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section 265 of the Penal Code absolutely prohibiting fishing on Sunday irrespective of whether any particular act of fishing in fact disturbs the public peace is constitutional. People v. Moses, (1893) 140 N. Y. 214, 35 N. E. 499, affirming 65 Hun 161, 20 N. Y. S. 9, and overruling 35 Hun 327. Religious tolerance; trust as superstitious.— All religious beliefs, doctrines and forms of worship not inimical to the public peace are free, however; and legal discriminations based on religious differences are abolished by this section. Accordingly a trust created by a testator for the purpose of having prayers said in a Roman Catholic church for the repose of his soul, the souls of his family, and of all who might be in purgatory cannot now be attacked as devoted to a superstitious use though it was open to attack under the English law whence is derived the New York system of trusts Holland v. Alcock, (1888) 108 N. Y. 312, 16 N. E. 305, 2 A. 8. R. 420, reversing 40 Hun 372.

Rules of evidence.- The provision that no person shall be rendered incompetent to be a witness on account of his religious belief impliedly leaves the legislature free to regulate the competency of witnesses in other respects. People v. Johnson, (1906) 185 N. Y. 219, 77 N. E. 1164.

Religious conviction as justification for violation of law.—“The peace and safety of the state involves the protection of the lives and health of its children as well as obedience to its laws." A person cannot under the guise of religious belief shirk the duty of caring for children placed in his care without at the same time exposing himself to such punishment as is provided by law. Wherefore, a person wilfully omitting to secure medical attendance for his sick child is not excused from punishment because his omission emanated from a belief that religion was a cure for disease and that physicians should not be consulted: and section 288 of the Penal Code allowing punishment for such neglect is not unconstitutional. People v. Pierson, (1903) 176 N. Y. 201, 68 N. E. 243, 98 A. S. R. 666, 63 L. R. A. 187, reversing 80 App. Div. 415, 81 N. Y. S. 214.

§ 4. Habeas corpus.

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.

Const. 1821, Art. VII, § 6; continued without change in Const. 1846, Art. I, § 4.

Scope." The remedy against illegal imprisonment afforded by this writ, as it was known and used at common law, is placed beyond the pale of legislative discretion, except that it may be suspended when public safety requires, in either of the two emergencies named in the Constitution.” Apparently, therefore, the writ cannot be abrogated, or its efficiency impaired, by legislative action, and cases within the relief afforded by the writ at common law cannot be placed beyond its reach. People v. Liscomb, (1875) 60 N. Y. 559, 19 Am. Rep. 211, reversing 3 Hun 760; People v. Frost, (1909) 133 App. Div. 179, 117 N. Y. S. 524. See also People v. Woodward, (1912) 150 App. Div. 770, 135 N. Y. S. 373.

Function of writ.-"The writ of habeas corpus is not, and never has been, a writ of review. Its sole function is to relieve from unlawful imprisonment. And the sole inquiry upon it is whether the mandate or the judgment, by virtue of which the prisoner is detained, is void. Where it appears that the prisoner is retained by virtue of a final judgment of a court of competent jurisdiction, the court or the judge has no alternative but to remand the prisoner, unless it affirmatively appears that there was an utter want of power or jurisdiction to render the judgment. Every presumption must be

Bail, Fines, Punishments, Witnesses

Art. 1,

indulged in support of the judgment. Error or abuse of discretion in the exercise of jurisdiction does not constitute the want of jurisdiction." Therefore, a statute directing the court or judge hearing a habeas corpus proceeding to remand a prisoner who is detained by virtue of the final judg ment of a competent tribunal is valid. People v. Kaiser, (1912) 150 App. Div. 541, 135 N. Y. S. 274. See also People v. Liscomb, (1875) 60 N. Y. 559, 19 Am. Rep. 211, reversing 3 Hun 760; People v. Stout, (1894) 81 Hun 336, 30 N. Y. S. 898, affirmed 144 N. Y. 699, 39 N. E. 858. Rules of procedure. The legislature may enact rules of procedure relative to the enjoyment of the writ of habeas corpus so long as it does not change the nature of the writ or the protection afforded thereby. Section 25 of the Code of Criminal Procedure, which provides that, during the session of the Supreme Court in any county, no person detained in a county jail of such county, upon a criminal charge, shall be removed therefrom by writ of habeas corpus, unless such writ shall have been issued by or shall be made returnable before such court" and which gives the sole right to hear a writ to the Supreme Court in session where the prisoner is detained, is therefore valid since it does not in any appreciable degree suspend the privilege of the writ as it existed at common law. People v. Woodward, (1912) 150 App. Div. 770, 135 N. Y. S. 373, distinguishing People v. Frost, (1909) 133 App. Div. 179, 117 N. Y. S. 524.

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Appeal by state. The privilege of the writ is not suspended by a statute allowing an appeal in the name of the people from an order made in habeas corpus proceedings. Thus, section 2058 of the Code of Civil Procedure authorizing an appeal by the people from an order discharging a prisoner on habeas corpus is not violative of this section or of section 4, article 1, of the Federal Constitution. People v. Kaiser, (1912) 150 App. Div. 541, 135 N. Y. S. 274.

§ 5. Excessive bail, fines, and punishments; detention of

witnesses.

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

Const. 1846, Art. I, § 5.

Electrocution.—The provisions of the Code of Criminal Procedure (§§ 491, 492, 503, 504, 505, 506, 507, 508, 509, as amended by ch. 489, Laws of 1888) changing the mode of inflicting the death penalty from hanging to electrocution, do not upon their face or in their general purpose and intent, violate this section, as an execution by electricity 'must result in instantaneous and consequently in painless death." People v. Durston, 119 N. Y. 569, 24 N. E. 6, 16 A. S. R. 859, 7 L. R. A. 715.

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Excessive punishment in particular locality.-Section 29 of chapter 456 of Laws of 1880, providing that a person convicted before the recorder of Cohoes of petit larceny, as a first offense, shall be punished by a fine not exceeding $250, or by imprisonment in the Albany penitentiary at hard labor for a term not exceeding one year, or by both, is not unconstitutional, as cruel and unusual punishment, notwithstanding the fact that petit larceny is punished generally throughout the state by imprisonment for six months only. In re Bayard, (1881) 25 Hun 546. In reaching this conclusion the court said: "We find in practice that many acts are crimes and punishable if done in one part of the State, which are innocent if done in another. We can see no difference in principle between the act in question and the large number of laws of the kind mentioned above. It may well be that the state of affairs in Cohoes when this act was passed was such

Art. I, 6 Rights of Accused, Due Process, Eminent Domain

as to require stringent regulations for the prevention of petty crimes. If it were so, it was for the legislature to decide and, having decided, to act accordingly. If the law applied to all persons in that locality we do not think it violates the Constitution."

Enforcement of tax collection.- Chapter 153, Laws of 1884, as amended by chapter 215, Laws of 1885, and chapter 102, Laws of 1886, providing that it shall not be lawful for the owners of any land in the county of Lewis, upon which taxes have been assessed and remain unpaid and due, to peel bark or cut timber upon such land, or permit others to perform such work does not conflict with the provisions of this section. Prentice v. Weston, (1888) 47 Hun 121, 16 N. Y. St. Rep. 541, affirmed 111 N. Y. 460, 18 N. E. 720.

8 6. Rights of accused in criminal actions.

Due process of law.

Eminent domain.

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.

Const. 1821, Art. VII, § 7; amended, Const. 1846, Art. I, § 6.

1. Presentment and indictment, 66.

II. Right to appear and defend, 68.

III. Double jeopardy, 70.

IV. Self-incrimination, 73.

V. Deprivation of life, liberty, or property · VI. Eminent domain, 149.

due process of law, 80.

I. PRESENTment and INDICTMENT.

“No person shall be held to answer for a capital or otherwise infamous orime (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.”

Relation to article 1, section 2.- The restriction here placed on the power of the legislature with respect to infamous crimes does not by implication

Presentment and Indictment

Art. I, § 6

relax with respect to lesser offenses the requirement of section 2 of this article, that the right to jury trial “in all cases in which it has been heretofore used shall remain inviolate forever." Per Hubbard, J., Wynehamer v. People, 13 N. Y. 378.

Scope. The requirement of this provision is in terms limited to capital or otherwise infamous crimes. It has no relation to misdemeanors, offenses of which courts of Special Sessions have jurisdiction by virtue of article 6, section 23. People v. Manett, (1913) 154 App. Div. 540, 139 N. Y. S. 614. See also People v. Scherno, 140 App. Div. 95, 125 N. Y. S. 918.

Determination of nature of offense. Whether or not a particular offense should be classified as a capital or otherwise infamous crime is determined by the nature of the punishment prescribed therefor rather than by the supposed moral turpitude of the act constituting the offense. Hence a statute authorizing the prosecution without indictment of a child under sixteen years of age charged with larceny from the person, is constitutional in view of section 2186 of the Penal Law reducing felonies not punishable by death or life imprisonment to the grade of misdemeanors when committed by a child under sixteen years of age: and this is true even if the moral obliquity of the offense be regarded as unchanged. People v. Kaminsky, (1913) 208 N. Y. 389, 102 N. E. 515.

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Meaning of "indictment " and "presentment.". An "indictment" 'presentment" within the meaning of this provision need not be by a grand jury of that county wherein was committed the crime to which the presentment or indictment is addressed. Doubtless, at common law grand jurors could not ordinarily inquire into any offense perpetrated outside of their county. Parliament was competent to allow them so to act, however. And this provision must be deemed to recognize the existence of such a legislative power. Wherefore, the provision of the Revised Statutes (2 R. S. 727, § 50), declaring that a person committing a burglary and larceny in one county and carrying the stolen property into another county, may be indicted, tried and convicted for the burglary in the latter county, as if the crime had been there committed," is within the legislative power and valid. Mack v. People, (1880) 82 N. Y. 235.

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Amendment of indictment.-An act (Code Crim. Pro., § 275) declaring "that when upon the trial of an indictment, a variance between its allegation and the proof in respect to the name of any person, shall appear, the court may, in its judgment, if the defendant cannot be thereby prejudiced in his defense on the merits, direct the indictment to be amended according to the proof," does not take away or impair any securities afforded by this provision and is, therefore, valid. The statute could have no other effect than to promote the ends of justice, by rendering of no avail a purely technical objection, without depriving a defendant of any substantial right. People v. Johnson, (1887) 104 N. Y. 213, 10 N. E. 690.

Meaning of grand jury.- The grand jury here referred to is the grand jury existent at common law. It must therefore consist of not less than twelve nor more than twenty-three men. Twelve jurors must concur in finding an indictment. People v. Petrea, (1883) 92 N. Y. 128.

Selection of jurors.— Apparently, the legislature may regulate the mode of selecting and procuring grand jurors as it may deem expedient provided it does not trench upon the essential features of the jury system. People v. Petrea, (1883) 92 N. Y. 128. The challenge of grand jurors is subject to legislative regulation. People v. Borgstrom, (1904) 178 N. Y. 254, 70 N. E. 780.

Sufficiency of indictment by de facto jury.— Only substantial compliance with this provision will be exacted by the courts. An indictment by a body summoned and sworn as, and having the essential character of, a grand jury, is not nullified by a technical defect in the constitution of that body not prejudicial to the rights of the accused. People v. Youngs, (1896) 151 N. Y. 210, 45 N. E. 460; People v. Petrea, (1883) 92 N. Y. 128, affirming

Art. I, § 6

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Right to Appear and Defend

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30 Hun 98. See also People v. Hoogkerk, (1884) 96 N. Y. 149. Thus, an indictment returned by a jury possessing the essential attributes of a grand jury within the meaning of this section, is sufficient although the jury was drawn under an invalid statute. People v. Petrea, supra. It seems, however, that a term of the County Court convened pursuant to an order which was not published once in each week, for three successive weeks before a term is held," as required by section 356 of the Code of Civil Procedure, or for four successive weeks previous to the time of holding the first term under such order," as required by section 45 of the Code of Criminal Procedure, and which fixed such a time for the holding of the term that the four weeks' publication required by the latter section could not be made, is improperly convened and an indictment found at such a term should be dismissed. People v. Nugent, (1901) 57 App. Div. 542, 67 N. Y. S. 1035, distinguishing People v. Youngs and People v. Petrea, supra.

Test oath as violation of requirement.— That portion of the "Act to pr▸ vide for a convention to revise and amend the Constitution," passed March 29, 1867 (ch. 194) which provided, that, at the election of delegates, no perse n shall vote who will not, if duly challenged, take and subscribe the followir g oath: "I do solemnly swear (or affirm), that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted, nor attempted to exercise, the functions of any office whatever, under any authority, or pretended authority, in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power or Constitution with the United States, hostile or inimical thereto, and did not willfully desert from the military or naval service of the United States, or leave this State, to avoid the draft during the late rebellion," violates this provision. Green v. Shumway, (1868) 39 N. Y. 418.

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Construction of statute widening range of indictment. Since prior to the enactment of chapter 625, Laws of 1900, amending section 444 of the Code of Criminal Procedure, a person indicted for manslaughter in the second degree could not lawfully be convicted of assault in any degree, the provisions of that statute permitting one indicted for manslaughter to be convicted of assault should be given a prospective operation. "The effect of applying this amendment to all indictments pending at the time it became a law, is evidently to deprive the parties named therein of this constitutional right, so far as their trial and conviction for the assault therein named is concerned." People v. Cox, (1901) 67 App. Div. 344, 73 N. Y. S. 774. Courts-martial. This provision recognizes the existence of courts-martial. They are, therefore, constitutional. People v. Daniell, (1872) 50 N. Y. 274. There is of course no necessity for presentment or indictment in the case of crimes tried before courts-martial. People v. Daniell, 6 Lans. 44, affirmed 50 N. Y. 274.

II. RIGHT TO APPEAR AND DEFEND.

"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.”

General scope. This provision would seem to be of broad scope and to apply generally to trials before any authority having jurisdiction to try. People v. Keeler, (1885) 99 N. Y. 463, 2 N. E. 615, 52 A. S. R. 49, reversing 32 Hun 563.

Proceeding for removal of officer.-A public officer has the right to appear and defend in person or with counsel at proceedings looking to his removal from office for cause. People v. Nichols, (1880) 79 N. Y. 582, reversing 18 Hun 530; People v. Flood, (1901) 64 App. Div. 209, 71 N. Y. S. 1067;

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