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§ 5

Bill of Rights

L. 1909, ch. 14

Declaration of Rights of William and Mary (1689, ¶ 7), in the United States Constitution (2d amendment) and in the Revised Statutes of 1828 (Pt. 1, Ch. 4, § 3)."

Carrying and use of dangerous weapon: see PENAL LAW, § 1897.

Federal and state provisions. This section is identical with the second amendment of the Constitution of the United States. The federal Supreme Court has decided that this amendment is a limitation only upon the power of Congress and the national government, and not upon that of the states, and cannot be made to apply to a state statute which forbids bodies of men to associate together as military organizations or to drill or parade with arms in cities and towns unless authorized by law. Presser v. State, (1886) 116 U. S. 252. See also, to the effect that this amendment is not a limitation upon the powers of the states, Ohio v. Dollison, (1904) 194 U. S. 445, 24 S. Ct. 703, 48 U. S. (L. ed.) 1062; Bolln v. Nebraska, (1900) 176 U. S. 83, 20 S. Ct. 287, 44 U. S. (L. ed.) 382, affirming (1897) 51 Neb. 581, 71 N. W. 444; Brown v. New Jersey, (1899) 175 U. S. 172, 20 S. Ct. 77, 44 U. S. (L. ed.) 119; Brown v. Walker, (1896) 161 U. S. 591, 16 S. Ct. 644, 40 U. S. (L. ed.) 819, affirming (1895) 70 Fed. 46; Monongahela Nav. Co. v. United States, (1893) 148 U. S. 312, 13 S. Ct. 622, 37 U. S. (L. ed.) 463; McElvaine v. Brush, (1891) 142 U. S. 155, 12 S. Ct. 156, 35 U. S. (L. ed.) 971; Eilenbecker v. District Court, (1890) 134 U. S. 31, 10 S. Ct. 424, 33 U. S. (L. ed.) 801; Spies v. Illinois, (1887) 123 U. S. 131, 8 S. Ct. 21, 22, 31 U. S. (L. ed.) 80; United States v. Cruikshank, (1875) 92 U. S. 542, 23 U. S. (L. ed.) 588; Fox v. Ohio, (1847) 5 How. 410, 12 U. S. (L. ed.) 213; Barron v. Baltimore, (1833) 7 Pet. 243, 8 U. S. (L. ed.) 672; Livingston v. Moore, (1833) 7 Pet. 469, 8 U. S. (L. ed.) 751; Arkansas v. Kansas, etc., Coal Co., (1899) 96 Fed. 353, reversed and remanded with direction to remand to the state court on the ground of improper removal therefrom (1901) 183 U. S. 185, 22 S. Ct. 47, 46 U. S. (L. ed.) 144; United States v. Rhodes, (1866) 1 Abb. 28, 27 Fed. Cas. No. 16,151; United States v. Hall, (1871) 13 Int. Rev. Rec. 181, 26 Fed. Cas. No. 15,282.

Constitutionality of statute restricting right to bear arms.—A statute, making it a misdemeanor for persons over the age of sixteen to have in their possession, without a permit, firearms which may be concealed, is constitutional and valid as a police regulation and does not violate this section. "The right to keep and bear arms is coupled with the statement why the right is preserved and protected, viz., that'a well regulated militia being necessary to the security of a free state.' (Civil Rights Law, § 4.) If the legislature had prohibited the keeping of arms, it would have been clearly beyond its power. In the statute at bar the legislature has not prohibited the keeping of arms. For the safety of the public, for the preservation of the public peace, in the exercise of the police power, the means employed being within its discretion and not in that of the courts, unless flagrantly in violation of constitutional provisions, the legislature has passed a regulative, not a prohibitory, act. Legislation which has for its object the promotion of the public welfare and safety falls within the scope of the police power and must be submitted to even though it imposes restraints and burdens on the individual." People v. City Prison, (1913) 154 App. Div. 413, 139 N. Y. S. 277.

§ 5. Military service by citizens.- No citizen of this state can be constrained to arm himself, or to go out of this state, or to find soldiers or men of arms, either horsemen or footmen, without the grant and assent of the people of this state, by their representatives in senate and assembly, except in the cases specially provided for by the constitution of the United States.

L. 1909, ch. 14

Bill of Rights

§§ 6-8

The report of the Board of Statutory Consolidation (1907) at page 440 contains a note on this section as follows: "This provision appears in the Petition of Rights (1628, ¶ 1), in the Declaration of Rights (2 Wm. & Mary, 1689, Ch. 2, Art. 4), in the New York Bill of Rights of 1787 and in the Revised Laws of 1813 (Ch. 1, ¶ 12) and the Revised Statutes of 1828 (Pt. 1, Ch. 4, 4)."

Persons subject to military duty: see MILITARY LAW, § 1.

Right to freedom from restraint.-"No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pac. R. Co. v. Botsford, 141 U. S. 251.

Constitution of United States.- By article 1, section 8, of the Federal Constitution Congress has power to provide for organizing, arming and disciplining the militia, and this power being unlimited, except in the two particulars of officering and training them, according to the discipline to be prescribed by Congress, it may be exercised to any extent that may be deemed necessary by Congress. Houston v. Moore, (1820) 5 Wheat. (U. S.) 16.

§ 6. Exemption from military service. All such inhabitants of this state of any religious denomination whatever, as from scruples of conscience may be averse to bearing arms, are to be excused therefrom by paying to the state an equivalent in money; and the legislature is required to provide by law for the collection of such equivalent, to be estimated according to the expense, in time and money, of an ordinary able-bodied militiaman.

The report of the Board of Statutory Consolidation (1907) at page 440 contains a note on this section as follows: "This provision appears in the New York Constitution of 1821 (Art. 7, § 5), the Revised Statutes of 1828 (Pt. 1, Ch. 4, § 5), the New York Constitution of 1846 (Art. 11, § 1) and in somewhat similar language in the New York Constitution of 1894 (Art. 11, § 1). See also Military Code, § 1."

§ 7. Quartering soldiers. No soldier can in time of peace be quartered in any house, without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.

The report of the Board of Statutory Consolidation (1907) at page 440 contains a note on this section as follows: "This provision appears in the Petition of Rights (1628), the New York Bill of Rights Act of 1787 (¶ 13), the United States Constitution (3d amendment), the Revised Acts of 1813 (Ch. 1, ¶ 13) and the Revised Statutes of 1828 (Pt. 1, Ch. 4, § 6).”

§ 8. Right of search and seizure.-The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, ought not to be violated; and no warrants can issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

$ 8

Bill of Rights

L. 1909, ch. 14

The report of the Board of Statutory Consolidation (1907) at page 440 contains a note on this section as follows: "This provision appears in the United States Constitution (4th amendment) and the Revised Statutes of 1828 (Pt. 1, Ch. 4, § 11).”

Provision for issuance of search warrants: see Code Crim. Proc., § 791

et seq.

United States Constitution. This section is identical with the fourth amendment of the Constitution of the United States, with the exception that instead of "ought not to be violated" the Federal Constitution uses the words "shall not be violated." The Supreme Court has frequently decided that this constitutional provision has no application to state process. Ohio v. Dollison, (1904) 194 U. S. 447; Bolln v. Nebraska, (1900) 176 U. S. 87, affirming (1897) 51 Neb. 581; Brown v. New Jersey, (1899) 175 U. S. 174; Brown v. Walker, (1896) 161 U. S. 606, affirming (1895) 70 Fed. Rep. 46; Monongahela Nav. Co. v. U. S., (1893) 148 U. S. 324; McElvaine v. Brush, (1891) 142 U. S. 158; Eilenbecker v. Plymouth County, (1890) 134 U. S. 34; Spies v. Illinois, (1887) 123 U. S. 131, 166; Edwards v. Elliott, (1874) 21 Wall. (U. S.) 552, 557; Fox v. Ohio, (1847) 5 How. (U. S.) 410, 434; Barron v. Baltimore, (1833) 7 Pet. (U. S.) 243, 247; Livingston v. Moore, (1833) 7 Pet. (U. S.) 551. This amendment has no reference to civil proceedings for the recovery of debts of which a search warrant is not made a part. Murray v. Hoboken Land, etc., Co., (1855) 18 How. (U. S.) 274. For the intimate relation between the fourth and the fifth amendments, see Boyd v. U. S., (1886) 116 U. S. 633, the leading case dealing with the compulsory production of books and papers. See also for the construction of this amendment Ex p. Jackson, (1877) 96 U. S. 733; Interstate Com. Com. v. Baird, (1904) 194 U. S. 44; In re Chapman, (1897) 166 U. S. 669; Adams v. New York, (1904) 192 U. S. 597; Flint v. Stone Tracy Co., 220 U. S. 107, 31 S. Ct. 342, 55 U. S. (L. ed.) 389; American Lithographic Co. v. Werckmeister, 221 U. S. 603, 31 S. Ct. 676, 55 U. S. (L. ed.) 873; Baltimore, etc., R. Co. v. Interstate Commerce Commission, 221 U. S. 612, 31 S. Ct. 621, 55 U. S. (L. ed.) 878; Consolidated Rendering Co. v. Vermont, 207 U. S. 541, 28 S. Ct. 178, 52 U. S. (L. ed.) 327, 12 Ann. Cas. 658; Hammond Packing Co. v. Arkansas, 212 U. S. 322, 29 S. Ct. 370, 53 U. S. (L. ed.) 530, 15 Ann. Cas. 645; Wilson v. United States, 221 U. S. 361, 31 S. Ct. 538, 55 U. S. (L. ed.) 771, Ann. Cas. 1912D 558.

Necessary allegations in warrant.— A warrant issued on a complaint upon "information and belief" is insufficient to confer jurisdiction upon the magistrate issuing it, and is void as an unreasonable seizure. "A police officer, nor any other person, may not cause the arrest of any one on a mere allegation of information and belief. Human liberty was never so cheap as that under our law, or the system from which we derived the main body of our law. The commission of a crime must be shown by facts positively stated before a magistrate has jurisdiction to issue a warrant of arrest." But this defect in the warrant may be cured by the accused standing trial without raising objection. Matter of Blum, (1894) 9 Misc. 571, 30 N. Y. S. 396. To same effect, see Comfort v. Fulton, (1861) 39

Barb. 56.

Subpoena duces tecum.-This section " was not intended to interfere with the power of the courts to compel, through a subpœna duces tecum, the production upon a trial in court, of documentary evidence." In re Mohawk Overall Co., (1914) 210 N. Y. 474, 104 N. E. 925, affirming 156 App. Div. 879, 140 N. Y. S. 1132. The power given the commissioners of account of New York city to issue subpoenas duces tecum does not repeal, by implication, this section. "In view of the clear and forcible provisions of the Civil Rights Law of this state above referred to so consonant with every principle thereof, in view of the great care with which the legislature has circumscribed even the power of the Supreme Court in compelling discovery,

L. 1909, ch. 14

Bill of Rights

§§ 9-11

we should hesitate to hold that by this charter provision it was the intention of the legislature to repeal by implication the beneficent provisions of this statute against unreasonable search and seizure and to confer upon the commissioners of accounts of the city of New York a power far in excess of that conferred upon any tribunal or official - a power so extreme as to be despotic in its character." Matter of Foster, (1910) 139 App. Div. 769, 124 N. Y. S. 667.

Due process of law. To constitute due process of law it must be shown that the papers sought to be examined are material to the matter lawfully under consideration. Matter of Foster, (1910) 139 App. Div. 769, 124 N. Y. S. 667.

Search of safe deposit box. A court cannot issue an order allowing a receiver to examine the contents of a safe deposit box, where such box is held in the name of the debtor and a third person. Ehrich v. Root, (1909) 134 App. Div. 432, 119 N. Y. S. 395.

§ 9. Freedom of elections.-All elections ought to be free; and no person by force of arms, malice, menacing, or otherwise, should presume to disturb or hinder any citizen of this state in the free exercise of the right of suffrage.

The report of the Board of Statutory Consolidation (1907) at page 441 contains a note on this section as follows: "This provision appears in the Declaration of Rights (2 Wm. & Mary, Ch. 2, 1689, Art. 8), the New York Bill of Rights of 1787 (9), the Revised Laws of 1813 (Ch. 1, 9) and the Revised Statutes of 1828 (Pt. 1, Ch. 4, § 18)."

Elective franchise and crimes against freedom of elections: see PENAL LAW, 88 750-782.

Power of government to keep elections free. The government "must have the power to protect the elections, on which its existence depends, from violence and corruption." Ex p. Yarbrough, 110 U. S. 657. The legislature may make laws ever so stringent to prevent the corrupt use of money in elections, or in political matters generally, or to prevent what are called political assessments on government employees, or any other exercise of undue influence over them by government officials or others." Bradley, J., in Ex p. Curtis, 106 U. S. 378.

§ 10. Justice to be administered without favor and speedily.— Neither justice nor right should be sold to any person, nor denied, nor deferred; and writs and process ought to be granted freely and without delay, to all persons requiring the same, on payment of the fees established by law.

The report of the Board of Statutory Consolidation (1907) at page 441 contains a note on this section as follows: "This provision appears in Magna Charta (¶ 40), New York Constitution 1787 (¶ 6), Revised Acts (16) and Revised Statutes (Pt. 1, Ch. 4, § 15)."

§ 11. Fines must be reasonable and imposed only for cause.No citizen of this state ought to be fined or amerced without reasonable cause, and such fine or amercement should always be proportioned to the nature of the offense.

$ 12

Bill of Rights

L. 1909, ch. 14

The report of the Board of Statutory Consolidation (1907) at page 441 contains a note as follows: "This provision appears in Magna Charta (¶¶ 20, 21, 22), in New York Bill of Rights 1787 (¶ 7), Revised Acts (¶ 7) and Revised Statutes (Pt. 1, Ch. 4, § 16)."

Excessive bail and fines, and cruel and unusual punishment: see CONSTITUTION, art. 1, § 5.

§ 12. Rights of persons accused of crime.— In all criminal prosecutions, the accused has a right to a speedy and public trial, by an impartial jury, and is entitled to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; and to have compulsory process for obtaining witnesses in his favor. An alien is not entitled to a jury, composed in part of aliens or strangers, in an action or special proceeding civil or criminal.

The report of the Board of Statutory Consolidation (1907) at page 441 contains a note on this section affecting the first sentence as follows: "This provision appears in United States Constitution (6th amendment) and Revised Statutes (Pt. 1, Ch. 4, § 14)."

The second sentence was taken from Code Civ. Proc. § 1190.

Right to speedy trial: Remedy of accused not brought to trial within constitutional or statutory period. Ann. Cas. 1912D 1273. Right of a person accused of crime to a speedy trial. 85 Am. St. Rep. 187; 17 Ann. Cas. 170. Delay in prosecution as ground for the discharge of the accused. 56 L. R. A. 513. Public trial: Right of criminal court to exclude persons from court room. 9 Ann. Cas. 111; 44 L. R. A. (N. S.) 583; 9 L. R. A. 277. What are infringements upon right to public trial. 28 Am. St. Rep. 308. Confrontation with witnesses: Depositions in criminal cases. Ann. Cas. 1916A 1066. Right of accused to be confronted with witnesses and what is an invasion of that right. 129 Am. St. Rep. 23; Ann. Cas. 1913D 673. Compulsory process for obtaining witnesses: Power to regulate or restrict right to compulsory process. 8 L. R. A. (N. S.) 509.

Confrontation of witnesses.-The right of the accused to be confronted with his accuser exists only on the trial of the criminal charge. People v. City Prison, 154 App. Div. 728, 139 N. Y. S. 828. And it is subject to the qualification that if, in a preliminary examination before the indictment or trial, the accused has been confronted with his accuser and has had an opportunity to cross-examine him through counsel, then the testimony of the accuser, so taken in the preliminary examination, may be used at the trial, provided such witness is at that time dead or beyond the jurisdiction of the court. People v. Fish, (1891) 125 N. Y. 136, 26 N. E. 319; People v. City Prison, 154 App. Div. 728, 139 N. Y. S. 828; People v. Vitusky, 155 App. Div. 139, 140 N. Y. S. 19. A statute is constitutional which provides that, where the accused, in a criminal prosecution, has been confronted with and has cross-examined the witnesses against him at a preliminary examination, the deposition of a witness may be used at the trial upon indictment if such witness be dead, insane, or cannot be found. People v. Williams, (1885) 35 Hun 516.

In New York county, by the provisions of the Code of Criminal Procedure, a transcript of the stenographer's minutes of the preliminary examination may be read at trial instead of the deposition, where neither the defendant nor the district attorney raises objection. People v. Vitusky, (1913) 155 App. Div. 139, 140 N. Y. S. 19.

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