Excessive bail and fines.-§ 5. Excessive bail shall not be required nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted, nor shall witnesses be unreasonably detained.

[Section 1 of article I of the amended constitution of 1846, without change.]

The following is a history of the constitutional provision against cruel and unusual punishment found in the case of Matter of Bayard, 25 Hun, 546, opinion of Rumsey, J.: "We first find the injunction against cruel and unusual punishment in the Declaration of Rights, presented by the convention to William and Mary before settling the crown upon them in 1688. That declaration recites the crimes and errors which had made the revolution necessary. These recitals consist of the acts only of the former king and the judges appointed by him, and one of them was that illegal and cruel punishment had been inflicted. (Stephen's Eng. Const. 44.) The punishments complained of were the pillories, slittings and mutilations which the corrupt judges of King James had inflicted without warrant of law, and the declaration was aimed at the acts of the executive, for the judges appointed by him, and removable at pleasure, were practically part of the executive. It clearly did not then refer to the degree of punishment, for the criminal law of England was at that time disgraced by the infliction of the very gravest punishment for slight offenses, even petit larceny then being punishable with death. But the declaration was intended to forbid the imposition of punishment of a kind not known to the law, or not warranted by the law."

The provision as to excessive bail only applies to criminal actions. (People v. Tweed, 13 Abb. [N. S.] 148.)

While the legislature has established a general maximum punishment throughout the state for a crime, it may change or increase the punishment as to particular locallties. (Matter of Bayard, 25 Hun, 546.)

Disqualification from holding office is not an unconstitutional punishment for a crime. (Barker v. People, 20 Johns. 457.)

This section confers power upon the courts to declare void acts of the legislature prescribing punishments for crime, in fact cruel and unusual. (People ex rel. Kemmler V. Durston, 119 N. Y. 569.)

But the act of 1888, chapter 489, providing for the infliction of the death penalty by means of electricity, is constitutional. (Id.)

Bill of rights.- § 6. No person shall be held to answer for a capital or otherwise infamous crime (except in cases of impeachment, and in cases of 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, and in any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions. No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law; nor shall private prperty be taken for public use, without just compensation.

[Section 6 of article I of the constitution of 1846, without change.]

Indictment of grand jury. This provision has reference to criminal proceedings only, with a view to

punishment under the criminal law. (Matter of Smith, 10 Wend. 449.)

The bill or rights must be interpreted in light of the law as it was when the bill was adopted, and though indictments could generally be tried only in the county where the offense was committed, there were exceptions by virtue of legislative enactment. (Mack v. People, 82 N. Y. 235; People v. Dowling, 84 id. 478.)

An indictment found by a grand jury drawn under a void act is the indictment of a de facto grand jury selected and organized under the forms of law and therefore valid. (People v. Petrae, 92 N. Y. 128.)

Provision of Code of Criminal Procedure allowing amendment to indictment, by direction of court, without prejudice to defendant, is constitutional. (People v. Johnson, 104 N.

Y. 213.)

Right to counsel, etc.- A prisoner confined in jail has a constitutional right to private interview with counsel, even before indictment. (People ex rel. v. Risely, 13 Abb. N. C. 186.)

The right to appear and defend with counsel cannot be denied an accused person in courts-martial. (People ex rel. v. Van Allen, 55 N. Y. 31.)

But such right is not given a policeman accused before, a board of police commissioners. (People ex rel. v. Police Commissioners, 31 Hun, 209.)

It is wrong to permit a jury to visit place where crime was committed without attendance of defendant or his counsel. (People v. Palmer, 43 Hun, 397.)

Twice in jeopardy.- A new trial cannot be granted where the defendant has been acquitted. (People v. Comstock, 8 Wend. 549.)

A writ of error will not lie in behalf of the people after judgment for defendant in a criminal case. (People v. Corning, 2 N. Y. 9.)

May be tried again where plea to jurisdiction has been raised and prisoner discharged. (Gardiner v. People, G

Park. 155, 190.)

A prisoner against whom a wrong judgment was pronounced upon a regular trial and conviction, cannot be subjected to another trial. (Shepherd v. The People, 25 N. Y. 406; see also, in this connection, Hartung v. People, 22 N. Y. 95; S. C. 26 id. 167.)

An arrest of judgment after conviction upon the ground of mistake is no bar to trial for same offense. (People v. Casborus, 13 Johns. 351.)

Where a jury failed to agree upon a verdict in a criminal case, and jury was discharged, the defendant may be tried again. (People v. Goodwin, 18 Johns. 187); and where jury separated without authority before rendering a verdict a new trial could be had. (People v. Reagle, 60 Barb. 527.)

A new trial may be had upon the reversal of a conviction at the instance of the defendant, since the jeopardy is incurred with the consent of and as a privilege granted to the defendant upon his application. (People v. Palmer, 109 N. Y. 413; People v. Rudolff, 5 Park. 77.)

Where the defendant was acquitted upon some counts in an indictment and convicted on another, the reversal of the conviction does not disturb the acquittal and defendant can only be retried upon the count in which the verdict of conviction was rendered. (People v. Dowling, 84 N. Y. 478.)

To sustain the plea of a former acquittal it must appear that the party was "put in jeopardy by the former trial; so if indictment was defective in former trial it is no bar. (Canter v. People, 1 Abb. Dec. 305.)

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.)

The provisions of L. 1886, chap. 21, authorizing the governor to commute a sentence of imprisonment with a condition of serving out the full term upon conviction of a subsequent felony, does not conflict with the provision that no one shall be twice in jeopardy for the same offense. (People ex rel. Willis v. Sage, 11 App. Div. 4.) (1896.)

Witness against himself.- By this provision no one is to be compelled in any judicial or other proceeding against

himself, or upon the trial of issues between others, to disclose facts or circumstances that can be used against him as admissions tending to prove his guilt or connection with any criminal offense of which he may then or afterward be charged. (People ex rel. Taylor v. Forbes, 143 N. Y. 219, 228.)

A witness is not protected in a criminal case against another from being compelled to give testimony which implicates him in a crime when he has been protected by statute against the use of such testimony on his Own trial. (People ex rel. v. Kelly, 24 N. Y. 74, citing Perine v. Pixley, 7 Paige, 598; People v. Sharp, 107 N. Y. 427.) Law of 1869, chap. 678, providing that accused "shall at his own request, but not otherwise, be deemed a competent witness" is constitutional. (People v. Courtney, 94 N. Y. 490.)

By consenting to become a witness under the above act, defendant waives constitutional protection and subjects himself to the rules and tests applicable to other witnesses. (Connors v. People, 50 N. Y. 240; Brandon v. People, 42 id. 265.)

Compelling a defendant in a criminal case to stand up for identification by a witness does not compel him to give evidence against himself. (People v. Gardner, 144 N. Y. 119.) (1894.)

Privilege of witness, see Matter of Attorney-General, 21 Misc. Rep. 101 (1897); affirmed but not on this point, 22 App. Div. 285.

Due process of law. Due process of law requires that a party shall be properly brought into court and shall there have an opportunity to be heard. The legislature has the right to take away a particular form of remedy and to give a new one. (People ex rel. v. Supervisors, 70 N. Y. 228.)

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Due process of law" cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt or determining the title to property. (Taylor v. Porter, 4 Hill, 140.)