THE CODE OF CRIMINAL PROCEDURE.

OF THE

STATE OF NEW YORK.

AN ACT

TO ESTABLISH A CODE OF CRIMINAL PROCEDURE.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

PRELIMINARY PROVISIONS.

SECTION 1. Title of the Code.

2. Divisions of the Code

3. No person punishable but on legal conviction.
4. Crimes, how prosecuted.

5. Criminal action defined.

6. Parties to a criminal action.

7. The party prosecuted known as defendant.

8. Rights of defendant in a criminal action.

9. Second prosecution for the same crime prohibited.

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

to be unnecessarily restrained.

SECTION 1. Title of the Code. This act shall be known as the Code of Criminal Procedure of the State of New York.

Jurisdiction of. The Code of Criminal Procedure has jurisdiction of every indictment found after it went into effect, People v. Petrea, 92 N. Y. 128;

§2. Divisons of the Code. This Code is divided into six parts. The first relates to the courts having original jurisdiction in c.iminal 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 prosecuted by indictment;

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

The sixth relates to special proceedings of a criminal nature.

§ 3. No person punishable but on legal conviction.-No person can be punished for a crime except upon legal conviction in a court having jurisdiction thereof.

(a.) No man can be punished save after a conviction upon a prosecution, conducted according to the prescribed forms and selemnities, for ascertaining guilt. Taylor v. Parter, 4 Hill, 147.

(b.) Court of Special Session.-The Legislature may confer upon a court of special sessions, power to try certain offenses, and punish the same without a jury trial. when those offences were not such as were, prior to the adoption of the constitution, uniformly tried by jury. Plato v. People, 3 Park, 586,

(c.) Forcible examination of female unlawful.-Forcible examination of a female by a physician for the purpose of obtaining evidence of her pregnany, is unlawful.

People v. Mc Coy, 45 How, 215.

(d.) Due Process defined-"Due process" means the opportunity to defend Happy v. Mosher, 48 N. Y. 313; People ex rel. v. Supervisors. 70 N. Y. 221. "Due process of law" does not mean according to course of the common law. People ex rel. Mc Donald v. Keeler, 3 N. Y. Cr. R., 348; 99 N. Y. 463.

§ 4. Crimes, how prosecuted.-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 corrupt 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 when 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. § 5. Criminal action defined. The proceeding, by which a party charged with a crime is accused and brought to trial and punishment, is known as a criminal action.

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

§ 7. The party prosecuted known as defendant. The party prosecuted in a criminal action is designated in this Code as the defendant.

§ 8. (Amended 1887)-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 with counsel; and,

3. To produce witnesses in his behalf, and to be confronted

with the witnesses against him in the presence of the court, except 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 opportunity 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 this Code, the deposition of the witness may be read upon its being satisfactorily shown to the court that he is dead or insane or cannot with due diligence be found in the state.

(a) The provisions of sub-division 3, are constitutional. (People v. Williams, 3 N. Y. Cr. R. 63.)

(b) As to what is sufficient evidence of "due diligence" under subdivision 3, in order to allow its benefits to be useful, see People v. Murphy, 1 N. Y. Cr. R. 102; People v. Williams, 3 N. Y. Cr. R. 63.

When defendant has permitted a deposition to be read upon a trial without objection, such objection cannot be taken in the court of appeals. (People v. Guidici. 100 N. Y. 503; 3 N. Y. Cr. R. 551.

(c) Trial by Court-martial-The constitution entitles the accused to counsel on trials by courts-martial organized under the laws of this state. (People ex rel. Garling v. Van Allen, 55 N. Y., 31.)

(1) The benefit of counsel should be given to every one arrested or accused of a crime, at every step in the proceedings. (People ex rel. Burgess v. Risley, 1 N. T. Cr. R. 492.)

It is error to refuse to allow prisoner with his counsel to accompany the jury when they view the scene of the crime under § 411 post. People v. Palmer 5 N. Y. Cr. R., 101.

When a defendant has been committed by a magistrate to await the action of the grand jury upon a criminal charge, he is entitled to an interview with his counsel.

(Ibid.)

A witness before a legislative committee has not the right to the aid of counsel. (People ex rel. McDonald v. Keeler, 3 N. Y. Cr. R. 348, 99 N. Y. 463.)

The right of a defendant to have his counsel present when the jury returns for instructions is absolute. (People v. Cassians, 1 N. Y. Cr. R. 505.)

Defendant has no right to have his counsel before the grand jury in his behalf. (Barb. Cr. Law, 667.)

(e) Testimony of deceased witness-The testimony given on a former trial by a witness since deceased, may be used on the retrial of the case. (People v. Penhollow, 5 N. Y. Cr. R. 41.)

(f) Confronted by witness-The provisions of the Constitution that the accused shall in all criminal trials be confronted with the witnesses against him, only applies to trials in United States courts for violations of United States laws. (Pid.)

§ 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 acquitted.

(a) Former trial-effect of-A former trial and conviction cannot be given in evidence under plea of not guilty. (People v. Benjamin, 2 Park. 201.)

(b) Effect of pendency of former trial-A prior indictment to which he has pleaded is not a bar to a second indictment. (People v. Fisher, 14 Wend., 9.)

(c) Plea of autrefois convict-The plea of autrefois convict is supported by proof of a lawful trial and verdict or confession, though no judgment be given upon it. (Shepherd v. People, 25 N. Y., 406.)

(d) Illegal verdict-A verdict upon which no judgment could have been

given, cannot be pleaded as a former acquittal. (People v. Olcott, 2 Johns. Cas., 301.)

(e) Must have been put in jeopardy-To sustain a plea of "autrefois acquit," it must appear that the prisoner was acquitted for the same act and crime. (People v. Warren, 1 Park., 338.)

(f) Conviction by special sessions-A conviction for petit larceny before a court of special sessions, cannot be pleaded in bar of a subsequent indictment for a burglary arising out of the same act. (People v. McCloskey, 5 Park., 57.) (g) When acquittal of one offense not a bar-When one offense is committed the more effectually to carry into effect another, an acquittal of the latter is no bar to an indictment for the former. (People v. Ward, 15 Wend., 231.) (h) Effect of acquittal on charge of robbery-A trial and acquittal of robbery in a bar to an indictment for larceny of the same property. (People v. McGowan, 17 Wend., 386.)

(i) 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.)

(j) When a bar-One acquitted on an indictment charging him with having in his possession a certain counterfeit note with intent to utter it, cannot be tried again for the other notes in his possession where all were in his possession at the same time. (People v. 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.)

A conviction on an indictment 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 performance of its conditions. (People v. Peck, 4 N. Y. Cr. R. 148.)

(k) When conviction is reversed new trial may be had-Where a conviction is reversed at the suit of the prisoner, a new trial may be ordered. (People V. Ruloff, 5 Park., 77.)

(1) May be retried where jury disagrees-In case of disagreement the jury may be discharged and the person retried. (People v. Goodwin, 18 Johns., 187.)

So where they separate without authority and are afterwards discharged. (People v. Reagle, 60 Barb., 527.)

(m) Jury discharged, when-In cases of misdemeanor the court of sessions may discharge the jury without consent of the prisoner, and he may be tried again. (2 Johns. Cas., 275.)

(n) Arrest of judgment not a bar to second indictment—An arrest of judgment after conviction for felony is not a bar to a second indictment. (People v. Cashorus, 13 Johns., 351.)

(0) Assault and battery does not bar trial for murder-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.)

(p) Effect of repealed law on conviction-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. (Hartung v. People, 26 N. Y., 167.)

(7) 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 to further prosecution. (People v. Sweeley, 3 N. Y. Cr. R. 225.)

Where jury find verdict for lesser degree, it is an acquittal as to the other counts. People v. Palmer, 5 N. Y. Cr. R., 101.

Where several persons are indicted together for the same offense, the acquittal of one is no bar to the conviction of another. (People v. Bassford, 3 N. Y. Cr. R. 319.)

(r) A verdict of acquittal upon the trial of an indictment,-e. g., for robbery, -is no bar to a subsequent indictment and conviction for perjury, committed by defendant 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 N. Y. Cr. R. 244.)

(s) 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. R. 471. People v. Miller, id., 475.)

Conviction on one count acquits on others.-A verdict of conviction on one count acquits on all others. (Guenther v. People 24 N. Y., 100, People v. Dowling, 23 Alb. L. J., 353.)

A former acquittal through a defective indictment may be pleaded in bar; and in the absence of proof to the contrary it will be presumed to have been on the merits. (Croft v. People, 15 Hun, 484.)

§ 10 No person to be a witness against himself in a criminal action or to be unnecessarily restrained.-No person can be compelled in a criminal action to be a witness against himself, nor can a person charged with crime be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge.

(a) Party may be compelled to answer in certain cases.-An act requiring parties to make discovery on oath concerning an indictable offense, but forbidding the answers from being used in evidence against him is constitutional. (Perrine v. Striker, 7 Paige, 598.)

Nor is a person protected from testifying in a criminal case against another on the ground that his testimony may tend to implicate him in a crime, provided he is protected by statute against the use of such testimony on his own trial. (Hackley v. Kelley, 24 N. Y., 74.)

(b) Ordinary rules of evidence apply to prisoner.-Where a prisoner testifies in his own behalf, he is subject to the same rules and tests as other witnesses. (People v. Brandon 42 N. Y., 265.)

(c) Defendant may decline to answer.-A defendant, in his answer, may object to the discovery of any matter charged in the bill which will subject him to a criminal prosecution. (Livingston v. Harris, 3 Paige, 528; Leggett v. Postley, 2 id., 599; Taylor v. Bruen, 2 Barb. Ch., 301.)

Or which would subject him to an indictment and punishment for a criminal offense. (Marsh v. Davidson, 9 Paige, 580.)

Although it be provided by statute that the answer of the defendant in certain cases cannot be used in evidence against him, yet the defendant cannot be compelled to make discovery as to any charge which is indictable at common law and involves moral turpitude. (Union Bank v. Barker, 3 Barb. Ch., 358.)

How a defendant may waive his right under this section. (Conner v People, 50 N. Y. 240.