the hearing by the jury of any evidence in the absence of himself and his counsel, without his consent. People v. Palmer (1887) 43 Hun, 397.

This subject was considered in People v. Thorn (1898) 156 N. Y. 286, 42 L. R. A. 368, 50 N. E. 947, and it was there held that the view of premises, authorized by §§ 411 and 412 of the Code of Criminal Procedure, was not a part of the trial, that it was not the taking of evidence, and that the view might be had without the presence of the defendant or his counsel, who might waive the right to be present.

The right applies before indictment and while the defendant is in jail awaiting the action of the grand jury; and in People ex rel. Burgess v. Riseley (1883) 13 Abb. N. C. 186, Justice Westbrook granted an order allowing a private consultation between the defendant and his counsel. A person accused of crime is entitled to the benefit of counsel at every stage of the proceeding.

TWICE IN JEOPARDY.

Competent court.-Where a verdict of conviction was set aside on the ground that the court had no jurisdiction because one member of it was related to the defendant within the prohibited degrees, such verdict is not a bar to another trial on the same indictment. The defendant had not been in jeopardy in the constitutional sense; that term implies that he was on trial before a court of competent jurisdiction. People v. Connor (1894) 142 N. Y. 130, 36 N. E. 807. Concurrent jurisdiction of Federal courts.-It seems that if an offense is punishable under Federal law and also under state law, a conviction in one jurisdiction is not a bar to a prosecution in the other. People v. Welch (1893) 74 Hun, 474, 26 N. Y. Supp. 694, affirmed in (1894) 141 N. Y. 266, 24 L. R. A. 117, 38 Am. St. Rep. 793, 36 N. E. 328.

Correcting judgment.-According to Shepherd v. People (1862) 25 N. Y. 406, it seems that the court at that time did not have power to correct an erroneous judgment entered on a lawful conviction, but that rule has been changed by 8 543 of the Code of Criminal Procedure. In this case the judgment was reversed and the prisoner discharged on the ground that, an erroneous judgment having been pronounced, he could not be subjected to another trial, although the first conviction was regular. This defect in procedure was cured

in part by the act of 1863, chap. 226, which authorized the appellate

court, in case an erroneous judgment had been pronounced on a legal conviction, to remit the case to the court below, with directions to pronounce the proper judgment. This course was adopted in Hussy v. People (1867) 47 Barb. 503.

Where a defendant had been legally and regularly convicted, but the proper sentence was not pronounced, the court of appeals, acting under statute authority, remitted the record to the oyer and terminer, with directions to pronounce the proper sentence. The defendant was not by this proceeding put twice in jeopardy. Ratzky v. People (1864) 29 N. Y. 124.

Discharge of jury.-Where, on the trial of an indictment, a juror was improperly withdrawn on the district attorney's motion, and the defendant was convicted on another trial on the same indictment, which was said to be erroneous, and the defendant was discharged, it was held, in People v. Barrett (1806) 1 Johns. 66, that this was no bar to another trial on a new indictment. The same case is reported in (1805) 2 Caines, 304, 2 Am. Dec. 239, and it was there held that the withdrawal of a juror on the district attorney's motion, because he was unable to produce certain testimony, was a bar to another trial on the same indictment. It will be observed that it was said in the case, as reported in 1 Johns. 66, that the indictment was defective, and could not have been made the basis of a legal conviction.

The same subject was considered in Grant v. People (1860) 4 Park. Crim. Rep. 527, where it was said that an arbitrary discharge of a jury, in the absence of circumstances calling for an exercise of discretion by the court, is a bar to a second trial. Klock v. People (1856) 2 Park. Crim. Rep. 676.

In Burns v. People (1848) 1 Park. Crim. Rep. 182, a defendant who had been convicted of assault and battery was held liable to another indictment for manslaughter on the subsequent death of the person assaulted. People v. Casborus (1816) 13 Johns. 351, an arrest of judgment does not prevent a second trial on the same indictment.

Where the jury is discharged either on a failure to agree or for any other lawful reason, the defendant may be again tried before another jury, and he is not thereby put twice in jeopardy. People Olcott (1801) 2 Johns. Cas. 301, 1 Am. Dec. 168; People v. Reagle (1871) 60 Barb. 527; People v. Denton (1801) 2 Johns. Cas. 275; People v. Goodwin (1820) 18 Johns. 187, 9 Am. Dec. 203, where the court said that while the first jury was deliberating on the case the defendant was not legally in jeopardy. "He has not been tried for

the offense imputed to him; to render the trial complete and perfect, there should have been a verdict either for or against him." It will be noted that this case was decided before the provision against being put twice in jeopardy was included in the state Constitution. King v. People (1875) 5 Hun, 297, where the first jury was discharged because the defendant had not been properly arraigned.

New trial. Where, on a trial on an indictment on different counts, there is a specific verdict of guilty on one count, and the verdict is silent as to the other counts, and there is a conviction on the verdict of guilty, it is a bar to further prosecution on the counts on which the verdict is silent, and a reversal of the conviction on appeal does not subject the defendant to another trial for the offense of which he has been acquitted. "He asks a correction of so much of the judgment as convicted him of guilt. He is not to be supposed to ask correction or reversal of so much of it as acquitted him of offense. He, therefore, waives his privilege as to one, and keeps it as to the other." The acquittal still stands good and is a bar to another trial for that offense. People v. Dowling (1881) 84 N. Y. 478, in which it is said that the question had not been decided before in that court, except that Guenther v. People (1861) 24 N. Y. 100, is cited as authority for the rule that a specific conviction for one offense on a general trial involving several offenses is in effect an acquittal of others; but the conviction was affirmed, and the effect of the acquittal as a bar was therefore not directly involved in the result.

Another aspect of the constitutional provision was presented in People v. Palmer (1888) 109 N. Y. 413, 4 Am. St. Rep. 477, 17 N. E. 213. in which the defendant was indicted for assault in the first degree and convicted of assault in the third degree. This conviction was reversed, and the defendant claimed that the reversal was a bar to another trial for the higher offense. Discussing this question and construing 8 464 of the Code of Criminal Procedure, which provides that "the granting of a new trial places the parties in the same position as if no trial had been had," and that "all the testimony must be produced anew, and the former verdict cannot be used or referred to, either in evidence or in argument," the court say that "the effect of the defendant's appeal is merely to continue the trial under the indictment in the appellate court, and if reversal of the judgment of conviction follows, that judgment, as well as the record of the former trial, have been annulled and expunged by the judgment of the appellate court, and they are as though they

as

never had been; while the indictment is left to stand as to the crime of which the prisoner had been charged and convicted, as though there had been no trial." The defendant, by his appeal, waives the constitutional protection and asks for a new trial, and the court say that it is a self-evident proposition that no constitutional right of the party is thereby invaded. The second jeopardy is incurred with the defendant's consent. "The case stands though there had been no trial; the record is expunged and there is no determination in regard to the matter but the judgment of the appellate court." The defendant must be tried again on the original indictment, for he himself has removed the constitutional bar against another trial. See also People v. Wheeler (1903) 79 App. Div. 396, 397, 79 N. Y. Supp. 454; People v. Rulloff (1860) 5 Park. Crim. Rep. 77, which declares the same rule.

Revoking commutation. The act of 1886, chap. 21, § 14, providing in substance that if a convict whose sentence is commuted shall thereafter, and before the expiration of the full term for which he was sentenced, commit a felony, he shall, on conviction of the felony, be required also to serve out the remainder of the term under the original sentence, was held constitutional, and not a violation of the provision against being twice put in jeopardy for the same offense. The commutation is a statutory privilege, and the legislature has power to prescribe the conditions on which it may be allowed. People ex rel. Willis v. Sage (1896) 11 App. Div. 4,

42 N. Y. Supp. 251.

Solitary confinement.-The jeopardy provision does not apply where the defendant convicted of murder is kept in solitary confinement during the pendency of an appeal on which the judgment of conviction is affirmed and the defendant re-sentenced. The appeal stays only the execution of the death sentence, and even if the solitary confinement pending such appeal was illegal, it ended with the second sentence. Section 491 of the Code of Criminal ProIcedure expressly requires the solitary confinement of a defendant while awaiting execution. People ex rel. Trezza v. Brush (1891) 60 Hun, 399, 15 N. Y. Supp. 512.

Trial necessary.-Where a newspaper reporter who had concealed himself in the jury room for the purpose of obtaining information for publication was discovered and taken before the presiding judge,

and, on

giving up the notes taken by him in the jury room, was

discharged, but refused to promise not to publish such notes, but did afterwards publish them, and was subsequently ordered to show

cause

why he should not be punished for a criminal contempt, it

was held that the first proceedings against him were not a constitutional bar to the second prosecution for contempt. There had been no trial; the inquiry was informal, to ascertain the facts relating to the interference with the deliberations of the jury, and to determine whether action by the court was necessary at that time. The judge released the relator from custody because he was of the opinion that he had no jurisdiction to act in the then position of the case; on a subsequent presentation of proof formal proceedings were commenced, resulting in the relator's conviction for contempt. People ex rel. Choate v. Barrett (1890) 56 Hun, 351, 9 N. Y. Supp. 321, affirmed in (1890) 121 N. Y. 678, 24 N. E. 1095.

Where a nolle prosequi is entered on an indictment, and a new indictment is found, the defendant cannot, on the second indictment, plead that he is being put twice in jeopardy. He was not put in jeopardy by the first indictment. The prisoner had no trial upon the merits on the former indictment, and was never in jeopardy thereon within the meaning of the Constitution. Gardiner v. People (1866) 6 Park. Crim. Rep. 155.

Variance.-Where the court on the defendant's motion directed a verdict of acquittal on the ground of variance between the proof and the indictment, such an acquittal is not a bar to a trial on a new indictment. People v. Meakim (1891) 61 Hun, 327, 15 N. Y. Supp. 917; (1892) 133 N. Y. 214, 30 N. E. 828. The same subject is considered in Canter v. People (1867) 1 Abb. App. Dec. 305, construing 2 Rev. Stat. 701, § 24, which provided that a former acquittal on the ground of variance was not a bar to a trial on a new indictment. This provision is continued in § 340 of the Code of Criminal Procedure.

A view of this provision presented by the statutes of 1860, chap. 410, and 1861, chap. 303, in which the law in relation to capital offenses was changed, was considered in Hartung v. People (1863) 26 N. Y. 167.

The Habitual Criminals Act of 1873, chap. 357, does not violate this provision. People v. McCarthy (1873) 45 How. Pr. 97.

WITNESS AGAINST HIMSELF.

The words "criminal case" in this section mean a prosecution for a criminal offense. "The primary and most obvious sense of the mandate is that a person prosecuted for a crime shall not be compelled to give evidence on behalf of the prosecution against himself in that case." But the right secured by this provision was not vio