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!?? 144 JUN 8- 1942 PRELIMINARY NOTE.

This volume contains the draft of a Penal Code for the State of New York. It has been prepared by the Commissioners of the Code, in pursuance of the directions contained in the act of the Legislature by which they were appointed,* and is now distributed, as prescribed in that act, for the purpose of obtaining suggestions which may aid the Commissioners in completing and perfecting the Code, for submission to the Legislature.

In the compilation of the Penal Code the following have been the leading objects of the Commissioners :

1. To bring within the compass of a single volume the whole body of the law of crimes and punishments in force within this state. The existing statute law of crimes, though comprehensive, does not abrogate rules of the common law making criminal many acts which are untouched by statute; nor does it, in respect to crimes for which punishment is expressly prescribed, altogether dispense with the necessity of reference to the common law to

* The act referred to is chapter 266 of the Laws of 1857. It directs the Commissioners to prepare three Codes; the POLITICAL CODE, the CIVIL CODE, and the PENAL CODE. It provides that the Penal Code must define all the crimes for which persons can be punished, and the punishment for the same; and that neither of the Codes shall embrace any provisions concerning actions or special proceedings, civil or criminal, or the law of evidence. The act further directs that whenever the Commissioners shall have prepared either Code, they shall cause it to be distributed among judges and other competent persons for examination, after which the Commissioners shall re-examine their work and consider such suggestions as have been made to them; and that they shall then cause the Codes, as finally agreed upon, to be reprinted and again distributed, six months before being presented to the Legislature.

determine what are the elements which constitute the offense. As long as the criminality of acts is left to depend upon the uncertain definitions or conflicting authorities of the common law, uncertainty must pervade our criminal jurisprudence. The value of the Penal Code must ultimately depend, in great measure, upon its containing provisions which embrace every species of act or omission which is the subject of criminal punishment. That this has been accomplished in the present draft, is not expected. But it should be understood that in so far as any act or neglect of duty, which upon a sound view of public policy ought to receive criminal punishment, is not made punishable by provisions of the Code, the omission is inadvertent, and if it is brought to the notice of the Commissioners, the defect will be supplied.

2. To supply deficiencies and correct errors in existing definitions of crimes. The statutory definitions of offenses, found in our existing law, are in many instances incomplete or inaccurate, and in some cases contradictory when compared with each other. They have been revised, and those which bear upon co-related crimes have been collated, in the desire to render each definition, as far as possible, complete in itself and independent, consistent with all definitions of analogous crimes, and accurate in including every grade of the prohibited act, which deserves punishment, and excluding every act which though partaking some element of the offense, is yet seen to be innocent.

3. To harmonize the provisions of punishment. The system of punishments instituted by the Revised Statutes was carefully devised, and was harmonious and wellproportioned; but later legislation has introduced many inequalities and disparities. In the present draft these have been, to a considerable extent, corrected. In general, however, for the higher crimes the punishments prescribed by the existing law have been retained, except where special reasons have called for a modification. While in respect to lesser crimes, the limit of power of the courts to impose fines for misdemeanors, in general, has been somewhat increased, * and many crimes of inferior grade have been left to be punished as misdemeanors, the particular measure of punishment imposed by the existing law, being omitted.

4. To supply prohibitions of acts deserving of punishment, but not punishable by the present law. The progress of society creates new opportunities and new temptations to crime, which require to be met by new provisions of law. The statutes of other jurisdictions have been extensively consulted for provisions which might meet by anticipation new developments of crime; and the effort has been to adapt the Code as fully as possible to the wants of the present time.

If the views and purposes above mentioned, had been followed without qualification and restriction in the compilation of the Code, the result would have been quite different from that which has been reached. The Commissioners have, however, in a number of instances, felt restrained from framing provisions of the Code in the manner which has appeared absolutely best, by their sense of the dangers and evils attendant upon hasty innovations upon the existing law. They have, in fact, usually considered, in the first place, the existing statute law of the State relative to each crime, and so far as it has appeared correct and consistent, and was believed to have been approved in practical administration, it has been preserved; such modifications in phraseology being made, as were suitable to render the various sections of the Code as a whole, homogeneous. It has only been where alterations or additions of the law have been felt to be needed, that they have been introduced. Influenced by these considerations, the Commissioners have, in many instances, refrained from

* See section 14 of the Code, and the note thereto.

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