fine, or by removal from office, coupled with a disqualification to hold or enjoy any office of honor, trust or profit, under this state.

4. Public offences are divided into,

1. Felonies: and,

2. Misdemeanors.

This is in conformity with the existing law.

§ 5. A felony is a public offence, punishable with death, or which is, or in the discretion of the court may be, punishable by imprisonment in a state prison.

The definition here given is more comprehensive than that given by the Revised Statutes. The provision there is: "The term 'felony,' when used in this act, or in any other statute, shall be construed to mean an offence for which the offender, on conviction, shall be liable by law to be punished. by death or by imprisonment in a state prison." 2 R. S.

3d ed., 789, sec. 33.

It was held by the supreme court, in Ward v. The People, 3 Hill, 295, and by the court of errors, in the same case, 6 Hill, 144, that under this provision, statute felonies alone were defined, and that offences which were felonies at common law, (as for example, petit larceny,) still remained so, though not punishable by imprisonment in a state prison; though it was admitted that the legislature did not intend such a distinction. The proposed provision obviates the distinction, and establishes a rule applicable to all crimes, whether at common law or by statute.

6. Every other public offence is a misdemeanor.

This section carries out the rule prescribed in the last.

§ 7. No person can be punished for a public offence, except upon legal conviction in a court having jurisdiction thereof.

Declaratory of the common law, and conformable in substance, to chap. 2, sec. 1, of the penal code reported for Massachusetts, in 1844.

§ 8. Every public offence must be prosecuted by indictment, except,

1. Where proceedings are had for the removal of a civil officer of the state, on an impeachment by the assembly, for wilful or corrupt misconduct in office :

2. Where proceedings are had for the removal of justices of the peace, police justices, and justices of justices' courts, and their clerks:

3. Offences arising in the militia, when in actual service; and in the land and naval forces in time of war, or which this state may keep with the consent of congress, in time of peace:

4. Petit larceny, not charged as a second offence:

5. Assault and battery, not charged to have been committed riotously, or upon a public officer in the execution of his duties:

6. Poisoning, killing, maiming, wounding, or cruelly beating an animal:

7. Racing animals, within one mile of the place where a court is held:

8. Committing a wilful trespass, or severing any pro duce or article from the freehold, not amounting to grand larceny:

9. Selling poisonous substances, not labelled as required by statute:

10. Maliciously removing, altering, defacing, or cutting down monuments or marked trees:

11. Maliciously breaking, destroying or removing mile stones, mile-boards or guide-boards, or altering an inscription thereon:

The constitution, art. 1, sec. 6, provides that "no person shall be held to answer for a capital or otherwise infamous crime (except in cases of impeachment, and in cases of the 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."

Under a similar provision in the constitution of 1821, art. 7, sec. 7, the legislature gave jurisdiction to the courts of special sessions, which proceeded without indictment, of the cases mentioned in this section from subdivision 4 to subdivision 11, both inclusive. 2 R. S., 3d ed. 798, sec. 1.

The cases excepted in the first subdivision are those which, by the constitution, art. 6, sec. 1, are punishable by impeachment. Those in the second subdivision, are included in that part of the constitution which provides that justices of the peace and judges or justices of inferior courts not of record, and their clerks, may be removed after due notice, and an opportunity of being heard in their defence, by such county, city or state courts, as may be prescribed by law, for causes to be assigned in the order of removal." Art. 6, sec. 17. In this subdivision, the terms used are "justices of the peace, police justices and justices of justices' courts." This difference in phraseology is in accordance with section 12 of the code of civil procedure, by which all the courts of justice of this state, are declared to be "courts of record, except that justices' and police courts are deemed inferior courts not of record, within the section of the constitution," just referred to; and with section 16, of this code, by which, in reference to the enumeration of the courts of original criminal

jurisdiction, the same declaration is made respecting the police courts. See p. 11.

The cases in the third subdivision, are excepted in the provision of the constitution first quoted.

§ 9. The proceeding, by which a party charged with a public offence is accused and brought to trial and punishment, is known as a criminal action.

§ 10. A criminal action is prosecuted in the name of the people of the state of New-York as a party, against the party charged with the offence.

§ 11. The party prosecuted in a criminal action, is designated in this code, as the defendant.

The last three sections treat the proceedings for the trial and punishment of public offences, as a criminal action. In doing so they follow the definition in the Code of Civil Procedure: "5. An action is an ordinary proceeding in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence." "§ 7. Actions are of two kinds : 1. Civil, and 2. Criminal." "§ 9. A criminal action is prosecuted by the state as a party, against a person charged with a public offence, for the punishment thereof."

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These definitions are in accordance with the authority of the most approved elementary writers.

§ 12. In a criminal action, the defendant is entitled, 1. To a speedy and public trial:

2. To be allowed counsel, as in civil actions; or he may appear and defend in person and with counsel; and,

3. To produce witnesses in his behalf, and to be confronted with the witnesses against him in the pre

sence of the court; except that where the charge has been preliminarily examined before a magistrate, and the testimony reduced by him to the form of a deposition, in the presence of the defendant, who has, either in person or by counsel, cross-examined, or had an opportunity to cross-examine the witness; or where the testimony of a witness on the part of the people, who is unable to give security for his appearance, has been taken conditionally, according to sections 218 and 219, the deposition of the witness may be read, upon its being satisfactorily shown to the court that he is dead or insane, or cannot, with due diligence be found in the state.

The first subdivision of this section is taken from the bill of rights. 1 R. S., 2d ed. 95. sec. 14.

The second subdivision is taken from the constitution, art. 1. sec. 6.

In respect to the third subdivision, the Commissioners have found in the existing practice, some regulations, resulting from considerations of public policy, which have conflicted with the full and absolute enjoyment of the privileges guaranteed to the defendant by the bill of rights. They refer especially to the legislation applicable to the city of New-York, permitting the examination of a witness out of court, where, by reason of his being a non-resident of the state, his absence at the time of the trial might lead to the impunity of the defendant. Laws of 1844, p. 476, sec. 11. The provision in question was adopted, mainly with reference to a class of cases, where persons from other states were the victims of fraud or inpositions in that city, indictable as public offences; and provided for the examination of a witness upon notice to the defendant, and an opportunity to cross-examine, and for the introduction of the testimony thus taken, as evidence upon the trial. This, at present, constitutes the only exception to the rule as prescribed by the bill of rights, that the defendant must be confronted with the witnesses against him ;-a