THE CODE

OF

CRIMINAL PROCEDURE.

AN ACT

To Establish a Code of Criminal Procedure.

The People of the State of New-York, represented in Senate and Assembly, do enact as follows:

PRELIMINARY PROVISIONS.

SECTION 1. Title of the code.

2. Divisions of the code,

3. Definition of a public offence.

4. Division of public offences.

5. Definition of a felony.

6. Definition of a misdemeanor.

7. No person punishable, but on legal conviction.

8. Publie offences, how prosecuted.

9. Criminal action defined.

10. Parties to a criminal action.

11. The party prosecuted known as defendant.

12. Rights of defendant, in a criminal action.

13. Second prosecution for the same offence, prohibited.

14.

No person to be a witness against himself, in a criminal action, or to be unnecessarily restrained.

15. No person to be convicted, but upon verdict or judgment.

§ 1. This act shall be known as THE CODE OF CRIMINAL

PROCEDURE OF THE STATE OF NEW-YORK.

§ 2. This code is divided into seven parts.

The first relates to the courts having original jurisdiction of criminal actions.

The second relates to the prevention of public offences.

The third relates to 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 the police courts. The sixth relates to special proceedings of a criminal nature.

The seventh relates to costs in criminal actions, and in proceedings of a criminal nature.

§3. A crime or public offence is an act or omission forbidden by law, and to which is annexed, upon conviction, either of the following punishments:

1. Death:

2. Imprisonment:

3. Fine:

4. Removal from office: or,

5. Disqualification to hold and enjoy any office of honor, trust or profit under this state.

This section embraces the definition of a public offence, in accordance with that given by Mr. Livingston, Crim. Code, p. 375, art. 75, except that it is adapted to the punishments prescribed by the statutes of this state. It includes also, under the head of crimes or public offences, all violations of public law, whether punishable by death, imprisonment or

fine, or by removal from office, coupled with a disqualification to hold or enjoy any office of honor, trust or profit, under this state.

34. Public offences are divided into,

1. Felonies: and,

2. Misdemeanors.

This is in conformity with the existing law.

§ 5. A felony is a public offence, punishable with death, or which is, or in the discretion of the court may be, punishable by imprisonment in a state prison.

The definition here given is more comprehensive than that given by the Revised Statutes. The provision there is: "The term 'felony,' when used in this act, or in any other statute, shall be construed to mean an offence for which the offender, on conviction, shall be liable by law to be punished by death or by imprisonment in a state prison."

3d ed., 789, sec. 33.

2 R. S.

It was held by the supreme court, in Ward v. The People, 3 Hill, 295, and by the court of errors, in the same case, 6 Hill, 144, that under this provision, statute felonies alone were defined, and that offences which were felonies at common law, (as for example, petit larceny,) still remained so, though not punishable by imprisonment in a state prison; though it was admitted that the legislature did not intend such a distinction. The proposed provision obviates the distinction, and establishes a rule applicable to all crimes, whether at common law or by statute.

6. Every other public offence is a misdemeanor.

This section carries out the rule prescribed in the last.

§ 7. No person can be punished for a public offence, except upon legal conviction in a court having jurisdiction thereof.

Declaratory of the common law, and conformable in substance, to chap. 2, sec. 1, of the penal code reported for Massachusetts, in 1844.

§ 8. Every public offence must be prosecuted by indictment, except,

1. Where proceedings are had for the removal of a civil officer of the state, on an impeachment by the assembly, for wilful or corrupt misconduct in office :

2. Where proceedings are had for the removal of justices of the peace, p lice justices, and justices of justices' courts, and their clerks:

3. Offences 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. Petit larceny, not charged as a second offence:

5. Assault and battery, not charged to have been committed riotously, or upon a public officer in the execution of his duties:

6. Poisoning, killing, maiming, wounding, or cruelly beating an animal:

7. Racing animals, within one mile of the place where a court is held:

8. Committing a wilful trespass, or severing any produce or article from the freehold, not amounting to grand larceny:

ent

9. Selling poisonous substances, not labelled as required by statute:

10. Maliciously removing, altering, defacing, or cutting down monuments or marked trees:

11. Maliciously breaking, destroying or removing mile stones, mile-boards or guide-boards, or altering an inscription thereon:

The constitution, art. 1, sec. 6, provides that "no person shall be held to answer for a capital or otherwise infamous crime (except in cases of impeachment, and in cases of the militia, when in actual service; and the land and naval forces in time of war, or which this state may keep, with the consent of congress, in time of peace; and in cases of petit larceny, under the regulation of the legislature,) unless on presentment or indictment, of a grand jury.”

Under a similar provision in the constitution of 1821, art. 7, sec. 7, the legislature gave jurisdiction to the courts of special sessions, which proceeded without indictment, of the cases mentioned in this section from subdivision 4 to subdivision 11, both inclusive. 2 R. S., 3d ed. 798, sec. 1.

The cases excepted in the first subdivision are those which, by the constitution, art. 6, sec. 1, are punishable by impeachment. Those in the second subdivision, are included in that part of the constitution which provides that justices of the peace and judges or justices of inferior courts not of record, and their clerks, may be removed after due notice, and an opportunity of being heard in their defence, by such county, city or state courts, as may be prescribed by law, for causes to be assigned in the order of removal." Art. 6, sec. 17. In this subdivision, the terns used are "justices of the peace, police justices and justices of justices' courts." This difference in phraseology is in accordance with section 12 of the code of civil procedure, by which all the courts of justice of this state, are declared to be "courts of record, except that justices' and police courts are deemed inferior courts not of record, within the section of the constitution," just referred to; and with section 16, of this code, by which, in reference to the enumeration of the courts of original criminal