§ 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 prosecuted 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. Petrea, 92 Y. 128; 65 How. Pr. 59; 1 N. Y. Cr. Rep. 233.

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

See State Const., art. 1. § 1; Fed. Const., fifth amendment; Penal Code, § 9 and note; Cameron v. Tribune Ass'n, 27 State Rep. 912; 55 Hun, 607. In People, ex rel. McDonald, v. Keeler, 32 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."

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

§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.

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

The

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

See People v. Johnson, 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 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 satis factorily shown to the court that he is dead or insane, or cannot with due diligence be found in the state.

Subdiv. 1. See 5 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. Ency. of Law, 812; United States v. Fox, 3 Mont. 512; People v. Murray (Mich.), 50 N. W. Rep'r, 995; N. Y. L. J. Oct. 31, 1892; 26 Am. L. Rev. 771.

The exclusion of jurors summoned for the term, but not impaneled, is not a deprivation of the right of public trial. People v. Sprague, 54 Cal. 491. Subdiv. 2. See Cooley's Const. Lim. (5th ed.) 405; 21 Am. L. Reg. (N. S.) 625. 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. Risley, 66 How. Pr. 67.

He is also entitled to be present with counsel when the jury view the premises where a crime is alleged to have been committed, pursuant to section 411, post. People v. Palmer, 43 Hun, 401, 407; 2 N. Y. Cr. Rep. 106.

In trials by court martial the accused is entitled to counsel. People, ex rel. Garling, v. Van Allen, 55 N. Y. 31; People v. Sharp, 45 Hun, 492; People v. Mayor, etc., 19 id. 452.

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

It is sufficient, if the accused be once confronted by the witnesses against him at any stage of the proceeding upon the same accusation and have an opportunity of cross-examination. People v. Penhollow, 5 N. Y. Cr. Rep. 41; 42 Hun, 103.

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 crossexamining the witness, may, under certain circumstances, be read in evidence upon the trial, is not unconstitutional. People v. Williams, 35 Hun, 516; 3 N. Y. Cr. Rep. 63; People v. Fish, 125 N. Y. 152.

To same effect, Territory v. Evans, 12 Crim. L. Mag. 446; State v. McO'Blenis, 24 Mo. 412; Summons v. State, 5 Ohio St. 340; Gilbreath v. State, 26 Tex. App. 318; People v. Brotherton, 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 acquitted.

State Const., art. 1, § 6; Fed. Const., fifth amendment; Penal Code, § 36; Cooley Const. Lim. (5th ed.) 400; 1 Bish. Crim. Law (7th ed.), § 978-1070; 17 Am. Law Rev. (N. S.) 735; 33 Am. Dec. 96, note; 11 Am. & Eng. Encyc. of Law, 926; 6 Crim. Law Mag. 61; 4 id. 27, 487; 18 Cent. 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 common-law doctrine. People v. Palmer, 109 N. Y. 417. See, also, Canter v. People, 5 Abb. Pr. (N. S.) 27

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"In a legal sense a prisoner is not once put in jeopardy until the verdict of the jury is rendered for or against him." Spencer, J., in People v. Goodwin, 18 Johns. 187. See People v. Green, 13 Wend. 55.

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

In this state a prisoner is considered in jeopardy when he has been arraigned and pleaded to a valid indictment, a witness has been sworn and evidence given, and then, without his consent, a juror has been withdrawn or the jury discharged. King v. People, 5 Hun, 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.

The plea of autrefois convict is supported by proof of a lawful trial and verdict, though no judgment be given upon it. Shepherd v. People, 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 as 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. People v. Warren, 1 Park. 338.

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.

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. 336; 1 Russ. Crimes, 829, 836; People v. Burch, 5 N. Y. Cr. Rep. 29; Com. v. Roby, 12 Pick, 496; Burns v. People, 1 Park. 182; People v. Nichols, 3 id. 579; People v. Richards, 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 other. 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 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. Rep. 244.

A trial and acquittal of robbery may be pleaded in bar to an indictment for larceny of the same property. People v. McGowan, 17 Wend. 386; People v. Sueith, 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. State 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. 132.

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 performance 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 having in his possession a certain counterfeit note with intent to utter it, may be pleaded

in bar to a subsequent indictment for having such other notes in his possession for a like intent, where all were in 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; 1 Seld. 549.

To an indictment for rape the defendant cannot plead in bar a former conviction for assault and battery arising out of the same transaction. People v. Saunders, 4 Park. 196.

An acquittal on a former indictment for nuisance is prosecution, where the erection is not a nuisance per se. 3 Hill, 479.

not a bar to a second People v. Townsend,

Where a prisoner has been put on trial, a juror cannot be withdrawn without his consent. People v. Barrett, 2 Cai. 304; Grant 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 without consent of the prisoner, and he may be tried again. 2 Johns. Cas. 275. An arrest of judgment after conviction for felony is not a bar to a second indictment. People v. Casborus, 13 Johns. 351.

A conviction 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 supersedeas of the first, to which the plea of jurisdiction only had been overruled. Gardiner v. People, 6 Park. 155, 190.

A prisoner sentenced upon a regular trial and conviction cannot be retried, Shepherd v. People, 25 N. 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. Hartung 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 Crim. Proc., §§ 332, 339; People v. Cignarale, 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