§ 8. Procedure, how regulated.-The manner of prosecuting and convicting criminals is regulated by the Code of Criminal Procedure. [CH. 442 of 1881.]

Matter of McDonald, 32 Hun, 589, n.; People v. Beckwith, 108 N. Y. 73.

§ 9. Conviction must precede punishment.-The punishments prescribed by this Code can be inflicted only upon a legal conviction in a court having jurisdiction.

See § 3, Code Cr. Proc.; Art. 1, § 1, N. Y. Const.; Davis v. Am. Soc., etc., 75 N. Y. 362. When a penalty excludes punishment. People v. Hislop, 77 N. Y. 331; Ex parte Janes, 30 How. Pr. 446. Increased punishment for locality. Ex parte Bayard, 25 Hun, 546, rev'g 61 How. Pr. 294. See Ex parte Coughlin, 62 id. 34; Ex parte Trimble, id. 61. Lawful act of one cannot be made prima facie evidence of another's guilt. People v. Lyon, 27 Hun, 180. Upon legal conviction. Matter of McDonald, 32 Hun, 589; 2 N. Y. Cr. 107, 140; Blaufus v. People, 69 N. Y. 107; Marion v. State, 16 Neb. 349. Void sentence. People v. Bork, 96 N. Y. 188. Jurisdiction. People v. Marra, 4 N. Y. Cr. 304.

§ 10. Jury to find degree of crime.-Whenever a crime is distinguished into degrees, the jury, if they convict the prisoner, must find the degree of the crime, of which he is guilty.

Code Cr. Proc., § 444; People v. Kelly, 35 Hun, 295; People v. Rugg, 98 N. Y. 537; S. C., 3 N. Y. Cr. 172. See §§ 35, 436, 437, post. Verdict. See §§ 436-438, 440, 35, post; McNevins v. People, 61 Barb. 307.

§ 11. General rules of construction of this act.—The rule that a penal statute is to be strictly construed does not apply to this Code or any of the provisions thereof, but all such provisions must be construed according to the fair import of their terms, to promote justice and effect the objects of the law.

"Felonious intent" construed. People v. Moore, 37 Hun, 84. See People v. Kerin, 39 id. 631; People v. McTameney, 30 id. 506; 13 Abb. N. C. 56; 66 How. 70; 1 N. Y. Cr. 437; Matter of Hallenbeck, 65 How. 402; People, ex rel. Devoe, v. Kelly, 32 Hun, 540; S. C., 97 N. Y. 215; People v. Palmer, 43 Hun, 408; 17 W. Dig. 492; People v. Whedon, 2 N. Y. Cr. 318; People v. Bauer, 37 Hun, 408; Cowley v. People, 83 N. Y. 468; People v. Richards, 108 id. 139; Fitzgerald v. Quann, 109 id. 441; People v. Palmer, id. 117.

§ 12. Of sections declaring crimes punishable.—The several sec-lli

tions of this Code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence, to determine and impose the punishment prescribed.

See $$ 471 et seq. of Code Cr. Proc.; People v. Bauer, 37 Hun, 407; S. C., 3 N. Y. Cr. 433.

13. Punishments, how determined. Whenever in this Code the punishment for a crime is left undetermined between certain limits, the punishment to be inflicted in a particular case must be determined by the court authorized to pass sentence, within such limits as may be prescribed by this Code. In all cases where a corporation is convicted of an offense for the commission of which a natural person would be punishable with imprisonment, as for a felony, such corporation is punishable by a fine of not more than five thousand dollars.

People v. Bauer, 37 Hun, 407; S. C., 3 N. Y. Cr. 433.
See 705, post.

33

§14. Punishment of felonies when not fixed by statute.- A person convicted of a crime declared to be a felony, for which no other punishment is specially prescribed by this Code, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment for not more than seven years, or by a fine of not more than one thousand dollars, or by both.

15. Punishment of misdemeanors. —A person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially prescribed by this Code, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment in a penitentiary, or county jail, for not more than one year, or by a fine of not more than five hundred dollars, or by both.

See $706, post.

Applicable. People v. McTameney, 30 Hun, 508: S. C., 13 Abb. N. C. 56; 1 N. Y. Cr. 437; 66 How. 75; Matter of Hallenbeck, 65 id. 501; Loos v. Wilkinson, 51 Hun, 85; Foote v. People, 56 N. Y. 321; People v. Palmer, 43 Hun, 408; 5 N. Y. Cr. 107.

Not applicable. People v. Sadler, 3 N Y. Cr. 474.

Special Sessions. People v. Riseley, 38 Hun, 280; People v. Carter, 48 id. 165; People v. Palmer, 43 id. 408; 5 N. Y. Cr. 107; Clark v. Holderidge, 58 Barb. 61; Burns v. Norton, 35 N. Y. State Rep'r, 416. See § 717, Code Cr. Proc.

See 2 City Ct. 403, note.

TITLE I.

Persons Punishable for Crime.

SEC. 16. What persons are punishable criminally. 17. Presumption of responsibility in general.

18. Id., as to child under seven years.

19. Id., as to child of seven years or more.

20, 21. Irresponsibility, etc., of idiot, lunatic, etc.
22. Intoxicated persons.

23. Morbid criminal propensity.

24. Rule as to married woman.

25. Rule as to persons acting under threats, etc.

26. Id., when act done in defense of self or another.

27. Exemption of public ministers.

S 16. What persons are punishable criminally. — The following persons are liable to punishment within the state:

1. A person who commits within the state any crime, in whole or in part;

2. A person who commits without the state any offense which, if committed within the state, would be larceny under the laws of the state, and is afterward found, with any of the property stolen or feloniously appropriated within this state;

3. A person who, being without the state, causes, procures, aids, or abets another to commit crime within the state;

4. A person who, being out of this state, abducts or kidnaps by force or fraud, any person contrary to the laws of the place where such act is committed, and brings, sends or conveys such person within the limits of this state, and is afterward found therein.

5. A person who, being out of this state and with intent to cause

within it a result contrary to the laws of this state, does an act which in its natural and usual course results in an act or effect contrary to its laws.

Ignorance does not excuse. Hamilton v. People, 57 Barb. 625. Criminal intent necessary to constitute breach of penal statute. Sturgess v. Maitland, Anth. N. P. 208. See Baker v. Richardson, 1 Cow. 77; Morris v. People, 3 Den. 381. Ignorance of penal statute is no excuse. Smith v. Brown, 1 Wend. 231. That defendant was illegally apprehended in foreign county, no objection to jurisdiction. People v. Rowe, 1 Sheld. 81. Subs. 4, 5; People v. Wright, 2 Cai. 213; People v. Gardner, 2 Johns. 477; People v. Schenck, id. 479; McCullough's case, 2 C. H. Rec. 45. See People v. Adams, 3 Den. 190; S. C., 1 N. Y. 173; People v. Bork, 91 N. Y. 5. Same act may be punishable under U. S. Stat. Abbott v. People, 75 N. Y. 602.

Jurisdiction. People v. Lyon, 1 N. Y. Cr. 400; 99 N. Y. 219; Adams v. People, 1 id. 173; People v. Wilson, 3 Park. 199; People v. Marine Court, 6 Hun, 214; People v. Lane, 1 Edm. Cases, 116; People v. Marra, 4 N. Y. Cr. 304; Western, etc., Co. v. Kilderhouse. 87 N. Y. 435; Coin. v. White, 123 Mass. 430; 25 Am. Rep. 116; Langdon v. N. Y., etc., R. Co., 8 Ry. & Corp. L. J. 405; Wisconsin v. Pelican Ins. Co., 127 U. S. 265; Murphy v. English, 64 How. 362; People v. Bliven, 112 N. Y. 79.

See 88 185, 540, 676, post.

§ 17. Presumption of responsibility for acts. A person is presumed to be responsible for his acts. The burden of proving that he is irresponsible is upon the accused person, except as otherwise prescribed in this Code.

Responsible for natural consequences. People v. Sanity is presumed. Walter v. People, 32 N. Y. 147; Barb. 274. Insanity must be affirmatively established. Rec. 185; People v. Robinson, 1 Park. 646; 2 id. 235. necessary consequences of his acts, is also presumed. N. Y. 609; People v. Conroy, 97 id. 62, aff'g 33 Hun, 119.

Adams, 16 Hun, 549.
O'Brien v. People, 48
Sellick's case, 1 C. H.
That one intends the
People v. Foster, 50

§ 18. Child under seven years. A child under the age of seven years is not capable of committing crime.

Moebus v. Herrman, 108 N. Y. 353; Stone v. Dry D., etc., R. Co., 115 id. 104; S. C., 23 N. Y. State Rep'r, 551; Kunz v. City of Troy. 104 N. Y. 344; Mangan v. Brooklyn R. Co., 38 id. 455; Fallon v. Central Park, etc., Co., 49 id. 255; McMahon v. Mayor, etc., 33 id. 642; Wendell v. N. Y. C. R. Co., 91 id. 420.

§ 19. Child between seven and twelve. A child of the age of seven years, and under the age of twelve years, is presumed to be incapable of crime, but the presumption may be removed by proof that he had sufficient capacity to understand the act or neglect charged against him and to know its wrongfulness. Whenever in any legal proceedings it becomes necessary to determine the age of a child, the child may be produced for personal inspection, to enable the magistrate, court or jury, to determine the age thereby; and the court or magistrate may direct an examination by one or more physicians, whose opinion shall also be competent evidence upon the question of age. A copy of the record of baptism of any child in any parish register, or register kept in a church, or by a clergyman thereof, or a certificate of baptism duly authenticated by the person in charge of such register, or who administered said baptism, and also a transcript of the record of birth recorded in any bureau of vital statistics or board of health, duly authenticated by its secretary or under its seal, and the entries made in a family Bible, shall also be competent evidence upon the question of the age. [AMENDED CHAPS. 46 of 1884 AND 145 OF 1888.]

See 279, post. Walker's case, 5 C. H. Rec. 137. See Stage's case, id. 177; People v. Davis, 1 Wh. C. C. 230.

Presumption. People v. Teller, 1 Wh. C. C. 231; People v. Randolph, 2 Park. 174; State v. Adams, 76 Mo. 355; State v. Tice, 6 West. 677; Willett v. Com., 13 Bush, 230; Angelo v. People, 96 Ill. 29; S. C., 36 Am. Rep. 132; Stone v. Dry D., etc., R. Co., 115 N. Y. 109.

Breach of peace. Bullock v. Babcock, 3 Wend. 391.

False pretenses. People v. Kendall, 25 Wend. 399; Doran v. Smith, 49 Vt. 353.

Felony. Angelo v. People, 96 Ill. 29.

Manslaughter. Irby v. State, 33 Ga. 496.

Murder. Godfrey v. State, 31 Ala. 323.

Rape. Com. v. Green, 2 Pick. 380; Law v. Com., 78 Va. 885; S. C., 40 Am. Rep. 750; see § 279, post.

Proof of age. By personal inspection. Matter of Serafino, 66 How. 178; State v. Arnold, 13 Ired. 184; Shingar v. State, 53 Ind. 251; People v. Plath, 3 N. Y. Cr. 129, rev'd on other grounds in 100 N. Y. 590; People v. Townsend, 3 Hill, 479; People v. Stott, 4 N. Y. Cr. 388; People, ex rel. Zeigler, v. Special Sessions, 10 Hun, 224.

By family Bible. People v. Sheppard, 5 N. Y. Cr. 132; S. C., 55 Hun, 565; 1 Greenl. Ev., § 104; 1 Phil. Ev. 255.

By infant's own testimony. Morrison v. Emsley, 53 Mich. 564; Cheever v. Congdon, 34 id. 296; Central R. Co. v. Coggin, 73 Ga. 689; Banks v. Metcalfe, 1 Wheeler Cas 381.

See further 37 Alb. L. J. 130; 28 Eng. Rep. 516; 37 id. 702; § 933 of Code of Civ. Pro.

§ 20. Irresponsibility of idiot, lunatic, etc.- An act done by a person who is an idiot, imbecile, lunatic, or insane, is not a crime. A person cannot be tried, sentenced to any punishment, or punished for a crime, while he is in a state of idiocy, imbecility, lunacy, or insanity, so as to be incapable of understanding the proceeding or making his defense.

If reasonable doubt of sanity, must acquit. People v. McCann, 16 N. Y. 58; Wagner v. People, 2 Keyes, 684; Cole's case, 7 Abb. Pr. (N. S.) 321. See People v. Schryver, 42 N. Y. 1; Brotherton v. People, 75 id. 159; State v. Crawford, 11 Kans. 32; Polk v. State, 19 Ind. 170; Dove v. State, 3 Heisk. 348; Boswell v. Com., 20 Gratt. 860; State v. Marler, 2 Ala. 43; State v. Felter, 32 Ia. 49. See People v. Coffman, 24 Cal. 230; People v. Best, 39 id. 690. Lunatic, responsible during lucidity. Clark's case, 1. H. Rec. 176. Sanity at trial, no bearing on condition at time of offense. Freeman v. People, 4 Den. 9. Delirium from fever. People v. Beno Ville, 3 Abb. N. C. 125. Epileptic. Staudeman's case, id. 187; Jenisch's case, id. 200. Weakness of intellect no defense. Patterson v. People, 46 Barb. 625. Partial insanity. State v. Huting, 21 Mo. 464; Bovard v. State, 30 Miss. 600. Moral insanity not recognized. Chorci v. State, 31 Ga. 424; Humphreys v. State, 45 id. 190. See Scott v. Com., 4 Metc. (Ky.) 227; People v. Pine, 2 Barb. 566; Krom v. Schoonmaker, 3 id. 467; People v. Lake, 2 Park. 215. See O'Connell v. People, 62 How. Pr. 436; 89 N. Y. 377; Moett v. People, 85 N. Y. 373; Walker v. People, 88 id. 81; People v. Coleman, 1N. Y. Cr. 1; People v. Carnel, 2 Edm. S. Č. 200. Hereditary insanity. Walsh v. People, 88 N. Y. 458. Plea of not guilty raises question. Ostrander v. People, 28 Hun, 38. Momentary insanity. People v. Ross, 2 Edm. S. C. 413.

Defense of insanity. Anderson v. State, 25 Neb. 550; Conway v. State, 118 Ind. 482; Martina v. State, 105 id. 445; People v. Montgomery, 13 Abb. (N. S.) 207; Sanchez v. People, 4 Park. 535; S. C., 22 N. Y. 147; 18 How. 72; People v. Beno Ville, 3 Abb. N. C. 195: Lake v. People, 1 Park. 495; Waltz's case, 50 How. 204; Sindram v. People, 88 N. Y. 196; People v. Barber, 115 id. 475; McFarland's trial, 8 Abb. (N. S.) 57; People v. McElvaine, 36 N. Y. State Rep'r, 181; 125 N. Y. 600

Moral insanity Guiteau's case, 10 Fed. Rep'r, 161; Boswell v. State, 63 Ala. 307; 35 Am. Rep. 20; Charci v. State, 31 Ga. 424; People v. Pine, 2 Barb. 566; Krom v. Schoonmaker, 3 id. 467; State v. Potts, 100 N. C. 457; People v. Kerrigan, 73 Cal. 222.

Delirium tremens. People v. Carpenter, 102 N. Y. 250; S. C., 4 N. Y. Cr. 187; O'Brien v. People, 48 Barb. 274; Real v. People, 55 id. 551; 42 N. Y. 270; O'Connell v. People, 87 id. 377; 62 How. 436; Willis v. Com.. 22 Alb. L. J. 176; Erwin v. State, 10 Tex. App. 700; People v. Mills, 98 N. Y. 176.

Mental disease. Parsons v. State, 36 Alb. L. J. 249; 81 Ala. 577; 60 Am. Rep. 193. See 36 Alb. L. J. 221; 63 Ala. 307.

Rule of responsibility. Walker v. People, 88 N. Y. 86; 1 N. Y. Cr. 27; People v. Coleman, id. 1; Willis v. People, 32 N. Y. 715; 5 Park. 621; Wagner v. People, 4 Abb. App. Dec. 509; 2 Keyes, 684; Casey v. People, 31 Hun, 158; 2 N. Y. Cr. 187; People v. Walworth, 4 id. 355; Flanagan v. People, 52 N. Y. 467; People v. Moett, 23 Hun, 60; People v. Waltz, 3 Abb. N. C. 209; 50 How. 204; People v. Sprague, 2 Park. 43; People v. Montgomery, 13 Abb. (N. S.) 207; United States v. Faulkner, 35 Fed. Rep'r, 730; Same v. Young, 7 Cr. L. M. 732; State v. Mowry, 37 Kans. 369; People v. Hoin, 62 Cal. 120; 45 Am. Rep. 651; State v. Potts, 100 N C. 457; State v. Murray, 11 Ore. 413; State v. Bundy, 24 S. C. 439; 58 Am. Rep. 262; Kearney v. People, 11 Colo. 258; Cunningham v. State, 56 Miss. 269; 31 Am. Rep. 360; People v. McFarland, 8 Abb. (N. S.) 57.

Burden of proof. Brotherton v. People, 75 N. Y. 159; O'Connell v. People, 87 id. 377; People v. McCann, 16 id. 58; Walker v. People, 88 id. 81; People v. Cole, 7 Abb. (N. S.) 321; Casey v. People, 31 Hun, 158; Walters v. People, 32 N. Y. 147; Wagner v. People, Keyes, 684; 4 Abb. App. Dec. 509; O'Brien v. People, 48 Barb. 274; People v. Schryver, 42 N. Y. 1; People v. Robinson, 1 Park. 649; Dacey v. People, 116 Ill. 555; State v. Lawrence, 57 Me. 574; State v. Hoyt, 46 Conn. 330; State v. Crawford, 11 Kans. 32; State v. Jones, 50 N. H. 369.

Proof. People v. Hawkins, 109 N. Y. 408; People v. Barber, 115 id. 457; People v. Kemmler, 119 id. 580; Real v. People, 42 id. 282; O'Brien v. People, 36 id. 276; People v. Packenham, 115 id. 200; Plake v. State, 121 Ind. 433; State v. Alexander, 30 S. C. 74; 14 Am. St. Rep. 879; People v. Wood, 36 N. Y. State Rep'r, 952; People v. McElvaine, 121 N. Y. 256; Same v. Same, 36 N. Y. State Rep'r, 181; 125 Ñ. Y. 600.

21. Idiots, lunatics, etc., when excused from criminal liability. A person is not excused from criminal liability as an idiot, imbecile, lunatic, or insane person, except upon proof that, at the time of committing the alleged criminal act, he was laboring under such a defect of reason, as either

1. Not to know the nature and quality of the act he was doing; or 2. Not to know that the act was wrong.

Where prisoner knows act unlawful, he is responsible. Willis v. People, 32 N. Y. 715; Flanagan v. People, 52 id. 467; Wagner v. People, 4 Abb. Dec. 509; People v. Montgomery, 13 Abb. Pr. (N. S.) 207; People v. Moett, 23 Hun, 60; Smith v. Com., 1 Duvall (Ky.), 224; Kriel v. Com., 5 Bush (Ky.), 362; People v. McDonnell, 47 Cal. 134; Hopps v. People, 31 Ill. 385; Spain v. State, 47 Ga. 553; Brown v. Com., 78 Penn. St. 122; State v. Johnson, 40 Conn. 136. Knowledge must be accompanied with reason to apply it. Macfarland's trial, 8 Abb. Pr. (N. S.) 57. Influence of spirits no defense, when knowledge of right and wrong. People v. Waltz, 50 How. Pr. 204. Feigned insanity. Waltz's case, 3 Abb. N. C. 209. Insane impulse. People v. Sprague, 2 Park. 43. Phrenzy, without derangement, no defense. Pierson's case, 3 C. H. Rec. 123; Sanchez v People, 4 Park. 535; 22 N. Y. 147. Monomania. Stevens v. State, 31 Ind. 485. See People v. Kline, Edm. S. C. 13; People v. Divine, id. 594; People v. Pine, 2 Barb. 566. Opinion of non-expert as to rational character of act, competent. People v. Conroy, 2 N. Y. Cr. 565. See cases under last section,

§ 22. Intoxicated persons, intent. No act committed by a person while in a state of voluntary intoxication, shall be deemed less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act.

Voluntary intoxication furnishes no excuse. People v. Rogers, 18 N. Y. 9; People v. Smith, 2 Park. Cr. 223; People v. Robinson, id. 235; 1 id. 649; Kenny v. People, 27 How. Pr. 202; S. C., 31 N. Y. 330; Lanergan v. People, 6 Park. 209; Friery v. People, 54 Barb. 319; People v. Porter, 2 Park. 14; People v.