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§ 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.

New York Const., art. I, § 6; 1 R. S., 376, § 13; U. S. Const., fifth amendment.

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(a) Former trial-effect of. - A former trial and conviction cannot be given in evidence under plea of not guilty. (People v. Benjamin, 2 Park., 201.) (b) Effect of pendency of former trial. — The pendency of a prior indictment to which he has pleaded, cannot be pleaded in abatement. (People v. Fisher, 14 Wend., 9.)

(c) Plea of autrefois convict. The plea of autrefois convict is supported by proof of a lawful trial and verdict, though no judgment be given upon it. (Shepherd v. People, 25 N. Y., 406, reversing 23 How., 337; People v. Cramer, 5 Park., 171; see, also, People v. Barrett, 1 Johns., 66.)

(d) Illegal verdict. - A verdict upon which no judgment could have been given, cannot be pleaded as a former acquittal. (People v. Olcott, 2 Johns. Cas., 301.)

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(e) Must have been put in jeopardy. — To sustain a plea of "autrefois acquit," it must appear that the prisoner was put in jeopardy on a former trial. (Canter v. People, 1 Abb. Dec., 395; People v. Warren, 1 Park., 338.) (f) Stealing same goods. A verdict of acquittal for stealing the same goods, which were charged in the former indictment as the property of another owner, cannot be pleaded in bar. (Hughes' case, 4 C. H. Rec., 132.) (g) Conviction by special sessions. A conviction for petit larceny before a court of special sessions, cannot be pleaded in bar of a subsequent indictment for a burglary arising out of the same act. (People v. McCloskey, 5 Park., 57.)

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(h) When acquittal of one offense not a bar. - When one offense is committed the more effectually to carry into effect another, an acquittal of the latter is no bar to an indictment for the former. (People v. Ward, 15 Wend., 231.)

(i) Intent. - Former acquittal not a bar, the act being the same where the intent was different. (People v. Warren, 1 Park., 338.)

(j) Effect of acquittal on charge of robbery. — A trial and acquittal of robbery may be pleaded in bar to an indictment for larceny of the same property. (People v. McGowan, 17 Wend., 386.)

(k) Former acquittal on an indictment charging an indorsement, may be pleaded in bar to another charging forgery of the same note and indorsement. (People v. Allen, 1 Park., 445.)

(7) When a bar. So, also, an acquittal on an indictment charging the prisoner with having in his possession a certain counterfeit note with intent to utter it, may be pleaded in bar to a subsequent indictment for having such other notes in his possession for a like intent, where all were in possession at the same time. (People v. Van Keuren, 5 Park., 66.)

An acquittal on the merits of the offense of forging an order in writing is pleadable in bar to a subsequent prosecution for obtaining money on the false

pratense that the instrument was true. (People v. Krun.ner, 4 Park., 217; 1 Seld., 549.)

(m) Assault and battery not a bar to charge of rape.- To an indictment for rape the defendant cannot plead in bar a foriner conviction for assault and battery arising out of the same transaction. (People v. Saunders, 4 Park., 196.)

An acquittal on a former indictment for nuisance is prosecution, where the erection is not a nuisance per se 3 Hill, 479.)

not a bar to a second (People v. Townsend,

(n) Effect of nolle pros.- A person may be tried on a second indictment after a nolle pros, or superse leas of the first, to which the plea of jurisdiction only had been overruled. (Gardiner v. People, 6 Park., 155, 190.)

(0) Where acquittal is had, no new trial. A new trial cannot be granted where the prisoner has been acquitted of a felony. (People v. Comstuck, 8 Wend., 549.)

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(p) Nor writ of error. A writ of error in a criminal case will not lie at the suit of the people after a judgment for the defendant in a criminal case. (People v. Corning, 2 N. Y., 9.)

(4) Cannot be retried after sentence. A prisoner sentenced upon a regular trial and conviction cannot be retried (Shepherd v. People, 25 N. Y., 496), but the judgment may be corrected under the act of 1863. (Uussy v. People, 47 Barb., 503.)

(r) When conviction is reversed new trial may be had.- Where a conviction is reversed at the suit of the prisoner, a new trial may be ordered. (People v. Ruloff, 5 Park., 77.)

(8) Juror cannot be withdrawn.-Where a prisoner has been put on trial, a juror cannot be withdrawn without his consent. (Pople v. Barrett, 2 Cai., 301; Grant v. People, 4 Park., 527; Klock v. People, 2 id., 676.)

(t) May be retried where jury disagrees. In case of disagreement the jury may be discharged and the person retried. (People v. Goodwin, 18 Johns., 187.)

So where they separate without authority and are afterwards discharged. (People v. Reagle, 60 Barb., 527.)

(u) Jury discharged, when.- In cases of misdemeanor the court of sessions may discharge the jury without consent of the prisoner, and he may be tried again. (2 Johns Cas., 275.)

(*) Arrest of judgment not a bar to second indictment. An arrest of judgmeat after conviction for felony is not a bar to a second indictment. (People v. Cashorus, 13 Johns., 351.)

A prisoner is not put in jeopardy where the evidence fails to establish the offense charged. (Canter v. People, 1 Abb. Dec., 305.)

(w) Assault and battery does not bar trial for murder.- Conviction for assault and battery no bar to indictment for murder, where the person assaulted subsequently dies of the blows. (Burns v. People, 1 Park., 182.)

(2) Effect of repealed law on conviction.- Where one is convicted of murder and the law is subsequently repealed without reservation and a new law enacted, he cannot be tried again, nor can he be executed under a re-enactmeat of the old law. (Hartung v. People, 26 N. Y., 167.)

(y) Conviction on one count acquits on others. - A verdict of conviction on one count acquits on all others. (Guenther v. People, 24 N. Y., 100, People v. Dowling, 23 Alb. L. J., 353.)

(2) A former acquittal through a defective indictment may be pleaded in bar; and in the absence of proof to the contrary it will be presumed to have been on the merits. (Croft v. People, 15 Hun, 484.)

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

New York Const., art. I, § 6; U. S. Const., fifth amendment.

(a) Party may be compelled to answer in certain cases. An act requiring parties to make discovery on oath concerning an indictable offense, but forbidding the answers from being used in evidence against him is constitutional. (Perrine v. Striker, 7 Paige, 598.)

Nor is a person protected from testifying in a criminal case against another on the ground that his testimony may tend to implicate him in a crime, provided he is protected by statute against the use of such testimony on his own trial. (Huckley v. Kelly, 24 N. Y., 74.)

(b) Ordinary rules of evidence apply to prisoner.- Where a prisoner testifies in his own behalf, he is subject to the same rules and tests as other witnesses. (People v. Brandon, 42 N. Y., 265.) By offering himself he waives the constitution al privilege. (People v. Connors, 50 N. Y., 240.)

(c) Defendant may decline to answer.—A defendant, in his answer, may object to the discovery of any matters charged in the bill which will subject him to a criminal prosecution. (Liringston v. Harris, 3 Paige, 528; Leggett v. Postley, 2 id., 599; Taylor v. Bruen, 2 Barb. Ch., 301.)

Or which would subject him to an indictment and punishment for a criminal offense. (Marsh v. Davison, 9 Paige, 583.)

Although it be provided by statute that the answer of the defendant in certain cases cannot be used in evidence against him, yet the defendant cannot be compelled to make discovery as to any charge which is indictable at common law and involves moral turpitude. (Union Bank v. Barker, 3 Barb. Ch., 358.)

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.

SECTION 11. Of the courts of original criminal jurisdiction.

§ 11. Of the courts of original criminal jurisdiction. 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 Constitu tion 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.

New York Const., art. VI., §§ 18, 19.

(a) Police justices under legislative control. abolish or abridge the tenure of office of a police justice. 15 Abb. [N. S.], 129; Wenzler v. People, 58 N. Y., 516.)

The legislature may (Coulter v. Murray

TITLE II.

OF THE COURT FOR THE TRIAL OF IMPEACHMENTS.

SECTION 12. Its jurisdiction.

13. Members of the court.

14. Presiding judge.

15. Clerks and officers.

16. Seal of the court.

17. Time of holding the court.

18. Oath to members of the court.

19. Adjournments, etc.

20. Compensation of members and officers of the court.

§ 12. Its jurisdiction. The court for the trial of impeachments has power to try impeachments, when presented by the assembly, of all civil officers of the state, exce] justices of the peace, justices of justices' courts, police justices, and their clerks, for willful and corrupt misconduct in office.

New York Const., art. VI, §§ 1, 18.

§ 13. Members of the court. The court is composed of the president of the senate, the senators, or a majority of them, and the judges of the court of appeals, or a majority of them, but on the trial of an impeachment against the governor, the lieutenant governor cannot act as a member of the court.

New York Const., art. VI, § 1; 3 R. S., 182, § 1.

§ 14. Presiding judge. The president of the senate, or in case of his impeachınent, death or absence, the chief judge of the court of appeals, or in the absence of both, such other member as the court may elect, is the presiding judge of the court.

3 R. S., 182, § 3.

15. Clerks and officers. The clerk and officers of the senate are the clerk and officers of the court for the trial of impeachments.

3 R. S., 182, § 3.

§ 16. Seal of the court. - The seal of the court for the trial of impeachments now deposited and recorded in the office of the secretary of state shall continue to be the seal of this court and must be kept in the custody of the clerk of the senate.

Id., § 4.

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