The Legislature intended to preserve the jurisdiction of police justices.—(Id.) $75. Election of justices.-Upon the application in writing of not less than twenty-five electors, inhabitants of any incorporated 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 must 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 appointment by the board of trustees of the village. 2. R. S. 596, § 17; Id., 609, § 1; Laws 1871, Ch. 68S. § 76. Justice to take and file oath of office, etc.-A police justice elected or appointed as prescribed in the last section must, before entering upon 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 constitutional oath of office, and file the same with the clerk, together with a bond with such sureties and in such amount as shall be approved by the board of trustees of the village, conditioned for the faithful performance of his official duties. (a) It has been held that a person elected to the office of justice, who has neg lected to take oath of office and to give security required, is nevertheless in office by color of title, and that his acts are valid as regards the public and their parties, Barb., Cr. Law, 971; 4 Denio, 168. Though to assume the duties of office without taking the required oath of office is a misdemeanor, yet such person is an officer de facto, and not a trespasser in issuing process. (Weeke v. Ellis, 2 Barb., 320.) Form of oath of office, New York Const., art. XII, § 1. § 77. (Amended 1882.) Justice; how to hold office.-A police justice elected or appointed, as prescribed in section seventy-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 qualifies. § 78. Compensation of justice.—A police justice cannot retain to his own use any costs or fees, but may receive for his services an annual salary, to be fixed in villages by the board of trustees, and in cities by the common council, except where the same is otherwise fixed by law; and such salary shall not be increased or decreased during his term of office. PART II. OF THE PREVENTION OF CRIME. TITLE I. OF LAWFUL RESISTANCE. II. OF THE INTERVENTION OF THE OFFICERS OF JUSTICE. TITLE I. OF LAWFUL RESISTANCE. CHAPTER I. General provisions respecting lawful resistance. CHAPTER I. GENERAL PROVISIONS RESPECTING LAWFUL RESISTANCE. SECTION 79. Lawful resistance; by whom made. § 79. Lawful resistance; by whom made.-Lawful resistance to the commission of a crime may be made: 1. By the party about to be injured; 2. By other parties. CHAPTER II. RESISTANCE BY THE PARTY ABOUT TO BE INJURED. SECTION 80. In what cases; to what extent. § 80. In what cases; to what extent. Resistance sufficient to prevent the crime may be made by the party about to be injured : 1. To prevent a crime against his person; 2. To prevent an illegal attempt by force to take or injure property in his lawful possession. See Penal Code, § 223, and cases there cited. (a) May kill an assailant in self-defense.-One without fault, if attacked by another, may kill his assailant if the circumstances be such as to furnish reasonable ground for apprehending a design to take his life or do him great bodily harm, though in point of fact there was no such design. Shorter. v. People, 2 N. Y., 193; 4 Barb.,460; Patterson v. People, 46 Barb., 625; People v. Lamb, 54 Barb., 342; 2 Keyes, 360; 2 Abb. [N. S.], 148; People v. Austin, 1 Park., 154; 7 N. Y. Leg. Obs., 117; People v. Cole, 4 Park., 35; Pforner v. People, 4 id., 558; Uhl v. People, 8 Park., 410.) (b) Must avoid danger if possible.-However, the right of self-defense does not arise until he has done everything in his power to avoid its necessity. (People v. Sullivan, 7 N. Y., 396; People v. Cole, 4 Park., 35.) (c) Must first retreat.-The person charged must first have retreated as far as possible Shorter v. People, 2 N. Y., 193; 4 Barb., 460. (d) May use all necessary force to prevent a felony.-One who is opposing the consummation of a felony may lawfully use all necessary force for that purpose, and resist all attempts to inflict bodily harm upon himself, even to the killing of the felon. (Ruloff v. People, 45 N. Y., 213; 5 Lans., 261; 11 Abb. [N. S.], 245;) A peace officer, in case of felony, can only justify taking life by showing the actual commission of the crime and the positive necessity of taking life in order to arrest or detain the felon. (Conraddy v. People, 5 Park., 234.) (e) Need not first call on the authorities.-A party assailed is not deprived of the right of self-protection by an omission to invoke the protection of the authorities against an anticipated assault. (Evers v. People, 3 Hun, 716; 63 N. Y., 625.) (f) May defend his goods.-A person may use as much force as is necessary to prevent the taking of his goods by a wrong-doer. (Gyre v. Culver, 47 Barb., 592.) (g) May defend his premises.-A person may use all necessary force in defense of his premises. (Harrington v. People, 6 Barb., 607; Corey v. People, 45 Barb., 262; Wood v. Phillips, 43 N. Y., 152.) CHAPTER III. RESISTANCE BY OTHER PARTIES. SECTION 81. In what cases. § 81. In what cases.-Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the injury. TITLE II. OF THE INTERVENTION OF THE OFFICERS OF JUSTICE. CHAPTER I. Intervention of public officers in general. II. Security to keep the peace. III. Police in cities and villages, and their attendance at exposed CHAPTER I. INTERVENTION OF PUBLIC OFFICERS IN GENERAL. SECTION 82. In what cases. 83. 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 ; 3. By suppressing riots. § 83. Persons acting in their aid, justified-When the officers of justice are authorized to act in the prevention of crime, other persons who, by their command, act in their aid, are justified in so doing. (See Penal Code, § 223, subd. 1.) CHAPTER II. SECURITY TO KEEP THE PEACE. SECTION 84. Information of threatened crime. 87. Proceedings, on complaint being controverted. 91. Person committed for not giving security, how discharged. 92. Undertaking, to be transmitted to sessions. 93. Security, when required, for assault, etc., in presence of a court 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 according to this chapter. § 84. Information 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. 3 R. S. 996, § 1; Laws 1866, ch. 95. (a) The initiatory step.-In order to procure the arrest and examination of persons charged with committing offenses, the initiatory step is to lay a complaint before any officer authorized by law to receive it. Barb. Cr. Law. 1024. |