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due process of law; nor shall private property be taken for public use without just compensation.
(Const. 1821, art. 7, 8 7; 1846, art. 1, $ 6.)
This section appears for the first time in the Constitution of 1821.
The Constitution of 1777 had secured the right of trial by jury, but, while the grand jury as an English inheritance was an established institution in the colony, the right to a preliminary investigation of an alleged offense before the accused could be put on trial was not guaranteed by the first Constitution. The first colonial assembly, which met in October, 1683, gave its first attention to a declaration of principles; and by the “Charter of Liberties and Privileges," which was its first legislative act, not only affirmed and guaranteed the right of trial by jury, but expressly declared that "in all cases, capital or criminal, there shall be a grand inquest, who shall first present the offense, and then twelve men of the neighborhood to try the offender, who, after his plea to the indictment, shall be allowed his reasonable challenges.” This provision was repeated in the new Charter of Liberties of 1691. This subject during the first constitutional period was under legislative regulation; but in the act passed Janu ary 26, 1787, "concerning the rights of citizens of this state," commonly known as the Bill of Rights, it was declared that “no citizen shall be taken or imprisoned for any offense upon petition or suggestion unless it be by indictment or presentment of good and lawful men of the same neighborhood where such deeds be done, in due manner or by due process of law.” This principle was stated more fully in the 5th Amendment to the Federal
Constitution, and it will be observed that the foregoing section in the state Constitutions is almost identical with the 5th Amendment, with the addition of clauses of a local character, and of a clause taken from the 6th Amendment, relating to the right to counsel. The 5th Amendment was deemed applicable only to Federal cases ; and, by including the provision in the state Constitution, the policy indicated by the Charter of Liberties of 1683, the Bill of Rights of 1787, and by the 5th Amendment was permanently incorporated in our constitutional system.
As originally introduced in the Convention of 1821, the section excepted from the necessity of an indictment "petit larceny, assault and battery, and breaches of the peace;" but after some discussion the exception was confined to petit larceny. Chief Justice Spencer, a member of the committee that presented the section, said the chief object in reporting these provisions was to remove the doubt which had been heretofore expressed of the constitutionality of the existing mode of proceeding in the prosecution of these minor offenses, which required speedy punishment, “and would be too vexatious, and productive of too much delay, to subject to the form of indictments by a grand jury.”
It will be noted that, as adopted in 1821, the section secured the right to counsel only in trials of impeachment or indictment. The Constitution of 1846 extended this right to include "any trial in any court,” and this provision was continued in the Constitution of 1894.
The provision requiring an indictment means "to answer in a course of criminal proceedings,—to answer criminaliter, with a view to punishment under the criminal law; and has no reference whatever to those collateral or incidental proceedings which are discipli
nary in their character, or have exclusive regard to some special character or relation which belongs to the individual.” It was accordingly held that the provision of the Revised Statutes (1 Rev. Stat. 53, $ 7; 1 Rev. Stat. 93, $ 72) authorizing the discipline and expulsion of members of medical societies by a proceeding therein prescribed was constitutional. Re Smith (1833) 10 Wend. 449.
"Where the act was criminal at common law, or already prohibited by a former statute, the imposition of a civil penalty would not take away the power to punish by indictment. So, where the statute itself contains any provisions showing that the legislature did not intend that the civil penalty should constitute the only punishment, the remedy by indictment would not be taken away." The provision in the excise act of 1857, chap. 628, imposing civil penalties for its violation, was not exclusive, but the offender was also punishable by indictment. Behan v. People (1858) 17 N. Y. 516.
Where an offense is by statute divided into degrees, a defendant indicted for the offense in its highest degree may be convicted of a lower degree without a violation of this provision of the Constitution. The legislature has power to provide for such a conviction, and it cannot be said that the defendant is tried without indictment. People v. Didien (1859) 17 How. Pr. 224.
A new indictment is not necessary where a defendant, regularly convicted, escapes from prison, but he may be retaken and recommitted even after the original term has expired, and may be required to serve out the term for which he was sentenced. Such a proceeding does not violate his constitutional rights. Haggerty v. People (1873) 53 N. Y. 476.
An indictment need not necessarily be found in the county where the crime was committed. The legislature has power to provide for an indictment and trial in another county. Mack v. People (1880) 82 N. Y. 235, sustaining 2 Rev. Stat. 727, 50, which authorizes an indictment for burglary and larceny in the county where the offense was committed, or in another county into which the stolen property may be carried.
Sections 277 and 293 of the Code of Criminal Procedure, which authorize the amendment of an indictment by inserting the true name of the defendant if any other name has been used, do not violate this constitutional provision. No security afforded by the Constitution is taken away or impaired; such an amendment can have no “other effect than to promote the ends of justice by rendering of no avail a purely technical objection, without depriving a
defendant of any substantial right.” People v. Johnson (1887) 104 N. Y. 213, 10 N. E. 690.
A peculiar question involving the validity of an indictment arose in People v. Petrea (1883) 92 N. Y. 128. A statute amending the grand jury law of Albany county was declared to be void because it was a local act and obnoxious to $ 18 of article 3 of the Constitution; but the grand jury had been drawn under the statute and presented the indictment under which the defendant was tried. The grand jury was drawn from a list of petit jurors instead of from a special list of grand jurors, prepared as required by statute. The court said the jurors were drawn by the proper officer, were regularly summoned and retained by the sheriff, were recognized, impanéled, and sworn as grand jurors by the court, and as grand jurors found the indictment. Observing that the constitutional provision requiring an indictment had been regarded “as one of the securities of civil liberty," the court say that the “Constitution does not define what shall constitute a grand jury" nor prescribe the mode of its selection. “It is doubtless competent for the legislature to enact such regulations and make such changes respecting the mode of selecting and procuring grand jurors, as it may deem expedient, not trenching, however, upon the essential feature of the system. . The grand jury, although not selected in pursuance of a valid law, were selected under color of law and semblance of legal authority. The defendant in fact enjoyed all the protection which he would have had if the jurors had been selected and drawn pursuant to the general statutes.” The court held that an "indictment found by a jury of good and lawful men, selected and drawn as a grand jury under color of law, and recognized by the court and sworn as a grand jury, is a good indictment by a grand jury within the sense of the Constitution, although the law under which the selection was made is void.”
That part of the prohibitory liquor law of 1855, chap. 231, which prohibited the sale of intoxicating liquor, and provided penalties therefor, did not create an infamous crime. People v. Quant (1855) 12 How. Pr. 83, 88.
RIGHT TO COUNSEL.
Prior to the Constitution of 1846 a person on trial before a courtmartial was not entitled to counsel as a matter of right. The allowance of counsel was within the discretion of the court. The Constitution of 1821, under which this case was decided, secured the right to counsel only in cases of trials of impeachment or indictment. Rathbun v. Sawyer (1836) 15 Wend. 451. The Constitution
of 1846 extended the right to counsel to trials in “any court whatever;" and it was held in People es rel. Gorling v. Von Allen (1873) 55 N. Y. 31, that the amendment included a court-martial, and that therefore a person on trial before such a court was constitutionally entitled to counsel. The court said that “no reason is perceived why counsel should not be allowed before these courts. They are as useful and necessary there as before any other judicial tribunal. The personal character, property, and liberty of the accused are involved, and may be seriously jeoparded if he is deprived of the aid of professional skill and learning.”
A police board, authorized to hear charges against a policeman, and remove him for a violation of the rules of discipline, is not a court within the meaning of this section. "The offense charged is not a violation of a law of the state, or such as is or can be tried in a court of justice." The board had power to prescribe the rules of discipline and to regulate the procedure on charges for a viola-tion of it. People ex rel. Farrell v. Board of Police (1880) 20 Hun 402.
The police commissioners of the city of New York constitute a "subordinate and administrative tribunal, vested with disciplinary powers, and not a court limited in its functions, within the provisions of the Constitution." People ex rel. Flanagan v. Board of Police (1883) 93 N. Y. 97.
A person on trial before a board of police commissioners is not constitutionally entitled to counsel. The allowance of counsel is in the discretion of the board. Such a board is not a court. People ex rel. Fallon v. Police Com'rs (1883) 31 Hun, 209.
A police commissioner on trial before the mayor of New York, who had authority to remove him, was held entitled to be represented by counsel. It was an element of the right to be heard on the charges which was secured to him by the statute. People es rel. New York v. Nichols (1880) 79 N. Y. 582. This rule was applied in People es rel. Compbell v. Hannan (1890) 56 Hun, 469, 10: N. Y. Supp. 71, affirmed in (1890) 125 N. Y. 691, 26 N. E. 751, on the trial of a member of the police force by the police board of
A person summoned as a witness before a legislative committee has no constitutional right to the aid of counsel. People ex rel. McDonald v. Keeler (1885) 99 N. Y. 465. 52 Am. Rep. 49, 2 N. E 615.
This provision gives the defendant "a right to appear and defend in person and with counsel in every part of the trial." It forbids