Fuller, id. 36; People v. Wiley, id. 19; People v. Hammill, id. 223; People v. Batting, 49 How. Pr. 392; People v. Eastwood, 3 Park 25; 14 N. Y. 562; State v. Harlow, 21 Mo. 446; Shanahan v. Com., 8 Bush, 463; Com. v. Hawkins, 3 Gray, 463; Rafferty v. People, 66 Ill. 118; Chorci v. State, 31 Ga. 424; Humphreys v. State, 45 id. 190. See People v. Lewis, 36 Cal. 531; Hale v. State, 11 Humph. 154; Pirtle v. State, 9 id. 663; Cluck v. State, 40 Ind. 263. Evidence of intoxication to explain motive and conduct. Lanergau v. People, supra; People v. Hammill, supra; Eastwood v. People, supra; State v. Gut, 13 Minn. 341; Kelly v. State, 3 Smed. & Marsh. 518; Golden v. State, 25 Ga. 527; Jones v. State, 29 id. 594; Jones v. Com., 75 Penn. St. 403; Golliher v. Com, 2 Duvall (Ky.), 163; Smith v. Com., 11 id. 224; Curry v. Com., 2 Bush (Ky.), 7; Kriel v. Com., 5 id. 362; Blimm v. Com., 7 id. 320; Shanahan v. Com., 8 id. 463; State v. Horne, 9 Kaus. 119; Nichols v. State, 8 Ohio (N. S.), 435; State v. Schingen, 20 Wis. 74; State v. Garvey, 11 Minn. 154. Where intoxication produces insanity. Lanergan v. People, supra; O'Brien v. People, 48 Barb. 274; People v. Williams, 43 Cal. 344; Cromwell v. State, 1 Mart. & Yerg. 147; U. S. v. Drew, 5 Mason, 28; State v. McGonigal, 5 Harring. 510 Delirium tremens. O'Brien v. People, supra; Real v. People, 55 Barb. 551; S. C., 42 N. Y. 270; Maconnekey v. State, 5 Ohio (N. S.), 77; Willis v. Com. (Va.), 22 Alb. L. J. 176; People v. Cavanagh, 62 How. Pr. 187; People v. Pearce, 2 Edm S. C 76; People v. Jones, id. 86; Flanigan v. People, 86 N. Y. 554; People v. O Connell, 87 id. 377. See People v. Cassiano, 17 W. Dig. 499; People v. Mills, 98 N. Y. 176.

See further People v. Conroy, 33 Hun, 119; 2 N. Y. Cr. 247; Kenny v. People, 31 N. Y. 330; 27 How. 202; Upstone v. People, 109 Ill. 169; Hopt v. People, 104 U. S. 631; People v. Burns, 33 Hun, 296; 2 N. Y. Cr. 415; Com. v. Hagenlock, 140 Mass. 125; Wood v. State, 34 Ark. 341; People v. Fish, 125 N. Y. 146; 34 N. Y. State Rep'r, 843; State v. Mowry, 37 Kans. 369; State v. Shores, 31 W. Va. 491; People v. Otto, 38 Hun, 97.

§ 23. Morbid criminal propensity, no defense. -A morbid propensity to commit prohibited acts, existing in the mind of a person who is not shown to have been incapable of knowing the wrongfulness of such acts, forms no defense to a prosecution therefor.

People v. Otto, 38 Hun, 97. See Huntington's trial and authorities cited; Flanagan v. People, 52 N. Y. 467; People v. Carpenter, 102 id. 250; 4 N. Y. Cr. 177; People v. Waltz, 50 How. 204.

§ 24. Defense of duress, by married woman. It is not a defense, to a married woman charged with crime, that the alleged criminal act was committed by her in the presence of her husband.

Boyd's case, 3 C. H. Rec. 134; Goldstien et al. v. People, 10 W. Dig. 506; 82 N. Y. 231; Seiler v. People, 77 id. 411; People v. Ryland, 28 Hun, 568; aff'd, 2 N. Y. Cr. 438: 97 N. Y. 126; Brown's case, 3 C. H Rec. 56; Goodman's case, 6 id. 21; Rooney's case, 3 id. 126; Brandon's case, 4 id. 140; People v. Townsend, 3 Hill, 479; Quinlan v. People, 6 Park. 9.

§ 25. Duress, how constituted.— Where a crime is committed or participated in by two or more persons, and is committed, aided, or participated in by any one of them, only because, during the time of its commission, he is compelled to do, or to aid or participate in the act, by threats of another person engaged in the act or omission, and reasonable apprehension on his part of instant death or grievous bodily harm, in case he refuses, the threats and apprehension constitute duress, and excuse him.

Goldstein v. People, 82 N. Y. 231.

§ 26. Act done in defense of self or another. - An act, otherwise criminal, is justifiable when it is done to protect the person committing it, or another whom he is bound to protect, from inevitable and irreparable personal injury, and the injury could only be prevented

by the act, nothing more being done than is necessary to prevent the injury.

See post, §§ 203, 204, 205, 223; Code Cr. Proc., §§ 79, 80, 81.

Statutory offenses indictable, though penalty also. People v. Stevens, 13 Wend. 341; People v. Brown, 16 id. 561. A person attacked, if justified in reasonably apprehending great bodily harm and the danger imminent, may kill his assailant. Shorter v People, 2 N. Y. 193; Patterson v. People, 46 Barb. 625. See People v. Lamb, 54 Barb. 342; People v Austin, 1 Park. 154; People v. Cole, 4 id. 35; Pfomer v. People, id. 558; Uhl v. People, 5 id. 410. Party assailed must avoid attack, if possible, to justify resistance. People v. Sullivan, 7 N. Y. 396; People v. Cole, supra; People v. Harper, Edm. S. Č. 180; Shorter v. People, supra. Resistance to prevent felony. Ruloff v. People, 45 N. Y. 213; People v. Hand, 4 Alb. L J. 91. Need not first invoke protection against anticipated assault. Evers v. People, 3 Hun, 716; 63 N. Y. 625. Defense of possession of real property. Corey v. People, 45 Barb. 262; Wood v. Phillips, 43 N. Y. 152; People v. Gulick, Lalor, 229; Harrington v. People, 6 Barb. 607. Defense of personal property. Gyre v. Culver, 47 Barb. 592; Morgan v. Durfee, 21 Alb. L. J. 215.

See People v. Lyons, 6 N. Y. Cr. 105; note on self-defense, id. 119; People v. Pearl, 76 Mich. 207; People v. Lennon, 71 id. 298; State v. Broussard, 39 La. Anu. 671; Sawyer v. People, 16 W. Dig. 394; People v. McGrath, 47 Hun, 325; Hall v. People, 18 W. Dig. 357; 2 N. Y. Cr. 134; Morgan v. Durfee, 21 Alb. L. J. 215; People v. Minisci, 12 N. Y. State Rep'r, 720.

§ 27. Exemption of public ministers.-Ambassadors and other public ministers from foreign governments, accredited to the president or government of the United States, and recognized according to the laws of the United States, with their secretaries, messengers, families and servants, are not liable to punishment in this state, but are to be returned to their own country for trial and punishment.

Wheat. Int. L. 264, § 6: 271, § 14; Vattel, 470, § 91, etc.; 1 Bish. Cr. L., § 585. Act of Cong., Apr. 30, 1790, chap. 9, § 25. By treaty, assault by and upon German citizens, on board vessel in port, state courts have no jurisdiction, except as it disturbs the peace; People v. Marine Court, 6 Hun, 214. Section 2, Art. 3 of Federal Const.

TITLE II.

Of Parties to Crime.

SEC. 28. Principal and accessory.

29. Definition of principal.

30. Definition of accessory.

31. All principals in misdemeanors.
32. Trial of accessories.

33. Punishment of accessories.

28. Principal and accessory.-A party to a crime is, either 1. A principal; or,

2. An accessory.

§ 29. Definition of principal.-A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal. People v. McMurray, 4 Park. 234; Wixson v. People, 5 id. 119: Carrington v. People, 6 id. 336; People v. Bliven, 112 N. Y. 82; 20 N. Y. State Rep'r, 487; People v. Katz, 23 How. 94; People v. Batterson, 50 Hun, 44; Leonard v. Poole, 114 N. Y. 371; People v. Ryland, 97 id. 126; People v. Brien, 53 Hun, 496; 25 N. Y. State Rep'r, 239; People v. Bassford, 21 W. Dig. 349; 3 N. Y. Cr.

343; People v. Fitzgerald, 5 id. 343; People v. Hall, 57 How. 342; State v. Kirk, 11 Ore. 505; United States v. Hughes, 34 Fed. Rep'r, 732; McCartney v. People, 83 N. Y. 413; People v. McElroy, 36 N. Y. State Rep'r, 650; People v. Sanborn, 46 Hun, 682; 14 N. Y. State Rep'r, 126; People v. Kief, 58 Hun, 344; 34 N. Y. State Rep'r, 533; aff'd, 126 N. Y. 661; 37 N. Y. State Rep'r, 479; People v. Phelps, 39 id. 599; People v. Cotto, 42 id. 715.

$30. Definition of accessory.-A person who, after the commission of a felony, harbors, conceals, or aids the offender, with intent that he may avoid or escape from arrest, trial, conviction, or punishment, having knowledge or reasonable ground to believe that such offender is liable to arrest, has been arrested, is indicted or convicted, or has committed a felony, is an accessory to the felony.

Innocent agent. People v. McMurray, 1 Sheld. 563; People v. Hall, 57 How. Pr. 342. See People v. Dunn, 53 Hun, 381; 25 N. Y. State Rep'r, 460; 7 N. Y. Cr. 173; 6 N. Y. Supp. 805.

§ 31. All principals in misdemeanors.-A person who commits or participates in an act which would make him an accessory if the crime committed were a felony, is a principal and may be indicted and punished as such, if the crime be a misdemeanor.

See § 682, post.

People v. Erwin, 4 Den. 129; Lowenstein v. People, 54 Barb. 229; People v. Mathews, 4 Wend. 229; Ward v. People, 3 Hill, 395; Commonwealth v. Dale, 144 Mass. 363; People v. Lyon, 33 Hun, 623; 2 N. Y. Cr. 484.

32. Trial of accessories.-An accessory to a felony may be indicted, tried, and convicted, either in the county where he became an accessory, or in the county where the principal felony was committed, and whether the principal felon has or has not been previously convicted, or is or is not amenable to justice, and although the principal has been pardoned or otherwise discharged after conviction.

See § 126, post. Evidence. Levy v. People, 80 N. Y. 327; 19 Hun, 383. See Jones v. People, 20 Hun, 545; 81 N. Y., 637; People v. Lyon, 99 id. 210; People v. Ryland, 97 id. 126; People v. Gray, 25 Wend. 464; Starin v. People, 45 N. Y. 333; People v. Bassford, 3 N. Y. Cr. 219.

33. Punishment of accessory.-Except in a case where a different punishment is specially prescribed by law, a person convicted as an accessory to a felony is punishable by imprisonment for not more than five years, or by a fine of not more than five hundred dollars, or by both.

TITLE III.

Degrees in the Commission of Crimes and Attempts to Commit Crimes.

SEC. 34. What is an attempt to commit a crime.

35. Prisoner indicted may be convicted of lesser crime, or attempt.

36. Acquittal or conviction bars indictment for another degree, or attempt.

§ 34. Attempt to commit crime defined.-An act, done with intent to commit a crime, and tending but failing to effect its commis sion, is an attempt to commit that crime.

See § 685, post.

People v. Lawton, 56 Barb, 126. Solicitations are not an attempt. Stable v. Commonwealth (Pa.), 22 Alb. L. L. 458 Contra, People v. Bush, 4 Hill, 134;

McDermott v. People, 5 Park. 102]; Lamb v. State, 67 Md. 524; Whitesides v. State, 11 Lea, 474; Stabler v. Com., 95 Penn. St. 318; 22 Alb. L. J. 448.

Evil intent is not enough. People v. Moran, 123 N. Y. 256; 33 N.Y. State Rep'r, 398, rev'g 54 Hun, 279; 27 N. Y. State Rep'r, 20; 7 N. Y. Cr. 336; Darrow Fund Soc., 42 Hun, 245; aff'd, 116 N. Y. 542; Mulligan v. People, 5 Park. 105; People v. Johnson, 46 Hun, 670; Cox v. People, 82 Ill. 191; People v. Stiles, 75 Cal. 570; United States v. Stephens, 8 Sawyer, 116; State v. Gray, 19 Nev. 212; McDade v. People, 29 Mich. 50; Uhl's case, 6 Gratt. 706; Hicks v. Com., 13 Va. L J. 525; Marrette's case, 3 C. H. Rec. 60; People v. Murray, 14 Cal. 159; People v. Jones, 46 Mich. 441; Com. v. McDonald, 5 Cush. 365; State v. Beal, 37 Ohio, 108: Kunkle v. State, 32 Ind. 520; Hamilton v. State, 36 id. 280; State v. Wilson, 30 Conn. 500; Sullivan v. People, 27 Hun, 35; People v. O'Connell, 60 id. 114; 38 N. Y. State Rep'r, 109; People v. Phelps, 39 id. 599; 61 Hun, 115.

$35. Prisoner indicted may be convicted of lesser crime, or attempt. Upon the trial of an indictment, the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a lesser degree of the same crime.

See Code Civ. Proc., 88 414, 415; and § 10, ante; § 685, post.

People v. Jackson, 3 Hill, 92; People v. Saunders, 4 Park. 196; Keefe v. People, 40 N. Y. 348; Dedieu v. People, 22 id. 178; People v. Lyon, 1 N. Y. Cr. 400; People v. Palmer, 43 Hun, 406; 8 N. Y. State Rep'r, 500; 5 N. Y. Cr. 105; People v. McCallum, 3 id. 199; People v. Sullivan, 4 id. 197; Murphy v. People, 3 Hun, 114; People v. McTameney, 30 Hun, 505; 13 Abb. N. C. 55; 66 How. 70; 1 N. Y. Cr. 437; People v. Dartmore, 48 Hun, 321; 2 N. Y. Supp. 310; People v. Lohman, 2 Barb. 216; Cox v. People, 80 N. Y. 514; Keefe v. People, 40 id. 348; 7 Abb. (N. S.) 76; People v. McDonnell, 92 N. Y. 657; 1 N. Y. Cr. 366; Ruloff v. People, 45 N. Y. 213; 11 Abb. (N. S.) 245; Nevins v. People, 61 Barb. 307; People v. Thompson, 41 N. Y. 1; People v. Lawton, 56 Barb. 126; Sindram v. People, 88 N. Y. 196; People v. Willson, 109 id. 347; People v. Petmecky, 2 N. Y. Cr. 452; Sullivan v. People, 27 Hun, 35; People v. McDonald, 49 id. 67; People v. O'Connell, 60 id. 113; 38 N. Y. State Rep'r, 108; People v. Palmer, 43 id. 397; People v. Dartmore, 48 id. 321.

§ 36. Acquittal or conviction bars indictment for another degree, or attempt. — Where a prisoner is acquitted or convicted, upon an indictment for a crime consisting of different degrees, he cannot thereafter be indicted or tried for the same crime, in any other degree, nor for an attempt to commit the crime so charged, or any degree thereof.

Art. 1, § 6, N. Y. Const.; Guenther v. People, 24 N. Y. 100; People v. Dowling, 23 Alb. L. J. 353; People v. Saunders, supra; People v. Casborus, 13 Johns. 351; People v. Cignarale, 110 N. Y. 23; People v. Palmer, 109 id. 419; People v. McCarthy, 110 id. 315; People v. Dowling, 84 id. 478; People v. Palmer, 43 Hun, 397; People v. McDonald, 49 id. 70; People v. Seeley, 3 N. Y. Cr. 225; People v. Warren, 109 N. Y. 615; Johnson v. State, 29 Ark. 31.

TITLE IV.
Treason.

SEC. 37. Treason against the state defined.

38. Id., how punished.

39. Levying war defined.

40. Resistance to a statute, when levying war.

§ 37. Treason defined.—Treason against the people of the state consists in

1. Levying war against the people of the state, within this state; or 2. A combination of two or more persons by force to usurp the

government of the state, or to overturn the same, shown by a forcible attempt, made within the state, to accomplish that purpose; or

3. Adhering to the enemies of the state, while separately engaged in war with a foreign enemy, in a case prescribed in the constitution of the United States, or giving to such enemies aid and comfort within the state or elsewhere.

People v. McLeod, 25 Wend. 482; S. C., 1 Hill, 377. Adhering to the enemies of the U. S., not treason against the state, and not indictable in state courts. People v. Lynch, 11 Johns. 549. Entering service of enemies. Respondent v. McCarty, 2 Dall. 86; Robert's case, 1 id. 39. Restoring prisoners. United States v. Hodges, 2 Wh. C. C. 477. Resisting act of cougress. United States v. Hannay, 2 Wall. Jr. 139.

§ 38. Punishment of treason. -Treason is punishable by death. Code Cr. Proc., §§ 396, 397, 814, 826; § 5, art. 4, of N. Y. State Const.; § 3, art. 3, of Fed. Const.

39. Levying war defined.--To constitute levying war against the people of this state, an actual act of war must be committed. To conspire to levy war is not enough.

Levying war. Ex parte Bollman, 4 Cranch, 75; United States v. Greathouse, 2 Abb. 364: United States v. Hoxie, 1 Paine, 265; United States v. Poyer, 3 Wash. C. C. 234; Burr's trial (Combs' ed.) 312.

-Where per

§ 40. Resistance to a statute, when levying war.sons rise in insurrection with intent to prevent in general by force and intimidation, the execution of a statute of this state, or to force its repeal, they are guilty of levying war. But an endeavor, although by numbers and force of arms, to resist the execution of a law in a single instance, and for a private purpose, is not levying war.

United States v. Mitchell, 2 Dall. 348; United States v. Hannay, 2 Wall. Jr. 139, 203; United States v. Hoxie, supra; U. S. v. Vigol, 2 Dall. 346; Ex parte Bollman, supra.

SEC.

TITLE V.

Of Crimes against the Elective Franchise.

41. Misdemeanors at political caucuses and conventions.
41a. False registration.

41b. Mutilation, destruction or loss of registry list.

41c. Misconduct of registry officers.

41d. Failure of house dweller to answer inquiries.

41e. Removal, mutilation or destruction of election supplies, poll-lists or cards of instruction.

41f. Refusal to permit employes to attend election.

41g. Misconduct in relation to certificates of nomination and official ballots.

41h. Failure to deliver official ballots.

41i. Misconduct of election officers and watchers.

41j. Violation of election law by public officer.

41k. Misdemeanors in relation to elections.

411. Voting after conviction of infamous crime.

41m. Voting by inhabitant of another state or country.

41n. False returns.

410. Furnishing money or entertainment to induce attendance at polls. 41p. Giving considerations for franchise

41q. Receiving consideration for franchise.

41r. Testimony upon prosecution.

41s. Bribery or intimidation of elector in military service of United

States.