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

or

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 inflction 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 I of the constitution of 1846, without change.]

Indictment of Grand Jury.

This provision has reference to criminal proceedings only with a view to punishment under the criminal law. (Matter of Smith, 10 Wend. 449.)

The bill of rights must be interpreted in light of the law as it was when the bill was adopted, and though indictments could generally be tried only in the county where the offense was committed, there were exceptions by virtue of legislative enactment. (Mack v. People, 82 N. Y. 235; People v. Dowling, 84 id. 478.)

An indictment found by a grand jury drawn under a void act is the indictment of a de facto grand jury selected and organized under the forms of law and therefore valid. (People v. Petrae, 92 N. Y. 128.)

Provision of Code of Criminal Procedure allowing amendment to indictment, by direction of court, without prejudice to defendant, is constitutional. (People v. Johnson, 104 N. Y. 213.)

When, in a case of misdemeanor, a district attorney elects to prosecute by indictment, he must do so through the medium of a legally constituted grand jury and by an indictment that is good at law both in form and substance. (People v. Scannell, 37 Misc. 345.) (1902.)

Right to Counsel, Etc.

A prisoner confined in jail has a constitutional right to private interview with counsel, even before indictment. (People ex rel. v. Risely, 13 Abb. N. C. 186.)

The right to appear and defend with counsel cannot be denied an accused person in courts-martial. (People ex rel. v. Van Allen, 55 N. Y. 31.)

But such right is not given a policeman accused before a board of police commissioners. (People ex rel. v. Police Commissioners, 31 Hun, 209.)

It is wrong to permit a jury to visit place where crime was committed without attendance of defendant or his counsel. (People v. Palmer, 43 Hun, 397.)

Twice in Jeopardy.

A new trial cannot be granted where the defendant has been acquitted. (People v. Comstock, 8 Wend. 549.)

A writ of error will not lie in behalf of the people after judgment for defendant in a criminal case. (People v. Corning, 2 N. Y. 9.)

May be tried again where plea to jurisdiction has been raised and prisoner discharged. (Gardiner v. People, 6 Park. 155, 190.)

A prisoner against whom a wrong judgment was pronounced upon a regular trial and conviction cannot be subjected to another trial. (Shepherd v. The People, 25 N. Y. 406. See also, in this connection, Hartung v. People, 22 N. Y. 95; S. C., 26 id. 167.)

An arrest of judgment after conviction upon the ground of mistake is no bar to trial for same offense. (People v. Casborus, 13 Johns. 351.)

Where a jury failed to agree upon a verdict in a criminal case, and jury was discharged, the defendant may be tried again. (People v. Goodwin, 18 Johns. 187); and where jury separated without authority before rendering a verdict a new trial could be had. (People v. Reagle, 60 Barb. 527.)

A new trial may be had upon the reversal of a conviction at the instance of the defendant, since the jeopardy is incurred with the consent of and as a privilege granted to the defendant upon his application. (People v. Palmer, 109

N. Y. 413; People v. Rudolff, 5 Park. 77.)

Where the defendant was acquitted upon some counts in an indictment and convicted on another, the reversal of the conviction does not disturb the acquittal and defendant can only be retried upon the count in which the verdict of conviction was rendered. (People v. Dowling, 84 N. Y. 478.)

66

To sustain the plea of a former acquittal it must appear that the party was 'put in jeopardy " by the former trial; so if indictment was defective in former trial it is no bar. (Canter v. People, 1 Abb. Dec. 305.)

Conviction for assault and battery no bar to indictment for murder, where the person assaulted subsequently dies of the blows. (Burns v. People, 1 Park. 182.)

The provisions of L. 1886, chap. 21, authorizing the governor to commute a sentence of imprisonment with a condition of serving out the full term upon conviction of a subsequent felony, does not conflict with the provision that no one shall be twice in jeopardy for the same offense. (People ex rel. Willis v. Sage, 11 App. Div. 4.) (1896.)

The trial and acquittal of a person indicted for an offense where the person committing the same is also liable for a penalty to be collected in a civil action does not constitute a bar to the maintenance of such civil action to recover such penalty. (People v. Snyder, 90 App. Div. 422.) (1904.)

When a jury is impaneled and sworn, in a prosecution for grand larceny, it may be discharged by the court, and another impaneled to try the case, no evidence having been introduced for the consideration of the first jury; the proceedings so far do not constitute an independent trial of the defendant so as to protect him from further prosecution under the constitutional guarantee that "No person shall be subject to be twice put in jeopardy for the same offense." (People v. Neff, 122 App. Div. 135.) (1907.) (Affd., 191 N. Y. 210.) (1908.)

Witness against Himself in Criminal Case.

By this provision no one is to be compelled in any judicial or other proceeding against himself, or upon the trial of issues between others, to disclose facts or circumstances that can be used against him as admissions tending to prove his guilt or connection with any criminal offense of which he may then or afterward be charged. (People ex rel. Taylor v. Forbes, 143 N. Y. 219, 228.)

A witness is not protected in a criminal case against another from being compelled to give testimony which implicates him in a crime when he has been protected by statute against the use of such testimony on his own trial. (People ex rel. v. Kelly, 24 N. Y. 74, citing Perine v. Pixley, 7 Paige, 598; People v. Sharp, 107 N. Y. 427.)

Laws of 1869, chap. 678, providing that accused "shall at his own request, but not otherwise, be deemed a competent witness" is constitutional. (People v. Courtney, 94 N. Y.

By consenting to become a witness under the above act, defendant waives constitutional protection and subjects himself to the rules and tests applicable to other witnesses. (Connors v. People, 50 N. Y. 240; Brandon v. People, 42 id. 265.)

Compelling a defendant in a criminal case to stand up for identification by a witness does not compel him to give evidence against himself. (People v. Gardner, 144 N. Y. Privilege of witness, see Matter of Attorney-General, 21 Misc. Rep. 101 (1897); affirmed, but not on this point, 22 App. Div. 285.

False and fictitious papers retained in a public office purporting to be regular public papers and constituting vouchers for a false bill are not private papers exempted from unreasonable search or seizure, nor do they constitute a violation of defendant's right to exemption from being com. pelled to give evidence against himself. (People v. Coombs, 158 N. Y. 533.) (1899.)

A statute requiring a party proceeded against for cancellation of liquor tax certificate to answer under oath, unconstitutional. (Matter of Peck, 167 N. Y. 391.) (1901.)

The taking of a prisoner charged with murder to a place outside of the jail for the purpose of examination by physicians for the people as to his mental condition, where defense of insanity is interposed, not objectionable as compelling him to be a witness against himself. (People v. Truck, 170 N. Y. 203.) (1902.)

In a criminal cause the court will not take notice of the manner in which witnesses have possessed themselves of papers or other articles of personal property which are material and properly offered in evidence. The admission in evidence upon the trial of an indictment for policy playing of private papers alleged to have been unlawfully seized for the purpose of establishing defendant's handwriting on certain policy slips does not compel him to become a witness against himself. (People v. Adams, 176 N. Y. 351.) (1903.)

Taking the shoes of one charged with murder and comparing them with footprints in the newly-fallen snow and introducing upon the trial evidence that they correspond in all respects is not compelling the defendant to be a witness against himself. (People v. Van Wormer, 175 N. Y. 188.) (1903.)

The provision that testimony given by witness cannot be received against him upon any criminal investigation or proceeding does not protect the constitutional rights of the