluntary. People v. 
Bishop, 69 Hun, 105. 

Under such circumstances, the con- 
viction is not open to the objection 
that evidence was admitted of a con- 
fession " made under the influence of 
fear produced by threats,*' and, there- 
fore, within the prohibition of this 
section. Id. 

§ 899. People v. White, 62 Hun, 
114; People v. Christy, 65 id. 852; 
Farrell v. Friedlander, 63 id-. 259; Peo- 
ple V. Posworth, 54 id. 75; People v. 
Dunn, 53 id., 382. 

§ 410. People y. Fanshawe, 65 Hun. 
79. 



9 



§ 418. The failure of the court to 
inform the jury that they are the ex- 
clusive judges of the law and facts 
does not require a reversal , no such 
iDstniction having been requested. 
Keyes v. State, 12 C. L. Mag. 600. 

t^420. See 10 Or. L. Mag. 159; 
Siiarp V. State. 51 Ark. 147; 14 Am. 
St. Rep. 27; Mead v. State, 53 N. J. 
L. 601; People v. Fanning, — N. Y. 
— ; 8 N. Y. Or. Rep. 363. 

g 427. See People v. Kennedy, 57 
Hun. 534; People v. Parker, 137 N. 
Y. 535. 

§ 4S7. People Trimble, 131 N. Y. 
118; 60 Hun, 365. 

§442. Applies only to judgment 
in case of special verdict. 65 Hun, 
389. 

§ 458. People v. Trimble, 60 Hun, 
365; 131 N. Y. 118. 

$ 455. People v. McGk>uegal, 136 N. 
Y. 62. 

§ 463. People v. FJack, 8 N. Y. Cr. 
Rep. 31. 

§465, subd. 2. See Matter of 
Cboate. 24 Abb. N. C. 437; 8 N. Y. 
CY Rep. 10. 

Subdivision 3. See 28 Am. Law 
(N. 8.) 709. In People v. Schad, 
58 Hun, 571; 35 State Rep'r, 149, 
after the jury had retired and during 
the time they were deliberating on 
their verdict, one of them separated 
from the rest, went to the bar of the 
hotel where they were taking their 
meals, and called for and drank 
brandy. Held, that this was misconduct 
on the part of the jury which furnished 
ground for setting aside the verdict 
and granting a new trial 

V/nere a sick juror had been sepa- 
rated from his fellow jurors during 
a recess of the court before verdict, 
and it appeared that he had not been 
tampered wi'h. a motion to discharge 
the jury was rightly overruled. Stout 
V. State (Md.), 47 Alb. L. J. 4. 



8 467. People v. Tower, 135 N. Y. 
457; People v. Meakim, 133 id. 214. 

§ 471. People ex rel. Benton v. 
Court of Sessions, GO Ilun, 552; Peo- 
ple v. Trimble, 131 N. Y. 118; CO 
Hun, 365. 

§472. People v. Trimble, 131 N. 
Y'. 118; CO Ilun, 365. 

§ 473. A prisoner must bo present 
when sentenced for a felony; and this 
must appear by the record. An entry 
in the record that defendants in open 
court excepted to the sentence "this 
day pronounced upon them " is insuf- 
licient as it admits of the amstruction 
that the exception was entered by 
their attorneys. Ball v. United States, 
140 U. S. 118. 

§ 480. Ball V. United States, 140 
U. S. 118. 

§ 481. People v. McElvaine, 125 
N. Y 600. 

§ 482. People ex rel. v. Court of 
Sessions, 66 Huu, 553. 

§ 483. People ex rel. v. Court of 
Sessions, 66 Uun, 553. 

§ 485. People v. Trezza, 128 N. Y. 
532; Noonan v. People, 5 N. Y. L. J. 
1107. 

§ 488. See 45 Fed. Rep'r, 352. 

§ 491. People v. Trezza, 60 Hun, 
401; McElvaine v. Brush, — U. S. 
— ; 45 Alb. L. J. 87; 8 N. Y. Cr. 
Rep. 300. 

§ 615. People ex rel. Comrs. v. 
Glaze, 65 Hun, 561 ; People v. Murray, 
16 N. Y. Supp 325. 

§ 517. People v. Trezza, 128 N. Y. 
532. 

§618. Under the former pnctlce a 
writ of error would not lie in behalf 
of the people after a judgment for de- 
fendant. People V. Corning, 2 N.Y". 9. 

§ 627. See New Y'orkLaw Journal, 
Dec. 16, 1891 ; People v. Zounck. 49 St. 
Rep'r, 643; People v. Bn oks, 131 N. Y. 
321; People v. Webster. 59 Hun. 402. 

The provision of this section as 



10 



amended (Laws 1887, chap. 493) does 
nui. authorize an interference wiih the 
lhidin;i.s of a jury when supported by 
sudicient evidence, unless it appears 
fro:ii the whole record that injustice 
li:is been done. People v. Trezza, 125 
K. Y. 740. 

i^. o2S. See Now York Law Jour. 
(Dec. 7, 16, 1891); People v. Fish, 125 
N. Y. 144; People v. Trezza, 128 id. 
ni^G; 8 N.Y.Cr.Rep. 283, 291 ; People v. 
Taylor. 138 N. Y. 298; People v. Uam 
iltou, 137 id. 431; Pci>plev.Van Brunt» 
108 id. G30; 8 N. Y. Cr. Rep. 227; 
People V. Lobby, 128 N. Y. 629; 8 N. 
Y. Cr. Kep. 318; People v. DriscoU, 
— N. Y. — ; 8 N. Y. Cr. Rep. 455. 

g 542 See People v. Wood, 126 N. 
Y. 24l>; People v. Wayman, 128 id. 
588; People v. Laurence, 137 id. 517; 
People V. Clark, 49 State Rep'r, 501; 
People V. Tlarlley, 51 id., 804; People 
V. Kennedy, 49 id., 814; People v. 
Ilosworth. 64 Uun, 83; People v. Fan- 
sliawc, 65 id. 97. 

§ 543. People v. Kellogg, 67 Hun, 
551. 

g 544. People v. Webster, 69 Hun, 
402. 

g 540. When a prisoner Bcntonced 
to death carries his case to an appel- 
late court, due process of law does not 
require that he shall be personally 
present therein when it pronounces its 
judgment. Schwab v. Berggren (U. 
S. Sup. Ct. reviewing Fielden v. Peo- 
ple. 128 111. 595; Donnelly v. State, 26 
X. J. L. 403; State v. Overton, 77 N. 
Car. 4S5). 

547. People v. Bosworth, 64 Hun, 
83; People v. Severance. 67 id. 190. 

§ 54S People v. Severance, 67 Hun, 
190; People v. Bosworth, 64 id. 83. 



§ 508. People v. Gillnian. PiC* N. 
Y. 374. 

§ 503. People v. Bennett. 130 Ni 
Y. 482; 137 id., 601. 

§ 697. People v. Nooney. 64 Uun, 
171. 

§ 598. People v. Nooney, 64 1Iun. 
171. 

g 013. People v. Van Tassel, 64 
Hun. 449. 

§ 019. People v.Van Tassel, 64 Hun, 
450. 

§ 058. Under this section the ap> 
pointment of a commission is discre- 
tionary with the court. People v. 
McElvaine, 125 N. Y. 600; citing 
Webber v. Cora., 119 Pcnn. St. 238; 
Jones V. State, 13 Ala. 158; Bonds v. 
State, 1 Mart. & Y. 142; State 
Arnold, 13 Iowa. 480; People v. Ah 
Ying, 42 Cal. 18. 

§ 084. People V. Gillman, 125 Y. 
375; 137 id. 522. 

g 749. People ex rel. v. Glaze, 65 
Hun, 501. 

g 704. People v. Qark, 16 N. Y. 
Supp. 695. 

•g 772. People v. Clark, 16 Y. 
Supp. 695. 

g 827. Matter of Scrafford.59 Hun, 
337, 329. 

g 840. People ex rel. MooTev.Beeh^ 
ler, 63 Hun, 44. 

g 841. People ex rel. Moore v. Bceh* 
ler, 63 Hun, 44. 

g 851. People ex rel. Moore 
Beehler, 63 Hun, 44. 

g 887. People ex rel. Duntz v. 
Coon, 07 Hun. 523. 

gg 899-904. Mayor, etc. v. Ehraam, 
16 N. Y. Supp. 527. 

g 914. Ulrich v. Ulrich, 17 ¥. 
Supp. 721. 



FORMS 

TO THB 

CODE OF CRIMINAL PROCEDURE. 



Ka 1. 

Mklb$^ m o MmforAs mmalqf an indtctment from the Obwri if Bmdm% U 
A$(bmi^ Operand Ttrmtit0r. (See Oode (Mm. Pro.» 9d, 84dL) 

RBN88SLAKR COUNTT - Ck>uBT of Snaunm 

n nOFLS OF THB STATS OF NRW TOBK ) 
JOHN DOB. \ 



Ik DUtriU AUomey of. «miii%. 

fln. — Pleaee to take notioe that on the petition and affidavit of John DoOi 
iMnIo annexed, I will apply to the supreme court of the State of New York, 

it a special term thereof, to be held at the court-house in the city of , 

N. T., on the lOth day of January, A. D. 1883, at eleven o'clock a. m. of that 
d^, or as soon thereafter as oounsel can be heard, for a rule or order remov- 
iqg the liuttclmant in the above entitled action, from the court of sessions of 
«U mmSBf to the ooart <rf oyer and terminer, and for such other and further 
niif In the prvoiiaes as may be Just 

Toun, etc., 

SMITH WBLLINQTON, 



4ffiiMMM/prAe rmmH ^euMMmnC W<f^ trM, fiwm tiU Chmi 4 
SmtmikfkiiOniH^O^andlhniiiner. (See Code of (Mm. Pto., Sgfti, 

A the ntprome eourt of As State New York: 

The petition J. John Doe respectfully shows^ that %X a stated term of the 
ooort of sessions, held in and for the county of Rensselaer in said State, on 
the first Monday of January, A. D. 1883, an indictment was duly presented 
hjr the grand Jury of the body of the people of said county to said court, 
igiinit your petitl<mer, wherein your petitioner was charged with having 
M the lOtk day of December, 1881, at the city of Troy, N. Y.. committed 
45 



354: 



FOBHB TO THB CoDB 



Iba offenae of anon in the first degree. That a oertifled copy cf said 
indictment is hereto annexed. That your petitioner has been arrested upon 
a bench warrant issued upon the presentment and filing of said indict 
ment in said court; and at the January term thereof was duly arraigned 
in open court and pleaded not guilty to said indictment by demanding 
a trial thereon. That thereupon said indictment was, by order cf the (laid 
court of sessions, made at the said January term thereof, and on motion 
0f the district attorney of said county, continued until the March term 
of said court; and that your petitioner thereupon, before the said court 
of sessions, gave recognizance, with good and sufficient sureties^ m> appear 
at the said Mareh term of said court of sessions for his trial upon said 
indictment, and to do and receive what should by the said court be then 
and there enjoined upon him [state with particularity the facts and cir- 
cumstances relied upon as a defense]. That your petitioner has folly and 
fairly stated the case to Messrs. Smith & Wellington* his counsel, who reside 
at Troy, N. T., in said county of Rensselaer, and that he has a good and sub- 
stantial defense upon the merits of said indictment, as he is informed by said 
counsel, after such statement made as aforesaid, and verily believes to be true 
[state facts and circumstances showing why a removal of the indictment 
becomes necessary], to wit, that upon the txlal of said indictment intricate, 
novel and perplexing questions of law will arise, as he is advised by his said 
counsel after such statement made as aforesaid, which, together with the facts 
and circumstances constituting the defense of your petitioner to said indict- 
ment, and the facts and circumstances above set forth, renders the removal of 
the trial of said indictment from the said court of sessions to the next oyer 
and terminer, to be held in said county of Rensse l aer, expedient and proper 
[or that your petitioner is anxious for a more speedy trial than can be obtained 
in the court of sessions]; or that, under section 8^, one or more trials have 
been had in which no verdict was reached, and by reason of popular feeling 
or otherwise it is expedient to remove the cause to another county. [Of course 
the facts and circumstances that render a removal expedient and proper wiU 
depend upon the peculiarities of each individual case, and must be aet forth 
with cleameas and particularity]. 

And your petitioner wiU ever pray, elc 
Dated March 1, 1882. JOHN DOB. 

BTATB OP NEW YORK, ) ^ . 
County of RBNaasLAKR, ) 

John Doe, being duly sworn, saya that he ia the petitioner named in ana 
who subscribed the foregoing applicati<m; that he haa read Iba aaine. knowa 
ita contents, and that it is in all reepecta oorzect and true. 

JOHN TKOL 

Subscribed and sworn before ) 
me, March 1, 1882. ) 

OBa R DONNAK, 



OF Gbimihal Pbocedure. 355 
Va& 

and Terminer. 
8UPREMB COURT— Renbbblasb Qoxnm. 

m nOPLB OF THE STATR OF NEW TORE ) 
JOHN DOE. \ 



At a q;Mciml term of the supreme court of the State of New York, 
held at the court-house, in the city of Troy, on the 10th day of Januaiy, 
A. D. 1883. 

PremU — Hon, C. R Ikgalls, JutHee Supreme Cowri, 
Upon reading and filing the foregoing application of John Doe, and a 
certified copy of the indictment against the same charg^g him with arson in 
the first degree, presented and filed at a court of sessions held in and for the 
county of Rensselaer, on the first Monday of January, A. D. 1882; and after 
hearing Smith & Wellington in support of said application, and La Motte W. 
Rhodes, district attorney of Rensselaer county, in opposition thereto, it ia 
hereby ordered that said indictment be and is hereby removed from the court 
of sessions of the county of Rensselaer to the next court of oyer and terminer 
to be held in and for the said county of Rensselaer, and that the trial of the 
aid John Doa be had in the last-mentioned court 

0. R mOAJLLS, 

JuitieeSup. Oewrt 



Ka 4. 

Hlmffntmmm to aeoompanif order removing indictment when the dtflmdmU U woi 

in eonfinement, 

COURT OP OYER AJID TBRMINBR 

THE PEOPLE, STC 
JOHN DOE. 



STATE OP 10:W YORK.) 

OouHTT OF Rensselaer. ) 

Be it remembered that on this 10th day of January, A. D. 1882, Jchn Doe 
James Burke and Richard Roe, all of the city of Troy, county and state afore> 
tsid, personally came before me, C. R Ingalls, a justice of the supreme court 
of the State of New York, and each of them separately and by himself and 
for himself acknowledged himself to be indebted to the people of the State of 
New York in the sum of one thousand dollars if default be made in the fol- 
lowing conditions: 

Wherefore, upon the written application of the said John Doe, the above 
named justice of the supreme court, in pursuance of the provisions of the 
statute, has removed the indictment against the said John Doe, presented 
and filed in the court of sessions of the said county of Rensselaer, cn the first 
MoDday of Jannaiy, A. D. 1882, for arson in the first degree, from the said 



356 



FOBMB TO THE CoDB 



eonrt of sesaiont to the next oyer and terminer, to be held in and for the 
county of BenmelaeT; and directed the trial of the said Jolm Doe oo said 

indictment to be held in the said last mentioned court. 

Now, therefore, the condition of this obligation is siich that if the said 
John Doe personally appear at tlie next oyer and terminer to be held in and 
for the county of Rensselaer, at the court house in the city of Troy, on tlM 
second Monday of May, 1882, and at such other time as such court ahaD 
appoint, and shall stand trial upon the issue joined, and shall not depart said 
court of oyer and terminer without leave, then this recognizance to be void, 
otherwise to abide in full force and effect 

JOHN DOE. [L. I.] 
JOHN BUREB. [l. i.] 
RICHARD ROE. [l. il] 

Tiken and acknowledged before ) 
BftO, January 10, 1888. ) 

OL R iHeALLfl^ 



Ka 5. 

JjfldatU to Mtdn order f9r §ta^. (8847.) 
Rkrhblaxb Couxmr, u. : 

Albert Smith, of Troy, N. Y., being duly sworn. Bays that he ia one of the 
attorneys for the John Doe, the prisoner under arrest, charged by indictment 
with the crime of arson [state with particularity the nature of the crime; also 
the facts and circumstances which render a removal necessary]; that the next 
term of the court of sessions will be held on the 0th of June, 1882, in and 
for the county of Rensselaer aforesaid, and that this deponent is about to make 
a motion for the removal of the said indictment from the said court of seasioni 
to the court of oyer and terminer, and that there is not now time to move fto 
court for such an order before the conTening of the safe court of tesakm 

ALBERT sum 

Sworn before me, ) 
June 5, 1888. S 

Oaa R DoxvAV^ 

Com, ^ HM^ Trn* Tf* 



OF Cbiminal Pboordube. 



367 



OrdKT rmMug 9ki^. (OodeOriiL lYoo.,|Oir.) 
SUPRBHB COURT, 
m F90FU OF THB 8TAT1 OF NBW YORK 
JOHN DOS. 



At a QMcial term of the supreme court of the State of New York, held at the 

ehambera of Hon. , in the city of on 

the day of ,188.. 

Present— Hon. 8up. Ckmrt Judge. 

On reading and filing the affidavit of Albert Smith, hereto annexed, and on 
motion of Smith & Wellington, attorneys for John Doe, it is hereby ordered 
that the trial, and all proceedings under the indictment of John Doe, be and 
ire hereby staid until the determination of the application of said John Doe 
for an order removing said indictment, as set forth in said affidavit 



Jus, Sup. OL 

Na 7. 

SURETY OP THE PEACE. 

BiftnmMUonf&r pwrptm cf obtaining wurety of the peace. (See Oode Otl^ 

Proa, §84.) 

OOUXTT OF RkHBEKULSR, M. .* 

Baymond Ooon, of the city of Troy, county of Rensselaer and State of K ew 
York* upon his oath complains that John Doe, of the same place, haa threat- 
ened to commit an o£fense against the person [or property] of this complainant, 
tc wit, to kill, beat or maim, or commit an assault and battery upon this com- 
plainant, and to do him great bodily harm, and that this complahiant haa joal 
onae to fear that the said John Doe will carry into effect the above threats [or 
that the said John Doe haa threatened to bum, destroy or injure the proper^ 
of thia complainant, etc.]. 

The said Raymond Coon, therefore, prays that proper legal process may be 
iMoed, and that surety of the peace may be granted to him against the said 
John Doe; and this complainant hereby avers that he makes this complaint 
not from malice or ill-will toward the said John Doe, but simply because of 
the threats above set forth, and a belief that the said John Doe will carry said 
Ihreata into effect to the bodily harm and injury of this complainant 

Wherefore, this complainant prays that a warrant may issue against the said 
John Doe, and that he be arrested thereupon, and that such other proceedings 
he had in the premises as are provided for in the statute. 

RAYMOND COON. 

The above-named complainant, Raymond Coon, on the 1st day of January, 
A. D. 1883, in the dty, county and state aforesaid, personally came before me, 
iid hdng dafy twoni» made oath to the troth of the foregoing complaint by 
iiBi iobicribed. 

R a JBNYS8, 

BMeeJmUoi. 



358 



Forms to tu:. C de 



Ka8. 

MumiiuUion if comf^wimi and hu toUnemi upon thefaregokig j^mptmimt 
(Code Grim. Froc.» g 85.) 

POUCB COURT (OR JUSTICES' COURT) OF THE CITY OF 

(OR TOWN OF ) 

STATE OF NEW * ORK, ) , 
County of RBNaasLASR. f ' 

The examination of Raymond Coon and Jacob Saunden, taken on Oftlh 
before me, R C. Jenyss, police Justice, Troy, N. T., January Ist, A. D. 1882, 
upon the complaint of the said Raymood Coon, for the purpose of obtaining 
surety of the peace; 

The said Raymond Coon being by me duly sworn says [here set forth with 
particularity the proof of the facts aUeged in the complaint.] 

And the said Jacob Saunders, being likewise by me duly sworn, says that 
he was present when the threats against the said Raymond Coon were made 
hy the said John Doe, as alleged in his said complaint, and that such threats 
were as follows [here set forth with particularity the evidence tending to sub- 
stantiate the facts alleged in the complaint] 

RAYMOND COON. 
JACOB SAUNDSBa 

Sworn to before me, ( 
Janoazy 1st, 1882. ) 

R C. Jbntsb, 



KaO. 

WiOMrraTUqf arrett. (See Code Crim. Proa, g 86.) 
POLICE COURT (OR JUSTICES' COURT) OF 

STATE OP NEW YORK, } . 
Comrrr of Rensselaer. | 

IN THE NAME OP THE PEOPLE OP THE STATE OF NEW YORK 
lb the sh&riff of »aid county, or to any oonstalble, marthal or poUeeman thi 
city or town, Qrebtiko : 
Whereas, Raymond Coon, of the city of Troy, in said county of Rensselaer, 
did, on the Ist day of January, 1882, make complaint in writing and upon 
oath, before me, that John Doe, of the same place, did threaten to commit 
grieyous offenses against the property [or person] of him, the said Rajrmond 
Coon [state the specific offense threatened with particularity], and has 
demanded surety of the peace against the said John Doe, and an examination 
on oath having been taken by me, R C. Jenyss, police Justice, Troy, N. Y. 
at Troy, N. Y. . aforesaid, and it appearing from such examination that thcrr 
» just cause to fear that said John Doe would carry his said threats intc 
effect. 

This is therefore to conmiand you, in the name of the people of the Statf 
of New York, forthwith to arrest the said John Doe, and bring him beforp 



OF Cbdonal Psocedubb. 859 

■e, at the police court, in the city of Troy, to be dealt with acoordiag to 
law. 

Qlm mder my hand at the dty of Troy, county of Renwelaer and State 
of New York, Jannaiy 1, 1888. 

R 0. JBNY88, 

Ihbee Jfutiot. 



Ka 10. 

BBoogmtuneetaketpAs peace, (See Ck>de Crim. Proc., g 80.) 

FOUOB COURT (OR JUSTICES' COURT) OP 

BTATB OP NEW YORK,)^ . 

OOUHTT OF RBNBBELABB. I 

Be it remembered that at the city of Troy, in the county of Rensielaer 
iforeeidd, on this 5th day of Januaiy, A. D. 1883, Jolm Doe and John Car- 
penter, both of the city of Troy, in said county, personally came before 
me and aererally admowledged tiiemselves to be indebted to the people of the 
State of New York in the sum of $1,000, to be levied of their respective 
goods and chattels, lands and tenements, to the use of the said people, if 
default shall be made in the following condition: 

The condition of this obligation is such, that if the above bounden John 
Doe personally appear at the next court of sessions to be held in and for the 
said county of Rensselaer, at the court-house in the city of Troy, m said 
county, and shall not depart the same without leave, and shall in the mean- 
time keep the peace toward the people of the State and particularly towards 
Raymond Coon, then this recognizance to be void and of no effect, otherwise 
to remain in full force and virtue. 

JOHN DOE. [L. I.] 

JOHN CHRISTIE. [L. A] 

Sobscribed and acknowledged before ) 
me, Januaiy 5, 1883. ' 

IL C. Jbntsb, 



Na 11. 

W a mmt ef oommiimmt when the prieoner negleeie er r^uee te (fke emeU^ 

(See Code Crim. Proa, g 9a) 

[Title of Court] 
8TATE OP NEW YORK, ) ^ . 
REiraBBLAKB CSouhtt. ) 

IN THE NAME OP THE PEOPLE OP THE STATE OP NEW YORK: 
7b any etmtUMe, etc,, and to the keeper of the eommon JaU of eaid e<mnty 
Gbebtino: 

This is to command you, the said constable, forthwith to convey and 
deliver to the said keeper the body of John Doe, this day brought before me, 
lod required by me to enter into a recognizance with one sufficient surety In 



860 



FoRiis TO THK Code 



Ihe sum of one thoasand dollars for his personal appearance at the next court 
of sessions, to be held in and for the said county of Rensselaer, at the court- 
house in the dty of Troy, and not to depart the same without leave, and in 
the meantime to keep the peace towards the people of the State of New York, 
and particularly towards Raymond Coon, who has demanded surety of the 
peace against John Doe, before me by a complaint in writing and upon oath, 
the said John Doe having failed to find such surety. 

And you, the said keeper, are required to receive the said John Doe into 
your custody in the said Jail of your county, and him there safely keep until 
he shall find security as i^oresaid, or be otherwise discharged by due course 
of law. 

Given under my hand, at the dty of Troy, NewToric, this lOih day of 
January, 1882. 

R C. JBNT88, 



Na 18. 

A timUar ieanrani vhm no etmplaint has 
prop&r tg is threatened, hut tohere the off&nee wu committed in the p rme noe ef ike 
court or magietrate. (See Code Crim. Proc., § 03.) 

[TiUe of Court, etc.] 

STATE OP NEW YORK, ) 
County of Rbnssblabr. J **' * 

IN THE NAME OP THE PEOPLE OP THE STATE OP NEW YORK: 
To any constable, etc. , of said county of Rensselaer, and to the keeper of the com- 
fnon jaU, Grebtino: 

This is to command you, the said constable, forthwith to convey and deliver 
into the custody of the said keeper, the body of John Doe, charged by me 
with having, on this Ist day of January, A. D. 1882, at the city of Troy, N. Y., 
in my presence made an affray with one Raymond Coon [or having threat- 
ened to injure the person or property of said Raymond Coon], and the said 
John Doe having been then and there required by me without other proof to 
enter into a recognizance in the sum of $1,000, with one sufficient surety, for 
his appearance at the next court of sessions, to be held In and for the said 
county of Rensselaer, at the city of Troy, N. Y., and not to depart the same 
without leave, and in the meantime to keep the peace toward the people of 
the State, and especially toward Raymond Coon, the said John Doe having 
refused to find security. 

And you, the said keeper, are hereby required to receive the said John Doc 
into your custody in the said Jail and him there safely keep until he shall find 
security as aforesaid, or be otherwise discharged by due course of law. 

Given under my hand this 10th day of January, A. D. 1882, at Troy, N. Y 

R 0. JBNYS8. 



OF Cruiinal Prooeditbs. 



S8I 



Ka 18. 

W m i mmt U rwUam a pH m my ^ mmitt e d under eHJker ^ Ae ffreffokig wmfmM^ 
he hmeimg mibeeguemilif gneet^ the required eeeurity. (See Code Crim. Proci, 
691.) 

[Title of court] 
8TATJB OF NEW YORK. ) . 

l^UBTT OF RSNaSBLAKR, | 

IN THB NAMB OF THE PEOPLE OF THE STATE OF NSW YORK. 
2b ihe keeper qf the eommon jail of eaid county, Obseting : 

This is to command you forthwith to release from your custody the body of 
John Doe, if detained by you for no other cause than that specified in the 
warrant of commitment by R C. Jenyss, police justice of the city of Troy, 
N. Y., on the 1st day of January, A. D. 1883, for not finding sureties of the 
peace upon the compUint of Raymond Coon, he, the said John Doe, having 
since his said commitment found sureties before us; and for your so doing 
let this be your sufficient warrant. 

Witness, R C. Jenyss and John I, Hassett, police Justices of the said dtj 
of Trqy, Remiefilaer county, N. Y., this 1st day of Januaiy, 1882. 

R a JENYSS, 

Poliee Juetiee. 
JOHN J. HASSETT, 

BoUde JueUee, 



Ka 14. 

IHecharfi^ far want of eMei^ee. (See Code Crim. Pkoa, S 8&) 
POUCB COURT (OR OTHER COURT) OF 

THB PEOPLB 

Offointt 
JOHN DOS. 



STATE OF NEW YORK, ) 

COUNTT OF RkNSSBLAER. I 

. Whereae, It appearing that from the evidence and proofs submitted to me 
on the examination heretofore had herein, that there is not sufficient reaaoi 
to fear the commission of the crime alleged in the complaint to have been 
threatened, I do hereby order the said John Doe to be discharged. 
Dated, etc R. 0. JENYSS, 

PoUee Jtuiiee, 




Ka 16. 

Utktm if namee ef aidere and abettors under the riot oeL (Code Crim. Proa, 

§104.) 

2b the Supreme Otmrt of (Ke State of Nftw York: 

I. , sheriff of 

[or other officer], do hereby certify that pursuant to a process of this court 
duly directed to me for execution on the day of June, 1883, at 



m 



POBMS TO THB CoDb' 



Ttcj, N. T., in Ilia oonn^ of Benadaer, I ftttemplad to execute said proceM. 
but that John Doe, the defendant named in eaid prooeM, aided and abetted 

^ 

aU of tlie ci^ of Troy, K. Y.» did forcibly realBt and prevent the legal ezeeo 
tioQ of said procesa. 

All of which is respectfully submitted. 
Dated, ela JAMBS INORAM, 



JKo. le. 

IitfarmaUm Jbr wmrmU^O&nerdl form, (See Code Orim. Proc^g 14B.) 

lb , one of thejuatieei of the peace [orpoUee 

JueHeee] in and for the ooun^ of Beneeelaer [or oUy cf^ae (he caee may he\\ 

James Dunn, of the town of Qrafton, of said county, being duly sworn, 
says that on the 10th day of June, 1882, at the town of Grafton aforesaid, in 
said county, John Doe, lato of the city of Troy, in said county of Rensselaer, 
did [here state with particularity the offense charged]. He therefore prays 
that legal process may be issued, and that the said John Doe be apprehended 
and held to answer to said complaint, and be dealt with according to law. 

Dated at Grafton, in the county of Rensselaer, this 12th day of June, 
A. D. 1882. 

JAJIBSDUNN. 

Subscribed and twoin before me, ) 
this Idthdigr of June, 1882. ' 

Henbt Bubboughb^ 

Jfumee^tkeFutoe. 



Ka 17. 

WofrrofiU if airreet^ OenerdlfoTm, (See CMe OrinL Pkoa, % 161.) 

STATE OP NEW YORK. J ^ . 

Ck>uiiTT OF Renbsblabr [ob othbb county]. ' 

IN THE NAME OP THE PEOPLE OP THE STATE OF NEW YORK. 

To any peace officer in this State [or in the county of Beneeelaer, as the caee may 
be, as provided in sections 155 and 156] : 
Information on oath having this day, by information, been laid before me 
that the crime of [designating it] hao been committed and accasing John Doe 
thereof. 

You are, therefore, commanded forthwith to arrest the said Jolm Doe, and 
bring him before me, at the police court [or other court], in the city of Troy, 
N. Y., or in case of my absence or inability to act before the nearest or most 
accessible magistrate in this county. 
Dated at the city of Troy, this 10th day of June, 1882. 

R C. JENYSS, 
IWeeJuiliee(orjuetieeqfthepeae0,atA$eemmmify^ 



OF Criminal Psooedube. 863^ 
Vo. la 

JUUmil rtwifiv kmidmUing^JuiUoe. (Code Grim. Ftaa. S 107^ 
POmCB COURT (OR OTHER OOUBT). 

THB PEOPLE 
JOHN DOE. 



8TATB OP NBW YORK, ) ^ . 

GomTT OF Rensselaer. ) 

James Connors, being duly sworn, says that he Is acquainted with the handp 

writing of , the Justice who issued the annexed warrant, and thsl 

he knows the signature thereto attached to be the genuine signature of said 

and that the said warrant was issued and signed by said hi hii 

presence. 

JAMBS OONNORa 

Sworn before me, } 
June iq, 188S. ) 

Jaiom Duffi, 




Na 10. 

(See Code Crim. Proc, g 107.) 

STATE OF NEW YORK, . 
CouNTT OF Rensselaer. ) 

Due proof upon oath having been made before me, one of the Justices of 

Rensselaer countv, that the name of purporting to be signed to 

the warrant of arrest in the handwriting of the said the Justice 

of the peace in the said warrant named, I do hereby authorize and direct any 
officer to whom the said warrant is directed to execute the same wiUiin the 
■aid county of 

Dated Jum 10, 18». JAMES DUFFY, 

JtuUee of the Peaee, Albam^ (kumig, It.T. 



No. 20. 

Return to toarrarU of arrmt, 

I hare arrested the within-named defendant, and have him here in my 
custody as within commanded. 
Diled,ola OBOROB BROWN, 



FOBMB TO THB CoDS 



Va 81. 

B0hsm leAm att the defendanti eannat b$ finmd. 

I have arreeted Ike wtthin John Smith and WiDiam Marks, and have 
hen in my eostody, Irat the within-named James Cranch cannot be found. 
Dated, etc. 

OBOBGB BROWN, 
Comtabk. 



JKo. 22. 

BHwn f»h$n HU maffi§$rate imdng the warrant is abeeni (See Code Crim. 
Proo., §gl64aBdl60.) 

Ka within commanded, I have arrested the within-named defendant, and I 
hereby return tliat on making the arrest I forthwith brought the said defend- 
ant to the (tfQce of the magistrate who issued the warrant, but that the said 
magistrate was absent therefrom. 

Dated, etc. GEORGB BROWN, 



Na 28. 

Betum %ehen the magutrate issuing the warrant has gone out of office^ 

I hereby certify that I liave arrested the within named defendant, and tliat 
at the time of such arrest> Charles Homer, the magistrate issuing the warrant, 
had ceased to be such nuigirtrate by the expiration of his term of office [or 
otherwise]. 

Dated, etc. 

OBORGB BROWN, 



No. 24. 

Wiamramtqfter prisoner hcLS escape (See Code Crim. Proc, g 888.) 

STATE OF NEW YORK, ) ^ . 
County of Renbsblasr, ) 

IN THE NAME OP THE PEOPLE OP THE STATE OP NEW YORK: 
To [as in No. 17.] 

Information upon oath having been this day laid before me by Michad 
Wallace, a constable of this county, to whom a warrant had heretofore been 
issued for the arrest of John Doe, that he had arrested the said John Doe by 
virtue thereof, and that the said John Doe had afterwards at the city of Troy, 
in said county of Rensselaer, on the tenth day of June, escaped [or been 
rescued] from the custody of said Wallace. You are, therefore, again com- 
mandea to forthwith apprehend the said John Doe, and bring him before mi 
at my office in the village of Lansingburgh, in said county of Renwelaet 
aforesaid, to be dealt with according to law, or in case of my abanoa Of 
nability to act, before the nearest and most accessible magistrate in thla oounQr* 

Dated etc. 

R B. STILES, 



OF Crdonal PBooBmrmE. 



86S 



VaM. 

Wwm m i ftt mmd ^ a fii j iUm fr^m wMOm (Ood» Orlm. Hmu, 

[Formal part as in No. 17.] 

Infonnation upon oath baring been this day hdd before mebj James Burke 
that John Doe had committed murder in the State of Vermont on the 10th 
day of June, 1882, and is now a fugitive from Justice in the county of Reiis- 
•elaer in this state. 

Ton are therefore commanded forthwith to arrest the above-named John 
Doe and bring bJm before me at my office in the village of Lansingburg^ 
N. T., or in the case of my absence or inability to act, before the nearest and 
most accessible magistrate in this county. 

Dated, etc 

RB. 8TILB8, 



VaM. 

Foftm if wmdtmmi ^fugitine, ste. (See CMe Ortm. Rroa, 8 899.) 
8TATB OF NBW YORK, > ^ . 

OODVTT OP KamnBLABB. ' 

The within-named John Doe having been brought before me undei thli 
warrant, and it appearing to me that from an examination by me had, that he 
18 guilty .of the crime charged, and that he is a fugitive from Justice as 
therein set forth, I therefore commit the said John Doe to the sheriff of the 
coon^ of BenssflkfiT [or to the keeper of the common Jail] for the space of 
thirty days [or other reasonable time], or until he shall be discharged by due 
course of law. 

Dated, ela 

R BL 8TILB8L 



Vo.97. 

(Mm. Proc, % 882.) 

Toln/kMmn W. JUMflom, tfcWsf wmmey of Bnrndeair wuntu : 

Sdl — Please to take notice that I have this day committed John Doe, a 
fugitive from Justice from the State of Vermont, charged with the crime ol 
murder, committed in said state of Vermont, to the sheriff of Rensselaoi 
eonnty to await the action of the autheritliie of the State of Vermont aforesaid. 

Toon, eta, 

R. R STILBa 



866 FOBMS TO THB OoDB- 

Ha sa 

JMte UWmgommor, etc, ^ BtaiU hating fwrMSetSen if WmfngfUiu 

(Code Orim. Pltxx, % 888.) 

To Hon. , Qn>wmoT cf the State qf Vermoni: 

Sir. — The aherifl of Renaselaer county, State of New York, hae in chaige 
and subject to your action one John Doe, charged with muider committed 
within your State on the 10th day of June, 1882. Awaiting your motion, I 
remain, 

Yeiy respectfully youn, 

LA MOTTE W. RHODES, 

IHtL AUy, if Bmml Oil, JT. T. 



Ka 29. 

POLICE COURT (OR OTHER C0UR1% 
d M n mi frnw^ /or ammtnotfen. (Code CrinL Proc., g IML 
THB PBOPLB ) 
JOHN DOB. \ 



The within named John Doe having been brought before me under the 
within warrant, is committed for examination to the aherill of the county 
of Rensselaer, or in the city and county of New York, to the keeper of the 
city prison of the city of New York. 

Dated, etc 



Ko. 80. 

Ailry iftfufwimQ Tprwnm if hU right to make m etatement (Code Cilm. 

Proc., § 197.) 

At the close of the examination of the witnesses on the part of the people, 
the defendant was informed of his right to make a statement in relation to tht 
charge against him, as required by section 106 of the Code of Criminal Pro- 
cedure, and after behig so informed he did expressly waive his ri^t to makt 
thoMme. 



FeUeeJvetieeierJuetieeefl^Bmetl^ 



Va 81. 

BtatemeiU^dtfendant^GeimrUfarnk (Code Orlm. Fh)e., g IM.) 

Qusetien, What is your name and age f Anewer. 

QliueUon, Where were you bom f Anewer 

QyMtum, Where do you reside and how long have you raided tharaf 
Anmoer 



OF Criminal Pbogicdube. 



867 



Quutim, What Is your bosineai or prof eatlon ? An9W§r 

Q u e&Uan . GiTeany ezplanation 70a may think proper of the drcumftanoet 
•ppearing in the taitimony against yon* and state any facts which you think 
win tend to your exculpation? Anmur. 

Diled,olo. 

PoUe$ JfuUee (cr JuiUee €f Wm Fdtm\ 



A^mMnHMi if datemenf, (Code of Orim. Proa, 1 90a) 
POUCB COURT (OR JUSTICES' COURT)l 
STATE OP NEW YORK, J . 

COUNTT OF RENaSBLAKR. f 

1, R B. Stiles, a Jostice of the peace of the county cf Rensselaer, do hereby 
certify that at the close of the examination before me of the witnesses on the 
part of the people in the above action, I informed the defendant that it was 
liis right to make a statement in relation to the charge against him, and the 
nature of the charge was stated to him ; that the statement was designed to 
enable him, if he saw fit, to answer the charge, and to explain the facts 
alleged against him ; that he was at liberty to waive making a statement, and 
that his waiver could not be used against him on the trial ; that after being 
so informed, he made the following statement : 

[Here insert questions and answers, as in No. 81.] 

That at tbe dose of said statement, I requested said defendant to sign the 
flame, which he refused to do, giving as reasons for such refusal the following, 
to wit : 

[Insert reasons for declining, etc.] 

Dated LAHsncGBXTBOH, N. T., June 10, 1882. 

RB. STILES, 



Na 88. 

Bnlnf^wtkerbyJuiUee. (Code Crim. Proc, g 901.) 

After the waiver of the defendant to make a statement, the following wit 
■essas were produced, sworn and examined by and on behalf of the defendant 
[Insert proceedings had]. 
Dsted,ela 



868 FOKMS TO THE CoDl^ 

Vo. 84. 

nKftmiiii, how tolwi miUhmUtdaiei. (Oode Orim. Pmmv | tOl] 
JU8TI0E8' COURT (OR POUCB COURT). 

THB PBOPLB ) 
JOHN DOB. \ 



Before Justice , June 10, 1888, Renaeelaer eoon^ 

N. Y. 

, being duly sworn, depoees and Mys : 

QuMon. WhtX is joor name and age f Anno&r 

QueUion. MThere do jou reside f Annoer 

QuMtian, What is your business or profession t Aahmt, 

[Insert eyidence taken.] 

I, R B. Stiles, Justice of the peace, Lansingbuig h, N. Y«, in said coimlj« 

do hereby certify that the above is the testimony given by 

a witness sworn on the part of the defendant, who stated bis name to ba 

his age to be 

Ids business or profession to ba 

Dated, etc 

/fiilte <2f CIW Bnim (or iWoi JMmX 



Va 86. 

IndarmikeiUffrdiichmrue^priianar inc^^ (Code Grim. Proa, S 907.) 

Having duly examined witnesses and considered the evidence against the 
defendant, John Doe, and there being no sufficient cause to believe him goii^ 
of the offense charged, I order him to be disdiarged. 

Dated, eto. 



OrdirrfdlKhmrffewhmd^ManiUmJaiL (Oode (Mm. Ptao., 1 807^ 
POUCX OOURT (OR JU8TI0B8' (X)UR1). 
8TATB OP NEW YORK, . 

Rbnsbklakb Ck>unTT. i 
lb <A« keep&r cf the eomman JaU €f Btnnia/tit emnifi : 

Yoa ara kers^ laquived, oa tte raoeipt of this, to diseharga from jov 
custody John Doe, who was committed to Jail by me, R E. 8tilea> Jnstloa oi 
tlie peace of Rensselaer county, charged with the offense of [set out in the 
chaige]. 

Dated, eta. 

JMw <2r tlW iUei (or Mte JMlii^ 



OF CBDcnr AL Pbooedube. 



869 



OrdtriotmmiL (Code Crim. Prao., gSOa) 

It ippeiriBg lo me ly the within depoiitioM [and atatement it ly] that the 
dflteidant^ John Doe, if goiUj of the off enae charged, I herebj order that he 
beheld to anawer the aame. 

i>ile4«ete. 



OnkrfareammiimmUwUkauiiaa. (Code Crim. Proc., S 209.) 

^[Add to Na 87.] And that lie be committed to the aherifl of the county ci 
Rmiwelaer [or in the dtj and coonQr of New York, to the keeper of the dtj 
prime of the dfty of NewToriL]. 



Ha 8a 

Chrtikateqfbaa. (Code Ciirn. Proc., g 810.) 

[Add to No. 87.J And I have admitted him to bail, to answer by tne under- 
tikhig hereto annexed [or if bail has not been taken], and that he be admitted 
to hail in the sum of two thousand dollars [or other sum], and be committed 
to the sheriff of Rensselaer county [or in the city and county of New York, 
to the keeper of the dty prison of the dty of New York], until suoh bail be 
SiTen. 

Dated, ete. 

Jui. qfik$Fmm 



Va 40. 

hiammmt ia b§ made cn Maiement and deporiUon pf drfendaini im earn ^ 
prt§omm*9 diiekartfe. (Code Crim. Proc., g d07.) 

Theie being no sufficient cause to believe the within named 

gnilQr d the offense witliin mentioned, I order him disohaiged 



Va 41. 

himmmmU U b§ m^aie m dtpo M o m and datmnmU €f d^&Hdamt, if trim 
UatM$ and d^ftmdmU admitted ia bad, M baa hoe nai been taken. (Code 

Grim.Proc.,g8^«S^^0 

It ^ypearing to me by the witliin depositions and statement, that the crime 
tbeiefai mentioDed of anon, has been oommitted, and that there is sufficient 

47 



370 Forms to thb Code 

cause to believe the whhin-iuuned. ; 

to be guUty thereof, I order that he be held to answer the aame, and that he 

be admitted to bail in the sum of dollars, and be committed 

to the sheriff of the ooontj of Rensselaer, nntil he give sach bail 
Dated, etc. 



Va 48. 

indormiitnt Is As made en depoeUion and itatmnmU <f drfendofiU hdieeed 
gv$U^. (Code Crim.Proc., §§206,200.) 

It appearing to me by the within depositions and statement that the crime 
therein mentioned has been committed, and that there is sufficient cause to 

belieye the within-named guilty thereof, and 

I herein order that he be held to answer the same. 

Dated, etc 



Va 48. 

biOtofmrnnd U b§ made en depeeUiane and ekUemmU ofdtfendani, iferkme he haA 
oNe and baa be taken. (Code Crim. Proc., §§ 206, 210.) 

It appearing to me by the within depositions and statement that the crime 

therein mentioned of has been committed, and that 

there is sufficient cause to believe the within named to be 

guilty thereof, I order that he be held to answer the same, and I have 
admitted him to bail the annexed undertaking. 

Dated 



IWeeJueUeelerJueUee^tkeFme^ 



Va 44. 

MiidoreemmU U be made en drfeitdanfi depaeitian and etaiement, if beUeeedguit^ 

andermebenatbaOable, (Code Crim. Proc., §§ 206, 200.f 

It appearing to me by the within depositions and statement that the crime of 
murder has been committed, and that there is sufficient cause to beUeve the 

within named to be guilty thereof, I do hereby order 

that he be held to answer the same, and that he be committed to the sheriff of 
the county of Rensselaer. 
• Dated 



FMeeJuetiee{orJuetieeqftheBMee). 



OF CBDnNAL PbOGSDUBE. 



871 



Va 40. 

POUGB COURT (OR JUSTICES' COURfV 
The dierilf of Rensselaer county will receive and safely keep wKhia Ite 

emnmon Jail of said ooonty for farther examination 

duffged before me with the offianse of [set forth briefly the oifenie]. 
Dated, etc 



(Code Crim. Proc., g 109.) 
STATE OF NEW TORE, ) ^ . 

COUHTT OF ) 

We, of in the coonty of oocap^ 

tion a » defendant, and of in the county of 

\rj ocdapation a and of in the coun^ 

of by occupation a sureties, acknowledge our^ 

selves to owe the people of the State of New York each the sum of 

dollars, to be made and levied out of our respective goods and chattels, lands, 
tenements, to the use of the said people if default shaU be made on the con- 
ditions following : 

The condition of this recognizance is that, whereas, information has been 

made on oath, before one of the justices of the peace [or police 

Justices] of the county of Rensselaer, that on the. . day of 

1882, in said county, the crime of was committed, and accusing 

thereof ; 

Andf whereoi, the said , justice of the peace [or other Justice] 

IB aforesaid, did, on the day of , 1882, duly issue a warrant 

lot the arrest of said ; 

And, wh&reas, the said has been duly arrested in the county 

of Saratoga, and having required the officer making the arrest to take him 
before a magistrate in the said county of Saratoga, he has this day been duly 
bronghi, before me, the undersigned, one of the justices of the peace of said 
ooonty ot Saratoga ; 

Now, therefr^, if the said shall personally appear before the 

>iid , Justice of the peace [or police justice] aforesaid, at his office 

[or police court-room] in the city of , county of , on the 

day of , 1882, at o'clock, a. on that day, 

then this recognizance to be void, otherwise to remain in full force and effect, 
«Dd we, the said sureties, will pay to the people of the State of New York the 
•om of 

(Signed) 

T^ken and sabacribed before me, ) 
Uds day of f 



24 



872 



Forms to thb Gods 



STATE OF NEW YORE, ) ^ . 

OOUKTT OF , ) 

of said county, being duly sworn, doth depoM 

and say that li worth dolim, OTer and above 

all debts, duea, demands and liabilities whatever, and that his property 

consists of 



Biiliscribed and sworn before me, ) 
this. .. .day of 1882. 1 

JuiUee qf the Fnee {or other JueUee). 

BTATB OP NEW YORK, ) ^ . 
County of , ) 

of , in said ooiin^, being 

duly sworn, doth depose and say that he is worth 

dollars, over and above aU debts, dues, demands and Uabilite whatever, wbA 
that his property consists of 



Babscribed and sworn before me, ) 
this.... day of 1888. ) 

JueUee^theBme. 



Va 47. 

B&ndffroelfomrmmeiU. (Ck>de Orim. EVoa. S IM) 
JU8TICB8' COURT (OR OTHSR COURT). 
BTATB OP NEW YORK, > ^ . 

OOIJHTT, J 

We, , of No 

a holder, and of No 

street, a holder, residents of the city of , in said county, 

acknowledge ourselves to be indebted to and owe the people of the State of 

New York each the sum of hundred dollars, to be respectively 

made and levied of our several goods and chattels, lands and tenements, to 
the use of the said people, if default shall be made in the condition following: 

The condition of this recognizance is such, tliat whereas, information has 

been made on oath before , one of the Justices of the 

peace [or other justice] of the county of [or city of] Rensselaer, that the 

offense of has been committed and accnsiiig said 

thereof, and said has 

been duly arrested and held for examination. 

Now, therefore, if the said shall personally 

appear before Justice as aforesaid, at his office 

l^or police court] in the city [or town of] on the day of 

1882, at ten o'clock a. m. of that day, to be examined for the offenie afoTO' 



OF Criminal Pbooedure. 



87S 



nd; ind to do and reoeiTa what shall by the said justics be tLen and there 
enjoined upon him; and shall appear during sach t/xamination» and shall not 

depart the said coort without leave* then this recogniiaaot 

to be Toid, otherwise, we, the said baa will pay the people of the State ol 
New York the said sum of dollars. 



Taken, subscribed and acknowledged ) 
before me, this. . . .day of 1883. > 



[AiBdaTitsof sureties as hi No. 40.] 



Va48. 

Undertakkg to grmnd Jwry in ea»e$ trioNe by gpeeial mtSom. (CkMle Oilmi 

Proa, 8 211.) 

COUNTY. 

JnsncBe' Ooubt [ob othbb ooubt], ) 

having been duly charged on tnformatloo 

before.. a Justice of the peace of the town of 

county of , with the offense of and the said 

Jnstioe having informed him of his right to be tried by a Jury after indictment, 
and did ask him how he would be tried, and he requiring to be tried by a 
Joiy after indictment; and after having so required to be tried the said Justice 

did hold said to answer to the next court to be 

held in and for the said county of , having authority to inquire by 

the intervention of a grand Jury into offenses triable in said county of 



We, of in the of j**** 

b7 occupation a and of in the 

of by occupation a and of 

in the of by occupation a undertake thai 

nid shall appear and answer the charge above mentioned at the 

next ooort, to be held in and for the county of having authority 

to inquire, by the intervention of a grand Jury, into offenses triable in the said 

county of , and shall at all times render himself amenable to the 

process of the court; and if convicted, shaU appear for Judgment, and render 
himself in execution thereof; or, if he fail to perform either of these condi- 
tions, that we will pay to the people of the State of New York the sum el 
hundred dollars. 

Deled the day of , 1882. 

(Signed) c 

Tsken, subscribed and acknowledged before me, ) 
the day and year last above mentioned. ) 



[Affidavits of sureties as in No. 46, ante.] 



874 



Forms to the Code 



Va 60. 

Ibrm eanmitmML (Code Crim. Proc., g 214.) 

OOOHTT OF BkNBBBLABB, 

IN THE NAME OF THE PEOPLE OF THE STATE OF NEW 1 >RE 
To the sheriff qf ths eouiUy qf Bmndaer [orinths oUy and coutUn qfNno York 
to the keeper of the eUy prisM of ths eUyqf New Jbri"]: 

An order haying been this day made by me that John Doe be held to answer 

to the court of upon a charge of [state the nature of the 

crime], jou are commanded to receive him into your custody, and detain him 
until he be legally discharged. 

Dated, etc. 



Va 61. 

UnSartakifng qf loAnMt to appear without mreUee, (Code Crim. Proc., g 215.) 

Know all men by these presents, that I, John Doe, am held and firmly 

bound unto the people of the State of New York, in the sum of 

dollars, to be paid to the people of the State of New York; for which pay- 
ment, well and truly to be made, I bind myself, my heirs, executors, adminis- 
trators and assigns. Jointly and severally by these presents. 

Dated this day of , 1882. 

The condition of this obligation Is such that if the above-named John Doe 
shall duly appear as a witness when properly summoned, on the trial of a 
certain action, wherein the pcoi^le of the State of New York are plaintiJSs, 

and is defendant, on a charge of arson, 

and shall give his evidence therein on behalf of the said people, then this 
obligation shall be void and of no effect, otherwise to remain in full force and 
effect, and the said John Doe will pay to the people of the State of New York 
the said sum of one hundred doUiurs. 

JOHN DOB. 



STATE OF NEW YORK, 
County OF 




On this day of , in the year one thousand 

eight hundred and , before me, the subscriber, personally 

came *. to me known to be th« 

person described in and who executed the within instrument, and 

•dmowledged that he executed the same. 



OF CRi]ciirA.L Pboobdubs. 



375 



An«%/pri«9MamiMii!f iM»fM^ (Code of GHm. fttia, | tIC) 

JUSnOBS' OOURT (OR OTHXB OOUBI). 



THBPBOPLB 
JOHN DORINQ. 



STATB OF OTW YORp. . 

Hie above named defendant haying been arrested charged with the crime 
of anon, and having been held to answer on the deposition and evidence of 
John Doe, before Justice R B. Stiles of Lansingburgh, N. T., and the said 
Jastice being satisfied by proof on oath, that said John Doe intends to depart 
the Stale and not to appear and testify at the trial of this cause, and the said 
]astice having required an undertaking with sureties, for his appearance at 
such trial: 

Be it lemembered, that on this day of 188 , 

of in the counQr 

of by occupation a , and 

of in the county of by occupation a 

and. of in the county 

of by occupation a. sureties, personally came 

Move me. . •« Justice of the -peace of the county of 

BeoMlaer, and acknowledged himself, each, to be indebted to the people of 

the State ol New York, m the sum of hundred doUars, to be made 

tad levied of his goods and chattels, lands and tenements, to the use of the 
mid people, if default shall be made in the condition following: 

The ooodition of this recognizance is such that if the bounden 

shall personally appear and testify 

at the next court 

to be held in and for the said city or county of to give evidence as a 

witness on behalf of the said people, against 

arrested and held to answer the charge of 



as well to the grand Juiy as to the petit Jury, and do not depart the said court 
without leave, then this recognizance to be void and of no effect; otherwise 
to remain in full force and virtue. The said sureties will pay to the people of 

the State of New York, the said sum of hundred dollars. 

Dated day of 188 . 

(Signed) 

8TATB OP NEW YORK, . 

OOUHTI OF I 

On this day*of > 18. ., before me, the subscriber, 

personally appeared 

to me known to be the same persons described in and who executed the above 
ondertaking; and severally admowledged that they executed the same. 



JiuUee qf the Psaet, 



376 



FOBMS TO THF CODB 



STATE OF NEW YORK, 

COUHTT OF.... 




and 

being Beyerally iworn, each for himself says, the said 

that he is a of the county of in this State, and 

that he is worth the sum of dollan over and abc re 

all debts and liabilities which he owes or has incurred, exclusive of property 

dxempt by law from levy and sale under an execution; and the said 

for himself, says that he is a of the county 

)f in this State, and that he is worth the sum of 

dollars over and above all debts and liabilities which he owes or 

bas incurred, exclusive of property exempt by law ftom levy and sale under 
an execution. 

Severally subscribed and sworn to, before me, ) 
this day of 18.. ) 



JtMoe of th0 /VtMiL 

I certify that I find the tiiretiei in the forcing undertaking sufficient, and 
do approve of the same. 



Vo. 68. 

Order IhaA wUnui gine 9eeiwrUy for appearanoe. (CMe Grim Proa, g 210.) 
JUSTICES' COURT (OR OTHER COURTX 
THB PBOPLB I 



WhertM, a witness examined before me, on the part of 

the people, in the above action, is a material witness for the people therein ; 

And, tohereaa, I am satisfied, by proof on oath, that there is reason to 

believe that the said will not appear and testify on the 

part of the people, at the next court of to be held in and 

for the county of on the day of 1883^ 

to which the statements and depositions in the above action are to be sent, I 
do hereby order that the said enter into a written under- 
taking in the sum of with sureties that he wil 

appear and testify on the part of the people at said next term of the court 

(Signed by Justice.) 

Dated, etc 



OF Criminal Procedure. 



877 



No. 54. 

Cbmmtknmi €f wftMm Miko Ka» rtfami to gi96 an uiuUrttMiff ^WMT mi 
MffV. (OodeCrim.Proc.,g8ia) 

POLICE COURT (OR OTHER COURT). 
8TATB OP NEW YORK. ) 

COUHTT OF ReHSBBLABB, ' 

IN THE NAME OP THE PEOPLE OP THE STATE OP NEW YORK: 

7b (Atf ik&rif <f tlW wwnty cf (crto ths keep&r thsei^ priton ik§ cUif and 
eounty qf N01O York), 

Whereas, It is made to appear to me, R B. Stiles, a Justice of the peace of 
Lansingburgh, N. Y., on the oath of good and sufficient witnesses, that 
John Doe is a material witness in a matter wherein James Doring is accused 
by the people of the State of New York of the crime of arson [state facta 
and circumstances], and that the said John Doe is about to leave the State, 
BB he is satisfied by due proof on oath, to avoid being called as a witness on 
the part of the people therein ; 

And, whereas. The said John Doe refuses, as required by me, to enter into 
tn undertaking in the sum of one hundred dollars, for his personal appear- 
iDce at court, when duly subpoenaed to give evidence on behalf of the people 
igainst said James Doring, 

Yqu are therefore commanded to receive the said John Doe, and detain him 
in your custody until he shall give the security required, or be otherwise 
legally discharged. 

Dated, etc R B. STILES, 

JuiUei qf the PlBaee, Laneingbwyh, if. F. 



Na 66. 

Wan mnt 4f«f m mUmeni whm wUneu rtfates tofumith mir€tie$. (Code Ortan. 

Proc., § ns.) 

POLICE COURT (OR OTHER COURT). 
STATE OP NEW YORK, ) . 
Couutt OF Rbnssblaer. i 

IN THE NAME OP THE PEOPLE OP THE STATE OP NEW YORK: 
To 

Whereas, It has been made to appear on the oath of good and sufficient wit- ' 
nesses that John Doe is a material witness in a matter wherein the people of 
the State of New York are plaintiffs, and James Doring, the defendant, ii 
accused by the said plaintiffs of the crime of arson [state facts and circum- 
nances], and that the said John Doe is about to leave the State to avoid giving 
his testimony at the trial thereof, at the instance of the said people, and 
whereof the said John Doe refuses, as required by me, to give security, as fixed 
by me, for his appearance at the trial of the said cause when duly subpoenaed. 
Now you are hereby commanded to receive the said John Doe into your cus- 



378 FOBMB TO THE CoDB 

tody, and detain Mm until he glrea the required eecoritj, or ii 
kgaQy diachaiged. 
Dated, ete. R B. 8TILB8, 



(MiiifJ^fNmt^^f tr^i^' (Code of Crim. Proa, S MS.) 
Too, aa foreman of this grand Juiy, shall diligently inquire, and a true pre- 
aentment make, of all anch matters and things as shall be given you in charge; 
the counsel of the people of this State, your feUows and your own you shall 
keep secret; you shall present no person from envy, hatred or malice; nor 
shall you leave anyone unpreeented through f^, favor, affection or reward, 
or hope of thereof, but you ahall present all things truly aa thqr oome to your 
knowledge, according to the beat of your understanding. Bo help yoa Qodl 



Na 67. 

OaOi <if iitundjwroT9, (Code Crim. Proc., g 848.) 
"The aame oath which your foreman has now taken before you, onhirpait, 
yon and each of you ahall well and truly observe on your part So help yoa 
Godl" 



Va58. 

OrdtrUdnm grand jury, (Code Orim. Proa, S tl7.) 



la m Mattsb oy DKAWINO GRAND 
JURORS, WTO, 



Al a special term of the supreme court, held at the ohamben of Bum, 

in the city of ,oa the 

Present— Hon. Obnrt 

It iahereby ordered that theclerk of draw according lo lawa grand 

Jury to serve at the next court of sessions of Rensselaer GOtm^, to be bdd at 
the court-house on the 25th day of June, 18S8. 

Dated JiNMl, 1881 



OF Cbdokal Pkooeduse. 



879 



Va60. 

Ordtrqfhomrdqfmi^p0nUonUdr€Mgrwi^ (€k>d6 Crim. Fn>c., g 887.) 

At A r^gnkr meetiiig of the board of ■aperviBors of ReiiBsehier county, held 
m the dQr of Twj on the let day of June, 1882, it was, by unanimous consent, 

Bmkedt That , the derkof Rensselaer, be and he is hereby 

ordered to draw, according to kw, a grand Jury to serve at the next court of 
sessiAns of Renaoelaer county, to be held at the court-house in the city of Troy, 
on the day of June, 1888. 

DMtdJwmi , 1868. 



Ohairmam qf Board pf Supervitan, Bmmiom C b i m% . 



No 60. 

\ ^d$rk Mptm eopy qf order for drmring grand Jvrjf. (Oode CMak 
Proc.. g 287). 

I, , clerk of the board of supervisors of Rensselaer ooonty, 

htnStif certify that the within is a faithful copy of an order iafued the 
board of ■aperrieora, passed June 1, 1882, and the whole thereol 



Na 61. 

GmmnifoTmitf wdieknont, (Ck)de Grim. Proa, S 871) 
COURT OF (AS THE CASE MAY 



m PIOPLI OF THB 8TATB OF NEW TORE 
JOHN DOB. 



The grand Jury of the county of Rensselaer [or of the dtj or dty and 
county in which the indictment is found], by this indictment accuse John 
Doe of the crime of [here insert the name of the crime, if it have one, other- 
wise give a brief description as given by statute], committed as follows: 

The said John Doe, on the 10th day of June, 1882, at the town [city or 
lage] of Lanaingburgh, in this county [here set forth with particularity the 
act chaiged aa an oilense]. 

Distriei Attorney of 



No. 62. 

BmA warrant (Code CriuL Proc, g 80L) 
Omnrr ov RsmiLABE (ob othxb Countt), m. : 
m THB KAHB OF THB PEOPLE OF THB 8TATB OF ISTKW YOBK 
To an^ peace officer in Mi State : 

An indietment having been found on the 10th day of June, 1888, in the 
eonrt of oyer and terminer [or other case], charging John Doe with the crime 
of [heie describe the crime generally.] 



880 



FOBMS TO THE CoDB 



Y<m are therefore commanded forthwith to arrest the abore namea John 
Doe and bring him before that court [or if the indictment haa been reuMnred. 
before the court to which it is removed] to answer the indictment; or if the 
court have adjourned for the term, that you deliver him into the ouatodj ol 
the sheriff of the county of Rensselaer [or as the case may be]. 

City [or town] of the day of 1889. 

By order of the court 

(7M 



va.es. 

BenehwofrarUincMeiof miademeanori. (Code Crim. Proa, g 802.) 
[Insert in the body of Na 62.] " Or if he require it, that you take him 
before any magistrate in that county or in the county in which yoa arrsit blm, 
that he may give bail to answer the indictment** 



No. 64. 

Indormm&ni 4m foarratU in a bailable ease, (Code Crim. Proa, S ML) 

The defendant herein is to be admitted to bail in the sum of 

dollars. 

By order of the court 



Na66. 

Indormnsnt cf taJbtng bail an bench warrant. (Code Crim. Proc, g 806.) 
Ji^hereae, It appears from the within bench warrant that the crime is bailable^ 
now it is hereby ordered by the court that the defendant be admitted to baD 
in the sum of dollars. 



OkHL 



No. 66. 

JJIdatit to eetaeide indictment. (Code Crim. Proa, g 81A) 
COURT OF OYER AND TERMINBR 



PEOPLE OF THE STATE OF NEW TORE 
against 
JOHN DOE. 



[.... 



STATE OF NEW YORK, 
Rek88bla£B County. 
Jacob Hart, being duly sworn, says that he is the attorn^ for the above 
named defendant, and that he has examined the indictment presented to this 
court by the grand Jui^' at the present term, charging the said defendant with 



OF CBDIIlfAL PbOOEDUKS. 



3«1 



the crime of anon; that said indictment, when returned to this court, wae 
Indoned " a tme bfa," hut was not signed by the foreman of the giand Jury 
ss required by section 208 of the Code of Criminal Procedure. Deponent 

further says that , the district attorney of this county, was 

present in the room at the time when the members ol said grand jury were 
givicg their votes on said indiotmenL 

JAOOB HABT. 

Sworn before me, ) 
JdBC 10, 188a. i 

QaoMB A. Moeinni, 



Na 67. 

Ofdtr mmnc amd$ kuketmmU. (Code of Crim. Pro&, | tIT.) 
OOUBT OF OYER AND TBRMINS& 



raOFlM OF STATE OF NSW TORE 
agaimt 
JOHN DOB. 



At a special term of the supreme court of the State of New York, hdd, ete. 

On reading and filing the affldavit of James Hart, in support of a motion 
to set aside the indictment in the above entitled action, and after hearing said 
Hart in support of said motion, and Hon. , district attor- 
ney of county, opposed thereto, and it appearing that the irregu- 
larities set forth in said affidavit are true, it is hereby ordered that said 
indictment be and the same is hereby set aside, and that said defendant be 
disdiarged from custody and his bail be exonerated [or that the case be again 
submitted to the grand July for consideration]. 

By order of theoourt. 

^^^^ OkHL 



Va 68. 

Ordttif aMar9$^ mm MietmmU i$ not found hgmiM i ra md /nfy. (Oods 

Grim. Proc,g819.) 

[F6rmal part as in Na 67.] 

It appearing to the satisfaction of the court that the indictment of John 
Doe was set aside at the last term of this court, and the present grand jury 
having been discharged without finding a new indictment against aald John 
Due, now on motion of James Hart, his attorney, it is hereby ordered that Hi 
be discharged from custody and his bail be exonerated. 

^y Old* of the ooort 

Dgled, ete. 

CkHL 



382 FOBM^ TO THE CODE 

No. eo. 

IPmmirrerUindietmerU. (Ck>de (Mm. Pmmv, S m) 

OOURT OF OYER AND TERMINER — Ooan. 

THE naPLE OV THE 8TATB OF NEW TORE ) 
agaHut V 

JOHN DOE. I 



The defendant John Doe» above named, demurs to the iodietmeDt preeentad 
by the last grand Jury, on the 10th day of June, 1889» i^Kiyh»g him with 
the crime of arson, on the following grounds: 

Ihvt, That the crime set forth in the indictment was oommitted in tha 
county of Albany, and was not within the Jurisdiction of this court 

SeeoruL The facts stated in said indictment do not constitute a crime. 

Wherefore this defendant asks Judgment of the court that he be >^ 
and discharged from the said premises specified in the said indictment 

Dated, etc 

CHARLES a MILLS, 



Ha 7a 
Atmoer to damurrer 
OOURT OF OYER AND TERMINER. — Oouett ov 

THE PBOPLi ) 
JOmfDOE. I 



, who prosecutes for the people, says that the said indlol- 

ment and the matter therein contained in manner and form, the same are 
there stated, are sufficient in law to compel the said John Doe to plead to tha 
same; wherefore the said people as the Judgment of the court herein, that 
tha said defendant be ordered to plead to said indictment, and proceed to trial 



Dittnei AUarmg, 4(f (Mmtif 



Va 71. 

PiMtffnMff, (OodeOrim.Pkoc.,S8iC) 
OOURT OF OYER AND TERMINER^ 



THE PEOPLE 

ogaM 
JOHN DOE 



Tha defendant herein, being duly anmigned, pleads thai ha Is gidltif cf Ifcc 
crime charged in tha indictment 



OF Criminal Progeddre! 



883 



[Fomial part m In Na 00.] The defendant on being amlfnied on ttit 
UidnMBft cbnzging him with an aasantt with intent to kiU, pleada foilty of 
fhe crime of a dmide aawolt 



Pleaqf wftguiSUif. 

\Jhml part aa in Ka 00.] The defendant, on being aiia|gned,'pieadi not 
gdhj to Iha erima obaiged in the indictment 



Va 74. 

Plea qf former eorwicticn or aequiUaL 
[Fdrmal part as In No. 69.] The defendant herein, on being amlgned, 
pteids that he baa already been acquitted [or conyicted] of the crime charged 
in this indictment by tlie judgment of the court of special sessions [or other 
court], rendered at Troy, T., on the 10th day of June, 1888. 



Va 76. 
Plea cf ineawttff, 

[Ponnal part aa In Na 69.] The defendant herein, John Doe, on being 
srraigned on the indictment -charging him with the crime of arson, pleads not 
g;iiilty thereto, and also further pleads that, at the time or times chaiged hi 
the tndictment, he was of unsound mind and wholly irresponsible for his aotSL 



Va 7a 

OhaOmigetolhepaneL (Code Grim. Fkoa, 8 868.) 

OOURT OF OYBR AND TERMINER^ Ooom 

TBI raOPLB OF THE 8TATB OF NBW YORK ) 
JOHN DOB. 1 



The defendant, John Doe, hereby challenges the panel retomed for pr essa l 
term of this court, on the following grounds : 

FtnL That the sheriff of county intentionally omitted to sum- 
mon John E. Bums, of Lansingburgh, who was regularly drawn as a Juroi 
for the present term of this court 

Seeimd, [State any respect in which the drawing and retnm of the Jury 
was not according to the forms of the Code of CiTil Procedure, wherel^ thf 
defendant was prejudiced.] 

Ilatod,eCa 

AJUemqfferlkfetidemt 



884 



FOBMB TO THE CODB 



Ha 77. 

OhdOmiffifaraehuabiai. (Oode Qrim. Ftoe., g 880.) 
OOURT OF OTBR AND TH;RMINBR--RmraBLAjm OoiiaCT. 

THBPBOPLB ) 



The defendant herein challenges a Juror drawn to aem 

in thia caad, on the ground that said juror pooBoeieo tuoh a state of mind 
regarding tbJa case, and espedallj this defendant, that such Juror cannot txy 
the case impartially, and wiU greatly pn^udice the suhstantial rights of this 
defendant 



Va 78. 

OhdknffBffrimplMbiai. (Oode Grim Proa, 8 880.) 
[Formal part as in Ka 75.] 
The defendant herein challenges John Doe, a Juror drawn to serve on the 
present case, on the following grounds : 

FM, That the said John Doe is related to the person alleged to have heen 
Injured by the commission of the crime chaiged in this indictment within the 
si3rth degree of consanguinity. 
8$oand, That said John Doe serred on the jury which found this indictmenL 

Dtfendanfi AUarmif. 



Va 79. 

FkrmtfipeeialmrdieL (Code Grim. Fkoa, U 488^ iiOl) 
OOURT OF OYER AND TBRIONXR. 



raOFIJB OF THB 8TATB OF NBW YORK 
JOHN^B. 



We, the Jurors in the above cause, find the following facts as established hf 
the eridence submitted for our consideration: 

FirtL We find that, as charged in the indictment, John Doe set Are to ths 
building named therein. 

Second, That said fire occurred between the hours of seren and ei^ o'dook 
A. H. of the 10th day of June, 1882. 

Third, That said building was not used or occupied as a dwelUng^ioiii^ 
and that at the time of said burning no human being was therrin. 

Dated, eta 

(Signed Jrnib) 



OK Cbimtnal Procedure. 



385 



Va 8a 

JMot^argummtaiiipeeialwrdici. (Ck>d« Oiim. Pkoc tUL) 
COURT OF OYER AND TSRMINER— Renhblabe Ooqsn 

THX PBOPLB, Sn^ ) 
JOHN DOB. ( 



To , Esq., DuMei-AManu^: 

SzB.— Reaae to take notice that the special verdict rendered in tba abort 
^•uie on the 6th day of Juno, 1882, will be brought to argument at the pre*- 
emtemof thieeoort, on the 16th day of June, 1882, at the opening of ooorl 
OB that day» or as soon thereafter as counsel can be heard. 
Dated TsoTp K. Y., Jtme 9, 1882. 

Yours, etc, 

SMITH A WELLINGTON, 



Va81. 

flTATB OF NEW YORK, ) . 

CoUUTT 0# BBNeSBLAHR. ) 

, being duly sworn, says fl^at he reeidea in the dty of 

Troy, N. Y. ; that on the day of 1882, at said city of Troy, 

K. Y., one , with intent feloniously to cheat and defraud 

the , did then and there feloniously, unlawfully and 

designedly pretend and represent to the said that [here state 

the facts and circumstances comprising the false representations] and the 

said then and there believing the said false pretenses and 

representations so made as aforesaid, by the said , and being 

deceived thereby, was induced by reason of the false pretenses and representa- 
tions so made as aforesaid to deliver and did then and there deliver to the 

said 

of the value of dollars, of the proper moneys, valuable things, 

goods, chattels and personal property, and effects of the said 

and the said did then and there receive and obtain the said 

of the vahie of dollars from the said of the 

proper moneys, valuable things, goods, chattels and personal property and 
effeets of the said by means of the false pretenses and repre- 
sentations aforesaid, with intent feloniously to cheat and defraud the 

said of the said of 

the value of dollars; that in fact and in tmtl: the pretenses 

and re pr e s en tations so made as aforesaid by the said to the 

said was and were in aU respects utterly false and untrue; 

that in fact and truth the said well knew the said pretenses 

and representations as by him made as aforesaid to the said 

to be utterly false and untrue at the time of making the same. 
49 



3S6 



Forms to the Code 



That the Mdd » by means of the ftilae pretenBes and 

lepresentations aforesaid* feloniously, unlawfully, faltelj. knowingly and 

designedly did reodve and obtain from the said 

of the Tslne of dollars of the 

proper moneys, valuable things, goods, chattels and personal property snd 

effects of the said , with intent feloniously to cheat and 

defraud the said of the same. 



Taken, sabscribed and sworn to before me, > 
Uila. di^of. ,188.. f 



Va82. 
Iilfofmation far wMmn/mmmf. 
BTATB OF NBW YORK, i . 

COUHTTarBBNBBIBLAEB. * 

, being duly sworn, says that he resides b tbs 

dty of Troy, N. T., in said county; that, on the day of , 

1882, at Troy af orenid, one did unlawfully and 

knowingly violate Laws of the State of New 

York, , relating to 

in that he did piere sot oat the facts and circumstances oonstitiitlng tha 
breach]. 

Subscribed and sworn before ) 
ma, June . . . 1888. i 



Va 88. 

Information reUUvoe to dog fighting. 

STATE OP NEW YORK, ) ^ . 
Rensselaer County. ) 

, being duly sworn, deposes and says, that jb 

resides in the of ; that on the day of 

188.., at the of , one 

did willfully, unlawfully and wickedly encourage, aid and assist one 

to keep a certain place, to wit: 

or to receive money for the admission of divers persons to a certain place 

, for the purpose of, and such place was 

then and there, by the aid of the said unlawfully 



OF CB1MINA.L PbOCED(JRB. 



387 



tape and OMd by the Mid for be pnrpoee of 

ll^itiiig, baiting certain baUi, bean, doga, cocki or other creaturee, to wit; 



fiwom before me, the 

d^fof , 188a. 



Va84. 



OTATS OF NEW YORK, ) . 



Coxthtt. 

, being duly sworn, depoeea and sayi, that 

he resides in the of ; that one , 

on the day of , at the of , 

did many one and , 

the said did then and there hare for 

and that the said 

being so married afterwards, to wit, on the day of 

with force and arms, at the of , in the county of 

, feloniously did many and take as one 

, and to the said 

was then and there married, the said being then 

and there liYing and in full life. 

Bnbscribedand sworn before me, ) 
the day of » ) 



Va 80. 

BtfbfmaMcn for 4m oil^raif. 

OTATB OF NEW YORK. J 
Comnr OF RBEraaKLAKR. f 

being duly sworn, says thai he midet al 

Troy, K. Y.. in said county; that on the day of , 1882, 

at the said city of Troy, in said county, did, with 

force and arms, make an affray by fighting with ma 

public place, to wit, against CDC pmtm or che people 

and the form of the statute in such case provided. 



Subacribed and sworn before me, i 



388 



FOBMS TO THK CoDB 



If^&rmaUon for ataauU and UtUmy, 

STATE OP NEW YORK, r . 
CoTJinT OP Rbnbselaer. ) 

being duly sworn, says thai he -wdet at 

Iroy, N. Y., in said county; that on the day of , at 

daid city of Troy, one , with force and anna, did 

make an assault upon this deponent, and him, the said deponent, did then 
and there beat, wound and ill-treat, without cause or provocation, 

Subacribed and sworn before me, ) 
fhis day of f 



Vo. 87. 

8TATB OP NEW YORK, ) . 

OOUHTT OF RbNBSELAKB. I 

» being duly sworn, says that ha midM la 

; that the premises known as No r • • 

street in said city of were, on the day of 

, 1882, kept, maintained and occupied by 

as a common, ill-governed and disorderly housei, and common bawdy house 
and house of prostitution, and a resort for tipplers, drunkards, common pros- 
titutes and reputed thieves, with other vile, wicked, idle, dissolute and die- 
orderly men and women and reputed thieves, who, or most of whom, are in 
the practice of drinking, dancing, quarreling, fighting, whoring, rioting, 
t disturbing the peace, cursing and swearing at almost all hours of the day and 
night, to the great damage and common nuisance of the people of the State 
of New York, there inhabiting, residing in the neighborhood, and passing 
thereby; that the grounds of deponent's knowledge are [here state grounds 
of deponent's knowledge and belief). 

Sworn before me, ) 
June .., 1888. f 



va sa 

h^mtmathf^ for mokUii^f m^f tr &mamm . 

NATE OP NEW YORK, ) . 
Oooutt of RxNsaBUkSR. ( 
being duly sworn, says that he ?i)|dfli !■ tti 

eity of Troy, Renssehier county, N. Y. ; that on the day of , 



OF Criminal Procedure. 



889 



ins, in said city of Troy, one did willfal^ 

ukd unlawfully violate chapter of title of the la^s and ordinances 

ci the dty of Troy aforesaid, relating to [give title to the ordinance yiolated] 
in that he did [set up the facts and circumstances constituting the offense]. 

Sworn before me, this. . . . ) 
day of 1888. ) 



Va 89. 

If^brmaiian for breach of ths peam. 



BTATE OF NEW YORK, 

RENSeaSLASB COUNTT. 




, being duly sworn, says that he 

resides ; that on the 

day of one did make a breach of 

the peace by quarreling, fighting and making a large noise, and collecting a 
crowd in street of the city of Troy. 

Sabscribed and sworn before me, } 
this day of 1882. S 



Vo. 90. 

Ir^fbmkUion for ctssavU on an ofiio$r, 
STATE OP NEW YORK, # . 

RERaOELASB CoUNTT. I 

, being duly sworn, deposes and says that 

he ; that on the day of , 

188. ., at the city of Troy, in said county, one with 

force and arms, in and upon one he then and there 

being a patrolman, policeman and police officer of the 

police force of the said city of Troy, and a police officer and a peace officer 
of, in and for the said city of Troy, unlawfully and Yiolently, without Justi- 
fiable or excusable cause, did assault, beat, bruise, wound and use personal 

Tiolence upon, and him evil treat, while he, the said 

so being a patrolman, policeman, police officer and peace 

officer aforesaid, was then and there lawfully engaged in the discharge of his 

duties as such patrolman, policeman, police officer and 

peace officer of said police force, and of the said city of Troy, and him, the 

said patrolman, policeman, police officer and peace 

officer as aforesud, did unlawfully and willfully resist in the discharge of his 
duties as such patrolman, policeman, police officer and peact 



390 



Forms to the Code 



officer, against the peace of the people of the State of New Yoik» and Iho 
fonn of the statute in such case proTided hj 

Sworn before me, the ) 
....day of I 



Va 91. 

^^Immaii&n far acta tending io ereate a bmuk if ih$ p§am, 

STATE OF NEW YORK, ) ^ . 
Renbselaeb Countt. ) 

being duly sworn, deposes and says that 

he resides ; that on the day of 

in said city [or town] one did 

Piere set forth the acts creating the breach] which had a tendency to excite 
others and them to create a breach of the peace against the people of the State 
of New York, and the form of the statute in such case made and prorided. 

Subscribed and sworn before me, ) 
this day of 1882. ) 



Va 08. 

Irtflormaiionfor p&rfwrjf. 
STATE OP NEW YORK, ) . 
Rensselaer County. ) 

being duly sworn, deposes and says 

that he resides in the of that on the. 

day of 188. .instant, at the. of 

in the county of a certain action in which. 

was plaintiff and was defendant, was 

before and that upon the 

of said action appeared as a witness for 

and on behalf of the said and was then and there duly 

and regularly sworn by tlie said as such 

that the evidence he should give relating to the 

matter in difference between the said parties should be the truth, the whole 

truth and nothing but the truth; and that upon the of the said 

action it then and there became material to inquire whether 

and that thereupon 

Ihe said being so sworn as a witness as aforesaid, dlJ 

then and there on the of said action falsely, willfully and corruptly 

depose, swear and testify, among other things, that 1 

whereas, in truth and in 



OF Cbdonal Pbocbdubb. 391 

CMt,tlie 

wheiebf the Mid did then and there wiUfanj and mmpQj 

fwear UHaeij and ownmlt wiUfal and corrapt perjury. 



Bnbeeribed and sworn before me» ) 
thia....di7 0if 1888. f 



BTATB OF mm YORK, U 

BraiaBULEB COUVTT. ) 

being duly sworn, deposes sad asys ttal 

he resides in the of that in the tfana 

of the day of 188.. one did 

wiDfoUy set Are to or bum a certain dwelling-houae, to wit 

in the of. 

In which there was at the time human beings, to wit 

i>y. 

Subscribed and sworn before me, ) 
the.... day of , i888. 1 



Va94. 

htfbrmaiUenfar anon, 9$cond and third dtgrm, 

STATE OF NBW YORK, ) . 
RnrasBLAXB Oounrr. ) 

being duly sworn, deposes and says that he raddes 

in the of that in the time of the 

day of 188. .in the of one 

did willfuUy set lire to or bum a shop, warehouse or other building, to wit* 

in which there was not at the time a human being; said 

adjoined to or was within the curtilage of an inhabited 

dwelling-house, to wit: so that the said house was endan- 
gered by such firing; in that said did 



Bubscribed and swom before me, ) 
this.... day of 1882. f 



392 



.Forms to the Cods 



Va 96. 

h^crmaUmfoT r^fkufnffto aid on tf/lm. 



flTATB OF NEW YORK, 
Renbsblaeb County. 




being duly sworn says that he leridei In the dty [or 

town] of that on the day of at said city [or 

town] cf in said county did willfully and unlawfully 

disobey the command and request of the said being at 

the time a patrolman, policeman and police officer of the police 

force of the said city [or town] of, and a police officer and peace officer of, 
in and for the said city [or town] of and an officer authorized to exe- 
cute criminal process; and the feaid having as such officer, then and 

there commanded the assistance of the said in securing and con- 
veying to the one of the of 

aforesaid, that had then and there been duly arrested by the said 

policeman, and police officer as aforesaid, against the peace of the people ci 
the State of New York, and the form of the statute in such case provided. 

Bubecribed and sworn before me, ) 
this.... day of 1882. 1 



Ii^ormaium for interfering wUh on i^flMr. 



STATE OP NEW YORK, » . 
Renbsblaeb Countt. i 



being duly sworn, deposes and aays that ha 

la a policeman in said city of Troy; that on the day of , 

188. ., at the city of Troy, in said county, , with 

force and arms, did unlawfully, designedly and feloniously, f oieib^ intoifm 

with , he then and there being a member of the 

police force of the city of Troy, to wit, a policeman, and 

having in legal custody one • npon a criminal 

charge, to wit, upon the charge of , oommittad 

by him, the said , upon one , 

by [state the nature of the offense]. 

Bubecribed and sworn before me, ) 
the day of ,1882. ) 



OF Cbdonal Pboosdcre. 



S93 



Va 07. 

hfiiirmaMon for latrcm^. 



STATE OF NBW YORK, 

RsnBSLAXB COUHTT. 




, being duly sworn, says he raddee at ; 

tuat OQ the day of , 1882, in said city [or townj afora- 

■fid, dlYen gooda, chattels, money and property of deponent, of the kind, 
iescriptioii and value as follows, to wit [give description and value with 
partieoiaKity], were feloniously taken and stolen and carried away from the 
pofisessicm of deponent by one John Doe, by [give manner of the taking]. 



Sworn before me, thia 

day of : 188S. 



STATE OF NEW YORK, r . 

REVflOELAlBR Ck>I71!nT. I 

, being duly sworn, deposes and says that he reaidei 

in the of ; that on the day of. , 

188 , at the city of in said county with 

force and arms, about the hour of in the night-time of the same 

day, the dwelling-house of another, to wit, of one 

there situate, feloniously and burglariously did break into and enter by forcibly 

bnrsting and breaking an outer door of the said dwelling, or by 

in which said dwelling-house there was then at the same 

time some human being, to wit , with intent feloniously 

and bun;;lariously to oonmiit some crime therein, to wit, then and there the 

goods and chattels of the said in the said dwelling-house 

then and there being, and then and there feloniously and burglariously to steal, 

take and carry away, and 

id the value of dollars, of the goods, chattels and propertjf 

of the laid in the said dwelling-house then and there 

being, felonioosly, borglariously, did steal, take and carry away by 



Taken, subacribed and sworn to before me, 
this day 



Forms to the Codb 



Va 99. 



STATE OF NEW YORK, 

OOUVTT OF 




, being duly sworn, depoees and lays thai ha midaa 

In the of ; that on the day of 

188 , at the city of , in said county, with 

force and arms, from the person of 

of the value of dollars, of 

the goods, chattels and personal property of the said 

then and there being found, feloniously did steal, take and oany away oj 
[give manner of the carrying away]. 

Sabscribed and sworn before me, ) 
this day of f 



Va 100. 
lrtformationforrMm^,flnid^ffm. 



8TATB OP NBW YORK, 

OOUHTY OF 




, being duly sworn, laya that ha resides al 

; that, on the day of , at the city 

[or town] of , in said county with force 

and arms, in and upon one , then and there 

being, feloniously did make an assault, and him, the said 

did then and there feloniously put in fear of some immediate injury to hia 
person and in danger of his life, did then and there feloniously and violently 
' steal, take and cany away from the person, and against the will of the said 

value of dollars, of 

the goods, chattels and property of the said 

[state the manner of taking]. 

8wom and subscribed to before me } 
this day of ) 



Va 101. 
Irtfbrmaiian for Imrglarp amd k u mn^. 
STATE OP NEW YORK, ) ^ . 

OOUWTT OF » 

, being duly sworn, depoaea and laya that 

he resides in the of ; that, on the day of 

, 188. ., al the city of , in said county, 

with force and arms, the 



* OF CSDOHAL PbOGEDURB. 



395 



of one there situate, feloniously imd burglariouslj 

did break into and enter, the same being a as abOYeb 

in wliich divera goods and merchandise and Yaluable things were then and 
there Itept for use, saie and deposit, to wit, the goods and cliattels of the said 

, in said as above, 

then and there being, tlien and there feloniously and burglariously to steal, 

tske and carry away of the value of.* 

doUars, of the goods and chattels and property of the said. 

in the said as above, so kept as aforesaid, then and 

there being feloniously and burglariously did steal, take and cany awaj Iqf 
[state the manner of taking]. 

Taken, sabacribed and sworn to before me I 
this day of f 



No. 102. 
Irtfarmaiian for receiving Mm gooiM. 
flTATB OF NEW YORK, / ^ . 

OOUHTT OF ) 

, being duly sworn, lays that he mldei In 

the of ; that, on the day 

of , 188. at the city of , in said county, 

, being a person of evil name and fame and dis- 
honest conversations, and common buyer and receiver of stolen goods, with 

force and arms, 

of the value of dollars, of the goods and chattels of 

by . 1 , then lately before feloniously stolen of the said , 

unlawfully, unjustly and for the sake of wicked gain, did feloniously receive 

and have the said , then and there well knowing the said 

goods and chattels to have been feloniously stolen; that the facts upon which 
thb affidavit is based are as follows : [State the facts and circumstances.] 

Babscribed and sworn to before me, ) 
this day of f 



No. 108. 
IftformaUon for mnbotdmmiilL 
STATE OF NEW YORK, ) ^ . 
OouinPT OF ) 

, being duly sworn, deposes and layi thai he 

nddes in the of ; that on or alxmt the 

day of 188. .. at the city of 



39!8 



Forms to the Code 



In said county, one being a servant or agent of 

, and not an apprentice, nor within the age of 

Mghteen years, did feloniously embezzle and convert to his own use, without 

the assent of the said , the property of the said 

, which had come into possession of said 

as such servant or agent by 



Buhacribed and sworn to before me, ) 
this jlaj of ) 



Na 104. 

Information for UM. 



STATE OF NEW YORK, 
(Bounty of 




, being duly sworn, says that he resides in the 

of ; that on the day of instant, 

at , in said county, one did 

falsely, maliciously and scandalously frame, make, write and compose in a 
certain false, scandalous and libelous writing of, concerning and against the 
said , to the purport and effect following, to wit: 



and that with intention to scandalize and disgrace the said 

and to bring him into contempt, infamy and disgrace, the said 

did afterwards, on the day of at 

the aforesaid, openly deliver and publish to ! • the 

said false, scandalous and libelous , in that he did 



Subscribed and sworn to before me, 
this day of 



Vo. 106. 
Ii^fnmaUan far a9i(Hat foUh a 

STATE OP NEW YORK, ) ^ . 
Couutt qw ' 

t being duly sworn, deposes and says that ha 

resides in the of ; that on the 

day of , 188. ., at the , in said 

oounty, with force and arms, in and 

apon the said , then and there being, did make an assault, 

and the said with a certain , the 



OF Criminal Prockodre. 



397 



Mid , being then and there a sharp, dangerona 

«Mpoii» urtiich thtt aaid , then and thare» in hia 

lumd bad and held, then and there did beat, itrike, cut, atab and 

wound, with intent upon him, the said theo 

and there feloniously to do bodily harm, without Justifiable or eicnsable 
euise, by 

Sahscribed mnd sworn before me, ) 
the dayof ) 



Vo. 106. 

OTATB OF OTW YORK, ) . 
OouiTTT or ) 

, being duly sworn, says that she midea Id 

the of ; that on the day of 

188. ., at the in said county with force 

ind anna, under promise of marriage, did seduce and have illicit connection 

with one she the said then 

ind there being an unmarried female of prerioua chaste chanuster, [itati 
the manner and circumstances]. 

Bnbacribed and sworn to before me, ) 
this day of ) 



Va 107. 
Ii^brmati(m for forfferp, 
8TATB OF NEW YORK. )^ . 

COUMTT OF. ) 

, being duly sworn, depoaea and says that 

he residea in the of ; that one 

at in with intent to Injure and defraud, 

feloniously did falsely make, forge and counterfeit, and cause and procure to 
be falsely made, forged and counterfeited, and willingly act and assist in the 

false making, forging and counterfeiting, a certain , which 

said false, forged and counterfeited is as follows, that is to 

«y 

by [state the method of execution]. 

Bnbscrlbed and sworn before me, } 
this day of f 



400 



Forms to the Cods 



iro.118. 

Ittfarmafwn offomti diwrderlif permm, under Chde^ OrknkuU Bnoet^ktr9,%B^ 

BTATE OF NEW YORK, ) . 

OoUlfTTOF f 

, being duly sworn, depoMS and says that he midfli 

in ; that one in the dty of 

is a ]uggler,common showman and mountebank, who ezhibiti and perfonna 
for profit, puppet shows, wire and rope dancers, and other Idle siiow% acta 
and feats, in that he [describe acts complained of]. 

Bubecribed and sworn before me, ) 
Ihii day of ) 



Vo. 114. 

B^brmtMm agmM ditofd/tH^ pmwn, wuUr Chds if OHmMil^romdmt^ g fU^ 

iubdinthnl, 
STATE OF NEW YORK, ) ^ . 

RSNSaBLASB OOUHTT. 1 

, being duly sworn, says that he ranuea in ; 

that one in the said city of » li a peiBon who 

keeps in a public highway or place in said ci^ of aa 

apparatus or device for the purpose of gaming, and who goes about exhibit' 
ing tricks and gaming therewith, in that he [describe acts complained of]. 



Bubscribed and sworn before me, 
this day of 




Va lift. 



BTATE OF NEW YORK, 

COUMTY OF 




, being duly sworn, says that he reddei 

in ; that one 

ii a person who plays in a public highway, or pUtce, in said city [or townl 
with cards, dice and other apparatus or device for guning; that [set oat tbf 
specific acts complained of]. 

Bubscribed and sworn before me, ) 
this... day of ) 



OF CSDCINAL PbOOEDUBB. 



401 



Va lie. 



STATB OP NEW YORK, 

COUHTT OV 




» being duly swom, says that he midfla 

hi ; that 

who la an habitual criminal, and adjudged such at In 

in the State of New York, on the day of , waa found in 

in aaid city of aa foUowi: 



under drcomatancea giving reasonable ground to beliere that he was intend- 
ing or waiting the opportunity to commit the crime of 



Sabecribed and sworn before me, 
Hila day of 



Ha 117. 



ffTATE OF NEW YORK, 
CouHTT aw 




, being duly swom, says that he resides 

in ; that » who li an 

habitual criminal, and adjudged such at , in , 

in the State of New York, on the day of , was 

found in , in said city of , in possession 

of , a deadly and dangerous weapon, and in 

poooeosion of a tool, instrument and material 

adapted to and used by criminals for the commission of crime; said possession 
waa aa follows: 



Subscribed and sworn before me, 
thli day of 



51 



402 



FOBMS TO THS CoDS 



Vo. 218. 

STATE OP NEW YORK, ) . 
ComvTTOF ) 

, of the ci^ of , being 

duly sworn, says that one , who ia now in said 

dty [or town] of , ia a person who, not haying yiiible 

meana of support, nves without emplqjment, in that he [stale ofxemnstaDoas 
and facts leading to that belief]. 

Sworn and sabscribed before me, ) 
this day of t 



STATE OP NEW YORK, ) ^ . 
CooHTT aw ) 

, being duly sworn, says that he resides ia 

the of ; that . 

who resides in , is a person who, being an habitual drunkard, 

abandons, neglects and refuses to aid in the support of his fkmily, in thai 
he 



Subscribed and sworn before me, 
this day of 



STATE OP NEW YORK, ) ^ . 
County csw ' 

, being duly sworn, says that he resides in 

the of ; that 

who resides in , is a person who has contracted an )nfectioua 

and other diseases in the practice of drunkenness and debaucheiy requiring 
charitable aid to restore him to health, in that he 



Subscribed and sworn before me, 
this day of 



OF Cbdokal Pboosdurb. 



403 



Ho. 121. 



8TATB OF NBW YORK, 
GouaTT or. 




, being dii^ sworn, says that 

who reddes at , is a common pfostitatai who has 

DO lawful employment whenl^ to maintain henelf ; that iha [state AmIs and 
drcomstanoes on which affldayit is based]. 



SabsQiibed and sworn before me, 
this dajof 



Vo. 182. 

Jif/knMtfm agtdnti tagrtmi^ wnder Ood» ^ QrimkuU iViefAin^ g 817. 

tubdMdon S. 
BTATB OP NBW YORK, ) ^ . 

OOUHTTOV. 1 

, being duly sworn, says that he reddes in 

; that , in the said city 

of , is a person who wanders abroad and begs in said city 

aforesaid, and who goes about from door to door in said city, and places him • 
self in the streets, highways, passages and other public places in said c.ty, to 
b^ and reoeiTe ahns, in that he [state facts and circumstances]. 



Subecribed and sworn before me, > 
this dajof ) 



Vo. 188. 

Ti^brmMm offokui tagranU, under Cbde OrMnal iVMMfiin^ g 887, 

iubdmHon 8. 



BTATB OP NBW YORK, 
County of 




oemg auiy sworn, says that he reddes in 

the ; that in said 

city [or town] of is a person who wanders abroad and lodges 

in taverns, groceries, ale-houses, watch and station-houses, out-houses market 
places, sheds, stables, bams and uninhabited buildings, in said city, and in 



404 FOBMB TO THB CoDB 

Uie open air, and not gMng a good aooonnt of himaelf » ir Ikal he [aei 
facts of the case]. 

Quhscrihed and sworn before me, } 
this day of ) 



Va IM. 

hi fl frma i i an offtdnM toffraiU, under Ood/B Oriminal Broetii^ % 867, SMI- 

diMan 7. 



BTATB OF NBW YORK, 

OOUNTT OF 




, being duly sworn, says that he resides in 

; that in said city of 

is a person ^ho, having his face painted, discolored, covered and concealed, 
and being otherwise disguised in a manner calculated to prevent his being 
identified, appears in a road and public highway in said d^, and in a field, 
lot, wood and indosure in said city, in that [give facts and droomatanoea in 
detail]. 

Bubecribed and sworn before me, ) 
this day of I 



Vo. Id6. 

BTATB OF NBW YORK, ) ^ . 

OOUKTT OF 1 

being duly sworn, says that he resides at 

, in the dty [or village] of , and thai 

is a child between the ages of five and four- 
teen years, to wit, of the age of nine years, having sufficient bodily health and 
mental capadty to attend the public schools, and that on the.... day of 

1882, in the city of , the said. 

was found wandering abroad during the school hours in the streets of the dty 

of , a truant without lawful occupation, in that [describe acti 

and circumstances]. 

Bobscribed and sworn before me, \ 
this. .. .day of S 



OF Cbiminal Procedure. 



405 



No. 196. 



STATE OF NBW YORK, 

OOUNTT OF 




, being duly sworn, deposes uid says that he 

in. that is & dis- 

oiderly child, for that . .he deserted h. . homo 

without good and sufficient cause, and kept company with dissolute or vicious 

persons, against the lawful commands of h 

and is a disorderly child within the intent and meaning of the statute; and is 

of the age of years; that the facts upon which this affldarlt la 

based are as follows:. 



Subscribed and sworn before me, 
tUa. . . .day of 



Ho. 127. 

Ififormatian ctgainst persons selling chattels, 
STATE OP NEW YORK, ) ^ . 

CODWTY OF ) " 

, being duly sworn, depoees and says that he 

lesidcs in ; that he did, on the day of , 

188. hire, loan and let to one , a , 

ind said did, without the consent of , 

who is the owner thereof, sell and deliyer the same, or did pawn or pledge 

the same, at , to one , and obtalnad 

thereon and therefor the sum of 



Bobscribed and sworn before me, 
lUa day of 



No. 128. 

btfmmat(9m againtt person setting malarial, 0to,,fismMsd to h$ mamfitfaitflm'^ 
STATE OP NBW YORK, ) ^ . 

COUKTT OF I 

, being duly sworn, deposes and says that he 

resides m the of ; that on the 

day of , at the of . . •, one 

did willfully pawn, pledge, sell and convert to 



i06 



Forms to thb Code 



b. . . own xue, maUwiftl, to wit : , 

of the value of , forniBhed to b. • . lij 

for the purpose of being manufactured into hj 

Subscribed and sworn before me, ) 
this day of ) 



Vo. IM. 

Information against fighting animals, etc, 

STATE OF NEW YORK, > . 
County op f 

p being duly sworn, complains, deposes and says, 

that he resides in the of ; that he has Just and rea- 
sonable cause to suspect and does suspect that certain of the provisions of law 
relating to and affecting animals, and especially the provisions of the follow- 
ing laws made and passed, : " to prevent prize fights and fights 
among game animals," for the more effectual 

prevention of cruelty to animals, 

are being and are about to be vio- 
lated by , 

at and within the particular building and place within the , 

known as , and now occupied, kept and used by 

Wherefore this deponent prays that a warrant may be immediately issued 
and delivered, pursuant to the statute in such case made and provided, to any 
person authorized by law to make arrest for such offenses, authorizing him to 

enter and search such building and place, and to arrest the said 

by whatsoever names they may be known or called, or any or either of them 
there present from violating any of said laws, and to bring such person, when 
so arrested, before the nearest magistrate of competent Jurisdiction, to be 
dealt with according to law. 

Subscribed and sworn before me, ) 
this day of S 



vo. isa 

Information for rechlesa dnving. 

STATE OF NEW YORK.) ^ . 
County of ) 

, being duly sworn, deposes and saya, that he 

resides in the of ; that one , 

who WHS then and there driving a certain carriage, to wit, a , 



OF Cbdoval Pbooedubs. 



407 



opon % certain turnpike road or public highway within this I5tate» to wit, 

Bpon a certain in the of , 

which then and there was each a turnpike road or public highway, with or 
without paaaengers, in said carriage, did then and there at the time and plaoa 
■foresaid, wiUfoUy, unlawfully, wickedly and maliciously nm, oanse or per- 
mit to be run his horses then and there attached. 



Ikbscribed and sworn before me, 
tUs di^of 



Information for keeping gambling pktee, 
STATE OP NEW YORK. ) ^ . 

CtoUNTY OF ) 

, being duly sworn, deposes and says that he 

resides in the of ; that on 

the day of #, and at the present time, did and does keep 

a room, building, arbor, booth, shed, tenement, boat or float, to wit: 

, at , in the of to be 

ved or occupied for gambling, to wit: , or did or does 

knowingly permit the same to be used or occupied for gambling, to wit: .... 

, being the owner, superintendent or agent of a room, 

buQdlng, arbor, booth, shed, tenement, boat or float, to wit: 

St , in the of , did' and doei 

rent the same to be used or occupied for gambling, to wit: 



Bnbecribed and sworn before me, 
tUa day of 



Ha 18d. 

Information for keeping place for fighting animcUs, etc 
County of Bbnsbelaer, m. ; 

, being duly sworn, says that he resides at ... . 

; that on the day of , 

b the city [or town] of in the said county of , on< 

willfully, unlawfully and wickedly, did keep. 

Ofle, was connected with as , interested in the managemeni 

of, did recdve money for the admission of divers persons to a certain place, 
U> wit: for the purpose of, and such place wai 



408 



FOBMS TO THB CODB 



then and there kept or used for the puipofle of flghtiiig or baitixig oerUin buU^ 
bean, dogs, cooks or other creatureB, to wit: 

Babaeribed and awom before me, ) 
iUk dajof ) 



Vo. 188. 

Information for confining cows in a crowded condition, 

STATE OF NEW YORK, ) . 
County of ) 

, being duly awom, depoaea and aaya that he 

reaidea in the of ; that, on the day of 

at the of , in the coun^ of 

, one wickedly, unlawfully and 

willfully, then and there, to wit, in , m said city, 

did keep divers cows for the production of milk for market, a&le or exchange, 
in a crowded and unhealthy condition, or did feed divers cows, then and there 

kept by him, the said , on food that produces 

impure, diseased and unwholesome milk, to wit, diatDleiy waste, usually 

called swill, or , in violation of the atatute in such i 

made and provided. 

Bubacribed and sworn before me, ) ^ 
thia day of ) 



Va 184. 

Ii^^mnaUonJ^ abandon^ maimed atea^^ 



BTATB OP NBW YORK, 

Oomnr of 




, being duly awom, deposes and saya that he 

resides in the of ; that, on the day of 

, one did willfully, unlawfully 

and wickedly, then and there, abandon to die, in a certain public place in said 

city of Albany, to wit a certain maimed, 

sick, infirm and disabled creature, to wit [describe the particular caae -com 
plained of]. 

Bubacribed and sworn before me, ) 
this day of ) 



OF Criminal Procedube. 



409 



No. 136. 

Information for wrongs affecting puNic money $, etc. 



iTATB OP NEW YORK, 

OOUIVTT OF 




, being duly sworn, deposes and says that he 

resides in the of ; that one 

with intent to defraud, did wrongfully obtain, receive, conyert, pay out and 
dispose of, or who, with like intent, by willfully paying, allowing or auditing 

a false or unjust claim, or did aid or abet in 

wrongfully obtaining, receiving, converting, paying out or disposing of 
money, funds, credits and property held or owned by this State, or held or 
owned, officially or otherwise, for or on behalf of a public or govemmenta] 
interest, by a municipal or other public corporation, board, officer, agency or 
agent of a city, county, town, village and civil division, subdivision, depart- 
ment or portion of this State, to wit: 



Subscribed and sworn before me, 
this day of 



Ho. 180. 

Information against person Jiaving custody of child permitted to beg. 
STATE OF NEW YORK,) ^ . 

COIJNTY OP ) 

, being duly sworn, deposes and says that he 

resides in the of ; that 

liss the custody of a child under the age of fourteen 

years, and permits and neglects to restrain such child from begging, gathering 
picking and sorting of rags, and from collecting cigar stumps, bones and 
refuse from markets in said dty of , in that he 



Bubecribed and sworn before me, 
this day of 



410 



FOBHS TO THB CoDS 



No. 137. 

IrtforfnaHon for $eUing mortgaged prcp&riff. 



STATE OF NBW YORK, 

OOUHTY OF 




, bdn^ duly sworn, deposes and myu UmI 

he raddee in tbe of ; that on the daj of 

one gave^ executed and deUrered to 

a mortgage upon certain personal property, 

to wit: 



of the Talue of doUara 

That afterwards and on the day 188. .at 

in said county of , while the said mortgage was a lien on the said per^ 

sonal property, the said with intent to defraud said 

the mortgagee of said property, or 

a purchaser of said property from said did willfuDy, 

maliciously and unlawfully sell, assign, exchange and secrete the aforesaid 

personal property so mortgaged or sold as aforesaid by said 

to said 



Subscribed and sworn before me, 
this day of 



Vo. 188. 

Information for getting on foot fights among game animaU 



STATE OP NEW YORK, 
CJOUNTY OP 




, being duly sworn, deposes and says thai 

he resides in the of ; that on the 

day of at the of in the county 

of one did wickedly, unlawfully and willfully 

set on foot, instigate, move to, carry on, promote, engage in as a witness, 

assistant, umpire or judge, or did 

towards the furtherance of a premeditated fight or contention between game 
birds, game cocks, dogs, bulls, bears, dogs and rats, dogs and badgers or other 

animals, to wit; which had been 

theretofore and was then and there, to wit: on the day aforesaid at the 

and in the county aforesaid, oremeditated by certain 

persons 

who then and there, to wit: at the time aforesaid, and in the place aforesaid, 
did have the ownership or custody of such animals, to wit: of the afore- 



OF Criminal Pbogeduse. 411 

■dd.. in Tidlatioa of tbe statute in sach caM made and 

pn>?ided. 

Bnbtcribed and fwom before me, ) 
^ d^rof ) 



Infortnatiou against ptrmitUng a place to he kept for fighting doge, etc, 
STATE OF NEW YORK )^ . 
County op ' 

being duly sworn, deposes and says that he resides 

in the of ; that on the day of 

one did permit and suffer a certain place, to wit, 

to be kept and used for the 

purpose of fighting or baiting bulls, bears, dogs, cocks or other creatures, to 

wit, he, the said 

being the thereof. 



Subscribed and sworn before me, 
this day of 



Vo. 140. 

li^fbrmaium agmntt p&ntm arrested mUunU toarratU for eomrntOng fsUmf tfn 
anotkereounig, under Code of Oriminal Procedure, g 177, subdimdon 8. 



8TATB OP NEW YORK 

OOUKTY OF 




being duly sworn, deposes and says that he is a 

policeman [or other officer] in the aforesaid; that having reasona- 
ble cause for believing that one conmiitted the crime 

of in he arrested him without a 

warrant on the day of , at said ; that the 

grounds of deponent for believing that said committed said 

crime are as follows : [Describe grounds of belief.] 



Subscribed and sworn before me, 
thk ....day of 



412 



Forms to the Code 



Vo.141. 

IitfiifniaiionfoT putUo j n uuMimL 
BTATB OP NBW YORK, ) . 

CJOUNTY OF J 

, being duly sworn, deposes and says tbat lie 

is a policeman [or other officer] of the ; that the above- 
named defendant was, on the day of , 188. 

about . . . H., intoxicated in a public street or place, to wit: 

street in said , contrary to law 



Sabscribed and sworn before me, ) 
this day of ) 



No. 142. 

IitformalUcn for auauU wUh interU to ravuh a woman of torn poofn i 
BTATB OP NEW YORK, 

COTJNTTOF ) 

being duly sworn, deposes and says that he 

resides in the of ; tliat on the day 

of , 188.., at the in said county, one 

with force and arms, in and upon , 

she then and there being a woman of the age of ten years and upwards, vio- 
lently, forcibly and feloniously, did make an assault, and her, the said 

, then and there violently, forcibly and against her 

will, feloniously did ravish and carnally know [describe the manner of effect- 
ing the same]. 

Babscribed and sworn before me, | 



this day of 



Vo. 148. 

B^ormaUon againtt amaiuU wUh MnU to meM a woman wnder ik$ag$^ imk 

yecvr$. 

STATE OP NBW YORK, ) ^ . 

COUNTTOF I 

, being duly sworn, says that he residfls io 

; that on the day of , at 

In said county, one , With force and aims in and 

apon , she then and there being a woman of the agt 



OF Criminal Procedure. 



413 



of nine yean, violentlj, fordblj and feloniously did make an aasaolt^ and her 

the said • then and there violently, forcibly and 

feloniously, and against her will, did ravish and camaUy know by [deeoribe 
the assault]. 

Subscribed and fwom before ma, ) 
thli dajof ) 



Va 144. 

/VbrMolte Jifr oMouft wUh intent to rooM wnnan^tm f§an and Msr. 

COUHTT OF St..* 

, being duly sworn, deposes and saya that he 

resides in the of ; that on the day of 

188 . at , in said county, with 

force and arms, in and upon she then and there being a 

woman of the age of ten years and upwards, in the peace of God and of the 
said people then and there being, violently, forcibly and feloniously, did make 

an assault, and her, the said , then and there 

violently, forcibly and against her will, feloniously did ravish and carnally 
knowl^ 

Taken, subscribed and sworn before ) 
me, this . ... day of 188.. f 



Ho. 146. 

Information for seizure, etc. , of gambling apparatus. 

OOUKTY OF , SS, : 

, being duly sworn, deposes and says that he 

resides in the of ; that one has 

committed an offense against 

in that he did 

and has, as deponent has reason to believe and does believe, upon his person 

or at in the of , certain articles 

of personal property, to wit: or gambling tables, devices or 

apparatus for the purpose of , or public or private lottery 

policies, to wit: , the discovery of which may lead tn 

establish the truth of said charge for which complaint is hereby made against 

Hid 

Wherefore, deponent prays that a warrant may issue as provided by law for 

the arrest of said , for diligent search to be made for such 

property, tables, devices or apparatus, and if found, to bring the same before 



414 



Forms to the Code 



the magistrate or Justioe iflsaing the warrant, or in caae of hia abaenoe ot 
inability to act, before the nearest or most acoessible magistrate in the 
eoon^ of 

Sabscribed and sworn before me, ) 
thls....dajof ,m.. ) 



No. 146. 

I^formaUan for oisauU teUh MerUto MB. 

OouATi or , jf . .* 

being duly sworn, deposes and says that he 

resides in the of ; that on the of , 

188. . . at the in said county 

with force and arms, in and upon the said 

then and there being, feloniously did make an assault, and the said 

, with a certain , which the said 

then and there in hand had and held, the said being 

then and there a deadly weapon, and such means and force as was then and 
there likely to produce death, feloniously did beat, strike, cut and wound 

with intent him, the said , then and there, feloniously 

and willfully to kill by 



Sabscribed and sworn before me, ) 
this.... day of ,188*. ) 



Ho. 147. 

h^i^rmaUanaffmMehad begging, eto,, under teMm 898, Cbde <f MmM 

Procedure, 

OouNTT or , St. .- 

, being duly sworn, deposes and sayi that he 

resides in ; that on the day of , 188. . . ., 

one , a child of the age of years, was found 

begging for alms and soliciting charity from door to door in the said 

and was found begging for alms and soliciting charity in a street, highway 

and public place in said city, to wit, 

in that . .he 



^ Subscribed and sworn before me, ) 
this... .day of ,188.. f 



JMiee JuiHee (or JueUeerfthe Fuutf^ 



or GBDfniAL Pbooeduse. 



415 



No. 148. 

B^onnation for mayhem, 
0TATB OF inSW YORK. ) ^ . 

COUHTT OF I 

, being duly sworn, deposes and says fhat he 

MidaB in the of ; tliat, on the day of 

, 188. at the of , one 

then and there feloniously, wiUfoIly and 

maUdoQsly did, on purpose, and from premeditated design, or with Intent to 
kill or commit a felony, to wit, cut out or disable the tongue of one 

put out the eye of one 

slit or destroy the lip of one, or slit or destroy the nose of one 

, cut off or disable a limb or member, to wn: 

of on purpose 

1^ 



Bo h ac ri bed and twom before me, ) 
tiiia. • • .day of 188.. ' 



Vo. 149. 

BiffnmmUm ftr ttarch wmwU, under (Mb pf Criminal iV gesJi ^ 1 791^ 
8TATB OP NKW YORK, > ^ . 

OOUHTT OF ) 

, being duly sworn, says that he leddea m 

; that the following property. 

is In the possession of at 

with the intent to use it as the means of committing a publio oflbnse, or is ii 

the possession of , to whom said 

deUrered it for the puri>ose of concealing it, or preventing its being disoof^ 
«ed; that the facts upon which this affidavit is based are as fdDowi 



Bnbacribed and sworn Wf ove me, ) 
this. • • .daj of . • • • 188. • I 



410 Forms to thb Godb 

) 

Va 16a 

htformaUon for monk wurrmtU, wnd&r Ood$ af OrimMi Fnm9m% meUm M 

BubdMrion 2l 
BTATB OP NEW YORK, ) ^ . 

COUHTT JOF ) 

, being duly sworn, Bays that hm nridM Id 

; that the following property 

has been used as the means of committing a felony by 

at or is in the possession of 

at or is concealed in in • 

that the facts upon which this affidavit is based are as fdDowi: 



Babsoribed and sworn before me, > 
tut day of 188.. f 



Va 151. 

J^fbnmiimffr martkwMrani, undgrCMsqf Onminal lYoei^hM^ tteUm 'M, 

8TATB OP NEW YORK. > ^ . 
County of ) 

, being duly sworn, says that ha reridea in 

; that the following property 



has been stolen or embezzled from at 

that is the owner thereof; that said property has beea 

stolen by and is now in his possession, or the poa- 

session of at the 

aforesaid, or is concealed in in said 

that the facts upon which this affidavit is based are as follows: 



Babscribed and sworn before me, ) 
thia..... dayof 188.. ) 



OF Cbdonal Pbooedubs. 



417 



Vo. 150. 
IitformaitonforfdUm^ or mi§demMmr. 



8TATE OP NEW YORK. 

COUHTT OF 




, being duly sworn, depoaes and says that he leaidfli 

in ; that one at the in tha 

county of aforesaid, on the day of 

188. did fdonionflly, wrongfully, unjustly, unlawfully, wickedly, willfully, 

oorrupily, falsely, maliciously and knowingly violate chapter of the 

laws of the State of New York, passed in that he did. . . . 



Snhecribed and sworn before me, > 
^....dajof 188.. ) 



Vo. 15a 

Iftformaii(mfornuMUeiau9tntpam. 

0TATB OF NBW YORK. 1 ^ . 
OouHTT or I 

, being duly sworn, deposes and says that he feritli 

in street in the , in the county aforsiaiit 

that on the day of , in said city, one 

did maliciously, unlawfully, willfuDy and wantonly 

hy 



Buhacrlbed and sworn before me, ) 
tut day of 188.. ) 



Vo. 154. 

Information for overdriving^ etc,, any living erecUure, 



STATE OF NEW YORK, 
County of 




, being duly sworn, deposes and says that he 

resides in the of ; that on the day of 

188. .at the of one did willfully. 

unlawfully, wickedly, or cause or procure, to overdrive, overload, torture, 
torment, deprive of necessary sustenance, unnecessarily beat, cruelly beat. 
53 



4:18 FOBMS TO THE CoDB 

nefidlesBly mntUtle, needleady kill, a certain liying creature, to wil 
. . by then and there 



dabacribed and sworn before me, ^ 



tbii day of 188. 



No. 155. 

IitformcUkm for aaauU vaith intent to kSU with fir$ amu. 
8TATB OP NEW YORK, ) ^ . 

OOUNTT OF. ' 

, being duly sworn, deposes and says that he 

resides in the of ; that on the day of 

188. .at the in said county, with force and 

arms, in and upon the body of. in the peace of the said 

people, then and there being, feloniously did make an assault, and to, or toward 

and against the said a certain 

then and there loaded and charged with gunpowder and lead, which the said 

then and there had and held the same, being then 

and there likely to produce death, willfully and feloniously did then and 

there shoot off and discharge with intent him the said 

thareby then and there feloniously and willfully to kiU 

*v J 

Subscribed and sworn before me, } 
this of. 188.. f 



Vo. 156. 

InfornuUion for murder perpetrai^ from deliberate deeign, 
STATE OF NEW YORK, ) . 
County OP f 

, being duly sworn, deposes and says that he 

resides in the of ; that one , 

of , in the county of , on the day 

of , 188 .., with force and arms, did then and there feloniovsly, 

willfully and intentionally, and from a premeditated and deliberate design to 

effect the death of one , kill the said 

by 



Subscribed and sworn before me, ) 
this.. ..day of ,188.. ^ 



PffUee Juetiee {or Juetiee ef As A0ai)L 



OF Criminal Procedure. 



419 



No. 157. 

Information for manslauffhUr, flrtt degree — kitting unborn quick child, 
8TATB OP NEW YORK, ) ^ . 

OOUNTT OF I 

, being duly sworn, deposes and says thai . .hi 

resides in the of ; that on the day of 

, 188. . . at , in the county of , 

one did feloniously and willfully kill an unborn quick 

child by an injury to the mother of such child, in that . .he did 



Subscribed and sworn before me, ) 
this....dayQf ,188.. ) 

Baie$Jutitee(arJuiUee^^BMU^ 



Vo. 168. 

InformaHon for dUowing disabled animals to lie in highways, etc. 
STATE OF NEW YORK,) ^ . 

COUHTY OF ) ' ' 

being duly sworn, deposes and says that 

be resides in the of ; that on the day of 

188.., at the , one , 

then and theretofore being the owner, driver or in possession of a certain old, 
maimed and diseased horse or mule, which had theretofore been turned loose 

or left disabled in a certain street, lane or public place in said 

to wit, did unlawfully, willfully and wickedly, 

Ux more than three hours after knowledge of such disability, allow such hoisa 
or mule to lie in a certain street, lane or public place in said lAVj therein, 
to wit, 



Subscribed and sworn before me, ) 
thii....dajof 188.. ^ 



Va 109. 

Information for carrying creatures in a cruel manner, 

STATE OF NEW YORK, | ^ . 
County OF ) 

, being duly sworn, deposes and says that 

hf resides in the of that on the day of 

1«8 . one did wilfully. 



420 



FoBlfB TO THB CoDB 



unlawfully and wickedly carry or caused to be carried li. or upon a 

a certain creature, to wit, 

in a cruel and inhuman manner, hj then and there 



fiabflcribed and sworn before me, i 
this.... day of 188.. ! 



160. 

Information for murder perpetrated in commission ofafdonjf. 
STATE OF NEW YORK, ) . 
County OP > 

being duly sworn, deposes and says that he resides 

In the of ; that on the day of 

188. ., at the of in the county of 

one did feloniously and willfully and intentional^, whilst 

engaged in the conmiission of a felony, kill one. In that 

he did 



Bubscribed and sworn before me, ) 
this day of 188.. i 



Va 161. 

Information for murder perpetrated by an act dangerous to athen. 



STATE OF NEW YORK, 
County of 




, being duly sworn, deposes and says that he 

resides in the of ; that, on the day of 

, 188. ., at the of , in the county 

of , one did feloniously, wiUfully 

and intentionally, by an act immediately dsj^gerous to others, and evincing a 

deprayed mind, regardless of human life, did kill one , 

although without any premeditated dedgn to effect the death of any par 
ticular individual, in that . .he did 



Babecribed and sworn before me, ) 
this.... day of 188.. f 



FdHos JusUee {or JtuHes of ihs Fsa^ 



OF Cbiminal Pbooedube. 



421 



No. 162. 

InfarmaHon for injury to animal, by actor neglect, 
STATE OP NEW YORK, ) ^ . 

COUHTY OF > 

, being duly sworn, .eposes and Bays thai he 

rerides in the of ; that on the day 

of 188. at the , in the county of 

one did, by his act or neglect, willfully, wickedly 

and malidoualy kill, nudm, wound, injure, torture and cruelly beat a certain 

horse, mule, ox, cattle, sheep or other animal, to wit: 

belonging to him the said or to one 

by then and there 



fiabecribed and sworn before me, \ 
this day of 188. . f 



FoUe$ JuiUc$ (or Jtutiee ClU IVomX 



Na 168. 

Information for malicious miscJiief 



STATE OP NEW YORK, 
County of 




, being duly sworn, deposes and says that ha 

resides in ; that one 

on the day of 188. ., at the of 

did maliciously or wantonly injure or deface a monument or work of art, 
building, fence or other structure, or did destroy or injure an ornamental 
tree, shrub or plant, situated on a private ground or on a street, public place, 
public or private way or cemetery; or did paint or print upon or in any other 
manner place upon or affix to any stone or rock, not a part of a building, or 
upon or to any bridge or tree, words, letters, characters or derices, stating, 
referring to or adyertising, or intended to state, refer to or advertise the sali 
or manufacture of any property or article, profession, business, exhibition, 
amusement or place of amusement, or other thing, or did directly or indirectly 
cause any such act to be done, or shall aid therein, by 



Bnbicribed and sworn before me, ) 
this day of 188.. f 



FMc6 Justice (or JutUee oj ClU Ami)l 



422 



FOBMB TO THE CoDE 



Vo. 164. 

AffidanU to obtain March looming under CMe if ChimiMl I^Mdure, 1 79t. 

BTATE OF NEW YORK, ) ^ . 
County of ) 

, being duly sworn, says thai he reaidat at 

, in the said county of ; that, at 

aforesaid, on the night of , certain goods and 

chattels, to wit [describing them] were stolen and carried away from his 
residence without his knowledge or consent, and that there is probable cause 

for suspecting that one , residing at No. 

street, in , is the party 

who stole and carried away said goods and chattels; and thai said gooda and 

chattels are now secreted in the house of the said , 

at No street, in 



Bubscribed and sworn before me, I 
this.... day of 188.. i 



Na 165. 

Fbrm of March warratU^ under Chde qf OrinUnal JVmaIimv, % 997. 
BTATE OF NEW YORK, ) ^ . 

CODNTT OP I 

IN THE NAME OF THE PEOPLE OP THE BTATE OP NEW YORE: 

To any peace officer in the county of. 

Proof by affidavit having been this day made before me, by 

that the property hereinafter described was stolen or embezzled; that there ii 
probable cause for believing that the said property was stolen or embezzled, 
you are therefore commanded in the day-time, or at any time of the day or 

night, to make immediate search on the person of , 

or in the , situated , 

for the following property: , and if you find Iht 

Kune, or any part thereof, to bring it forthwith before me, at , 

In the 

I>atedat the .... day of 



.OF Cbiminal Pbooedcss. 



423 



Va 16a 

STATE OP NEW TORE, ) ^ . 

COUHTT OF > 

IN THE NAME OF THE PEOPLE OF THE STATE OF NEW TORK 

T9 

Proof by affidavit having been this day made before me, by , 

lliat the property hereinafter described was used as the means of committing 

a felony, to wit: ; that there is probable cause for 

believing that the property hereinafter described was used as the means of 
committing a felony, to wit: ; you are therefore com- 
manded in the day-time, or at any time of the day or night, to make immedi- 
ate search on the person of , or in the , 

situated , for the following property: 

and if you find the same, or any part thereof, to bring it forthwith before me, 
at , in the 

Dated at , the ... . day of 



Na 167. 

Betwm to Moreh fomrrant, under Oode Oriminal I^ocedum, g 80B. 

I, the undersigned, to whom this warrant was delivered for execution, do 

hereby certify that I did this day of take the proper^ 

therein described from at 

under and by virtue of this warrant, and an inventory has been taken of this 
property which is hereto annexed 

Dated at , the — day of 

A. R, 



Vo. 16a 

AofvA warrant, under Oode Oriminal Procedure, g 798, iubdMehn & 
STATE OF NEW YORK, ) ^ . 

COUIITTOF ) 

IN THE NAME OF THE PEOPLE OF THE STATE OF NEW TORE 

To 

Proof by affidavit having been this day made before me, by 

that the property hereinafter described Is in the possession of 

with the intent to use it as the means of committing a public offense, to wit, 

or is in the possession of to whom said 

delivered it for the purpose of concealing it and 

preventing its being discovered ; that there is probable cause for believing that 

the property hereinafter described is in the possession of 

with the intent to use it as the meann of conimitting a public offense, to wit, 
or is In tjje possession of 



424 



. Forms to the Code 



to whoDi said deliyered it for the pmrpoee of 

concealing it and preventing it being discovered. 
Ton are therefore commanded in the day-time, or at any time of the day or 

night, to make immediate search on the person of 

or in the situated for the following property: 

and if you find the same, or any part thereof, to bring it forthwith before me^ 

at in the 

Dated at , the day of 



Na 160. 

Jj iwwi te r j r and c^ffidanU Ihereto €f property taken under eearA momml, wmmt 

Oode Criminal Procedure, ^ 800, 808. 
STATE OP NEW YORK, ) ^ . 
County OF ) 

Inventory of property taken by the undersigned, under and pnrsoant to the 

annexed warrant, made publicly and in the presence of , from 

whose possession it was taken, and of the applicant for 

the warrant 



Dated 



Policeman (or other offlcer). 

I, , the officer by whom the annexed wamDl 

was executed, do swear that the above inventory contains a true and detailad 
account of all the property taken by me on the warrant 

Subscribed and sworn before me, ) 
this day of ) 



170. 

Beeetptforproperiif taken iwMbr eeareh warrant, iwMbr Obd$ Or i m i n§ iJ\ ^mim % 

8808. 

I, a constable [or other officer] of the 

of , have taken under a search warrant issued by 

a Justice of the peace [or other officer] of the , from 

, from whom it was taken, or in whose posseesioo 

it was found, or from , in the said , when 

the property hereinafter described was found, no person bemg there, tae f oHow 

ing described property, to wit: 

A. B., 
Oonetable {or oth^ effiieei^ 



OF Cbucinal Pbocedcee. 



425 



Na 171. 

WvmmXfvr ditonMif penan, under Code Oriminal Procedmr$, % 8M. 

POUCE COURT (OR JUSTICES' COURT). 
STATE OP NEW YORK, ) . 

COUHTYOF J 

IN THE NAME OP THE PEOPLE OF THE STATE OP NEW YORK- 

To 

WTiereoi, Information on oath has this day been duly made by 

af the city of in the county of , before me, 

one of the police Justices [or Justices of the peace] of the said city of 

that on the day of 188. ., at the 

city of in said county, and for several days last past, one 

was and is* a disorderly person, for that he has 

actually abandoned his wife and children without adequate support, and hai^ 
left his wife and children in danger of becoming a burden upon the public; 
and has neglected to provide for his wife and children according to his means, 
against the peace of the people of the State of New York and the form of 
the statute in such case provided. 

We, therefore, command you forthwith to apprehend and take the body of 

the said and bring him before the said , 

at the , in the said city of for examina- 
tion, with this warrant and a return of your doings thereon indorsed, to 
answer the said complaint, and to be dealt with according to law Hereof 
fail not at your peril. 

Witness, the said , at the city of , 

in the county aforesaid, the day of 

• ••••••••••• ••» 

Foliee Justice {or Juetiee of ike Pmm). 

Non. ~ To adapt the abore f onn for each Pabdivision of 1 899, inMrt after the atar la ttot 
•hove the anbatanoe of each labdiTlBion aa the case reqalres. 



No. 172. 

By Yiitoe of the within warrant I have arrested the within named 

, and now have him before the magistrate \s$ 

whom this warrant was issued. 

Dated, elc A. K, 



426 



FOBMS TO THE OoD£ 



Va 178b 

OomimlkMfii cf diiordgrlif pmon, undtr Cbd$ af Oriminal Ihvcedwnt, g IML 

The within named haying been brought befora 

me under this warrant, is committed for examination to the sheriff of the 

county of 

A. B., 
Jtutiee qf ihi Bum, A 



Vo. 178i. 

Otd0r OuU arrmtbemadean Sunday, under Oode €f Oriminal Ihvcedwnt, % 17a 
I do hereby order and direct that the arrest on the within warrant may be 
i on Sunday or at night 



Ko. 174. 

Warrant to commit a ehOd undor tho offe qf uxtmn ffoafr$^ Fka qf g mlh§ , 

STATE OP NEW YORK, \ ^ . 
County op f 

IN THE NAME OF THE PEOPLE OP THE STATE OP NEW YORK; 

To • amd 

to the superintendent of the Houee of Refuge for the Btformation qf Jut emS k 

Delinquents, in the dty of New York, Greeting: 

Whereas, On the day of , 188. 

was brought before me, , one of the Justices of the 

peace in aud for the county of , charged on the 

oath of , wliich oath was believed by me, 

the said Justice, with, on this present day, at the city of 

And, w/iereae. The said justice, immediately and before any further proceed- 
ings were had, informed the said of the dmrgei 

against h. . . and of h. . . right to the aid of counsel in eyery stage of the 
proceedings, and the said charge was then and there distinctly read and stated 

to the said , and he, the said , 

was given a reasouable time to send for and advise with counsel. 

And, wTiereas, He, the said , did then and there 

plead guilty to the said charge. 

And, uhereas. It was ascertained by said Justice that said 

was years old on the day of , 188. . 

And whereupon the said Justice did thereupon adjudge and determine that 

the said was guilty of the aforesaid charge and 

offense, and the said was thereupon convicted of 

the charge and offense aforesaid ; and it was adjudged and determined by ma 
that the said should be committed to, and 



OP Criminal Prockdure. 



427 



oonflned in, the House of Refuge for the Reformation of Juvenile Delinquente 
in the city of New York, until he should be thence diachargeil according 
to law. 

Now, therefore, you, the said sheriff, constable marshal, or policeman, are 

commanded forthwith to convey and deliver the said 

into the custody of the said superintendent. And you, the said superintend- 
ent, are hereby commanded to receive the said 

into your custody, in the said House of Refuge, and h. . . there safely keep 
mitL . .he shall be thence discharged according to law. 

Given under my hand, at aforesaid, this day of , 188. . 



Ju$Uu€fthePlBace(arIWc$JuaM^ 



Na 175. 

Warrant under lam to prevent prke fighte^ erueUjf to animatit ek, 
STATE OP NEW YORK, ) ^ . 

OOUNTT OF ) 

IN THE NAME OP THE PEOPLE OP THE STATE OP NEW YORK: 

To 

Grebtino: 

Whereas, has made complaint, under oath, to 

and before me, a police Justice [or Justice of 

the peace], in and for the. ; that he has Just and 

reasonable cause to suspect, and does suspect, that certain of the provisions 
of law relating to and affecting animals, and 

to prevent prize flghti 

ind fights among game animals, 

are being and are 

ihout to be violated by at and within the particular 

boiiding and place within the city and county aforesaid, known as 

and now occupied, kept and used by 

Now, therefore, I, police justice [or Justice of 

the peace] as aforesaid, do authorize you to enter and search the said building 

and place within the known as 

tnd to arrest the said by whatsoever names they 

may be known or called, or any or either of them there present found vio- 
lating any of said laws, and to bring such person when so arrested before the 
nearest magistrate of competent Jurisdiction, to be dealt with according to 
law. Hereof fail not at your peril. 

Witness the said in the county aforesaid, thi 

dfty of 

A. B. 

PifUee Juetiee (or Justice €f the /VoM). 



428 FOBIIS TO THE OoDE 

No. 176. 

Warrant for sdzure of gaming apparatus, etc. 

STATE OP NEW YORK, ) . 

County op ) 

IN THE NAME OP THE PEOPLE OP THE STATE OP NEW TORK 
To 

Whereas, Complaint, on oath, has been duly made before me, ... 

police justice [or justice of the peace] of the . . 

UuA one 

We, therefore, command you forthwith to arrest the said 

; to make diligent search for such property, tablefl» 

devices or apparatus; and, after demanding entrance, to break open and enter 
said house or place, and any house or place wherein such gambling tables, 
establishment, devices or apparatus shall be kept, and to seize the aforesaid 
gambling tables, establishment, apparatus or devices, and deliver the same to 

of the and to return 

this warrant with your doings thereon, indorsed to me, the said 

at the in the said 

or, in case of my absence or inability to act, before the nearest or most acces- 
sible magistrate in the county of Hereof fail not at your peril 

Witness the said at the in 

the county aforesaid, the day of 188. . 



PoUoe Justice (or Justice if the Bsaee), 



Na 177. 

Warrant for refusing or neglecting to obey subpoma, under Oode of Orimm^ 
Procedure, §§ 619, 952; Uode of Giml Proeedure, %% 8, 9, 10, 2870-2874. 

STATE OP NEW YORK, ) ^ . 

County of j 

IN THE NAiME OP THE PEOPLE OP THE STATE OP NEW TORK: 

To 

, and to the keeper of (he common JaS ef 

the county of 

We command you and each of you that you attach 

and forthwith bring before our said court, in and 

for tbc at the then and there to answer for a certain 

contempt in refusing or neglecting to attend the said court and give evidence 

before the said court, in obedience to a subpoena duly served on 

as a witness on behalf of the concerning a certain 

pending in said court against for and have 

you then and there this writ. And you are further commanded to detain 
in custody until discharged by our said court. 

Witness, Esquire, one of the police justice [or JnsUoitf 

the peace] of the this day of 



Polire Jvetice (or Juetiee cf the Psae^ 



OF Cbiminal Procedure. 



429 



WofTmUfor habtkuU &nminal, under Code cf Orimnal Proeedwre, % 018, iM^ 
dMim 1, and g 899» mMMtitm 0. 



8TATB OP NEW YORK, 

OOUHTT OF 




m THE NAME OF THE PEOPLE OP THE STATE OP NEW TORE: 

To 

Whereas^ Complaint has this day been made by of the 

of on oath, before , one of the justices 

of the peace of the [or police justice] of the said city, that on 

the day of 188. .at the in said county, one 

who is an habitual criminal, was found in posses- 
sion of a deadly weapon, and in possession of 

a tool, instrument or material adapted to and used by criminals for the com- 
mission of crime, without being able to account therefor to the satisfaction 
of the said justice, against the peace ,of the people of the State of New 
York, and the form of the statute in such case provided; we therefore com- 
mand you forthwith to take the body of the said , 

and bring h. . before the said , at the court-room, in 

the said , with this warrant, and a return of your doings 

thereon indorsed, to be dealt with according to law. Hereof fail not at your 
periL 

Witness, tlie aaid , at the in the county aforesaid, 

the day of 



Juitiee of the Bdoee {or FOee JuiUee), 



No. 170. 

WamuUfor hahitual orimnal, under Code of Criminal Procedure, g Old, siiM^ 
«Mum 2, and § 899, subdMsion 9. 



STATE OP NEW YORK, 
County of 




m THE NAME OP THE PEOPLE OF THE STATE OP NEW YORK: 

n 

Whereae, Complaint has this day been made by of the 

dty of , in the county of , on oath, before 

one of the justices of the peace of the [or police justice], oi 

the said , that on the day of , 188. ., at the 

city of , in said county, one , who is an 

habitual criminal, was found, without being able to account therefor to the 
satisfaction of said justice, in , in said dty, under cir- 
cumstances giving reasonable ground to belieye that he was intending and 

waiting the opportunity to commit some crime, to wit, the crime of , 

against the peace of the people of the State of New York, and the form of 
the statute in such case provided; we therefore command you forthwith to 



430 



FOBMS TO THB CoDB 



like the body of the said , and bring him before the said 

, at the court-room, in the said , 

, with this warrant, and a return of jour doings thereon 

Indorsed, to be dealt with according to law. Hereof fail not at your periL 

Witness, the said , at the , in the county aforesaid^ 

the day of 



Na 180. 

Warrant againtt voffrant, under Oods of Oriminal IVocedure, g 887, amd Hi 

wriatu tvMividom ihmcf. 
STATE OP NEW YORK, ) ^ . 

OOUWTYOF f 

IN THE NAME OP THE PEOPLE OP THE STATE OP NEW TORE: 
To 

WhereoA, Information on oath has this day been made by , 

of the in said county, before , 

a Justice of the peace [or police justice] of said county, that one 

at the , of , in said county,* is a person who 

has no visible means to maintain himself, and wanders about without employ- 
ment* [give facts and circumstances justifying issuing warrant], against the 
peace of the people of the State of New York and the form of the statute in 
such cases provided; 

We, therefore, command you forthwith to take the body of the said 

and bring him before 

at the court-room in with this warrant and 

a return of your doings thereon indorsed, to be dealt with according to law. 
Hereof f aii not at your peril 

Witness the said at the in the oonn^ 

aforesaid, the day of 

A. B., 

J%u^ qf tVi i\«M(or PM» JutUce}, 

Non— In ordor to adapt the above fonn to anj of Um prbd^rtrirw nT laa«t 
between the atan. In the above form, the aabatanoe ot aajr partiffilar avbMvMafi ea tlM CMt 
leqnliea. 



OF Cbiminal Pbooedube. 



431 



No. 181. 

Wmr m i ^Bi^ f m aU wnder jMmi yemqf age Uwng in houm €f prot MHi km^ 

JU8TIGB8' COURT (OR OTHSR COURT). 
STATE OP NEW YORK, ) ^ . 

COUMTT OF ) 

IN THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK- 
lb 

WhanoM^ Complaint has this day been made by 

of the , in the county of , on oath, before 

, one of the Justices of the peace of the 

and police justice of the said city; that on the day of 

188. .at the. . . in said county, one 

a female child, of the age of years, is living, detained and kept in 

a house and place No street, for the 

purposes of prostitution; 

Ani, Whereas, In the judgment of said justice, said 

has just and reasonable cause to suspect that said child is so living, detained 
and kept as aforesaid, against the peace of the people of the state of New 
York and the form of the statute in such case provided; 

We therefore command you forthwith to enter and search said house and 
place, and bring said child, together with all persons occupying said house ox 

place or in charge thereof, before the said at the 

court-rocm, in the with this warrant, and a 

return of your doings thereon indorsed, to be dealt with according to law 
Hereof fail not at your peril 

^tnass, the said in the county aforesaid, the 

day of 



Juiiiee4(fthaPMee(arFlMe$Juiiii^ 



Na 182. 

Wammi io e a mm U a vagrant child ha^ng parent, guardian or matim^FUa^ 

guHty^under Oode Oriminal Procedure, % 888. 

JUSTICES' COURT (OR OTHER COURT). 
BTATE OP NEW YORK, r . 

OOUZTTTOF ) 

IN THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK: 

^ 

and to the euperintendent and principal keeper qf the ahne-houee of the eaid 

countif, Greeting : 

Whereae, On the day of 

was brought before me, one of the justices ol 

Ihe peace in and for the and county of , charged on 



432 



Forms to the Code 



tbe oath of which oath was belieyed by in«^ 

with being a vagrant within the intept and meaning of the statute and subdi 
Tision 8 of section 887 of the Code of Criminal Procedure, in that he is a 

child of the age of years, having sufficient bodily health and 

mental capacity to attend the public schools, and was on the day of 

, 188. ., found wandering in the streets in said 

a truant without any lawful occupation; 

And Whereas, The said , on being brought before 

said justice, was immediately informed by said justice of said charge against 
h. . . and of h. . . right to the aid of counsel in every stage of the proceed- 
ings, and before any further proceedings were had; 

And Wliereas, , the parent, guardian or master 

of said child was duly summoned to attend the examination of said child on 
said charge; 

Arid Wiereas, The said charge was then and there distinctly read and stated 

to the said , and* . .he, the said , 

having been given a reasonable time to send for and advise with counsel, did 
then and there plead guilty to the said charge in the presence of and before 
said justice, and of h. .. said parent, guardian or master; 

And whereupon the said justice did thereupon adjudge and determine that 

the said was guilty of the aforesaid charge, and the 

•aid was thereupon convicted of the offense afore- 
said, to wit, of being a vagrant, in that . .he, the said , 

is a child of the age of years, having sufficient bodily health and 

mental capacity to attend the public schools, was, on the day of 

, 188. ., found wandering in the streets in said 

a truant without any lawful occupation; 

And Wherecu, After the said complaint was satisfactorily established, the 
said justice did require the said parent, guardian or master to enter into an 

engagement in writing to the that he would restrain said 

child from so wandering about; would keep h . . in his own premises or in some 
lawfu. occupation, and would cause h. . . to be sent to some school at least 
four months in each year, until . .he becomes fourteen years old. And the 
said parent, guardian or master having refused or neglected within a reasona- 
ble time so to do, it was adjudged and determined by me that the said 

should be committed to the alms-hotue of said 

county, there being no other place provided for h. . . reception. 

Now, therefore, you the said sheriff, constable, marshal or policenmn m 

conunanded forthwith to convey and deliver the said 

into the custody of the said superintendent and principal keeper of the said 
alms-house. And you, the said superintendent and principal keeper, art 

hereby commanded to receive the said Into yomr 

eostody in the said alms-house, and there safely keep until . .he ahaD 

be discharged according to law. 

Given under my hand, at the city of Albany aforesaid, this day rl 

, 188.. 



Ju8Uee qf the Peace {pr FoUee JueHee}, 



or GBDinrAL Pbocedure. 



433 



Va 188 

to Ofmmit toffranU ehUd kai9kiff parent, guardian jriMMtor — PIm amI 
g^Mlf ^ under CMeqf Orindnal Procedure, % 8B^ 

JUSTICES' COUR'f (OR OTHER COURT). 

OTATB OP NEW YORK, { ^ . 

COUKTT OF I 

IN THE NAKE OF THE PEOPLE OP THE STATE OP NEW YORK 

le 

and to ike euperintendent and prineipal keeper ef the akne-hauee qf the eofid 
eeun^, Gbkbtin0: 

Whereae, On tbe daj of was brought 

before me one of the Justices of the peace in and for the 

or police Justice of said charged on the oath 

of which oath was believed by me, the said Justice, 

with being a vagrant, within the intent and meaning of the statute and sub- 
dlTision 8 of section 887 of the Code of Criminal Procedure, in that, .he is a 

child of the age of years, having sufficient bodily health and 

mental capacity to attend the public schools, and was on the day of 

188. .found wandering m the streets in 

a tmant, without any lawful occupation ; 

And Whereae, Said on being brought before said 

Justice, was immediately informed by said Justice of said charge against h. . . 
and of h. . . .right to the aid of counsel in every stage of the proceedings, and 
before any further proceedings were had ; 

And Whereoi, the parent, guardian or master of said 

was duly summoned to attend the examination of 

■aid on said charge; 

And Whereae, The said charge was then and there distinctly read and stated 

to the said who then and there pleaded not guilty 

thereto, who was then and there tried upon the said charge by the said Justice, 
who did thereupon hear testimony on oath in support of said charge, and in 
defense thereof, and on behalf of said person, 
And Whereat, The said testimony was given and evidence was had in the 

pmence and hearing of the said and 

■aid parent, guardian or master, . .he the said 

iMTing preYioualy thereto been allowed a reasonable time to send for and 
•dTise with counsel; 
And whereapon, the said Justice did thereupon adjudge and determine 

that the said was guilty of the aforesaid charge, 

and the said was thereupon convicted of the offenae 

aforesaid, to wit, of being a vagrant, in that . .he, the said 

la a child of the age of years, having sufficient bodily health 

and mental capacity to attend the public schools, was on the day of 

189. .found wandering in the streets in said 

• truant, without any lawful occupation; 

And Whereae, After the said complaint was satisfactorily eetablished, the 
■aid Justice did require the said parent, guardian or master to enter into as 
at in writing to the that . .he would restrain said 

55 



434 



Forms to the Code 



child from so wandering about; would keq> h. . . .in h. . . .own premiaea or in 
aome lawful occupation, and would cauae h. . . .to be aent to some school at 
least four months in each jear, until . .he becomes fourteen years old; and 
the said parent, guardian or master haying refused or n^lected within a 
reasonable time so to do, it was adjudged and determined hj me that the 

said should be committed to th* 

.alms-house of said coun^, there being no other place provided for h.. 
reception; 

Now, therefore, 70a the said sheriff, constable, marshal or policeman, are 

commanded forthwith to convey and deliver the said 

into the custody of the said superintendent and principal keeper of the said 
alms-house. And you, the said superintendent and principal keeper, are 

hereby commanded to receive the said into your 

custody, in the said alms-house, and there safely keep h. . . .until . .he ahaO 
be discharged according to law. 

Given under my hand, at the aforesaid, this day of 



Na 184. 

Wammi commit toffranU ekUd honing no pcnwU^juardian or waiftr— Pin 
^ guHiif^ under Oode qf Criminal Procedwn, % 888. 

JUSTICES* COURT (OR OTHBR COURT). 

BTATB OP NEW YORK, ) ^ . 

COTTHTT OF ) 

IN THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK: 
ft and ioiki 

iuperintendmU and prindpal keeper qf the akne-heuet ef the eaid ceutUif, 

Grbbting: 

Wherecu, On the day of was 

brought b^ore me, one of the Justicee of the peace 

in and for the , or police Justice of said charged 00 

the oath of which oath was believed by me, the 

said Justice, with being a vagrant within the intent and meaning of the statute 
and subdivision 8 of section 887 of the Code of Criminal Procedure, in that 

. .he is a child of the age of years, having sufficient bodily health 

and mental capacity to attend the public schools, and was, on the 

day of 188. ., found wandering in the streets in said 

a truant without any lawful occupation; 

And Whereas, Said has no parent, guardian or 

master, or no parent, guardian or master can be found; 

And Whereas, Said on being brought before said 

Justice, was immediately informed by said Justice of said charge against him, 
and of his right to the aid of counsel in every stage of the proceedings, and 
before any further proceedings were had; 

And Whereas, The said charge was then and there distincUjr /ead and stated 



OF Gbdcival Procsdube. 



435 



to tte aid , who then and there pleaded not goiltj 

tkeralo, ^Hio mm then and there tried upon the said charge hj the said justice, 
who did thereupon hear testimony on oath in support of si^d charge, and ia 
defenae thereof, and on hehalf of said person; 

And Whsreoi, The said testimony was given and evidence was had in the 

praeooe and hearing of the said he the said 

haTing previously thereto been allowed a reascnable time 

to send for and advise with counsel; 

And whereupon the said Justice did thereupon adjudge and determine that 

tiie said was guilty of the aforesaid charge, and the 

nld was thereupon convicted of the offense aforesaid, 

to wit, of being a Tagrant, in that, .he the said is a 

diild of the age of years, having sufficient bodily health and 

mental capacity to attend the public schools, was, on the day of 

found wandering in the streets in said , a 

truant without any lawful occupation, it was adjudged and determined by me 

that the said should be cod mitted to the alms-house 

of said county, there being no other place provided for h. . reception; 

Now, therefore, you the said sheriff, constable, marshal or policeman, are 

co.-Qmanded forthwith to convey and deliver the said 

into the custody of the said superintendent and principal keeper of the said 
thns-houac. And you the said superintendent and principal keeper are hmbf 

commanded to receive the said into your custody, 

in the said alms-house, and there safely keep , or 

Bntil . .he shall be discharged according to law. 

Given under my hand, at the aforesaid, this 

di^of 



Na 186. 

W m rnU io co m m it wgrani e&Hd Jumng no parent, guardian ^moiitr'^na^ 
guUty — under Ooda cf Orvmnal Procedure, g 888. 

POLICE COURT (OR OTHER COURT). 



STATE OF NEW YORK, 

COUBTT OF 




IN THE NAME OP THE PEOPLE OP THE STATE OP NEW YORK: 
lb , and t$ 

the iuperinttndent and principal keeper of the dlm^-houee of the eaid eountp, 

Grebtino: 

Whereoi, On the day of , was 

brought before me, , one of the justices of the peace in and 

fbr the [or police justice], of said city, chargp^i on the oath 

of , which oath was beli