TITLE X.-GENERAL PROVISIONS IN RELATION TO THE PUNISHMENT OF CRIMES.

CHAPTER I. The death penalty.

II. Second offense, habitual criminals, and special penal discipline.
CHAPTER I.-THE DEATH PENALTY.

SECTION 491. Warrant for execution of convict.

492. Time of execution.

493. Judge must transmit certain papers to governor.

494. Governor may consult judge, etc.

495. Governor only to reprieve, etc., except as provided in the following sections.

496. If convict becomes insane, sheriff to impanel jury.

497. Duty of district attorney.

498. Inquisition; suspension of execution.

499. Sheriff to transmit inquisition to governor; governor's duty.
500. If female convict is pregnant, sheriff to impanel jury of
physicians.

501. Inquisition; suspension of execution.

502. Sheriff to transmit inquisition to governor; governor's duty.
503. When day of execution has passed, convict to be brought up by

warrant.

504. Court to inquire, etc.; when to direct execution.

505. 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. Death warrant.—(Amended 1888. In effect January 1, 1889. See 509.) When a defendant is sentenced to the punishment of death, the judge or judges 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 the sheriff of the county, a warrant stating the 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 convicts 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 some day within the week thus appointed. Within ten days after the issuing of such warrant the said sheriff must deliver the defendant, together with the warrant, to the agent and warden of the State prison therein named. From the time of said delivery to the said agent and warden, until the infliction of the punishment of death upon him, unless he shall be lawfully discharged from such imprisonment, the defendant shall be kept in solitary confinement at said State prison, and no person shall be allowed access to him without an order of the court, except the officers of the prison, his counsel, his physician, a priest or minister of religion, if he shall desire one, and the members of his family.

492. Time of execution.-(Amended 1888. In effect January 1, 1889. See 509.) The week so appointed must begin not less than four weeks and not more than eight weeks after the sentence. The time of the execution within 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 the said execution as hereinafter provided. (a) Effect of previous sentence.-A prisoner may be executed under a sentence of death before the expiration of a previous term of imprisonment. (Thomas v. People, 67 N. Y., 218.)

(b) Supreme court to fix time.-When judgment of death has not been executed pursuant to the sentence, the supreme court may cause the convict to be brought before them, and may, thereupon, issue their warrant to the sheriff to do execution at a time therein fixed. (Ex parte Ferris, 35 N. Y., 262; 32 How., 411.)

(c) After respite.-Practice after respite. (See Moett v. People, 80 N. Y., 373).

after respite, stay of execution, appeal, &c., prctice thereon. (Moett v. People, 80 N. Y., 373, 23 Hun., 60.

§ 493. Judge must transmit certain papers to governor.-The judge, presiding at the term at which the conviction 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 the notes, written out, taken by a stenographer or assistant stenographer, attending the court or term pursuant to law.

§ 494. Governor may consult judges, etc,-The governor is auauthorized 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 provided 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 sheriff is anthorized so to do, in a case and in the manner prescribed in the following sections of this chapter. This section does not apply to a stay of proceedings upon an appeal or writ of

error.

§ 496. If convict becomes insane, sheriff to impanel jury.— If, after a defendant has been sentenced to the punishment of death there is reasonable ground to believe 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 court, 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, qualified 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 the time and place of the meeting of the jury to the district attorney of the county. Section one hundred and eight of the Code of Civil Procedure regulates the impannelling of such a jury, and the proceedings upon the inquisition so far as it is applicable.

Id., § 16; Laws 1847, ch., 328, § 3.

§ 497. Duty of district-attorney. The district attorney must attend the inquiry. He 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.

3 R. S., 929, § 17.

§ 498. Inquisition; suspension of execution. The inquisition 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.

Id., § 18.

§ 199. 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 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 the latter, pursuant to his sentence, unless the sentence is commutted or the convict pardoned, and may in the meantime give directions for the disposition and custody of the defendant.

§ 500. If female convict is pregnant, sheriff to impanel 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 impanel 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 inquisiton, except that the sheriff may, in his discretion, 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.

Id., § 20.

$501. Inquisition; suspension of execution.-The inquisition 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 child, the sheriff must suspend the execution of the warrant directing her execution until he receives a warrant from the governor directing that the convict be executed.

Id., §§ 20, 21, 22.

$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 warrant, appointing a time and place for her execution, pursuant to her sentence, or may commute her punishment to imprisonment for life.

Id., §§ 21, 22.

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§ 503. (Amended 1888. In effect January 1, 1889. See § 509.) When day of execution was passed, convict to be brought up by warrant.-Whenever, for any reason other than insanity or pregnancy, a defendant sentenced to the punishment of death has not been executed pursuant to the sentence, at the time 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 thereof, 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 other officer in whose custody said defendant may be, commanding him to bring the convict before the Court of Appeals or a general term of the Supreme Court in the department, or a term of the court of oyer and terminer in the county where the conviction was had. If the defendant be at large, a warrant may be issued by the Court of Appeals or a judge thereof, or by the Supreme Court or a justice thereof, directing any sheriff or other officer to bring the defendant before the Court of Appeals or the Supreme Court at a general term thereof, or before a term of the court of oyer and terminer in that county.

(a) It is too late then to amend the record.--Where an appeal has been taken by the defendant from a judgment of conviction, which is affirmed by general term, it is too late, when the defendant appears at oyer and terminer to have a day fixed for the execution of sentence, to move to amend the record, in regard to what took place at oyer and terminer before the trial. (Ostrander v. People, 1 N. Y., Cr. R. 274.)

The record is then conclusive.

(Ib.)

(b) Supreme court may reappoint day.-When judgment of death has not been executed pursuant to the sentence, the supreme court may cause the conviet to be brought before them and may thereupon issue their warrant to the sheriff to do execution at a time therein fixed. (Ex parte Ferris, 35 N. Y., 262; 32 How., 411.)

(c) After respite.-Sentence of the prisoner to be hung by the general term after respite, stay of execution, appeal, etc., practice thereon. (Mott v. People, 85 N. Y. 373, 23 Hun. 60.

§ 504. Amended 1888. In effect January 1, 1889. See § 509.) Court to inquire, etc.; when to direct execution.-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 judge or judges, or a majority of them, of whom the judge presiding must be one, commanding the said 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 the execution within 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.

§ 505. (Amended 1888. In effect January 1, 1889. See § 509.) Mode of infliction. The punishment of death must, in every case, be inflicted by causing to pass through the body of the convict a current of electricity of sufficient intensity to cause death, and the application of such current must be continued until such convict is dead.

§ 506. (Amended 1888. In effect January 1, 1889. See § 509.) Place of execution. The punishment of death must be inflicted within the walls of the State prison designated in the warrant, or within the yard or inclosure adjoining thereto.

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§ 507. (Amended 1888. In effect January 1, 1889. See § 509.) Persons present. 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 may also appoint seven assistants or deputy sheriffs who may 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 convict shall be made by the physicians present at the execution, and their report in writing stating the nature of the examination, so made by them, shall be annexed to the certificate hereinafter mentioned and filed therewith. After such post mortem examination the body, unless claimed by some relative or relatives of the person so executed, shall be Interred in the graveyard or cemetery 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 execution; except within the walls of the prison where said execution took place, and only in the presence of the officers of said prison, the person conducting said services and the immediate family and relatives of said deceased prisoner. No account of the details of any such execution, beyond the statement of the fact that such convict was on the day in question duly executed according to law at the prison, shall be published in any newspaper. Any person who shall violate or omit to comply with any provision of this section shall be guilty of a misde

meanor.

$508. (Amended 1888. In effect January 1, 1889. See § 509.) Certificate of 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 present and witnessing the execution. He must cause the certificate, together with the certificate of the post-mortem examination mentioned in the preceding section, and annexed thereto, to be filed within ten days after the execution, in the office of the clerk of the county in which the Conviction was had.

$509. (Amended 1888.) Disability of warden, etc.-In case of the disability, from illness or other sufficient 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 upon said agent and warden.

$10. Nothing contained in any provision of this act applies to a crime committed at any time before the day when this act takes effect. Such crime must be punished according to the provisions of the law existing when it is committed, in the same manner as if this act had not been passed; and the provisions of law for the infliction of the penalty of death upon convicted criminals, in existence on the day prior to the passage of this act, are continued in existence and applicable to all crimes punishable by death, which have been or may be Committed before the time when this act takes effect. A crime punishable by death committed after the beginning of the day when this act takes offect, must be punished according to the provisions of this act, and not otherwise. ($ 10, chap. 489 of 1888.)

11. All acts and parts of acts inconsistent with the provisions of this act are hereby repealed. (§ 11, chap. 489 of 1888.)

12. This act shall take effect on the first day of January, one thousand eight hundred and eighty-nine, and shall apply to all convictions for crimes punishable by death, committed on or after that date. (§ 12, chap. 489, of 1888.)