§ 686. Order for its delivery to owner. On satisfactory proof of the title of the owner of the property, the magistrate before whom the information is laid, or who examines the charge against the person accused of stealing or embezzling the property, may order it to be delivered to the owner, unless its temporary retention be deemed necessary in furtherance of justice, on his paying the reasonable and necessary expenses incurred in its preservation, to be certified by the magistrate. The order entitles the owner to demand and receive the property.

Simpson v. St. John, 93 N. Y. 365; Houghton v. Backman, 47 Barb. 388.

§ 687. When it comes into custody of magistrate he must deliver property to owner, on proof of title and payment of expenses.— If property stolen or embezzled come into the custody of a magistrate, it must, unless its temporary retention be deemed necessary in furtherance of justice, be delivered to the owner, on satisfactory proof of his title, and on his paying the necessary expenses incurred in its preservation, to be certified by the magistrate.

Simpson v. St. John, 93 N. Y. 365; Houghton v. Bachman, 47 Barb. 393.

§ 688. Court in which trial is had, etc., may order such delivery to owner.- If property stolen or embezzled have not been delivered to the owner, the court before which a trial is had for stealing or embezzling it, may, on proof of his title, order it to be restored to the

owner.

§ 689. If not claimed in six months, to be delivered, etc.—If property stolen or embezzled be not claimed by the owner, before the expiration of six months from the conviction of a person for stealing or embezzling it, the magistrate or other officer having it in his custody must, on payment of the necessary expenses incurred in its preservation, deliver it to the county superintendents of the poor, or in the city of New York, to the commissioners of charities and corrections, to be applied for the benefit of the poor of the county or city, as the case may be.

§ 690. Receipt for money or property, taken from a person arrested, etc.- Except in the city of New York, when money or other property is taken from a defendant, arrested upon a charge of a crime, the officer taking it must, at the time, give duplicate receipts therefor, specifying particularly the amount of money or the kind of property taken; one of which receipts he must deliver to the defendent, and the other of which he must forthwith file with the clerk of the court to which the depositions and statement must be sent, as provided in section 221.

§ 691. Duties of police clerks in the city of New York, etc.The commissioners of police of the city of New York may designate some person to take charge of all property alleged to be stolen or embezzled, and which may be brought into the police office, and all property taken from the person of a prisoner, and may prescribe regulations in regard to the duties of the clerk or clerks so designated, and to require and take security for the faithful performance of the duties imposed by this section, and it shall be the duty of every officer into whose possession such property may come, to deliver the same forthwith to the person so designated.

CHAPTER XIII.

REPRIEVES, COMMUTATIONS AND PARDONS.

SEC. 692. Power of governor to grant reprieves, commutations and pardons. 693. His power in respect to convictions for treason. Duty of the legisla ture, in such cases.

694. Governor to communicate annually to legislature, reprieves, commu. tations and pardons.

695. Report of case, how, and from whom required.

696.

697. 698.

Conditional pardons - procedure on violation of.

§ 692. Power of governor to grant reprives, commutations and pardons.-The governor has power to grant reprives, commutations and pardons, after conviction, for all offenses, except treason and cases of impeachment, upon such conditions, and with such restrictions and limitations, as he may think proper, subject to the regulations provided in this chapter.

Pardon does not bar other proceedings. Anon, 86 N. Y 563; People v. Potter, 1 Park. 47; People v. Pease, 3 John. Cas. 333; In re Edymion, 8 How. 478; Arthur v. Craig, 48 Iowa, 264; 30 Am. Rep. 395; State v. Foley, 15 Nev. 64; 37 Ám. Rep. 458; State v. Alexander, 76 N. C. 231; 22 Am. Rep. 675.

§ 693. His power in respect to convictions for treason; duty of the legislature, in such cases. He may also suspend the execution of the sentence, upon a conviction for treason, until the case can be reported to the legisla ture, at its next meeting, when the legislature must either pardon or commute the sentence, direct the execution thereof, or grant a further reprieve.

694. Governor to communicate annually to legislature, etc.— He must annually communicate to the legislature, each case of reprieve, commutation or pardon; stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the commutation, pardon or reprieve.

695. Report of case, how and from whom required.-When application is made to the governor for a pardon, commutation or reprieve, it shall be the duty of the presiding judge of the court before which the conviction was had, and the district attorney by whom the criminal action was prosecuted, or the district attorney of the county where the conviction was had, holding office at the time of such application, to supply the governor, upon his request therefor, and without delay, with a statement of the facts proved on the trial; or, if a trial was not had, the facts appearing before the grand jury which found the indictment, and of any other facts having reference to the propriety of granting or refusing such pardon, commutation or reprieve." [AM'D BY CH. 356 of 1884.]

$ 696 Conditional pardon; procedure on violation of. If any person who has been discharged from imprisonment, by virtue of any conditional pardon, or conditional commutation of his sentence, shall violate such condition or neg lect to perform it, his pardon or commutation shall be void and he shall be remanded to the place of his former imprisonment and there confined for the unexpired term for which he had been sentenced. When complaint, upon oath, shall be made to a magistrate, that any such person, within his county, has violated or failed to perfom the condition of his pardon or commutation, the magistrate shall issue a warrant as provided in chapter two, title three, part four of this act. When the defendant shall have been brought before him, the magistrate, if there is then sitting in his county, any of the courts mentioned in titles three or five of part one of this act, shall remit to it the complaint and deposition, if any, that have been taken before him. If no such court is then in session the magistrate shall proceed to examination of the defendant, in the manner prescribed in chapter seven, title three, part four of this act, and shali either discharge him or shall hold him to answer the charge against him at the next term of such court to be held in the county, and the defendant shall either give bail so to appear and answer, or shall be committed as prescribed in said chapter seven. The warrant may also be issued by any of the courts mentioned in this section upon the like complaint as if application is made to a magistrate. [AM'D BY CHAP. 880 OF 1895. In effect Jan. 1, 1896.]

697. Id. When the defendant shall be brought before the court it shall, forthwith, make an order that the defendant show cause why his pardon or commutation should not be adjudged to be void, and he should not be remanded to the place of his former imprisonment for the unexpired term of his sentence. The order shall set forth the facts which constitute the violation of or the neglect to perform the condition of the pardon or commutation. The defendant shall plead to said order in writing. If he admit the facts the court shall at once proceed to pronounce judgment. If the defendant shall deny any material fact, the issue so joined shall be tried by a jury. Upon such trial the people and the defendant shall each be allowed five peremptory challenges, and no more. Upon the return of the verdict the court shall, without delay, proceed to Judgment. If judgment is rendered against the defendant it shall adjudge that his pardon or commutation is void, and shall commit him to the place of imprisonment from which he had been discharged, upon his pardon or commutation, there to be confined for that portion of the term of his former sentence which had not expired, when he had been discharged by virtue of the pardon or commutation. [ADDED BY CH. 392 of 1894. Took effect May 3, 1894.]

§ 698. Idem.-If an issue of fact upon a material question shall be raised by the answer of the defendant, and it shall appear that the violation of, or the failure to perform the condition took place in a county other than that in which the arrest was made, the court may, in its discretion, in furtherance of justice change the place of trial to such other county. The papers in the case shall be filed with the clerk of the county to which the place of trial was changed, with the order changing the place of trial, and a copy of such order shall be sent to the district attorney of such county, and the defendant shall be committed to the custody of the sheriff of said county, or be held to bail to appear at the next term of the court in which the subsequent proceedings shall be had. All subsequent proceedings shall be had in the supreme court or county court of the county, to which the place of trial had been changed, with the same effect as if they had originally been begun in that court. (AM'D BY CHAP. 880 of 1895. In effect Jan. 1, 1896.]

TITLE

PART V.

OF PROCEEDINGS IN COURTS OF SPECIAL SESSIONS AND POLICE COURTS.

I. OF THE PROCEEDINGS IN COURTS OF SPECIAL SESSIONS IN THE COUNTIES OTHER
THAN NEW YORK,

II. OF THE PROCEEDINGS IN THE COURTS OF SPECIAL SESSIONS IN THE CITY AND
COUNTY OF NEW YORK.

III. OF APPEALS FROM THE COURTS OF SPECIAL SESSIONS.

TITLE I.

Of Proceedings in Courts of Special Sessions in the Counties other than New York. SEC. 699. Charge to be read to defendant, and he required to plead.

700. The plea, and how put in.

701. Issne, how tried.

702. Defendant may demand a trial by jury.

703. Jury, how summoned.

704. Sunimioning the jury, and returning the order.

705. Depositing ballots in box.

706. Drawing the jury.

707. Challenges.

708. Talesmen, when and how ordered and summoned.

709. Punishing officer for not returning list, and issuing new order for Jury.

710. Jury, how constituted.

711. Their oath.

712. Trial, how conducted.

713. Jury may decide in court, or retire.

714. Delivering verdict, and entry thereof.
715. Discharge of jury without verdict.

Oath of officer on their retirement.

SEC. 716. In such case, cause to be re-tried.

717. Judgment on conviction.

718. Judgment of imprisoment, until fine be paid.

720. Judgment against prosecutor for costs.
721-722. Certificate of conviction. Its form.

723. Certificate, when tiled.

724. Certificate, conclusive evidence.

725. Judgment, by whom executed.

Extent of imprison

Order that prosecutor

726. Fine, by whom received before commitment, and how applied.
727. Fine to whom paid after commitment and how applied.

728. Proceedings against magistrate or sheriff, on neglect to pay fine into
county treasury,

729. Subpoenas for witnesses, and punishing them for disobedience.

730. Punishing jurors for non-attendance.

731. No fees to jurors or witnesses.

732. When defendant requests a trial by police court, preliminary examination dispensed with.

733. During time allowed for bail, and until judgment, defendant to be continued in custody of oflicer, or committed to jail.

734. Form of commitment.

735. By whom executed.

736. Defendant may be admitted to bail.

737. Bail, how and by whom taken.

738. Form of the undertaking.

739. Undertaking, when forfeited and action thereon.

740. Forfeiture, how and by whom remitted.

See People v. Hulett, 39 N. Y. St. Rep. 648.

§ 699. Charge to be read to defendant, and he required to plead. In the cases in which the courts of special sessions or police courts have jurisdiction, when the defendant is brought before the magistrate, the charge against him must be distinctly read to him, and he must be required to plead thereto.

People ex rel. Baker v. Beatty, 39 Hun, 477; 4 N. Y. Cr. 288; Fraser v. Board, etc. 17 N. Y. St. Rep. 875; People v. Cook, 45 Hun, 36.

§700. The plea, and how put in.- The defendant may plead the same pleas as upon an indictment, as provided in section 332. His plea must be oral, and entered upon the minutes of the court.

People ex rel. Baker Beatty, 39 Hun, 477; 4 N. Y. Cr. 288.

§ 701. Issue, how tried.— Upon a plea other than a plea of guilty, if the defendant do not demand a trial by jury, the court must proceed to try the issue.

Infant may waive jury trial. People ex rel. Sammons v. Wandell, 21 Hun, 515. People v. Cook, 45 id. 37; People v. Green, 4 N. Y. Cr. 443; Gill v. People, 3 Hun, 187; 5 T. & C. 308; People v. Goodwin, 5 Wend. 251; People v. Mallon, 39 How. 454; People v Berberick, 20 Barb. 224; 11 How. 287; Wynehamer. People, 13 N. Y. 378; People ex rel. Murray v. Justices, 74 id. 406.

§ 702. Defendant may demand a trial by jury.- Before the court hears any testimony upon the trial, the defendant demand a trial by jury.

may

People v. James, 16 Hun, 426; People v. Green, 4 N. Y. Cr. 443; People v. Cook, 45 Hun, 37; People v. Baird, 11 id. 289; People v. Leid. 19 A. L. J. 400; People v. Mallon, 39 How. 454; People v. Berberrich, 20 Barb. 224, 11 How. 289.

§ 703. Jury; how summoned.—If a trial by jury be demanded, the court must forthwith draw from the box or other receptacle kept and used in accordance with the requirements of the code of civil procedure, relative to the drawing of jurors in justice courts in civil cases, twelve of the ballots provided for in section twenty-nine hundred and ninety and twentynine hundred and ninety-one of the code of civil procedure to be kept and used by justices of the peace in civil cases. If a person whose name thus drawn, shall, in the opinion of the court, reside more than three miles from the place where the said issue is to be tried, the court may set aside such juror, and in that case draw another ballot and so can continue until twelve be drawn to serve as jurors. The court must thereupon insert the names of the persons so drawn in an order directed to any constable of the county, or marshal or police officer of the city or village where the offense is to be tried and having authority to execute process of the court, commanding him to summon the persons therein named to appear before the said court at a time not more than three days from the time of the making of said order, unless the trial of said issue be longer adjourned by consent and at a place named therein, to constitute a jury for the trial of the alleged offense. It shall be the duty of every town or city clerk in this state, within ten days after the taking effect of this act, to make and deliver to every recorder, police justice or other judicial officer having authority to hold courts of special sessions in their respective towns or cities in accordance with the provisions of this title, a certified copy of the jury list as is now required by section twenty-nine hundred and ninety of the code of civil procedure to be furnished by them to the justices of the peace of their various towns and cities for the drawing of jurors in civil actions, and any such clerk neglecting or refusing so to do shall be deemed guilty of a misdemeanor. The boxes or other receptacles now used by justices of the peace for the purpose of drawing jurors in civil cases shall be used by them for drawing jurors to serve in courts of special sessions as herein provided, and recorders, police justices and other judicial officers empowered to hold such courts of special sessions, as provided by this title, are hereby required to procure and use the same in the manner provided by this section. [AM'D BY CH. 127 of 1893. In effect September 1, 1893.]

People v. Green, 4 N. Y. Cr. 443; People v. Cook, 45 Hun, 37; People v. Hulett, 39 N. Y. St. Rep. 648.

$704. Summoning the jury, and returning the order. The court must deliver, or cause to be delivered, the said order to any officer to whom the same is directed and empowered to execute the same. The officer to whom said order is so delivered must thereupon summon personally each of the persons drawn and named therein to serve as such jurors by exhibiting to them the said order and at the same time reading to or stating to them the substance thereof. He shall then make his return to said order certifying that he personally served it upon each of the persons named therein and in each case of his being unable to do so the reason thereof. Any person so summoned not attending at the time and place and not having sufficient legal excuse for doing so, specified in said order, is hereby declared guilty of contempt of court and is punishable by a fine not exceeding fifty dollars or imprisonment not more than thirty days, or by both such fine and imprisonment. [AM'D BY CH. 127 of 1893. In effect September 1, 1893.]

$705. Depositing ballots in box.-The names of the persons returned as jurors must be written on separate ballots, folded as nearly alike as possible, so that the name cannot be seen, and must, under the direction of the court, be deposited in a box, or other convenient thing.

People v. Hulett, 39 N. Y. St. Rep. 648.

$706. Drawing the jury.-The court must then draw out six of the ballots, successively and if any of the persons whose names are drawn do not appear, or are challenged and set aside, such further number must be drawn as will make a jury of six, after all legal challenges have been allowed.

See People ex rel. Eckler v. Clark, 23 Hun, 374: People ex rel. Murray . Justices, etc.. 74 N. Y. 406; People ex rel. Met. B., etc. v. Lane, 6 Abb. (N. S.) 105; Duffy v. People, 6 Hill, 75; Devine v. People, 20 Hun, 98; People . Dutcher, id. 241: Vanderwerker r. People, 5 Wend. 530: Germond . People, 1 Hill, 343; Dawson v. Horan, 51 Barb. 459; People v. Hulett, 39 N. Y. St. Rep. 648.

707. Challenges. - The same challenges may be taken by either party, to the panel of jurors, or to an individual juror, as on the trial of an indictment for a misdemeanor, so far as applicable; and the challenge must, In all cases, be tried by the court.