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18 App. Div. 128 (1897); Schillinger v. Arnott, 152 N. Y. 584 (1897).

An act which merely regulates the mode of securing a common-law jury is not violative of the right of trial by jury. (People v. Dunn, 157 N. Y. 528.) (1898.)

An act providing for a special jury in criminal cases and for the mode of selecting the same and creating a special jury commissioner is not violative of this section.

The constitution does not secure to the defendant any particular mode of jury trial nor any particular method of jury selection. It secures simply the right of a trial by a commonlaw jury of twelve men. The right to peremptory challenges may be granted or withheld at the legislative will. The legislature may regulate the mode of selecting and procuring grand jurors. (People v. Dunn, 157 N. Y. 528.) (1899.)

The provision in the United States constitution that "in all criminal prosecutions the accused shall enjoy the right of a speedy and public trial by an impartial jury applies to the United States courts only. (People v. Hall, 51 App. Div. 57.) (1900.) (Affd., 169 N. Y. 184.)

The accused is not denied his constitutional right to a trial by a common-law jury because jurors are selected from the general panel after the exclusion therefrom of competent jurors by the commissioner of jurors for the purpose of making up a special jury list. (People v. Meyer, 162 N. Y. 357.) (1900.)

The holder of a liquor tax certificate is not entitled to a trial by jury before he can be deprived thereof. (Matter of Lyman, 46 App. Div. 387.) (1899.)

Provisions of an act authorizing a comparison of disputed handwriting with other writing proved to the satisfaction of the court to be genuine leaves the ultimate determination of the genuineness of the handwriting in question with the jury and is, therefore, constitutional. (People Molineux, 168 N. Y. 264.) (1901.) Anti-policy law constitutional. Div. 67.) (1902.)

V.

(Wilson v. Flynn, 72 App.

The provision that trial by jury shall remain inviolate does not apply to the trial of misdemeanors by courts of special sessions and justices' courts. (People v. Brady, 37 Misc. 126.) (1902.)

The property right of the owner of a liquor tax certificate is a limited right not protected by the constitutional requirement of a jury trial. (Matter of Cullinan, 76 App. Div. 362.) (1903.)

The right to successive jury trials in an action of ejectment is not an absolute one but is a matter of procedure, subject to change by the legislature. (Satterlee v. Kobbe, 173 N. Y. 691.) (1903.)

In an action at law the court has no power against the objection of either party to discharge the jury and in their absence pass upon the question of fact. The constitution guarantees to either party the right to have the question of fact passed upon by the jury. (Gansberg v. Sagemohl, 67 App. Div. 554.) (1902.)

In a common-law action brought by an executor or administrator a compulsory reference should not be ordered unless it clearly appears that the trial will necessarily involve the examination of a long account. If other independent issues are raised by the pleadings they should be first tried by a jury and a reference then ordered to determine those involving examination of long account. (Malone v. Sts. Peter & Paul's Church, 172 N. Y. 269.) (1902.)

When a canvass has been completed, under the statutory provisions for its conduct existing at the trial, the legisÏature cannot create a new tribunal with power to recanvass the election and to award possession of the office to another claimant. The right to hold office may be questioned in an action of quo warranto, in which a jury may be invoked as one of those cases in which a jury trial has heretofore been used. (Matter of Metz v. Maddox, 189 N. Y. 460.) (1907.) (120 App. Div. 814 and 120 id. 147, revd.)

The provisions of section 1410 of Greater New York charter dispensing with a jury trial is not unconstitutional. (People v. Stein, 80 App. Div. 357; People ex rel. Burns v. Flaherty, 119 id. 462.) (1907.)

There is a place somewhere, where the spirit of the constitutional guarantee, that "The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever" requires that the verdict of a jury shall be final, and where there have been a sufficient number of trials, under fair conditions, so that it cannot be presumed that the jury has been under the control of passion, corruption

or other improper motives, or has failed to give the evi. dence proper consideration, it is the duty of the court to give effect to the verdict and to end the litigation. (Ridgely v. Taylor & Co., 126 App. Div. 3C3.) (1908.)

Freedom of worship; religious liberty.-§ 3. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State to all mankind; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.

[Section 3 of article 1 of the constitution of 1846, without change.]

This section does not shield a witness from cross-examination as to his religious belief. (Stanbro v. Hopkins, 28 Barb. 265.)

A statute which prevents theatrical entertainments on Sunday is valid. (Lindenmuller v. People, 33 Barb. 548; Neundorff v. Duryea, 69 N. Y. 557; People v. Hoynn, 20 How. Pr. 76.)

A prosecution under section 288 of the Penal Code for failure to furnish necessary medical attendance to a child against a person who belongs to a religious society which does not believe in physicians and believes that the child will be cured through the medium of prayer is not in violation of this section, since practices inconsistent with the peace and safety of the state and the protection of the lives and health of its inhabitants are properly punishable. (People v. Pierson, 176 N. Y. 201.) (1903.)

Section 267 of the Penal Code is not unconstitutional as involving interference with religious liberty. (Silverberg v. Douglass, 62 Misc. Rep. 340.) (1909.)

Section 265 of the Penal Code does not prohibit indoor exhibition of moving pictures on Sunday. (People v. Hemleb, 127 App. Div. 356.) (1908.)

Habeas corpus.-§ 4. The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require its suspension.

[Section 4 of article I of the amended constitution of 1846, without change.]

The legislature cannot commit a person for contempt and then forbid all inquiry into the rightful exercise of that power, for this would take away the benefit of the writ of habeas corpus. (People ex rel, McDonald v. Keeler, 32 Hun, 563; S. C., 99 N. Y. 463.)

Excessive bail and fines.— § 5. Excessive bail shall not be required nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted, nor shall witnesses be unreasonably detained.

[Section 1 of article 5 of the amended constitution of 1846, without change.]

The following is a history of the constitutional provision against cruel and unusual punishment found in the case of Matter of Bayard, 25 Hun, 546, opinion of Rumsey, J.: "We first find the injunction against cruel and unusual punishment in the Declaration of Rights, presented by the convention to William and Mary before settling the crown upon them in 1688. That declaration recites the crimes and errors which had made the revolution necessary. These recitals consist of the acts only of the former king and the judges appointed by him, and one of them was that illegal and cruel punishment had been inflicted. (Stephen's Eng. Const. 44.) The punishments complained of were the pillories, slittings and mutilations which the corrupt judges of King James had inflicted without warrant of law, and the declaration was aimed at the acts of the executive, for the judges appointed by him, ad removable at pleasure, were practically part of the executive. It clearly did not then refer to the degree of punishment, for the criminal law of England was at that time disgraced by the infliction of the very gravest punishment for slight offenses, even petit larceny then being punishable with death. But the declaration was intended to forbid the imposition of punish

ment of a kind not known to the law, or not warranted by the law."

The provision as to excessive bail only applies to criminal actions. (People v. Tweed, 13 Abb. [N. S.] 148.)

While the legislature has established a general maximum punishment throughout the state for a crime, it may change or increase the punishment as to particular localities. (Matter of Bayard, 25 Hun, 546.)

Disqualification from holding office is not an unconstitutional punishment for a crime. (Barker v. People, 20 Johns. 457.)

This section confers power upon the courts to declare void acts of the legislature prescribing punishments for crime, in fact cruel and unusual. (People ex rel. Kemmler v. Durston, 119 N. Y. 569.)

But the act of 1888. chapter 489, providing for the infliction of the death penalty by means of electricity, is constitutional. (Id.)

Grand Jury — Bill of Rights.-§ 6. No person shall be held to answer for a capital or otherwise infamous crime (except in cases of impeachment, and in cases of militia when in actual service, and the land and naval forces in time of war, or which this State may keep with the consent of Congress in time of peace, and in cases of petit larceny, under the regulation of the Legislature), unless on presentment or indictment of a grand jury, and in any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions. No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.

[Section 6 of article 1 of the constitution of 1846, without change.]

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