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to further prosecution. People v. Seeley, 3 N. Y. Cr. Rep. 225; Peopie v. Dorling, 84 N. Y. 478; Guenther v. People, 24 id. 100.
To same effect, Whart. Crim. Pl. & Pr., 8 740; Bell v. State, 48 Ala. 684; 17 Am. Rep. 40; Edgerton v. Com., 5 Allen, 514; Stuart v. Com., 28 Gratt. 950.
Where a party seeks and obtains a new trial for error, he thereby waives his constitutional protection and can be again tried for the offense of which he was formerly convicted. People v. Cignarale, 110 N. Y. 30, 31; People v. Kefer, 65 Cal. 232; Bohanan v. State, 18 Neb. 57; 53 Am. Rep. 791; Shular v. State, 105 Ind. 289; 55 Am. Rep. 217.
In People v. Palmer, 109 N. Y. 419, the court say: “The effect of the defendant's appeal is merely to continue the trial under the indictment in the appellate court, and if reversal of the judgment of conviction follows, that judgment, as well as the record of the former trial, have been annulled and expunged by the judgment of the appellate court, and they are as though they never had been; while the indictment is left to stand as to the crime of which the prisoner had been charged and convicted as though there had been no trial. Only where the result of the former trial was in effect an acquittal of another crime charged in the indictment, may he plead that result in bar of further prosecution for that crime. If the defendant takes an appeal from the judgment of conviction, he must be deemed to ask for a correction of errors made upon his trial, and to waive his constitutional protection. Of necessity he must be deemed to ask for a new trial. By taking the appeal to the supreme court power is conferred upon that court to continue and review the prisoner's trial, and upon a reversal to pronounce such judgment as it deems jast within the terms of the statute. It may affirm the proceedings below, or reverse, and either order a new trial or discharge the prisoner. That no constitutional right of the party is invaded must be a self-evident proposition, or it is a privilege which is granted, of which he may, but not must, avail him. self. I think that the sounder doctrine which recognizes a distinction between jeopardy incurred with the consent of the prisoner and jeopardy incurred with. out that consent."
A statute which provides that “the granting of a new trial places the parties in the same position as if no trial had been had,” is not unconstitutional. Com. 5. Arnold, 83 Ky. 1; 4 Am. St. Rep. 114. In that case it was held that the granting of a new trial to one convicted of manslaughter upon an indictment for murder, was not a bar to another trial under the same indictment, for the higher offense. See exhaustive note to this case, collating the authorities.
A statute providing that a person shall be subjected to an increased punish ment upon conviction for a second offense is not in violation of a constitutional provision that no person shall be twice put in jeopardy for the same offense. People v. Stanley, 47 Cal. 113; 17 Am. Rep. 401; Chenowith v. Com. (Ky.), 12 Crim. Law Mag. 234.
$ 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.
See State Const., art. 1, $ 6; Fed. Const., fifth amendment; 19 Eng. Rep. 617; People v. McCoy, 45 How, Pr. 216; People v. Mondon, 103 N. Y. 220; 38 Hun, 198; 4 N. Y. Cr. Rep. 123; People v. Guidici, 100 N. Y. 508; Conners v. People, 50 id. 240; Ruloff v. People, 45 id. 221; People v. Courtney, 94 id. 490; People v. King, 64 Cal. 338; Boyd v. U. S., 116 U. S. 616; People v. Hackley, 24 N. Y. 74. U. S. v. Denicke, 10 Cr. L. Mag. 868.
As to compelling a prisoner to furnish evidence of his identity by putting his foot in a track or exposing his person, see State v. Graham, 74 N. C. 646; 21 Am. Rep. 493; Walker v. State, 7 Tex. Ct. App. 245; 32 Am. Rep. 595; Stokes v. State, 5 Baxt. 619; 32 Am. Rep. 595; State v. Sanders, 68 Mo. 202; 30 Am. Rep. 782 ; State v. Garrett, 71 N. C. 85; 17 Am. Rep. 1; State v. Ah Chuey, 14 Nev. 79; 33 Am. Rep. 530; Blackwell v. State, 67 Ga. 76; 44 Am. Rep. 717; Campbell v. State, 55 Ala. 80; Cooper v. State (Ala.), 4 L. R. A. 766.
A prisoner is entitled to appear for trial free from all manner of shackles or bonds, unless there is danger of his escape. People v. Harrington, 42 Cal. 165 ; 10 Am. Rep. 296.
Defendant may be a witness in his own behalf. $ 393, post.
The object of the constitutional provision that “ no person shall be compelled in any criminal case to be a witness against himself” was not to prevent the passing of laws allowing the accused to testify in his own behalf if he choose to avail himself of that privilege, but to prevent the enactment of statutes by which the accused might be subjected to actual compulsion to give evidence. People v. Courtney, 1 N. Y. Cr. Rep. 558.
Where a defendant when arrested is compelled to subject his body to inspection in order to discover his identity, the person making such inspection may testify on the trial as to the marks found by him on defendant's body, since the giving of such testimony is not compelling defendant to testify against himself. O'Brien v. State, 13 Cr. L. Mag. 84; 25 Am. L. Rev. 141; 33 Alb. L. J. 448.
In Chartang v. State (Ala.) 10 Cr. L. Mag. 417, defendant being arrested was found to have a pistol concealed in his hip pocket. On the trial on an indictment for carrying concealed weapons, defendant objected that the search of his person was a trespass, and the testimony thus obtained was improper, held that the objection was properly overruled.
In McGriff v. State, 88 Ala. 147; 16 Am. St. Rep. 825, it was held that on a prosecution for rape of an infant under ten years of age, the prosecutrix cannot be compelled as matter of right to submit to a personal medical examination. If such right exists, it is a matter of discretion with the trial court to be exercised only in cases of extreme necessity and not subject to review on appeal.
A witness before a grand jury in the Federal courts may refuse to answer on the ground that his testimony will tend to criminate himself. Counselman v. Ilitchcock, 142 U. S.547; 45 Alb. L. J. 231, reversing 44 Fed. Rep. 268.
OF THE COURTS HAVING ORIGINAL JURISDICTION IN
V. OF THE COURTS OF SESSIONS.
OF THE COURTS OF ORIGINAL CRIMINAL JURISDICTION IN
SECTION 11. Of the courts of original criminal jurisdiction. $11. Of the courts of original criminal jurisdiction. The following are the courts of justice in this state having original jurisdiction of criminal actions :
1. The court for the trial of impeachments; 2. The courts of oyer and terminer;
3. The city courts of Brooklyn, Buffalo, Utica, Oswego and Hudson ;
4. The courts of sessions, in counties other than New York; 5. The court of general sessions in the city and county of New
6. The courts of special sessions ; 7. The police courts.
The courts of special sessions and police courts are deemed inferior courts not of record, within the section of the Constitution which provides for the removal of justices of the peace and judges, or justices of inferior courts not of record, and their clerks, by such county, city or state courts as are designated by law; but for no other purpose. See State Const., art. 6, SS 18, 19.
OF THE COURT FOR THE TRIAL OF IMPEACHMENTS.
SECTION 12. Its jurisdiction.
13. Members of the court.
8 12. Its jurisdiction. — The court for the trial of impeachments has power to try impeachments, when presented by the assembly, of all civil officers of the state, except justices of the peace, justices of justices' courts, police justices, and their clerks, for willful and corrupt misconduct in office.
See State Const., art. 6, SS 1, 18.
$ 13. Members of the court. — The court is composed of the president of the senate, the senators, or a majority of them, and the judges of the court of appeals, or a majority of them, but on the trial of an impeachment against the governor, the lieutenant governor cannot act as a member of the court.
See State Const., art. 6, § 1.
$ 14. Presiding judge. — The president of the senate, or in case of his impeachinent, death or absence, the chief judge of the court of appeals, or in the absence of both, such other member as the court may elect, is the presiding judge of the court.
$ 15. Clerks and officers. - The clerk and officers of the senate are the clerk and officers of the court for the trial of impeachments.
$ 16. Seal of the court. — The seal of the court for the trial of impeachments now deposited and recorded in the office of the secretary of state shall continue to be the seal of this court and must be kept in the custody of the clerk of the senate.
$ 17. Time of holding the court.— Upon the delivery of an impeachment from the assembly to the senate the president of the senate must cause the court to be summoned to meet at the capitol in the city of Albany, on a day not less than thirty nor more than sixty days from the day of the delivery of the articles of impeachment.
$ 18. Oath to members of the court. - At the time and place appointed, and before the court proceeds to act upon the impeachment, the clerk must administer to the presiding judge, and the presiding judge to each of the members of the court then present, an oath or affirmation truly and impartially to try and determine the impeachment; and no member of the court can act or vote upon the impeachment, or any question arising thereon, without having taken this oath or affirmation.
$ 19. Adjournments, etc. — The court may adjourn from time to time and hold its sessions at such places as it may determine, but no more than two sessions of the court can be held during the recess of the legislature in any one year.
20. Compensation of members and officers of the court. The writ and process of the court must be signed by the clerk and tested in the name of the president of the senate. The president of the senate and cach senator are entitled to receive for their services and expenses while actually attending the court the same rate of compensation as an associate judge of the court of appeals is entitled by law to receive for his services and expenses as such judge for the same time. The other officers of the court, excepting the judges of the court of appeals, are entitled to the same compensation for their attendance thereon, and for traveling to and from the place where it is held, as is allowed them for attending a meeting of the senate, but no such compensation shall be received for attending the court during a session of the legislature.