THE CODE OF CRIMINAL PROCEDURE.

CHAPTER 442, LAWS OF 1881,
AS AMENDED, 1832, 1883, 1884 AND 1885.

AN ACT

To establish a Code of Criminal Procedure.

Passed June 1, 1881; three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

PRELIMINARY PROVISIONS.

SEC. 1. Title of the Code.

2. Divisions of the Code.

3. No person punishable but on legal conviction.
4. Crimes, how prosecuted.

5. Criminal action defined.

6. Parties to a criminal action.

7 The party prosecuted known as defendant.

8 Rights of defendant in a criminal action.

9. Second prosecution for the same crime prohibited.

10. No person to be a witness against himself in a criminal action or to be unnecessarily restrained.

SECTION 1. Title of Code. This act shall be known as the Code of Criminal Procedure of the State of New York.

§ 2. Divisions of the Code. This Code is divided into six parts. The first relates to the courts having original jurisdiction in criminal actions;

The second relates to the prevention of crime;

The third relates to the judicial proceedings for the removal of public officers by impeachment or otherwise; The fourth relates to the proceedings in criminal actions prosecuted by indictment;

The fifth relates to proceedings in special sessions and police courts;

The sixth relates to special proceedings of a criminal

nature.

§3. No person punishable but on legal conviction. No person can be punished for a crime except upon legal conviction in a court having jurisdiction thereof.

Art. 1, §1, N. Y. Const. No conviction on ex parte affidavits. Ex parte James, 30 How. Pr., 446.

§ 4. Crimes, how prosecuted. prosecuted by indictment, except

A crime must be

1. Where proceedings are had for the removal of a civil officer of the state on impeachment by the assembly for willful or corrupt misconduct in office;

2. Where proceedings are had for the removal of justices of the peace, police justices and justices of justices' courts and their clerks;

3. A crime arising in the militia when in actual service, and in the land and naval forces in time of war, or which this state may keep with the consent of congress in time of peace;

4. Such crimes as are hereinafter or in special statutes specified as cognizable by courts of special sessions and police courts.

Art. 1, § 6, N. Y. Const.

5. Criminal action defined. The proceeding, by which a party charged with a crime is accused and brought to trial and punishment, is known as a criminal action.

§ 6. Parties to a criminal action.—A criminal action is prosecuted in the name of the people of the State of New York, as plaintiffs, against the party charged with crime.

§ 7. The party prosecuted known as defendant. The party prosecuted in a criminal action is designated in this Code as the defendant.

§ 8. Rights of defendant in a criminal action.—In a v criminal action the defendant is entitled

1. To a speedy and public trial;

2. To be allowed counsel as in civil actions, or he may appear and defend in person and with counsel; and,

3. To produce witnesses in his behalf, and to be confronted with the witnesses against him in the presence of the court, except that where the charge has been preliminarily examined before a magistrate, and the testimony reduced by him to the form of a deposition in the presence of the defendant, who has, either in person or by counsel, cross-examined, or had an opportunity to cross-examine, the witness, or, where the testimony of a witness on the part of the people, who is unable to give security for his appearance, has been taken conditionally according to sections 219 and 220, the deposition of the witness may be read upon its being satisfactorily shown to the court that he is dead, or insane, or cannot with due diligence be found in the state.

Sub. 1. See 6th Amendt. Const. U. S. Sub. 2. Art. 1, § 6, N. Y. Const. See Peo ex rel., Garling v. Van Allen, 55 N. Y., 31. Sub. 3. Defendant can consent that depositions taken in his presence be read on trial. Wightman v. Peo., 67 Barb., 44. No rights before coroner. Crisfield v. Perrine, 15 Hun, 200; s. c., 81 N Y., 622. Escaped prisoner can have no relief. Peo. v. Genet, 59 N. Y., 80. Due diligence. Peo. v. Murphy, 1 N. Y. Cr., 102.

9. Second prosecution for the same crime prohibited. No person can be subjected to a second prosecution for a crime for which he has once been prosecuted, and duly convicted or acquitted.

Art. 1, § 6, N. Y. Const. Former trial and conviction, without judgment, sustains a plea of autre fois convict. Shepherd v. Peo., 25 N. Y., 406. See Peo. v. Goodwin, 18 Johns., 200; Peo. v. Barrett, 1 id., 66; Id. v. Olcott, 2 ib. Cas., 301; I. v. Cramer, 5 Park., 171; Id. v. McCloskey, Ib., 57; Id. v. Saunders, 4 ib., 196, Id. v. Warren, Iib., 338; Id. v. Allen, ib., 445; I. v Van Keuren, 5 ib, 66; Id. v Krummer, 4 1b., 217; Id. v Townsend, 3 Hill, 479; Canter v Peo., 1 Abb. Dec., 305; Peo. v Krumer, 1 Sheld, 549; Gardiner v. Peo., 6 Park., 155; Peo. v. Casborus, 13 Johns., 351; Burns v. Péo, 1 Park., 182; Peo. v. Comstock, 8 Wend., 549. When former judgment_reversed, new indictment may be found. Kelly v. Peo., 6 Hun, 509. See Peo. v. Ruloff, 5 Park., 77. Where wrong judgment rendered on regular conviction, cannot retry. Shepherd v. Peo., supra; but may remit record and resentence. Hussey v. Peo., 47 Barh., 503. A verdict of conviction on one count, acqnits on all others. Guenther v. Peo., 24 N. Y., 100; Peo. v. Dowling, 23 A. L. J., 353.

§ 10. No person to be a witness against himself, or unnecessarily restrained.-No person can be compelled in a criminal action to be a witness against himself, nor can a person charged with crime be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge.

Art. 1, 6, N. Y. Const. Defendant may be required to answer when it cannot be used against him. Perrine v. Striker, 7 Pai., 598; Peo. ex rel. Hackley v. Kelley, 24 N. Y., 74. How a defendant can waive this privilege. Connors v. Peo., 50 N. Y., 240.

PART I.

OF THE COURTS HAVING ORIGINAL JURISDICTION IN CRIMINAL ACTIONS.

TITLE I. OF THE COURTS OF ORIGINAL CRIMINAL JURISDICTION IN GENERAL.

II. OF THE COURT FOR THE TRIAL OF IMPEACHMENTS.

III. OF THE COURTS OF OYER AND TERMINER.

IV. OF THE CITY COURTS.

V. OF THE COURTS OF SESSIONS.

VI. OF THE COURTS OF SPECIAL SESSIONS AND POLICE
COURTS.

TITLE I.

Of the Courts of Original Criminal Jurisdiction in general.

SEC. 11. Of the courts of original criminal jurisdiction.

§ 11. Of the courts of original criminal jurisdiction. Special sessions and police courts, when courts of record. The following are the courts of justice in this state having original jurisdiction of criminal actions: 1. The court for the trial of impeachments;

2. The courts of oyer and terminer;

3. The city courts of Brooklyn, Buffalo, Utica, Oswego and Hudson;

4. The courts of sessions, in counties other than New York;

5. The court of general sessions in the city and county of New York;

6. The courts of special sessions;

7. The police courts.

The courts of special sessions and police courts are deemed inferior courts not of record, within the section of the Constitution which provides for the removal of justices of the peace and judges, or justices of inferior courts not of record, and their clerks, by such county, city or state courts as are designated by law; but for no other purpose.