The Code of Criminal Procedure. CHAPTER 442, LAWS OF 1881. AS AMENDED BY LAWS OF 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903 and 1904. AN ACT To establish a Code of Criminal Procedure. Passed June 1, 1881; three-fifths being present. The People of the State of New York, represented in Senate anȧ Assembly, do enact as follows: PRELIMINARY PROVISIONS. SECTION 1. Title of the Code. 2. Divisions of the Code. 3. No person punishable but on legal conviction. 5. Criminal action defined. 6. Parties to a criminal action. 7. The party prosecuted known as defendant. 8. Rights of defendant in a criminal action. 9. Second prosecution for the same crime prohibited. 10. No person to be a witness against himself in a criminal action or to be unnecessarily restrained. SECTION 1. Title of Code. of Criminal Procedure of the § 2. Divisions of the Code. This act shall be known as the Code State of New York. Fraser v. Board, etc., 17 N. Y. St. Rep. 875. 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; People v. Petrea, 92 N. Y. 128; 65 How. 59; 1 N. Y. Cr. 233. § 3. No person punishable but on legal conviction.- No person can be punished for a crime except upon legal conviction in a court having jurisdiction thereof. Art. 1, 1, N. Y. Const.; U. S. Const. fifth amendment. No conviction on ex parte affidavits. Ex parte James, 30 How. Pr. 446; Cameron v. Tribune Ass'n, 27 N. Y St. Rep. 912; Taylor v Porter, 4 Hill, 140; Plato v People, 3 Park. 586; Warren v. People, id. 541; Happy v. Mosher, 48 N. Y 315; People v. Brady, 56 id. 182; People ex rel. McDonald v. Keeler 99 N. Y. 463, 32 Hun, 594. § 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. Art. 1, § 6, N. Y. Const., fifth amendment, Fed. Const. § 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 naine of the people of the state of New York, as plaintiffs, against the party charged with crime. People v Johnson, 104 N. Y 216. 5 N. Y. Cr 217; affirming, 4 id. 591. 7. The party prosecuted known as defendant. The party prosecuted in a criminal action is designated in this Code as the defendant. People Johnson. 104 N. Y. 216; 5 N. Y. Cr. 217; affirming, 4 id. 591. § 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, i 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 satisfactorily shown to the court that he is dead or insane, or cannot with due diligence be found in the state. OF 1887.] [AM'D CH. 422 Sub. 1. See 6th Amend. Const. U. S. Sub. 2. Art. 1, § 6, N. Y. Const. See People ex rel. Garling v. Van Allen, 55 N. Y. 31. Sub. 3. No rights before coroner. Crisfield v Perrine, 15 Hun, 200; s. c., 81 N. Y. 622. Escaped prisoner can have no relief. People v. Genet, 59 N. Y. 80. Due diligence. People v. Murphy, 1 N. Y. Cr. 102. Conditional examination. People v. Williams, 35 Hun, 516; 3 N. Y. Cr 63; People v. Fish, 128 N. Y. 152. Counsel. People ex rel. Burgess v. Risley, 66 How. 67; People v. Paimer, 43 Hun, 401; 2 N. Y. Cr. 106; People v. Mayor, etc., 19 Hun, 452; People ex rel. Garling v. Allen, 55 N. Y. 31; People ex rel. McDonald. Keeler, 99 id. 463. Opportunity for crossexamination. People v. Penhollow, 42 Hun, 103; 5 N. Y. Cr. 41; People v. Williams, 35 Hun, 516; 3 N. Y. Cr. 68. Dying declarations. People v. Smith, 104 N. Y. 491; 5 N. Y. Cr. 161; People v. Sweeney, 41 Hun, 332. Depositions. Wightman v. People, 67 Barb. 44; Mut. Life Ins. Co. v. Anthony, 50 Hun, 101, 105; People v. Guidici, 100 N. Y. 503; 3 N. Y. Cr. 551. See People ex rel. McDonald v. Keeler, 32 Hun, 589; People v. Sprague, 54 Cal. 491; People v. Leong Sing, 77 id. 117; People v. Brotherton, 47 id. 388; Summons v. State, 5 Ohio St. 340; Gilbreath v. State, 26 Tex. App. 318; State v. McO'Blenis, 24 Mo. 412. § 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 acquited. Art. 1, § 6, N. Y. Const. Former trial and conviction, without judgment, sustains a plea of autre fois convict. Shepherd v. People, 25 N. Y. 406. See People v. Goodwin, 18 Johns. 200; People v. Barrett, 1 id. 66; Id. v. Olcott, 2 ib. Cas. 301; Id. v. Cramer, 5 Park. 171; Id. v. McCloskey, ib. 57; Id. v. Saunders, 4 ib. 196; Id. v. Warren, lib. 333; Id. v. Allen, ib. 415, Íd. v. Van Keuren, 5 ib. 66; Id. v. Krummer, 4 ib. 217; Id. v. Townsend, 3 Hill, 479; Canter v. People, 1 Abb. Dec. 305; People v. Krummer, 1 Sheld. 549; Gardiner v. People, 6 Park. 155; People v. Casborus, 13 Johns 351; Burns v. People, 1 Park. 182; People v. Comstock, 8 Wend. 549. When former judgment reversed, new indictment may be found. Kelley v. People, 6 Hun, 509. See People v. Ruloff, 5 Park. 77. Where wrong judgment rendered on regular conviction, cannot retry. Shepherd v. People, supra; but may remit record and resentence. Hussey v People, 47 Barb. 503. A verdict of conviction on one count, acquits on all others. Guenther v. People, 24 N. Y. 100; People v. Dowling, 23 A. L. J. 353. See People v. Fisher, 14 Wend. 9; People v. Ward, 15 id. 231; People v. McGowan, 17 id. 386; People v. Green, 13 id. 55; King v. People, 5 Hun, 297; People v. Richards, 44 id. 288; People v. Peck, 4 N. Y. Cr. 148; People ex rel. Van Houten v. Sadler, 97 N. Y. 146; 3 N. Y. Cr. 471; People v. Miller, 38 Hun, 82; 3 N. Y. Cr. 475; People v. Scully, id. 244; People v. Burch, 5 id 29; People v. Palmer, 109 N. Y. 417; Hartung v. People, 26 id. 167; People v. Reagle, 60 Barb. 627; People v Cignarale, 110 N. Y. 29; People v. Dowling, 84 id. 478; People v. Secley, 37 Hun, 190; 3 N. Y. Cr. 225; 2 How. (N. S.) 105; Grantv. People, 4 Park. 527; Klock v. People, 2 id. 676; People v. Majors, 65 Cal. 138; 52 Am. Rep. 295; McFarland v. State, 68 Wis. 400; 60 Am. Rep. 867; Bell v. State, 48 Ala. 684; 17 Am. Rep. 40; Shular v. State, 105 Ind 289; 55 Am. Rep. 217; People v. Keefer, 65 Cal. 232; People v. Stanley, 47 id. 113; 17 Am. Rep. 401; Bohanan v. State, 18 Neb. 53; 53 Am. Rep. 791; Com. v. Arnold, 83 Ky. 1° 4 Am. St. 114. § 10. No person to be a witness against himself, etc,, or 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 393, post, Fifth Amend, Fed. Const. art. 1, § 6, N. Y. Const. Defendant may be required to answer when it cannot be used against him. Perrine v. Striker, 7 Pai. 598; People ex rel. Hackley v Kelley, 24 N. Y. 74. How a defendant can waive this privilege. Connors v People, 50 N. Y. 240. Witness against himself. People v. Mondon, 103 N. Y. 211; 38 Hun, 198; 4 N. Y. Cr. 123; Connors v. People, 50 N. Y. 240; Brandon v. People, 42 id 571; People v. Brown, 72 id. 571; People v. Crapo, 76 id. 288; People v. Courtney, 94 id. 490; 1 N. Y. Cr. 573; affirming, 31 Hun, 199; 1 N. Y. Cr. 577; People v. Sharp, 107 N. Y. 427. Unnecessary restraint. Ruloff v People, 45 N. Y. 213; People v. Harrington, 42 Cai 165; 10 Am. Rep. 296. Identity by track or exposure of person. State v. Graham, 74 N. C. 646; 21 Am. Rep. 493; State v. Garret, 71 N. C. 85; 17 Am. Rep. 1; Blackwell v. State, 67 Ga. 76; 44 Am. Rep. 717; State v. Sanders, 68 Mo. 202; 30 Am. Rep. 782; Walker v. State, 7 Tex. App. 245; 32 Am. Rep. 595; Campbell v. State, 55 Ala. 80. PART I. OF THE COURTS HAVING ORIGINAL JURISDICTION IN CRIMINAL ACTIONS. TITLE I. OF THE COURTS OF ORIGINAL CRIMINAL JURISDICTION IN GENERAL. II. OF THE COURT FOR THE TRIAL OF IMPEACHMENTS. III. OF THE COURTS OF OYER AND TERMINER. IV. OF THE CITY COURTS. V. OF THE COURTS OF SESSIONS. VI. OF THE COURTS OF SPECIAL SESSIONS AND POLICE COURTS. TITLE I Of the Courts of Original Criminal Jurisdiction in general. SEC. 11. Of the courts of original criminal jurisdiction. 1la. Probation officer; appointment. § 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 supreme court; 3. The county courts in counties other than New York; 4. The city courts of Utica and Oswego; 5. The mayor's court of the city of Hudson; 6. The court of general sessions in the city and county of New York; 7. The courts of special sessions; 8. The police courts. The courts of special sessions and police courts are deemed inferior courts of record, within the section of the constitution which |