tion, should not have the same opportunity to avail himself of the testimony of a sick witness, as a party in a civil suit."

"TITLE V.— Of trials for offences; bills of exception; and other proceedings

incident to trial.

[S1 to 4. Same as enacted.]

Original note to § 4. "It is supposed that in a criminal case the accused should in all cases be entitled to have at least twenty-four names in the box, from which the jury is selected. Otherwise, the persons summoned by the sheriff must serve, unless a challenge can be established, which is frequently most difficult. The chances of impartial juries will be multiplied, and the danger of prejudice or bias against the accused, will be diminished, by having a body from which a selection by lot is to be made."

[S 5 to 12. Same as enacted, except in § 9 the words "ten years or any longer time," substituted for "for life, either absolutely or in the discretion of the court."]

Original note. "Latter part of § 28, 1 R. L. 335, which relates to Quakers, extended to all persons having the same scruples, which many other sects entertain; and extended also so as to make it a ground of challenge on the part of the prosecution, in order to prevent persons having such scruples from serving, instead of leaving it to suit their convenience, or their own feelings towards the accused." [$ 13. Same as enacted, except the words "for any offence," in the last sentence of the §, reported before "shall be admitted," &c. omitted by the legislature.]

1

Original note. "From the language of Blackstone, in his 4th volume, p. 375, it would seem that in cases of misdemeanor, the defendant may be tried in his absence, if he has once appeared. 1st Chitty's Crim. Law, 411, 532, seems to suppose that in such cases an attorney appears for the defendant. It is conceived that if the defendant is taken on a bench warrant, it is the business of the proper officer to see that sufficient security for his appearance is taken. The forfeiture of that security, is the just consequences of a default; but to try a man on a serious charge, affecting his personal liberty, in his absence, and when no one appears in his behalf, seems altogether disproportionate to his delinquency. In the subsequent Title 7, provision will be made for proceeding to outlawry, in such cases, so as to ensure an appearance. This it is conceived will be better than to try him in his absence. Latter part of this § is from § 11, 1 R. L. 496."

[$ 14. Same as enacted.]

Original note. "Chapters 7 and 8, of the 3d Part, relate only to civil cases. This section becomes necessary in order to avoid the repetition of the various provisions embraced in it, and which are equally applicable to criminal cases."

[$ 15 as reported, partly enacted in § 16 R. S.]

Original note. "65, 1 R. L. 145, as to treason, extended to conspiracy, as being equally within the principle, in conformity to § 12 of Title 6, Chapter 1, of this Part.”

[S 16. Same as § 15 R. S.]

[S 17. Same as § 18 R. S., with the following addition, which was

omitted: "without evidence of the circumstance which usually terminates a sexual connexion."]

Original note. "By the common law, a most indelicate circumstance was required to consummate either of the offences specified; cases have occurred in this state, where such proof has been dispensed with; but in others, it has been required. By one of the late acts of the British Parliament, the same provision with that above proposed, is adopted."

[S 20. Same as enacted, except that the first sentence was reported thus: "When two or more defendants shall be jointly indicted for any offence, on the trial of which they shall be entitled to peremptory challenges, any one defendant requiring it, shall be tried separately."] Original note. "This provision has become indispensable, in consequence of a recent decision of Judge Story, that notwithstanding the right of peremptory challenges, defeudants may be tried jointly, thus destroying, it is humbly conceived, the whole value of the right of challenge. The above section is conformable to the opinion of the supreme court, in 7 Cowen, 108."

[S 25, 26. Same as § 26, 27 R. S.]

Original note. "It seems to be understood that a bill of exceptions does not lie, when an indictment is tried in a criminal court, although if the same indictment is removed to the supreme court and sent down for trial at a circuit, exceptions may be taken, as in civil cases; see 7 Cowen, 108. The statute in which the provision allowing bills of exception is found, § 6, 1 R. L. 326, relates to both civil and criminal cases; and there is nothing in the section itself to confine it to either. At present, the only way in which an objection to any decision can be examined in a superior court, is by the consent of the public prosecutor, or by the court suspending judgment and taking the advice of the supreme court. Thus, while in any controversy concerning property of the most trifling value, a party may have a review of any decision that has been made; yet in cases involving personal liberty, imprisonment in a state prison, and lasting infamy, he must depend on the caprice of his prosecutor, or the magnanimity of a judge, to admit the probability of error, for even an opportunity to correct any erroneous decision. The mode pursued, for the court to ask advice, is irregular, and gives no authority to enforce the advice; while it does not enable the accused to present his case himself. By the preceding provisions, a regular mode is provided for preserving the evidence of the exceptions taken, and the interposition of the superior court will be made effectual. The only objection known to allowing exception in criminal cases, is the danger of delay. By the preceding provision, that objection is met. And in Title 6, when treating of writs of error, further provision will be made against their operating as a stay of proceedings, unless expressly directed by a competent officer. Still, although suffering the consequences of a conviction, if the defendant chooses to take the judgment of a superior court upon the legality of the proceedings against him, it is conceived that a due regard to personal liberty and private rights, requires that he should be permitted to do so."

[$ 27, 28. Same as 28, 29 R. S. except the words "whose trial shall

not have been postponed at his instance," inserted by the legislature in each section.] Original note. “1 R. L. 356, § 6, varied."

"TITLE VI.-Of judgments; the mode of enforcing them, and of writs of error

thereon.'

"ARTICLE I.—Of judgments; the evidence thereof, and the mode of enforcing them." [S 1. Same as enacted.]

Original note. "Substantially conformable to the common law, with the exception of the last clause, which is new. By the amended constitution of this state, art. 7, § 8, 'every citizen may freely speak, write and publish his sentiments, on all subjects, being responsible for the abuse of that right, and no law shall be passed to restrain or abridge the liberty of speech or of the press.' It is conceived that this provision virtually takes away from the courts the common law power of binding over a party guilty of publishing a libel. At all events, shackles of this sort are inconsistent with the spirit of the constitution and the principles of our government, and it is proposed to abrogate them."

[S 10. Same as 4 R. S.] Original note. "According to a practice which has prevailed in some courts."

[S 11 to 15. Same as § 5 to 9 R. S. except the words "without charging any fees therefor," inserted in § 8 R. S. by the legislature.]

Original note. "§ 2, 1 R. L. 414, makes it the duty of district attorneys to send transcripts to the court of exchequer, and imposes a penalty for the neglect. Such transcripts are conclusive upon the defendants, and it is conceived should not be left to be made out without any supervision. The entries being with the clerk, it seems to fall more properly within his duties to transmit copies of them. They will furnish much more certain and precise information. As the court of exchequer is abolished, the secretary of state seems the best office in which to concentrate this information. The last section is pursuant to a decision of the supreme court, in 13 J. Rep. 82, and 14 ib. 182," [S 16. Same as § 10 R. S.]

Original note. "The supreme court has decided that a record is the only evidence that can be received of a conviction; see note to § 15. And yet it is well known that such records are not made up once in a hundred instances. They may be of the utmost importance to parties in civil and criminal cases; and when required, are not to be found. The delay produced by having them made up, signed and filed, will in most cases prevent their use. It seems a duty, therefore, to provide some easy mode of proving a conviction, which shall not be attended with the delay and expense of making up records. They are required but in few cases, and there is no necessity for their being made up in all instances, at a heavy expense to the county. The mode of proof prescribed in this section, preserves all the essentials of a record, while it is easy, cheap and expeditious.' [$ 17, 18, 19. Same as § 11, 12, 13 R. S.]

"ARTICLE II. Of writs of error on judgments, and certioraris in criminal cases." [S 21. Same as § 14 R. S.]

Original note. "$ 1, 1 R. L. 143, authorizes the chancellor to allow the writ. That provision was made when writs of error issued out of

chancery. As they now issue from the supreme court, it is conceived that the authority should be extended to the judges of that court; and if so, circuit judges, by the provision of the constitution, must have the same power."

[$ 22, 23. Same as § 15, 16 R. S.] Original note. "Probably the issuing of a writ of error now, is a stay of proceedings in all cases. It is conceived that it should be restricted, and the power confined to our highest judicial officers."

[S 24, 25. Same as enacted § 17, 18 R. S. except the conclusion of the last section reported as follows, "to detain such defendant until duly discharged."]

"TITLE VII.—Special proceedings in criminal cases; and miscellaneous provisions respecting criminal proceedings."

"ARTICLE I. Of coroners' inquests."

[S 1 as reported, substantially same as enacted.]

Original note. "1 R. L. 150, § 1, varied by omitting houses broken open,' and 'treasure said to be found,' and conforming to the provisions concerning grand juries.”

[S 2, 3. Same as enacted, except the words "to any of the officers above enumerated," before "subpoenas," in § 3, stricken out.] Original note to § 3. "New."

[S4, 5, 6. Same as enacted.] Original note. "§ 4 new. Last clause of 6 conformable to the common law."

[S 7, 8, 9. Same as enacted, except the words "or his inability to attend from sickness or any other cause," inserted in § 9 by the legislature.] Original note to § 8. "Partly new."

"ARTICLE II.—Of the outlawry of persons indicted or convicted.”

[$ 27 as reported, corresponding to § 20 R. S. varied. Original note. "The preceding sections are intended as a substitute for so much of the act for regulating outlawries,' 1 R. L. 165, as relates to outlawries in criminals' cases. Title 13, of Chapter 9, Part 1, proceeds upon the principle that outlawries will be retained in cases of treason; and with the provisions above made, it is supposed that they may be useful in other cases."

"ARTICLE III.-Miscellaneous provisions respecting criminal proceedings." LS28 to 35. Same as 21 to 28 R. S.] Original note to § 34. "Conformable to 3 Dickinson's Justice, 505." To§ 35. "2 Hale, 150." [$ 42 to 46. Same as § 33 to 37 R. S.] Original note. "Corporations, particularly turnpikes, are by law liable to indictment. The mode of proceeding is somewhat difficult. It will be simplified by the foregoing provisions, which conform substantially to the common law practice, and to § 33, 1 R. L. 89." [$ 47 to 51. Same as 38 to 42 R. S.] Original note to § 39 R. S. "Conformable to practice." To § 41, 42 R. S. "New."

[$ 59. Same as § 44 R. S.] Original note. "Necessary, as the provisions referred to would not otherwise apply to proceedings in criminal case."

[$ 60. Same as § 45 R. S.] Original note. “1 R. L. 404, § 12, extended to fugitives from foreign governments.”

[$ 61, 62. Same as enacted § 46, 47 R. S.] Original note. "Laws of 1818, p. 5 § 1, varied in giving the officers authority in the counties they pass through."

"TITLE VIII.— Of the fees of officers and ministers of justice in criminal cases.” [S 4. Same as § 5 R. S.] Original note. “2 R. L. 26, extended to oyer and terminer."

[S 5. Same as § 6 R. S.]

Original note. "The clerk of the court of oyer and terminer and terminer and general sessions in New York, is allowed fees for most of the services performed by him. In the other counties, these officers are not allowed fees for their services in criminal cases. Thinking it just that some compensation should be made, for at least a portion of their services, the foregoing section has been prepared. The last clause is conformable to the existing law."

[$ 6. Same as § 7 R. S, except a concluding paragraph omitted by the legislature: "And any district attorney shall also be allowed for all monies actually and necessarily expended by him in the prosecution of any indictment duly found by the grand jury of his county."] Original note. "Items 6 and last, new; 7 partly new. Conformable for the most part to 2 R. L. 21, and Laws of 1818, p. 307, § 9." [S 11. Same as § 12 R. S.] Original note. “Declaratory."

IS 12. Same as § 9 R. S.] Original note. "The special provisions relating to the city of New York are omitted, for the purpose of being included in the collection or revision of the statutes applicable to that city."

[S 13. Same as enacted.] Original note. "§ 16, 1 R. L. 498, extended to witnesses from foreign countries, as being equally within the principle of the act."

[S14, 15, 16, 17. Same as enacted.] Original note to § 17. "Necessary, to apply the provisions in Chap. 10 of the 3d Part, to this Title."