You are therefore commanded, forthwith to arrest the abovenamed A. B., and bring him before that court for judgment; or if the court have adjourned for the term, you are to deliver him into the custody of the sheriff of the county of Albany [or as the case may be, or in the city and county of New York "to the keeper of the city prison of the city of New York "].

"City of Albany, [or as the case may be] the

18

"By the order of the court.

§ 478. Service of the bench warrant.

day of

"E. F., Clerk."

The bench war

rant may be served in any county, in the same manner as a warrant of arrest; except that when served in another county it need not be indorsed by a magistrate of that county.

§ 479. Service of the bench warrant.-Whether the bench warrant be served in the county in which it was issued, or in another county, the officer must arrest the defendant and bring him before the court, or commit him to the officer mentioned in the warrant, according to the command thereof.

480. Arraignment of defendant for judgment.- When, the defendant appears for judgment, he must be asked by the clerk whether he have any legal cause to show why judgment should not be pronounced against him.

See Laws 1889, ch. 382, § 70.

Allocution necessary. Messner v. People, 45 N. Y. 1; Graham v. People, 63 Barb. 468; 6 Lans. 149; People v. McGeery, 6 Park. 653; Safford v. People, 1 id. 474; Hildebrand v. People, 1 Hun, 19; 3 Th. & C. 702; 56 N. Y. 394; People v. Druse, 5 N. Y. Cr. Rep. 23; 103 N. Y. 655; State v. Trezevant, 20 So. Car. 363; 47 Am. Rep. 840; Mullen v. State, 45 Ala. 43; 6 Am. Rep. 691; McCue v. Com., 78 Penn. St. 185; 21 Am. Rep. 7, note; Dodge v. People, 8 Neb. 221; Keech v. State, 15 Fla. 592; State v. Jennings, 24 Kans. 659. Contra, State v. Hoyt, 47 Conn. 518; 36 Am. Rep. 89. Not necessary except in capital cases. Bressler v. State, 117 Ill. 424; State v. Taylor, 27 La. Ann. 393; 21 Am. Rep. 561; Jones v. State, 51 Miss. 718; 24 Am. Rep. 658.

§ 481. What cause may be shown against the judgment. He may show for cause, against the judgment,

1. That he is insane; and if, in the opinion of the court, there be reasonable ground for believing him to be insane, the question of his insanity must be tried as provided by this Code.

If, upon the trial of that question, it is found that he is sane, judgment must be pronounced; but if found insane, he must be committed to the state lunatic asylum until he becomes sane; and when notice is given of that fact, he must be brought before the court for judgment;

2. That he has good cause to offer, either in arrest of judg ment, or for a new trial; in which case the court may, in its discretion, order the judgment to be deferred, and proceed to decide upon the motion in arrest of judgment or for a new trial.

See People v. Osterhout, 34 Hun, 262; People v. Menken, 3 N. Y. Cr. Rep. 443.

$482. If no sufficient cause shown, judgment to be pronounced.—If no sufficient cause be alleged, or appear to the court, why judgment should not be pronounced, it must thereupon be rendered.

§ 483. Court may summarily inquire into circumstances in aggravation or mitigation of punishment.— After a plea or verdict of guilty, in a case where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the suggestion of either party, that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily at a specified time, and upon such notice to the adverse party as it may direct.

See People v. Bradner, 107 N. Y. 12; People v. Vermilyea, 7 Cow. 108.

8484. Judgment to pay fine. The power to remit a fine imposed by any court, whether of record or not of record, imposed for any criminal offense whatever, shall only be exercised as in this section provided. Any court of record, except an inferior court of local jurisdiction, which has imposed a fine for any criminal offense, or the presiding judge thereof, or any judge authorized to preside therein, shall have power in his discretion, on five days' notice to the district attorney of the county in which such fine was imposed, to remit such fine or any portion thereof. In case of a fine imposed by a court not of record or by any inferior court of local jurisdiction for any criminal offense whatever, the county judge of the county in which the fine was imposed, and in case of a fine imposed by such a court in the city

of New York, the court of general sessions, or any judge thereof, upon five days' notice to the district attorney of the county in which such fine was imposed, shall have the same power. A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, specifying the extent of the imprisonment, which cannot exceed one day for every one dollar of the fine.

See § 718, post. People, ex rel. Stokes, v. Risley, 4 N. Y. Cr. Rep. 110; 38 Hun, 281; Matter of Hoffman, 1 N. Y. Cr. Rep. 484; Matter of Bray, 34 State Rep. 643; Matter of Bryant, 24 Fla. 278; 12 Am. St. Rep. 200, 202, note.

$485. The judgment-roll. When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had; and must, upon the service upon him of notice of appeal, immediately annex together and file the following papers, which constitute the judgment-roll:

1. A copy of the minutes of a challenge interposed by the defendant to a grand juror, and the proceedings and decision thereon;

2. The indictment and a copy of the minutes of the plea or demurrer ;

3. A copy of the minutes of a challenge, which may have been interposed to the panel of the trial jury, or to a juror who participated in the verdict, and the proceedings and decision thereon;

4. A copy of the minutes of the trial;

5. A copy of the minutes of the judgment;

6. A copy of the minutes of any proceedings upon a motion either for a new trial or in arrest of iudgment;

7. The bill of exceptions, if there be one;

8. When the judgment is of death, the clerk, in addition to the foregoing, must forthwith cause to be prepared and printed the number of copies of the stenographer's minutes and judgmentroll which are required by the rules of the court of appeals, which shall form the case and exceptions upon which the appeal shall be heard, and three copies shall also be furnished to the defendant's attorney and three to the district attorney and one to the gov ernor of the state, and the remainder distributed according to the rules of the court of appeals. The expense of preparing and

printing the minutes and judgment-roll shall be a county charge, payable out of the court fund upon the certificate of the county clerk, approved by the county judge of the county in which the conviction was had, but in the city and county of New York such expense shall be payable on the certificate of the clerk of the court in which the conviction was had, approved by the judge presiding at the trial.

See People v. Bradner, 107 N. Y. 11; People v. McQuade, 110 id. 284; 21 Abb. N. C. 448; People v. Carlton, 115 id. 618; People v. O'Neil, 47 Hun, 155; People v. O'Donnell, 46 id. 358; People v. Sharp, 45 id. 504: People v. Beckwith, 42 id. 368; People v. Osterhout, 34 id. 262; People v. Mangano, 29 id. 263; Ostrander v. People, id. 519; People v. Petrea, 30 id. 102; People v. Hovey, id. 557; People v. Bock, 1 N. Y. Cr. Rep. 393; People v. Petmecky, 2 id. 458; People v. Tyrrell, 3 id. 148; People v. Havens, id. 287; People v. Joyce, 4 id. 344, 348; People v. Schad, 58 Hun, 572; 35 State Rep. 148.

CHAPTER II.

THE EXECUTION.

SECTION 486. Authority for the execution of a judgment, except of death. 487. Commitment of the defendant.

488. Judgment of imprisonment; by whom and how executed.

489. Duty of sheriff.

490. Duty of sheriff.

§ 486. Authority for the execution of a judgment, except of death. When a judgment, except of death, has been pronounced, a certified copy of the entry thereof upon the minutes must be forthwith furnished to the officer whose duty it is to execute the judgment; and no other warrant or authority is necessary to justify or require its execution.

See People v. Bradner, 107 N. Y. 12.

Sentence void in part may be enforced as to the valid portion if properly separable and ignored as to the illegal and void part. People, ex rel. Trainor v. Baker, 89 N. Y. 460.

§ 487. Commitment of the defendant. If the judgment be imprisonment, or a fine and imprisonment until it be paid, the defendant must forthwith be committed to the custody of the proper officer, and by him detained until the judgment be complied with.

See People v. O'Neil, 47 Hun, 156.

Sentence must be definite. A sentence in the disjunctive, providing that the defendant pay a specified fine or be imprisoned for a specified period, cannot be imposed. Matter of Hoffman, 1 N. Y. Cr. Rep. 484.

A prisoner is not detained by virtue of the mittimus, but by virtue of the judgment; hence a defect in the warrant of commitment is immaterial. People, ex rel. Trainor, v. Baker, 89 N. Y. 461.

$488. Judgment of imprisonment; by whom and how executed. When the judgment is imprisonment in a county jail, or a fine and that the defendant be imprisoned until it be paid, the judgment must be executed by the sheriff of the county. In all other cases, when the sentence is imprisonment, the sheriff of the county must deliver the defendant to the proper officer, in execution of the judgment.

In case of misdemeanor, sentence begins to run from the day it is pronounced, and any time the prisoner may be detained in the county jail must be credited on his sentence. People v. Lincoln, 25 Hun, 306; 62 How. Pr. 412. See People McEwen, id. 226.

V.

§ 489. Duty of sheriff. If the judgment be imprisonment, except in a county jail, the sheriff must deliver a copy of the entry of the judgment upon the minutes of the court, together with the body of the defendant, to the keeper of the prison, in which the defendant is to be imprisoned.

See People v. O'Neil, 47 Hun, 156.

§ 490. Duty of sheriff. The sheriff or his deputy, while conveying the defendant to the proper prison, in execution of a judgment of imprisonment, has the same authority to require the assistance of any citizen of this state, in securing the defendant, and in retaking him if he escape, as if the sheriff were in his own county; and every person who refuses or neglects to assist the sheriff, when so required, is punishable, as if the sheriff were in his own county.

TITLE X.

GENERAL PROVISIONS IN RELATION TO THE PUNISHMENT OF CRIMES.

CHAPTER I. The death penalty.

II. Second offenses, habitual criminals, and special penal discipline.