§ 488. Judgment of imprisonment, by whom and how executed. When the judgment is imprisonment in a county jail, or a fine and that the defendant be imprisoned until it be paid, the judgment must be executed by the sheriff of the county. In all other cases, when the sentence is imprisonment, the sheriff of the county must deliver the defendant to the proper officer, in execution of the judgment.

§ 489. Duty of sheriff. — If the judgment be imprisonment, except in a county jail, the sheriff must deliver a copy of the entry of the judgment upon the minutes of the court, together with the body of the defendant, to the keeper of the prison, in which the defendant is to be imprisoned.

§ 490, Sheriff may require aid. — The sheriff or his deputy, while conveying the defendant to the proper prison, in execution of a judgment of imprisonment, has the same authority to require the assistance of any citizen of this state, in securing the defendant, and in retaking him if he escape, as if the sheriff were in his own county; and every person who refuses or neglects to assist the sheriff, when so required, is punishable, as if the sheriff were in his own county.

TITLE X.

General Provisions in Relation to the Punishment of Crimes.

CHAPTER. I. The death penalty.

II. Second offenses, habitual criminals, and special penal discipline.

CHAPTER I.

THE DEATH PENALTY.

SEC. 491. Warrant for execution of convict.

492. Time of execution.

493. Judge must transmit certain papers to governor.
494. Governor may consult judges, etc.

SEC. 495. Governor only to reprieve, etc., except as provided in the following sections.

496. If convict becomes insane, sheriff to impanel jury. 497. Duty of district attorney.

498. Inquisition; suspension of execution.

499. Sheriff to transmit inquisition to governor; governor's duty.

500. If female convict is pregnant, sheriff to impanel jury of physicians.

501. Inquisition; suspension of execution.

502. Sheriff to transmit inquisition to governor; governor's duty.

503. When day of execution has passed, convict to be
brought up by warrant.

504. Court to inquire, etc.; when to direct execution.
505. Death penalty; mode of infliction.

506. Id.; where inflicted.

507. Id.; who to be present.

508. Id.; certificate after execution.

509. Id.; when inflicted by sheriff in an adjoining county.

§ 491. Death warrant. When a defendant is sentenced to the punishment of death, the judge or judges holding the court at which the conviction takes place, or a majority of them, of whom the judge presiding must be one, must make out, sign and deliver to the sheriff of the county, a warrant, stating the conviction and sentence, and appointing the day upon which the sentence must be executed.

§ 492. Time of execution.-The day so appointed must be not less than four weeks and not more than eight weeks after the sentence.

Execution may take place before expiration of a previous sentence. Thomas v. Peo., 67 N. Y., 218.

493. Judge must transmit papers to governor. The judge, presiding at the term at which the conviction took place, must immediately thereupon transmit to the governor a statement of the conviction and sentence, with the notes of testimony taken upon the trial by him or the notes, written out, taken by a stenographer or assistant stenographer, attending the court or term pursuant to law.

§ 494. Governor may consult judges, etc. -The governor is authorized to require the opinion of the

.

judges of the court of appeals, justices of the supreme court, and the attorney-general, or of any of them, upon a statement so furnished.

(495. Governor only to reprieve, except, etc.— No judge, court, or officer, other than the governor, can reprieve or suspend the execution of a defendant sentenced to the punishment of death, except where a sheriff is authorized so to do, in a case and in the manner prescribed in the following sections of this chapter. This section does not apply to a stay of proceedings upon an appeal or writ of error.

§ 496. Insane convicts. —If, after a defendant han been sentenced to the punishment of death, there is reasonable ground to believe that he has become insane, the sheriff of the county in which the conviction took place, with the concurrence of a justice of the supreme court, or the county judge of the county, who may make an order to that effect, must impanel a jury of twelve persons of that county, qualified to serve as jurors in a court of record, to examine the question of the sanity of the defendant. The sheriff must give at least seven days' notice of the time and place of the meeting of the jury to the district attorney of the county. Section 108 of the Code of Civil Procedure regulates the impaneling of such a jury, and the proceedings upon the inquisition so far as it is applicable.

§ 497. Duty of district attorney. The district attorney must attend the inquiry. He may produce witnesses before the jury; for which purpose he has the same power to issue subpoenas, as for witnesses to attend a grand jury, and disobedience thereto may be punished by the court of oyer and terminer for that county, at any term thereof, in the same manner as disobedience to process issued by that court.

$498. Inquisition; suspension of execution. The inquisition of the jury must be signed by the jurors and the sheriff. If it be found by the inquisition that

the defendant is insane, the sheriff must suspend execution of the warrant directing the defendant's death, until he receives a warrant from the governor, directing that the defendant be executed.

§ 499. Sheriff to transmit inquisition to governor; governor's duty.-The sheriff must immediately transmit the inquisition to the governor; who, as soon as he is satisfied of the sanity of the defendant, or of his restoration to sanity, must issue his warrant, appointing a time and place for the execution of the latter, pursuant to his sentence, unless the sentence is commuted or the convict pardoned, and may in the meantime give directions for the disposition and custody of the defendant.

§ 500. If female convict is pregnant.—If there is reasonable ground to believe that a female defendant, sentenced to the punishment of death, is pregnant, the sheriff of the county where the conviction took place must impanel a jury of six physicians to inquire into her pregnancy. Sections 497 and 498 of this Code apply to the proceedings upon the inquisition, except that the sheriff may, in his discretion, require one or more of the physicians composing the jury to attend from an adjoining county. A physician, acting as a juror upon such an inquisition, need not be qualified to serve as a juror in a court of record.

§ 501. Suspension of execution.-The inquisition of the jury must be signed by the jurors and the sheriff. If it is found by the inquisition that the defendant is quick with child, the sheriff must suspend the execution of the warrant directing her execution, until he receives a warrant from the governor, directing that the convict be executed.

§ 502. Sheriff to transmit inquisition to governor; governor's duty.-The sheriff minst immediately transmit the inquisition to the governor, who, as soon as he is satisfied that the defendent is no longer quick with child, may issue his warrant, appointing a time and place for her execution, pursuant to her sentence, or may commute her punishment to imprisonment for life.

503. When day of execution has passed.— Whenever, for any reason, other than insanity or pregnancy, a defendant, sentenced to the punishment of death, has not been executed pursuant to the sentence, at the time specified thereby, and the sentence or the judgment inflicting the punishment stands in full force, the supreme court, or a justice thereof, upon application by the attorney-general, or of the district attorney of the county where the conviction was had, must make an order, directed to the sheriff, commanding him to bring the convict before a general term of the supreme court in the department, or a term of a court of oyer and terminer in the county, where the conviction was had. If the defendant be at large, a warrant may be issued by the supreme court, or a justice thereof, directing any sheriff or other officer to bring the defendant before the supreme court at a general term thereof, or before a term of the court of oyer and terminer, in that county.

Moett v. Peo., 85 N. Y., 373.

§ 504. Court to inquire, etc.; when to direct execution. Upon the defendant being brought before the court, it must inquire into the circumstances, and if no legal reason exists against the execution of the sentence, it must issue its warrant to the sheriff of the proper county, under the hands of the judge or judges, or of a majority of them, of whom the judge presiding must be one, commanding the sheriff to do execution of the sentence, upon a day appointed therein. The warrant must be obeyed by the sheriff accordingly.

§ 505. Death penalty; mode of infliction.-The punishment of death must in every case be inflicted by hanging the convict by the neck until he is dead.

§ 506. Id.; where inflicted.-The punishment of death must be inflicted within the walls of the prison of the county in which the conviction of the person sentenced took place, or within a yard or inclosure adjoining thereto. For the purposes of this section, the prison" is defined to be the jail appointed by law for

66