LEGISLATURE--continued.

"No person shall be . . . . deprived of life, liberty or property
without due process of law."

Fourth. The power to punish for an alleged contempt incurred
in the course of an inquiry, made for the purpose of legislation, is
not an inherent one in a legislative body.

Fifth. The congress of the United States is a legislative body as
well as a legislature of the state. Whatever unconferred powers
the latter has as ancillary to its right to legislate, must also be
possessed by the former in aid of its legislation upon subjects
within its jurisdiction. The case of Kilbourn v. Thompson, 103
U. S. 168, is, therefore, applicable to the present.

Sixth. Neither branch of the state legislature, under section 17
of article 1 of our state constitution, obtains the power to punish
for contempt in aid of legislation, because: 1st. It was not a part
of the "common law " of England, but of the "Lex et Consuetudo
Parliamenti," as parliament asserted and as was universally con-
ceded, its " power being above the law is not founded upon the
common law." 2d. No act of the legislature of the colony of
New York ever conferred upon itself any such power. 3d. As the
power of parliament was omnipotent, and the power to punish for
contempt was never conferred upon the colonial nor the state
legislature, it is a legal impossibility that either could succeed
thereto as an inheritance, for both took only conferred power.

Seventh. If the provisions of the Revised Statutes before cited,
and which are claimed to confer the power exercised, are uncon-
stitutional, then they were not validated by article 1, section 17
of the constitution because only such statutes as were "in force"
at the time of the adoption of the constitution are covered by its
language. In no proper sense can an unconstitutional law be said
to be "in force." Neither can a long continued claim of power
and its occasional exercise confer it, if illegal. A citizen deprived
of his liberty can always question the existence of an authority
which holds him in custody.

Eighth. The power of the state legislature, and of either house,
to punish for a contempt committed during the progress of judi-
cial inquiry which it is authorized to make is undeniable, but
the existence of any such power in aid of pure legislation is more
than doubtful. But while a single judge, holding without associ-
ates a court, entertains these views, he should still in judicial
action, while freely discussing, as is his duty to do, a question of
such vast importance, to the end that it may be rightly settled,
not rashly attempt to overturn and disregard the practice of the
state for many years, the judicial dicta of its judges, and the
opinions of elementary writers of acknowledged high authority,
upon cases not necessarily controlling in this state. Especially
VOL. II.-89

LEGISLATURE-continued.

should he not do so when its effect will be, if he is wrong in his
views, to improperly arrest an important inquiry which a legisla-
tive body, largely composed of eminent lawyers, supposes it has
the power to pursue; and to practically overrule a decision of the
court immediately above the one which he is holding.

Ninth. Section 719 of the Penal Code does not apply. That
section was intended to define with accuracy when the penalties
for crime prescribed by such Code took effect, and such penalties
relate only to those which are to be pronounced by courts on
criminal prosecution instituted to punish crime. It does not in-
terfere with any power elsewhere bestowed to punish summarily
for contempt. Matter of McDonald,

82

2. Except when engaged in the judicial functions authorized by the
constitution, the Senate of this State has no power to punish as
for a contempt, a refusal of a witness to answer a question. This
power of the Senate is only such as is given to it by the constitu-
tion of this State. It is not derived or inherited from the priv-
ileges of the English parliament. Punishing, as for a contempt,
such a refusal to answer, is the exercise of a judicial power.
People ex rel. McDonald v. Keeler,
141

3. The provisions of 1 R. S. m. p. 154, § 3, subd. 4, giving to the
Senate power to imprison a witness refusing to answer, is uncon-
stitutional so far as the same relate to a legislative inquiry. The
grant of judicial powers to the courts is an implied prohibition of
their exercise by the legislature except as authorized by the con-
stitution. In cases where the Senate can imprison for refusal to
answer, the courts have power to examine whether that power is
lawfully exercised. 1b.

4. The provisions of the Code of Civil Procedure, § 3032, subd. 3,
directing that prisoners brought up on habeas corpus shall be re-
manded to custody in certain cases, apply only to criminal con-
tempts committed before courts of record.

lb.

5. A witness in an inquiry before a legislative committee has a right
in an orderly manner to take advice of counsel as to questions
affecting him or his business, and when such right is refused, to
withdraw. Ib.

6. Nor can such a witness be compelled to answer impertinent or ir-
relevant questions. Ib.

LETTERS.

See BLACKMAIL.

LICENSE.

See EXCISE LAW.

LIMITATION OF ACTIONS.

1. It is not wise, or just where there are several indictments against
the same defendant, for the prosecution to allow years to elapse

LIMITATION OF ACTIONS-contiuued.

between the trials on each. They should all be tried when the
witnesses are alive and accessible, and when the testimony for
both sides is readily to be had. People v. Smith,

45

2. The prisoner was tried, convicted and sentenced to five years im-
prisonment, the maximum term, on an indictment for forgery in
the third degree. Upon the expiration of his imprisonment, the
prosecution sought to try him on two other indictments found at
the same time as the one on which he had been convicted, for other
forgeries. Held, that defendant under these circumstances should
be discharged from custody on his own recognizance. lb.
3. A demurrer cannot be interposed upon the ground that it appears
by the indictment that the prosecution is barred by the statute of
limitations. People v. Durrin,

328

4. The indictment in this case showed that the offense was committed
more than five years before it was found and filed. It was silent
as to the presence in or absence of the defendant from, the state,
during the time between the commission of the offense and the
time when it was found. Defendant demurred upon the ground
(Code Crim. Pro. § 323, sub. 5) that the indictment contained mat-
ter which if true would constitute a legal bar to the prosecution.
Held, that such an indictment was good. The statute of limita-
tions is not of the nature or character of an exception which forms
part of the offense, and it need not be set out and negatived in the
indictment. Ib.

5. The defense of the statute of limitations cannot be set up by special
plea, under the Code of Criminal Procedure, but may be proved
under the general issue of not guilty. Ib.

MALICIOUS MISCHIEF.

See HORSE.

MANSLAUGHTER.

See MURDER.

MAXIMS.

Falsus in uno, falsus in omnibus. See People v. Petmecky,
MISDEMEANORS.

450

Felonies and misdemeanors, definition of and distinction between.
People v. Lyon,

See

484

Killing a horse a misdemeanor. See People v. Woodward,

32

Peculation, under L. 1875, c. 19, is a misdemeanor. See People v.

1. Killing effected by a person engaged in the commission of a felony is

MURDER -continued.

murder in the first degree, notwithstanding that the act which
produced death was not intended to kill. People v. Cole, 108
2. The evidence showed that the defendant and four other persons,
together, assaulted and beat the accused; that they had him down
upon the street, that one struck him with a stone, and others cut
him with knives; that no cause for the disagreement clearly
appeared, but that all had been drinking; that there was nothing
in their preceding relations or the acts themselves, or in the in-
struments, or the manner in which they were used, or in the
wounds inflicted, to show, with any reasonable degree of certainty,
that they entertained the design to kill defendant. The deceased
died the next day, and the evidence tended to show that his death
was caused by the injuries received on said assault. The defend-
ant was indicted under the Revised Statutes, and convicted of
murder in the second degree. Held, on appeal, upon a review of
the evidence, that there was no proof of an intent to kill, and that
the offense committed was manslaughter. Daly v. People, 159
8. The evidence showed on the part of defendant a feeling of hostility,
and threats of personal injury against the inmates of the house in-
habited by Celestial Jefferson and deceased, especially against
Celestial Jefferson, who, he alleged, had supplanted him in the
affections of his mistress, and also the sharpening of a knife ten
days before the murder, to be used for the killing of Celestial
Jefferson. Held, that there was sufficient evidence of deliberate
and premeditated design to effect death, to constitute murder in
the first degree. People v. Jefferson,
240
4. Upon the trial of an indictment framed under the first subdivision
of section 183 of the Penal Code, where the evidence shows a kill-
ing with a design to effect death, but not deliberation and pre-
meditation, the verdict cannot be anything more than murder in
the second degree. People v. Conroy,

247
5. The crime of murder in the first degree can only be shown by proof
of some amount or kind of deliberation and premeditation ante-
cedent to the act which intentionally effects the death, and of
which the intent alone is not sufficient evidence. Ib.

6. Voluntary intoxication may be considered upon the question of pre-
meditation. Ib.

7. To convict of murder by poisoning, there must be shown knowl-
edge by defendant of the poisonous character of the poison which
produced the death. People v. Stokes,

382

8. Knowledge of defendant that the article was not entirely harmless,
is not sufficient. lb.

9. It is not necessary to set forth in an indictment the particular intent
with which a homicide is committed. It is sufficient to allege it

MURDER-continued.

to have been done feloniously with malice aforethought, and con-
trary to the form of the statute. People v. Conroy,
565
10. The general rule is that every homicide is presumed to be malicious
and amounts to murder until the contrary appears from circum-
stances of alleviation, excuse or justification. Ib.

11. But when the commission of a homicide by the accused has been
shown, it is for the jury to say from the facts and circumstances
surrounding it, unless they clearly repel the idea of deliberation
and premeditation, what the character of the act really was, and
the degree of crime which should be attached to it. Ib.
12. The intention to commit a homicide which is not formed under
the impulse of immediate provocation, or a sudden and instinctive
apprehension of danger from some apparent cause, involves, to a
certain extent, both deliberation and premeditation. Ib.

13. The lapse of no special period of time is necessary to infer the
existence of deliberation and premeditation. 1b.

14. The jury has the right to find that the result produced was the
intended result of the act of accused, unless the evidence pre-
cludes such an intent. Ib.

15. If a person is undisturbed by sudden and uncontrollable emotions,
is not excited by an unexpected and observable cause, and is in the
possession of his usual faculties, it will be presumed that his actions
are prompted by reason, and are the result of causes operating on
his mind, and deemed by him sufficient to inspire his action. Ib.
Sec JUDGE'S CHARGE.

Power of General Term to grant new trial under § 527, Code Crim. Proc.,
is discretionary, and unless abused, will not be reviewed by Court of
Appeals. See People v. D'Argencour,

267
To show that General Term granted new trial on facts, the order should
state that it has considered the facts and the result of such considera-
tion. If it states that it finds no reason for new trial on facts, and
grants one on law, appeal will lie to Court of Appeals. See People v.
Conroy,

NOTICE.

See ASSAULT, 4.

OBSCENE AND INDECENT PICTURES, &c.

565

1. In section 317 of the Penal Code, in relation to obscene or inde-
cent books, writings, papers, pictures, drawings or photographs,
the words obscene or indecent are used in their popular sense and
understanding, and include all pictures, drawings and photo-
graphs of an indecent and immoral tendency, intending to include
as obscene such as are offensive to chastity, demoralizing and